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Asahi Metal Industry Co. v. Superior Court

https://supreme.justia.com/cases/federal/us/480/102/

U.S. Supreme Court Asahi Metal Indus. v. Superior Court, 480 U.S. 102 (1987) Asahi Metal Indus. Co., Ltd. v. Superior Ct. of California No. 85-693 Argued November 5, 1986 Decided February 24, 1987 480 U.S. 102 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA Syllabus Petitioner manufactures tire valve assemblies in Japan and sells them to several tire manufacturers, including Cheng Shin Rubber Industrial Co. (Cheng Shin). The sales to Cheng Shin, which amounted to at least 100,000 assemblies annually from 1978 to 1982, took place in Taiwan, to which the assemblies were shipped from Japan. Cheng Shin incorporates the assemblies into its finished tires, which it sells throughout the world, including the United States, where 20 percent of its sales take place in California. Affidavits indicated that petitioner was aware that tires incorporating its assemblies would end up in California, but, on the other hand, that it never contemplated that its sales to Cheng Shin in Taiwan would subject it to lawsuits in California. Nevertheless, in 1979, a product liability suit was brought in California Superior Court arising from a motorcycle accident allegedly caused by defects in a tire manufactured by Cheng Shin, which in turn filed a cross-complaint seeking indemnification from petitioner. Although the main suit was eventually settled and dismissed, the Superior Court denied petitioner's motion to quash the summons issued against it. The State Court of Appeal then ordered that the summons be quashed, but the State Supreme Court reversed, finding that petitioner's intentional act of placing its assemblies into the stream of commerce by delivering them to Cheng Shin in Taiwan, coupled with its awareness that some of them would eventually reach California, were sufficient to support state court jurisdiction under the Due Process Clause. Held: The judgment is reversed, and the case is remanded. 39 Cal. 3d 35 , 702 P.2d 543 , reversed and remanded. JUSTICE O'CONNOR delivered the opinion of the Court as to Parts I and II-B, concluding that the state court's exercise of personal jurisdiction over petitioner would be unreasonable and unfair, in violation of the Due Process Clause. Pp. 480 U. S. 113 -116. (a) The burden imposed on petitioner by the exercise of state court jurisdiction would be severe, since petitioner would be required not only to traverse the distance between Japan and California, but also to submit Page 480 U. S. 103 its dispute with Cheng Shin to a foreign judicial system. Such unique burdens should have significant weight in assessing the reasonableness of extending personal jurisdiction over national borders. Pp. 480 U. S. 113 -114. (b) The interests of Cheng Shin and the forum State in the exercise of jurisdiction over petitioner would be slight, and would be insufficient to justify the heavy burdens placed on petitioner. The only surviving question is whether a Japanese corporation should indemnify a Taiwanese corporation on the bases of a sale made in Taiwan and a shipment of goods from Japan to Taiwan. The facts do not demonstrate that it would be more convenient for Cheng Shin to litigate its claim in California, rather than in Taiwan or Japan, while California's interests are diminished by Cheng Shin's lack of a California residence and by the fact that the dispute is primarily about indemnity, rather than the safety of consumers. While the possibility of being sued in California might create an additional deterrent to petitioner's manufacture of unsafe assemblies, the same effect would result from pressures placed on petitioner by Cheng Shin, whose California sales would subject it to state tort law. Pp. 480 U. S. 114 -115. (c) The procedural and substantive policies of other nations whose interests are affected by the forum State's assertion of jurisdiction over an alien defendant must be taken into account, and great care must be exercised when considering personal jurisdiction in the international context. Although other nations' interests will differ from case to case, those interests, as well as the Federal Government's interest in its foreign relations policies, will always be best served by a careful inquiry into the reasonableness of the particular assertion of jurisdiction, and an unwillingness to find an alien defendant's serious burdens outweighed where, as here, the interests of the plaintiff and the forum State are minimal. P. 480 U. S. 115 . JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE SCALIA, concluded in Parts II-A and III that, even assuming, arguendo, that petitioner was aware that some of the assemblies it sold to Cheng Shin would be incorporated into tires sold in California, the facts do not establish minimum contacts sufficient to render the State's exercise of personal jurisdiction consistent with fair play and substantial justice, as required by the Due Process Clause. Since petitioner does not do business, have an office, agents, employees, or property, or advertise or solicit business in California, and since it did not create, control, or employ the distribution system that brought its assemblies to, or design them in anticipation of sales in, California, it did not engage in any action to purposely avail itself of the California market. The "substantial connection" between a defendant and the forum State necessary for a finding of minimum contacts must derive from an action purposely directed toward the forum State, and the mere placement of a product Page 480 U. S. 104 into the stream of commerce is not such an act, even if done with an awareness that the stream will sweep the product into the forum State absent additional conduct indicating an intent to serve the forum state market. Pp. 480 U. S. 108 -113, 116. JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN, agreed with the Court's conclusion in Part II-B that the exercise of jurisdiction over petitioner would not comport with "fair play and substantial justice," but disagreed with Part II-A's interpretation of the stream-of-commerce theory, and with the conclusion that petitioner did not purposely avail itself of the California market. As long as a defendant is aware that the final product is being marketed in the forum State, jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and no showing of additional conduct is required. Here, even though petitioner did not design or control the distribution system that carried its assemblies into California, its regular and extensive sales to a manufacturer it knew was making regular sales of the final product in California were sufficient to establish minimum contacts with California. Pp. 480 U. S. 116 -121. JUSTICE STEVENS, joined by JUSTICE WHITE and JUSTICE BLACKMUN, agreed that the California Supreme Court's judgment should be reversed for the reasons stated in Part II-B of the Court's opinion, but did not join Part II-A, for the reasons that (1) the Court's holding that the State's exercise of jurisdiction over petitioner would be "unreasonable and unfair" alone requires reversal, and renders any examination of minimum contacts unnecessary; and (2) even assuming that the "purposeful availment" test should be formulated here, Part II-A misapplies it to the facts of this case, since, in its dealings with Cheng Shin, petitioner has arguably engaged in a higher quantum of conduct than the mere placement of a product into the stream of commerce. Pp. 480 U. S. 121 -122. O'CONNOR, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Part I, the opinion of the Court with respect to Part II-B, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and an opinion with respect to Parts II-A and III, in which REHNQUIST, C.J., and POWELL and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 480 U. S. 116 . STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which WHITE and BLACKMUN, JJ., joined, post, p. 480 U. S. 121 . Page 480 U. S. 105 JUSTICE O'CONNOR announced the judgment of the Court and delivered the unanimous opinion of the Court with respect to Part I, the opinion of the Court with respect to Part II-B, in which THE CHIEF JUSTICE, JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE STEVENS join, and an opinion with respect to Parts II-A and III, in which THE CHIEF JUSTICE, JUSTICE POWELL, and JUSTICE SCALIA join. This case presents the question whether the mere awareness on the part of a foreign defendant that the components it manufactured, sold, and delivered outside the United States would reach the forum State in the stream of commerce constitutes "minimum contacts" between the defendant and the forum State such that the exercise of jurisdiction "does not offend traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). I On September 23, 1978, on Interstate Highway 80 in Solano County, California, Gary Zurcher lost control of his Honda motorcycle and collided with a tractor. Zurcher was severely injured, and his passenger and wife, Ruth Ann Moreno, was killed. In September 1979, Zurcher filed a product liability action in the Superior Court of the State of Page 480 U. S. 106 California in and for the County of Solano. Zurcher alleged that the 1978 accident was caused by a sudden loss of air and an explosion in the rear tire of the motorcycle, and alleged that the motorcycle tire, tube, and sealant were defective. Zurcher's complaint named, inter alia, Cheng Shin Rubber Industrial Co., Ltd. (Cheng Shin), the Taiwanese manufacturer of the tube. Cheng Shin in turn filed a cross-complaint seeking indemnification from its codefendants and from petitioner, Asahi Metal Industry Co., Ltd. (Asahi), the manufacturer of the tube's valve assembly. Zurcher's claims against Cheng Shin and the other defendants were eventually settled and dismissed, leaving only Cheng Shin's indemnity action against Asahi. California's long-arm statute authorizes the exercise of jurisdiction "on any basis not inconsistent with the Constitution of this state or of the United States." Cal.Civ.Proc.Code Ann. § 410.10 (West 1973). Asahi moved to quash Cheng Shin's service of summons, arguing the State could not exert jurisdiction over it consistent with the Due Process Clause of the Fourteenth Amendment. In relation to the motion, the following information was submitted by Asahi and Cheng Shin. Asahi is a Japanese corporation. It manufactures tire valve assemblies in Japan and sells the assemblies to Cheng Shin, and to several other tire manufacturers, for use as components in finished tire tubes. Asahi's sales to Cheng Shin took place in Taiwan. The shipments from Asahi to Cheng Shin were sent from Japan to Taiwan. Cheng Shin bought and incorporated into its tire tubes 150,000 Asahi valve assemblies in 1978; 500,000 in 1979; 500,000 in 1980;100,000 in 1981; and 100,000 in 1982. Sales to Cheng Shin accounted for 1.24 percent of Asahi's income in 1981 and 0.44 percent in 1982. Cheng Shin alleged that approximately 20 percent of its sales in the United States are in California. Cheng Shin purchases valve assemblies from other suppliers as well, and sells finished tubes throughout the world. Page 480 U. S. 107 In 1983, an attorney for Cheng Shin conducted an informal examination of the valve stems of the tire tubes sold in one cycle store in Solano County. The attorney declared that, of the approximately 115 tire tubes in the store, 97 were purportedly manufactured in Japan or Taiwan, and of those 97, 21 valve stems were marked with the circled letter "A", apparently Asahi's trademark. Of the 21 Asahi valve stems, 12 were incorporated into Cheng Shin tire tubes. The store contained 41 other Cheng Shin tubes that incorporated the valve assemblies of other manufacturers. Declaration of Kenneth B. Shepard in Opposition to Motion to Quash Subpoena, App. to Brief for Respondent 5-6. An affidavit of a manager of Cheng Shin whose duties included the purchasing of component parts stated: "In discussions with Asahi regarding the purchase of valve stem assemblies, the fact that my Company sells tubes throughout the world and specifically the United States has been discussed. I am informed and believe that Asahi was fully aware that valve stem assemblies sold to my Company and to others would end up throughout the United States and in California." 39 Cal. 3d 35 , 48, n. 4, 702 P.2d 543 , 549-550, n. 4 (1985). An affidavit of the president of Asahi, on the other hand, declared that Asahi "has never contemplated that its limited sales of tire valves to Cheng Shin in Taiwan would subject it to lawsuits in California." Ibid. The record does not include any contract between Cheng Shin and Asahi. Tr. of Oral Arg. 24. Primarily on the basis of the above information, the Superior Court denied the motion to quash summons, stating: "Asahi obviously does business on an international scale. It is not unreasonable that they defend claims of defect in their product on an international scale." Order Denying Motion to Quash Summons, Zurcher v. Dunlop Tire & Rubber Co., No. 76180 (Super. Ct., Solano County, Cal., Apr. 20, 1983). The Court of Appeal of the State of California issued a peremptory writ of mandate commanding the Superior Court to quash service of summons. The court concluded that "it Page 480 U. S. 108 would be unreasonable to require Asahi to respond in California solely on the basis of ultimately realized foreseeability that the product into which its component was embodied would be sold all over the world, including California." App. to Pet. for Cert. B5-B6. The Supreme Court of the State of California reversed and discharged the writ issued by the Court of Appeal. 39 Cal. 3d 35 , 702 P.2d 543 (1985). The court observed: "Asahi has no offices, property or agents in California. It solicits no business in California, and has made no direct sales [in California]." Id. at 48, 702 P.2d at 549. Moreover, "Asahi did not design or control the system of distribution that carried its valve assemblies into California." Id. at 49, 702 P.2d at 549. Nevertheless, the court found the exercise of jurisdiction over Asahi to be consistent with the Due Process Clause. It concluded that Asahi knew that some of the valve assemblies sold to Cheng Shin would be incorporated into tire tubes sold in California, and that Asahi benefited indirectly from the sale in California of products incorporating its components. The court considered Asahi's intentional act of placing its components into the stream of commerce -- that is, by delivering the components to Cheng Shin in Taiwan -- coupled with Asahi's awareness that some of the components would eventually find their way into California, sufficient to form the basis for state court jurisdiction under the Due Process Clause. We granted certiorari, 475 U.S. 1044 (1986), and now reverse. II B The Due Process Clause of the Fourteenth Amendment limits the power of a state court to exert personal jurisdiction over a nonresident defendant. "[T]he constitutional touchstone" of the determination whether an exercise of personal jurisdiction comports with due process "remains whether the defendant purposefully established minimum contacts' in the Page 480 U. S. 109 forum State." Burger King Corp. v. Rudzewicz, 471 U. S. 462 , 471 U. S. 474 (1985), quoting International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 316 . Most recently, we have reaffirmed the oft-quoted reasoning of Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 (1958), that minimum contacts must have a basis in "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King, 471 U.S. at 471 U. S. 475 . "Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a 'substantial connection' with the forum State." Ibid., quoting McGee v. International Life Insurance Co., 355 U. S. 220 , 355 U. S. 223 (1957) (emphasis in original). Applying the principle that minimum contacts must be based on an act of the defendant, the Court in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980), rejected the assertion that a consumer's unilateral act of bringing the defendant's product into the forum State was a sufficient constitutional basis for personal jurisdiction over the defendant. It had been argued in World-Wide Volkswagen that, because an automobile retailer and its wholesale distributor sold a product mobile by design and purpose, they could foresee being haled into court in the distant States into which their customers might drive. The Court rejected this concept of foreseeability as an insufficient basis for jurisdiction under the Due Process Clause. Id. at 444 U. S. 295 -296. The Court disclaimed, however, the idea that "foreseeability is wholly irrelevant" to personal jurisdiction, concluding that "[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." Id. at 444 U. S. 297 -298 (citation omitted). The Court reasoned: Page 480 U. S. 110 "When a corporation 'purposefully avails itself of the privilege of conducting activities within the forum State,' Hanson v. Denckla , 357 U.S. [235,] 357 U.S. 253 [(1958)], it has clear notice that it is subject to suit there, and can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State. Hence, if the sale of a product of a manufacturer or distributor . . . is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owners or to others." Id. at 444 U. S. 297 . In World-Wide Volkswagen itself, the state court sought to base jurisdiction not on any act of the defendant, but on the foreseeable unilateral actions of the consumer. Since World-Wide Volkswagen, lower courts have been confronted with cases in which the defendant acted by placing a product in the stream of commerce, and the stream eventually swept defendant's product into the forum State, but the defendant did nothing else to purposefully avail itself of the market in the forum State. Some courts have understood the Due Process Clause, as interpreted in World-Wide Volkswagen, to allow an exercise of personal jurisdiction to be based on no more than the defendant's act of placing the product in the stream of commerce. Other courts have understood the Due Process Clause and the above-quoted language in World-Wide Volkswagen to require the action of the defendant to be more purposefully directed at the forum State than the mere act of placing a product in the stream of commerce. The reasoning of the Supreme Court of California in the present case illustrates the former interpretation of World-Wide Volkswagen. The Supreme Court of California held that, because the stream of commerce eventually brought Page 480 U. S. 111 some valves Asahi sold Cheng Shin into California, Asahi's awareness that its valves would be sold in California was sufficient to permit California to exercise jurisdiction over Asahi consistent with the requirements of the Due Process Clause. The Supreme Court of California's position was consistent with those courts that have held that mere foreseeability or awareness was a constitutionally sufficient basis for personal jurisdiction if the defendant's product made its way into the forum State while still in the stream of commerce. See Bean Dredging Corp. v. Dredge Technology Corp., 744 F.2d 1081 (CA5 1984); Hedrick v. Daiko Shoji Co., 715 F.2d 1355 (CA9 1983). Other courts, however, have understood the Due Process Clause to require something more than that the defendant was aware of its product's entry into the forum State through the stream of commerce in order for the State to exert jurisdiction over the defendant. In the present case, for example, the State Court of Appeal did not read the Due Process Clause, as interpreted by World-Wide Volkswagen, to allow "mere foreseeability that the product will enter the forum state [to] be enough by itself to establish jurisdiction over the distributor and retailer." App. to Pet. for Cert. B5. In Humble v. Toyota Motor Co., 727 F.2d 709 (CA8 1984), an injured car passenger brought suit against Arakawa Auto Body Company, a Japanese corporation that manufactured car seats for Toyota. Arakawa did no business in the United States; it had no office, affiliate, subsidiary, or agent in the United States; it manufactured its component parts outside the United States and delivered them to Toyota Motor Company in Japan. The Court of Appeals, adopting the reasoning of the District Court in that case, noted that, although it "does not doubt that Arakawa could have foreseen that its product would find its way into the United States," it would be "manifestly unjust" to require Arakawa to defend itself in the United States. Id. at 710-711, quoting 578 F. Supp. 530 , 533 (ND Iowa 1982). See also Hutson v. Fehr Bros., Page 480 U. S. 112 Inc., 584 F.2d 833 (CA8 1978); see generally Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 299 (CA3 1985) (collecting "stream of commerce" cases in which the "manufacturers involved had made deliberate decisions to market their products in the forum state"). We now find this latter position to be consonant with the requirements of due process. The "substantial connection," Burger King, 471 U.S. at 471 U. S. 475 ; McGee, 355 U.S. at 355 U. S. 223 , between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. Burger King, supra, at 471 U. S. 476 ; Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , 465 U. S. 774 (1984). The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State. Additional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State, for example, designing the product for the market in the forum State, advertising in the forum State, establishing channels for providing regular advice to customers in the forum State, or marketing the product through a distributor who has agreed to serve as the sales agent in the forum State. But a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State. Assuming, arguendo, that respondents have established Asahi's awareness that some of the valves sold to Cheng Shin would be incorporated into tire tubes sold in California, respondents have not demonstrated any action by Asahi to purposefully avail itself of the California market. Asahi does not do business in California. It has no office, agents, employees, or property in California. It does not advertise or otherwise solicit business in California. It did not create, control, or employ the distribution system that brought its valves to California. Cf. Hicks v. Kawasaki Heavy Industries, Page 480 U. S. 113 452 F. Supp. 130 (MD Pa. 1978). There is no evidence that Asahi designed its product in anticipation of sales in California. Cf. Rockwell International Corp. v. Costruzioni Aeronautiche Giovanni Agusta, 553 F. Supp. 328 (ED Pa. 1982). On the basis of these facts, the exertion of personal jurisdiction over Asahi by the Superior Court of California exceeds the limits of due process. B The strictures of the Due Process Clause forbid a state court to exercise personal jurisdiction over Asahi under circumstances that would offend " traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. at 326 U. S. 316 , quoting Milliken v. Meyer, 311 U.S. at 311 U. S. 463 . We have previously explained that the determination of the reasonableness of the exercise of jurisdiction in each case will depend on an evaluation of several factors. A court must consider the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief. It must also weigh in its determination "the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies." World-Wide Volkswagen, 444 U.S. at 444 U. S. 292 (citations omitted). Page 480 U. S. 114 A consideration of these factors in the present case clearly reveals the unreasonableness of the assertion of jurisdiction over Asahi, even apart from the question of the placement of goods in the stream of commerce. Certainly the burden on the defendant in this case is severe. Asahi has been commanded by the Supreme Court of California not only to traverse the distance between Asahi's headquarters in Japan and the Superior Court of California in and for the County of Solano, but also to submit its dispute with Cheng Shin to a foreign nation's judicial system. The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders. When minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant. In the present case, however, the interests of the plaintiff and the forum in California's assertion of jurisdiction over Asahi are slight. All that remains is a claim for indemnification asserted by Cheng Shin, a Tawainese corporation, against Asahi. The transaction on which the indemnification claim is based took place in Taiwan; Asahi's components were shipped from Japan to Taiwan. Cheng Shin has not demonstrated that it is more convenient for it to litigate its indemnification claim against Asahi in California, rather than in Taiwan or Japan. Because the plaintiff is not a California resident, California's legitimate interests in the dispute have considerably diminished. The Supreme Court of California argued that the State had an interest in "protecting its consumers by ensuring that foreign manufacturers comply with the state's safety standards." 39 Cal. 3d at 49, 702 P.2d at 550. The State Supreme Court's definition of California's interest, however, was overly broad. The dispute between Cheng Shin and Asahi is primarily about indemnification, rather than safety Page 480 U. S. 115 standards. Moreover, it is not at all clear at this point that California law should govern the question whether a Japanese corporation should indemnify a Taiwanese corporation on the basis of a sale made in Taiwan and a shipment of goods from Japan to Taiwan. Phillips Petroleum Co. v. Shutts, 472 U. S. 797 , 472 U. S. 821 -822 (1985); Allstate Insurance Co. v. Hague, 449 U. S. 302 , 449 U. S. 312 -313 (1981). The possibility of being haled into a California court as a result of an accident involving Asahi's components undoubtedly creates an additional deterrent to the manufacture of unsafe components; however, similar pressures will be placed on Asahi by the purchasers of its components as long as those who use Asahi components in their final products, and sell those products in California, are subject to the application of California tort law. World-Wide Volkswagen also admonished courts to take into consideration the interests of the "several States," in addition to the forum State, in the efficient judicial resolution of the dispute and the advancement of substantive policies. In the present case, this advice calls for a court to consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction by the California court. The procedural and substantive interests of other nations in a state court's assertion of jurisdiction over an alien defendant will differ from case to case. In every case, however, those interests, as well as the Federal Government's interest in its foreign relations policies, will be best served by a careful inquiry into the reasonableness of the assertion of jurisdiction in the particular case, and an unwillingness to find the serious burdens on an alien defendant outweighed by minimal interests on the part of the plaintiff or the forum State. "Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field." United States v. First National City Bank, 379 U. S. 378 , 379 U. S. 404 (1965) (Harlan, J., dissenting). See Born, Reflections on Judicial Jurisdiction in International Cases, to be published in 17 Ga.J.Int'l & Comp.L. 1 (1987). Page 480 U. S. 116 Considering the international context, the heavy burden on the alien defendant, and the slight interests of the plaintiff and the forum State, the exercise of personal jurisdiction by a California court over Asahi in this instance would be unreasonable and unfair. III Because the facts of this case do not establish minimum contacts such that the exercise of personal jurisdiction is consistent with fair play and substantial justice, the judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. * We have no occasion here to determine whether Congress could, consistent with the Due Process Clause of the Fifth Amendment, authorize federal court personal jurisdiction over alien defendants based on the aggregate of national contacts, rather than on the contacts between the defendant and the State in which the federal court sits. See Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 293-295 (CA3 1985); DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 283 (CA3 1981); see also Born, Reflections on Judicial Jurisdiction in International Cases, to be published in 17 Ga. J. Int'l & Comp. L. 1 (1987); Lilly, Jurisdiction Over Domestic and Alien Defendants, 69 Va.L.Rev. 85, 127-145 (1983). JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part and concurring in the judgment. I do not agree with the interpretation in Part II-A of the stream-of-commerce theory, nor with the conclusion that Asahi did not "purposely avail itself of the California market." Ante at 480 U. S. 112 . I do agree, however, with the Court's conclusion in Part II-B that the exercise of personal jurisdiction over Asahi in this case would not comport with "fair play and substantial justice," International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 320 (1945). This is one of those rare cases in which "minimum requirements inherent in the concept of 'fair play and substantial justice' . . . defeat the reasonableness of jurisdiction even [though] the defendant has purposefully engaged in forum activities." Burger King Corp. v. Rudzewicz, 471 U. S. 462 , 471 U. S. 477 -478 (1985). I therefore join Parts I and II-B of the Court's opinion, and write separately to explain my disagreement with Part II-A. Part II-A states that "a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward Page 480 U. S. 117 the forum State." Ante at 480 U. S. 112 . Under this view, a plaintiff would be required to show "[a]dditional conduct" directed toward the forum before finding the exercise of jurisdiction over the defendant to be consistent with the Due Process Clause. Ibid. I see no need for such a showing, however. The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise. Nor will the litigation present a burden for which there is no corresponding benefit. A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State's laws that regulate and facilitate commercial activity. These benefits accrue regardless of whether that participant directly conducts business in the forum State, or engages in additional conduct directed toward that State. Accordingly, most courts and commentators have found that jurisdiction premised on the placement of a product into the stream of commerce is consistent with the Due Process Clause, and have not required a showing of additional conduct. [ Footnote 1 ] Page 480 U. S. 118 The endorsement in Part II-A of what appears to be the minority view among Federal Courts of Appeals [ Footnote 2 ] represents a marked retreat from the analysis in World-Wide Volkswagen v. Woodson, 444 U. S. 286 (1980). In that case, "respondents [sought] to base jurisdiction on one isolated occurrence and whatever inferences can be drawn therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma." Id. at 444 U. S. 295 . The Court held that the possibility of an accident in Oklahoma, while to some extent foreseeable in light of the inherent mobility of the automobile, was not enough to establish Page 480 U. S. 119 minimum contacts between the forum State and the retailer or distributor. Id. at 444 U. S. 295 -296. The Court then carefully explained: "[T]his is not to say, of course, that foreseeability is wholly irrelevant. But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into Court there." Id. at 444 U. S. 297 . The Court reasoned that, when a corporation may reasonably anticipate litigation in a particular forum, it cannot claim that such litigation is unjust or unfair, because it "can act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to consumers, or, if the risks are too great, severing its connection with the State." Ibid. To illustrate the point, the Court contrasted the foreseeability of litigation in a State to which a consumer fortuitously transports a defendant's product (insufficient contacts) with the foreseeability of litigation in a State where the defendant's product was regularly sold (sufficient contacts). The Court stated: "Hence, if the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased Page 480 U. S. 120 by consumers in the forum State." Id. at 444 U. S. 297 -298 (emphasis added). The Court concluded its illustration by referring to Gray v. American Radiator & Standard Sanitary Corp., 22 Ill. 2d 432 , 176 N.E.2d 761 (1961), a well known stream-of-commerce case in which the Illinois Supreme Court applied the theory to assert jurisdiction over a component parts manufacturer that sold no components directly in Illinois, but did sell them to a manufacturer who incorporated them into a final product that was sold in Illinois. 444 U.S. at 444 U. S. 297 -298. The Court in World-Wide Volkswagen thus took great care to distinguish "between a case involving goods which reach a distant State through a chain of distribution and a case involving goods which reach the same State because a consumer . . . took them there." Id. at 444 U. S. 306 -307 (BRENNAN, J., dissenting). [ Footnote 3 ] The California Supreme Court took note of this distinction, and correctly concluded that our holding in World-Wide Volkswagen preserved the stream-of-commerce theory. See App. to Pet. for Cert. C-9, and n. 3, C-13-C-15; cf. Comment, Federalism, Due Process, and Minimum Contacts: World-Wide Volkswagen Corp v. Woodson, 80 Colum.L.Rev. 1341, 1359-1361, and nn. 140-146 (1980). Page 480 U. S. 121 In this case, the facts found by the California Supreme Court support its finding of minimum contacts. The court found that, "[a]lthough Asahi did not design or control the system of distribution that carried its valve assemblies into California, Asahi was aware of the distribution system's operation, and it knew that it would benefit economically from the sale in California of products incorporating its components." App. to Pet. for Cert. C-11. [ Footnote 4 ] Accordingly, I cannot join the determination in Part II-A that Asahi's regular and extensive sales of component parts to a manufacturer it knew was making regular sales of the final product in California is insufficient to establish minimum contacts with California. [ Footnote 1 ] See, e.g., Bean Dredging Corp. v. Dredge Technology Corp., 744 F.2d 1081 (CA5 1984); Hedrick v. Daiko Shoji Co., 715 F.2d 1355 (CA9 1983); Nelson v. Park Industries, Inc., 717 F.2d 1120, 1126 (CA7 1983), cert. denied, 465 U.S. 1024 (1984); Stabilisierungsfonds fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 207 U.S.App.D.C. 375, 378, 647 F.2d 200, 203 (1981); Poyner v. Erma Werke Gmbh, 618 F.2d 1186, 1190-1191 (CA6), cert. denied, 449 U.S. 841 (1980); cf. Fidelity & Casualty Co. of New York v. Philadelphia Resins Corp., 766 F.2d 440 (CA10 1985) (endorsing stream-of-commerce theory, but finding it inapplicable in instant case), cert. denied, 474 U.S. 1082 (1986); Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737 (CA2 1985) (noting potential applicability of stream-of-commerce theory, but remanding for further factual findings). See generally Currie, The Growth of the Long-Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.Law Forum 533, 546-560 (approving and tracing development of the stream-of-commerce theory); C. Wright & A. Miller, Federal Practice and Procedure § 1069, pp. 259-261 (1969) (recommending in effect a stream-of-commerce approach); Von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1121, 1168-1172 (1966) (same). [ Footnote 2 ] The Court of Appeals for the Eighth Circuit appears to be the only Court of Appeals to have expressly adopted a narrow construction of the stream-of-commerce theory analogous to the one articulated in Part II-A today, although the Court of Appeals for the Eleventh Circuit has implicitly adopted it. See Humble v. Toyota Motor Co., Ltd., 727 F.2d 709 (CA8 1984); Banton Industries, Inc. v. Dimatic Die & Tool Co., 801 F.2d 1283 (CA11 1986). Two other Courts of Appeals have found the theory inapplicable when only a single sale occurred in the forum State, but do not appear committed to the interpretation of the theory that the Court adopts today. E.g., Chung v. NANA Development Corp., 783 F.2d 1124 (CA4), cert. denied, 479 U.S. 948 (1986); Dalmau Rodriguez v. Hughes Aircraft Co., 781 F.2d 9 (CA1 1986). Similarly, the Court of Appeals for the Third Circuit has not interpreted the theory as JUSTICE O'CONNOR's opinion has, but has rejected stream-of-commerce arguments for jurisdiction when the relationship between the distributor and the defendant "remains in dispute" and "evidence indicating that [defendant] could anticipate either use of its product or litigation in [the forum State] is totally lacking," Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 298, 300, n. 13, cert. denied, 474 U.S. 980 (1985), and when the defendant's product was not sold in the forum State and the defendant "did not take advantage of an indirect marketing scheme," DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 285, cert. denied, 454 U.S. 1085 (1981). [ Footnote 3 ] In dissent, I argued that the distinction was without constitutional significance, because, in my view, the foreseeability that a customer would use a product in a distant State was a sufficient basis for jurisdiction. 444 U.S. at 444 U. S. 306 -307, and nn. 11, 12. See also id. at 444 U. S. 315 (MARSHALL, J., dissenting) ("I cannot agree that jurisdiction is necessarily lacking if the product enters the State not through the channels of distribution, but in the course of its intended use by the consumer"); id. at 444 U. S. 318 -319 (BLACKMUN, J., dissenting) ("[F]oreseeable use in another State seems to me little different from foreseeable resale in another State"). But I do not read the decision in World-Wide Volkswagen to establish a per se rule against the exercise of jurisdiction where the contacts arise from a consumer's use of the product in a given State, but only a rule against jurisdiction in cases involving "one isolated occurrence [of consumer use, amounting to] . . . the fortuitous circumstance. . . ." Id. at 444 U. S. 295 . See Hedrick v. Daiko Shoji Co., 715 F.2d at 1358-1359. [ Footnote 4 ] Moreover, the Court found that "at least 18 percent of the tubes sold in a particular California motorcycle supply shop contained Asahi valve assemblies," App. to Pet. for Cert. C-11, n. 5, and that Asahi had an ongoing business relationship with Cheng Shin involving average annual sales of hundreds of thousands of valve assemblies, id. at C-2. JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE BLACKMUN join, concurring in part and concurring in the judgment. The judgment of the Supreme Court of California should be reversed for the reasons stated in Part II-B of the Court's opinion. While I join Parts I and II-B, I do not join Part II-A for two reasons. First, it is not necessary to the Court's decision. An examination of minimum contacts is not always necessary to determine whether a state court's assertion of personal jurisdiction is constitutional. See Burger King Corp. v. Rudzewicz, 471 U. S. 462 , 471 U. S. 476 -478 (1985). Part II-B establishes, after considering the factors set forth in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 292 (1980), that California's exercise of jurisdiction over Asahi in this case would be "unreasonable and unfair." Ante at 480 U. S. 116 . This finding alone requires reversal; this case fits within the rule that "minimum requirements inherent in the concept of 'fair play and substantial justice' may defeat Page 480 U. S. 122 the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities." Burger King, 471 U.S. at 471 U. S. 477 -478 (quoting International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 320 (1945)). Accordingly, I see no reason in this case for the plurality to articulate "purposeful direction" or any other test as the nexus between an act of a defendant and the forum State that is necessary to establish minimum contacts. Second, even assuming that the test ought to be formulated here, Part II-A misapplies it to the facts of this case. The plurality seems to assume that an unwavering line can be drawn between "mere awareness" that a component will find its way into the forum State and "purposeful availment" of the forum's market. Ante at 480 U. S. 112 . Over the course of its dealings with Cheng Shin, Asahi has arguably engaged in a higher quantum of conduct than "[t]he placement of a product into the stream of commerce, without more. . . ." Ibid. Whether or not this conduct rises to the level of purposeful availment requires a constitutional determination that is affected by the volume, the value, and the hazardous character of the components. In most circumstances I would be inclined to conclude that a regular course of dealing that results in deliveries of over 100,000 units annually over a period of several years would constitute "purposeful availment," even though the item delivered to the forum State was a standard product marketed throughout the world.

The Supreme Court of the United States ruled that a California court could not exercise personal jurisdiction over a Japanese company, Asahi, in a product liability case. The court considered the burden on the foreign defendant, the interests of the plaintiff and the forum state, and the lack of purposeful availment by the defendant of the forum state's market. The judgment of the California Supreme Court was reversed, and the case was sent back for further proceedings.

Lawsuits & Legal Procedures

Merrell Dow Pharmaceuticals, Inc. v. Thompson

https://supreme.justia.com/cases/federal/us/478/804/

U.S. Supreme Court Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804 (1986) Merrell Dow Pharmaceuticals, Inc. v. Thompson No. 85-619 Argued April 28, 1986 Decided July 7, 1986 478 U.S. 804 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus Respondent residents of Canada and respondent residents of Scotland filed separate complaints in an Ohio state court against petitioner Ohio corporation, the manufacturer and distributor of the drug Bendectin, alleging that children were born with deformities as a result of their mothers' ingestion of the drug during pregnancy. Damages were sought on common law theories of negligence, breach of warranty, strict liability, fraud, and gross negligence, and also on the ground that the alleged "misbranding" of the drug in violation of the Federal Food, Drug, and Cosmetic Act (FDCA) represented a "rebuttable presumption" of negligence and the "proximate cause" of the injuries. Petitioner filed a petition for removal of the actions to Federal District Court, alleging that they were founded, in part, on a claim "arising under the laws of the United States." After removal, the cases were consolidated, and the Federal District Court denied respondents' motion to remand to the state court and granted petitioner's motion to dismiss on forum non conveniens grounds. The Court of Appeals reversed. Noting that the FDCA does not create or imply a private right of action, the court held that the causes of action did not arise under federal law, and therefore were improperly removed to federal court. Held: A violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private federal cause of action for the violation, does not state a claim "arising under the Constitution, laws, or treaties of the United States" within the meaning of 28 U.S.C. § 1331. Thus, here, determining the question of removal jurisdiction by reference to the "well-pleaded complaint," and assuming that there is no federal cause of action for FDCA violations, the cases were improperly removed to the Federal District Court. The assumed congressional determination to preclude federal private remedies for violations of the FDCA is tantamount to a congressional conclusion that a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal question jurisdiction. The asserted federal interest in federal review and the novelty of the question whether the FDCA applies to sales in Canada Page 478 U. S. 805 and Scotland are not sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. 766 F.2d 1005, affirmed. Pp. 478 U. S. 807 -817. STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined, post, p. 478 U. S. 818 . JUSTICE STEVENS delivered the opinion of the Court. The question presented is whether the incorporation of a federal standard in a state law private action, when Congress has intended that there not be a federal private action for violations of that federal standard, makes the action one "arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331. I The Thompson respondents are residents of Canada, and the MacTavishes reside in Scotland. They filed virtually identical complaints against petitioner, a corporation, that manufactures and distributes the drug Bendectin. The complaints were filed in the Court of Common Pleas in Hamilton County, Ohio. Each complaint alleged that a child was born with multiple deformities as a result of the mother's ingestion of Bendectin during pregnancy. In five of the six counts, the recovery of substantial damages was requested on common law theories of negligence, breach of warranty, strict liability, fraud, and gross negligence. In Count IV, respondents alleged that the drug Bendectin was "misbranded" in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. (1982 ed. and Supp. III), because its labeling did not provide adequate Page 478 U. S. 806 warning that its use was potentially dangerous. Paragraph 26 alleged that the violation of the FDCA "in the promotion" of Bendectin "constitutes a rebuttable presumption of negligence." Paragraph 27 alleged that the "violation of said federal statutes directly and proximately caused the injuries suffered" by the two infants. App. 22, 32. Petitioner filed a timely petition for removal from the state court to the Federal District Court, alleging that the action was "founded, in part, on an alleged claim arising under the laws of the United States." [ Footnote 1 ] After removal, the two cases were consolidated. Respondents filed a motion to remand to the state forum on the ground that the federal court lacked subject matter jurisdiction. Relying on our decision in Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), the District Court held that Count IV of the complaint alleged a cause of action arising under federal law, and denied the motion to remand. It then granted petitioner's motion to dismiss on forum non conveniens grounds. The Court of Appeals for the Sixth Circuit reversed. 766 F.2d 1005 (1985). After quoting one sentence from the concluding paragraph in our recent opinion in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1 (1983), [ Footnote 2 ] and noting "that the FDCA does not create or imply Page 478 U. S. 807 a private right of action for individuals injured as a result of violations of the Act," it explained: "Federal question jurisdiction would, thus, exist only if plaintiffs' right to relief depended necessarily on a substantial question of federal law. Plaintiffs' causes of action referred to the FDCA merely as one available criterion for determining whether Merrell Dow was negligent. Because the jury could find negligence on the part of Merrell Dow without finding a violation of the FDCA, the plaintiffs' causes of action did not depend necessarily upon a question of federal law. Consequently, the causes of action did not arise under federal law and, therefore, were improperly removed to federal court." 766 F.2d at 1006. We granted certiorari, 474 U.S. 1004 (1985), and we now affirm. II Article III of the Constitution gives the federal courts power to hear cases "arising under" federal statutes. [ Footnote 3 ] That grant of power, however, is not self-executing, and it was not until the Judiciary Act of 1875 that Congress gave the federal courts general federal question jurisdiction. [ Footnote 4 ] Although the constitutional meaning of "arising under" may extend to all cases in which a federal question is "an ingredient" of the action, Osborn v. Bank of the United States , 9 Wheat. 738, 22 U. S. 823 (1824), we have long construed the statutory grant of federal question Jurisdiction as conferring a more limited power. Page 478 U. S. 808 Verlinden B.V. v. Central Bank of Nigeria, 461 U. S. 480 , 461 U. S. 494 -495 (1983); Romero v. International Terminal Operating Co., 358 U. S. 354 , 358 U. S. 379 (1959). Under our longstanding interpretation of the current statutory scheme, the question whether a claim "arises under" federal law must be determined by reference to the "well-pleaded complaint." Franchise Tax Board, 463 U.S. at 463 U. S. 9 -10. A defense that raises a federal question is inadequate to confer federal jurisdiction. Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908). Since a defendant may remove a case only if the claim could have been brought in federal court, 28 U.S.C. § 1441(b), moreover, the question for removal jurisdiction must also be determined by reference to the "well-pleaded complaint." As was true in Franchise Tax Board, supra, the propriety of the removal in this case thus turns on whether the case falls within the original "federal question" jurisdiction of the federal courts. There is no "single, precise definition" of that concept; rather, "the phrase 'arising under' masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system." Id. at 463 U. S. 8 . This much, however, is clear. The "vast majority" of cases that come within this grant of jurisdiction are covered by Justice Holmes' statement that a " suit arises under the law that creates the cause of action.'" Id. at 463 U. S. 8 -9, quoting American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257 , 241 U. S. 260 (1916). Thus, the vast majority of cases brought under the general federal question jurisdiction of the federal courts are those in which federal law creates the cause of action. We have, however, also noted that a case may arise under federal law "where the vindication of a right under state law necessarily turned on some construction of federal law." Page 478 U. S. 809 Franchise Tax Board, 463 U.S. at 463 U. S. 9 . [ Footnote 5 ] Our actual holding in Franchise Tax Board demonstrates that this statement must be read with caution; the central issue presented in that case turned on the meaning of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (1982 ed. and Supp. III), but we nevertheless concluded that federal jurisdiction was lacking. This case does not pose a federal question of the first kind; respondents do not allege that federal law creates any of the causes of action that they have asserted. [ Footnote 6 ] This case thus poses what Justice Frankfurter called the "litigation-provoking problem," Textile Workers v. Lincoln Mills , 353 Page 478 U. S. 810 U.S. 448, 353 U. S. 470 (1957) (dissenting opinion) -- the presence of a federal issue in a state-created cause of action. In undertaking this inquiry into whether jurisdiction may lie for the presence of a federal issue in a nonfederal cause of action, it is, of course, appropriate to begin by referring to our understanding of the statute conferring federal question jurisdiction. We have consistently emphasized that, in exploring the outer reaches of § 1331, determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system. "If the history of the interpretation of judiciary legislation teaches us anything, it teaches the duty to reject treating such statutes as a wooden set of self-sufficient words. The Act of 1875 is broadly phrased, but it has been continuously construed and limited in the light of the history that produced it, the demands of reason and coherence, and the dictates of sound judicial policy which have emerged from the Act's function as a provision in the mosaic of federal judiciary legislation." Romero v. International Terminal Operating Co., 358 U.S. at 358 U. S. 379 . In Franchise Tax Board, we forcefully reiterated this need for prudence and restraint in the jurisdictional inquiry: "We have always interpreted what Skelly Oil [Co. v. Phillips Petroleum Co., 339 U. S. 667 , 339 U. S. 673 (1950)] called 'the current of jurisdictional legislation since the Act of March 3, 1875' . . . with an eye to practicality and necessity." 463 U.S. at 463 U. S. 20 . In this case, both parties agree with the Court of Appeals' conclusion that there is no federal cause of action for FDCA violations. For purposes of our decision, we assume that this is a correct interpretation of the FDCA. Thus, as the case comes to us, it is appropriate to assume that, under the settled framework for evaluating whether a federal cause of action lies, some combination of the following factors is present: (1) the plaintiffs are not part of the class for whose special benefit the statute was passed; (2) the indicia of legislative Page 478 U. S. 811 intent reveal no congressional purpose to provide a private cause of action; (3) a federal cause of action would not further the underlying purposes of the legislative scheme; and (4) the respondents' cause of action is a subject traditionally relegated to state law. [ Footnote 7 ] In short, Congress did not intend a private federal remedy for violations of the statute that it enacted. This is the first case in which we have reviewed this type of jurisdictional claim in light of these factors. That this is so is not surprising. The development of our framework for determining whether a private cause of action exists has proceeded only in the last 11 years, and its inception represented a significant change in our approach to congressional silence on the provision of federal remedies. [ Footnote 8 ] The recent character of that development does not, however, diminish its importance. Indeed, the very reasons for the development of the modern implied remedy doctrine -- the "increased complexity of federal legislation and the increased volume of federal litigation," as well as "the desirability of a more careful scrutiny of legislative intent," Merrell Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 377 (1982) (footnote omitted) -- are precisely the kind of considerations that should inform the concern for "practicality and necessity" that Franchise Tax Board advised for the construction of § 1331 when jurisdiction is asserted Page 478 U. S. 812 because of the presence of a federal issue in a state cause of action. The significance of the necessary assumption that there is no federal private cause of action thus cannot be overstated. For the ultimate import of such a conclusion, as we have repeatedly emphasized, is that it would flout congressional intent to provide a private federal remedy for the violation of the federal statute. [ Footnote 9 ] We think it would similarly flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal question jurisdiction and provide remedies for violations of that federal statute solely because the violation of the federal statute is said to be a "rebuttable presumption" or a "proximate cause" under state law, rather than a federal action under federal law. [ Footnote 10 ] Page 478 U. S. 813 III Petitioner advances three arguments to support its position that, even in the face of this congressional preclusion of a federal cause of action for a violation of the federal statute, federal question jurisdiction may lie for the violation of the federal statute as an element of a state cause of action. First, petitioner contends that the case represents a straightforward application of the statement in Franchise Tax Board that federal question jurisdiction is appropriate when "it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims." 463 U.S. at 463 U. S. 13 . Franchise Tax Board, however, did not purport to disturb the long-settled understanding that the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction. [ Footnote 11 ] Indeed, in determining that federal question jurisdiction was not appropriate in the case before us, we stressed Justice Cardozo's emphasis on principled, pragmatic distinctions: "'What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of causation . . . , a selective process which picks the substantial causes out of the web Page 478 U. S. 814 and lays the other ones aside.'" Id. at 463 U. S. 20 -21 (quoting Gully v. First National Bank, 299 U. S. 109 , 299 U. S. 117 -118 (1936)). Far from creating some kind of automatic test, Franchise Tax Board thus candidly recognized the need for careful judgments about the exercise of federal judicial power in an area of uncertain jurisdiction. Given the significance of the assumed congressional determination to preclude federal private remedies, the presence of the federal issue as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system. This conclusion is fully consistent with the very sentence relied on so heavily by petitioner. We simply conclude that the congressional determination that there should be no federal remedy for the violation of this federal statute is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently "substantial" to confer federal question jurisdiction. [ Footnote 12 ] Page 478 U. S. 815 Second, petitioner contends that there is a powerful federal interest in seeing that the federal statute is given uniform interpretations, and that federal review is the best way of insuring such uniformity. In addition to the significance of the congressional decision to preclude a federal remedy, we do Page 478 U. S. 816 not agree with petitioner's characterization of the federal interest and its implications for federal question jurisdiction. To the extent that petitioner is arguing that state use and interpretation of the FDCA pose a threat to the order and stability of the FDCA regime, petitioner should be arguing not that federal courts should be able to review and enforce state FDCA-based causes of action as an aspect of federal question jurisdiction, but that the FDCA preempts state court jurisdiction over the issue in dispute. [ Footnote 13 ] Petitioner's concern about the uniformity of interpretation, moreover, is considerably mitigated by the fact that, even if there is no original district court jurisdiction for these kinds of action, this Court retains power to review the decision of a federal issue in a state cause of action. [ Footnote 14 ] Finally, petitioner argues that, whatever the general rule, there are special circumstances that justify federal question jurisdiction in this case. Petitioner emphasizes that it is unclear whether the FDCA applies to sales in Canada and Scotland; there is, therefore, a special reason for having a federal Page 478 U. S. 817 court answer the novel federal question relating to the extraterritorial meaning of the Act. We reject this argument. We do not believe the question whether a particular claim arises under federal law depends on the novelty of the federal issue. Although it is true that federal jurisdiction cannot be based on a frivolous or insubstantial federal question, "the interrelation of federal and state authority and the proper management of the federal judicial system," Franchise Tax Board, 463 U.S. at 463 U. S. 8 , would be ill-served by a rule that made the existence of federal question jurisdiction depend on the district court's case-by-case appraisal of the novelty of the federal question asserted as an element of the state tort. The novelty of an FDCA issue is not sufficient to give it status as a federal cause of action; nor should it be sufficient to give a state-based FDCA claim status as a jurisdiction-triggering federal question. [ Footnote 15 ] IV We conclude that a complaint alleging a violation of a federal statute as an element of a state cause of action, when Congress has determined that there should be no private, federal cause of action for the violation, does not state a claim "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The judgment of the Court of Appeals is affirmed. It is so ordered. Page 478 U. S. 818 [ Footnote 1 ] App. 36-37. The petition also alleged that the action "is between citizens of a State and citizens or subjects of a foreign state." Id. at 36. Because petitioner is a corporation with its principal place of business in Ohio, however, the removal was not proper unless the action was founded on a claim arising under federal law. Title 28 U.S.C. § 1441(b) provides: "(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." [ Footnote 2 ] "'Under our interpretations, Congress has given the lower courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.'" 766 F.2d at 1006 (quoting Franchise Tax Board, 463 U.S. at 463 U. S. 28 ). [ Footnote 3 ] See Art. III, § 2 ("The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . ."). [ Footnote 4 ] Act of Mar. 3, 1875, § 1, 18 Stat. 470. As currently codified, the statute provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. [ Footnote 5 ] The case most frequently cited for that proposition is Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921). In that case, the Court upheld federal jurisdiction of a shareholder's bill to enjoin the corporation from purchasing bonds issued by the federal land banks under the authority of the Federal Farm Loan Act on the ground that the federal statute that authorized the issuance of the bonds was unconstitutional. The Court stated: "The general rule is that, where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation, the District Court has jurisdiction under this provision." Id. at 255 U. S. 199 . The effect of this view, expressed over Justice Holmes' vigorous dissent in his American Well Works formulation, has been often noted. See, e.g., Franchise Tax Board, 463 U.S. at 463 U. S. 9 ("[I]t is well settled that Justice Holmes' test is more useful for describing the vast majority of cases that come within the district courts' original jurisdiction than it is for describing which cases are beyond district court jurisdiction"); T. B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (CA2 1964) (Friendly, J.) ("It has come to be realized that Mr. Justice Holmes' formula is more useful for inclusion than for the exclusion for which it was intended"). [ Footnote 6 ] Jurisdiction may not be sustained on a theory that the plaintiff has not advanced. See Healy v. Sea Gull Specialty Co., 237 U. S. 479 , 237 U. S. 480 (1915) ("[T]he plaintiff is absolute master of what jurisdiction he will appeal to"); The Fair v. Kohler Die & Specialty Co., 228 U. S. 22 , 228 U. S. 25 (1913) ("[T]he party who brings a suit is master to decide what law he will rely upon"). See also United States v Mottaz, 476 U. S. 834 , 476 U. S. 850 (1986). [ Footnote 7 ] See California v. Sierra Club, 451 U. S. 287 , 451 U. S. 293 (1981); Cannon v. University of Chicago, 441 U. S. 677 , 441 U. S. 689 -709 (1979); Cort v. Ash, 422 U. S. 66 , 422 U. S. 78 (1975). [ Footnote 8 ] See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 377 (1982) ("In 1975, the Court unanimously decided to modify its approach to the question whether a federal statute includes a private right of action"). Cf. Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 , 453 U. S. 25 (1981) (STEVENS, J., concurring in judgment in part and dissenting in part) ("In 1975, in Cort v. Ash, 422 U. S. 66 , the Court cut back on the simple common law presumption by fashioning a four-factor formula that led to the denial of relief in that case"). [ Footnote 9 ] See, e.g., Daily Income Fund, Inc. v. Fox, 464 U. S. 523 , 464 U. S. 535 -536 (1984) ("In evaluating such a claim, our focus must be on the intent of Congress when it enacted the statute in question"); Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. at 453 U. S. 13 ("The key to the inquiry is the intent of the Legislature"); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 , 451 U. S. 639 (1981) ("Our focus, as it is in any case involving the implication of a right of action, is on the intent of Congress"); California v. Sierra Club, 451 U.S. at 451 U. S. 293 ("[T]he ultimate issue is whether Congress intended to create a private right of action"); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 , 451 U. S. 91 (1981) ("The ultimate question in cases such as this is whether Congress intended to create the private remedy"); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 , 444 U. S. 15 (1979) ("The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction"); Touche Ross & Co. v. Redington, 442 U. S. 560 , 442 U. S. 568 (1979) ("The question of the existence of a statutory cause of action is of course, one of statutory construction"). [ Footnote 10 ] When we conclude that Congress has decided not to provide a particular federal remedy, we are not free to "supplement" that decision in a way that makes it "meaningless." Cf. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 , 436 U. S. 625 (1978) (When Congress "does speak directly to a question, the courts are not free to supplement' Congress' answer so thoroughly that the Act becomes meaningless"). See also California v. Sierra Club, 451 U.S. at 451 U. S. 297 ("The federal judiciary will not engraft a remedy on a statute, no matter how salutary, that Congress did not intend to provide"). [ Footnote 11 ] See, e.g., Textile Workers v. Lincoln Mills, 353 U. S. 448 , 353 U. S. 470 (1957) (Frankfurter, J., dissenting) (defining inquiry as "the degree to which federal law must be in the forefront of the case and not collateral, peripheral or remote"); Gully v. First National Bank, 299 U. S. 109 , 299 U. S. 115 (1936) ("Not every question of federal law emerging in a suit is proof that a federal law is the basis of the suit"); id. at 299 U. S. 118 ("If we follow the ascent far enough, countless claims of right can be discovered to have their source or their operative limits in the provisions of a federal statute or in the Constitution itself, with its circumambient restrictions upon legislative power. To set bounds to the pursuit, the courts have formulated the distinction between controversies that are basic and those that are collateral, between disputes that are necessary and those that are merely possible. We shall be lost in a maze if we put that compass by"). [ Footnote 12 ] Several commentators have suggested that our § 1331 decisions can best be understood as an evaluation of the nature of the federal interest at stake. See, e.g., Shapiro, Jurisdiction and Discretion, 60 N.Y.U.L.Rev. 543, 668 (1985); C. Wright, Federal Courts 96 (4th ed.1983); Cohen, The Broken Compass: The Requirement That a Case Arise "Directly" Under Federal Law, 115 U.PaL.Rev. 890, 916 (1967). Cf. Kravitz v. Homeowners Warranty Corp., 542 F. Supp. 317 , 320 (ED Pa.1982) (Pollak, J.) ("I cannot identify any compelling reasons of federal judicial policy for embracing a case of this kind as a federal question case. The essential Pennsylvania elements of plaintiffs' suit for rescission would be more appropriately dealt with by a Court of Common Pleas than by this court; and, with respect to the lesser-included issue of federal law, Pennsylvania's courts are fully competent to interpret the Magnuson-Moss Warranty Act and the relevant F.T.C. regulations, subject to review by the United States Supreme Court"). Focusing on the nature of the federal interest, moreover, suggests that the widely perceived "irreconcilable" conflict between the finding of federal jurisdiction in Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), and the finding of no jurisdiction in Moore v. Chesapeake & Ohio R. Co., 291 U. S. 205 (1934), see, e.g, M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 67 (1980), is far from clear. For the difference in results can be seen as manifestations of the differences in the nature of the federal issues at stake. In Smith, as the Court emphasized, the issue was the constitutionality of an important federal statute. See 255 U.S. at 255 U. S. 201 ("It is . . . apparent that the controversy concerns the constitutional validity of an act of Congress which is directly drawn in question. The decision depends upon the determination of this issue"). In Moore, in contrast, the Court emphasized that the violation of the federal standard as an element of state tort recovery did not fundamentally change the state tort nature of the action. See 291 U.S. at 291 U. S. 216 -217 (" The action fell within the familiar category of cases involving the duty of a master to his servant. This duty is defined by the common law, except as it may be modified by legislation. The federal statute, in the present case, touched the duty of the master at a single point and, save as provided in the statute, the right of the plaintiff to recover was left to be determined by the law of the State'") (quoting Minneapolis, St. P. & S.S.M. R. Co. v. Popplar, 237 U. S. 369 , 237 U. S. 372 (1915)). The importance of the nature of the federal issue in federal question jurisdiction is highlighted by the fact that, despite the usual reliability of the Holmes test as an inclusionary principle, this Court has sometimes found that formally federal causes of action were not properly brought under federal question jurisdiction because of the overwhelming predominance of state law issues. See Shulthis v. McDougal, 225 U. S. 561 , 225 U. S. 569 -570 (1912) ("A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends. This is especially so of a suit involving rights to land acquired under a law of the United States. If it were not, every suit to establish title to land in the central and western States would so arise, as all titles in those States are traceable back to those laws"); Shoshone Mining Co. v. Rutter, 177 U. S. 505 , 177 U. S. 507 (1900) ("We pointed out in the former opinion that it was well settled that a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the Constitution or laws of the United States, within the meaning of the jurisdiction clauses, for, if it did, every action to establish title to real estate (at least in the newer States) would be such a one, as all titles in those States come from the United States or by virtue of its laws"). [ Footnote 13 ] Cf. Longshoremen v. Davis, 476 U. S. 380 , 476 U. S. 391 (1986) ("[O]ur decisions describing the nature of Garmon preemption and defining its boundaries have rested on a determination that, in enacting the [National Labor Relations Act], Congress intended for the [National Labor Relations] Board generally to exercise exclusive jurisdiction in this area"). [ Footnote 14 ] See Moore v. Chesapeake & Ohio R. Co., 291 U.S. at 291 U. S. 214 215 ("Questions arising in actions in state courts to recover for injuries sustained by employees in intrastate commerce and relating to the scope or construction of the Federal Safety Appliance Acts are, of course, federal questions which may appropriately be reviewed in this Court. But it does not follow that a suit brought under the state statute which defines liability to employees who are injured while engaged in intrastate commerce, and brings within the purview of the statute a breach of the duty imposed by the federal statute, should be regarded as a suit arising under the laws of the United States and cognizable in the federal court in the absence of diversity of citizenship"). Cf. Franchise Tax Board, 463 U.S. at 463 U. S. 12 , n. 12 ("[T]he absence of original jurisdiction does not mean that there is no federal forum in which a preemption defense may be heard. If the state courts reject a claim of federal preemption, that decision may ultimately be reviewed on appeal by this Court"). [ Footnote 15 ] Petitioner also contends that the Court of Appeals opinion rests on a view that federal question jurisdiction was inappropriate because, whatever the role of the federal issue in the FDCA-related count, the plaintiff could recover on other, strictly state law, claims. See 766 F.2d at 1006 (noting that "the jury could find negligence on the part of Merrell Dow without finding a violation of the FDCA"). To the extent that the opinion can be read to express such a view, we agree that it was erroneous. If the FDCA-related count presented a sufficient federal question, its relationship to the other, state law, claims would be determined by the ordinary principles of pendent jurisdiction described in Mine Workers v. Gibbs, 383 U. S. 715 (1966). For the reasons that we have stated, however, there is no federal question jurisdiction even with that possible error corrected. JUSTICE BRENNAN, with whom JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting. Article III, § 2, of the Constitution provides that the federal judicial power shall extend to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." We have long recognized the great breadth of this grant of jurisdiction, holding that there is federal jurisdiction whenever a federal question is an "ingredient" of the action, Osborn v. Bank of the United States , 9 Wheat. 738, 22 U. S. 823 (1824), and suggesting that there may even be jurisdiction simply because a case involves "potential federal questions," Textile Workers v. Lincoln Mills, 353 U. S. 448 , 353 U. S. 471 (1957) (Frankfurter, J., dissenting); see also Osborn, supra, at 22 U. S. 824 ; Martin v. Hunter's Lessee , 1 Wheat. 304 (1816); Pacific Railroad Removal Cases, 115 U. S. 1 (1885); Verlinden B.V. v. Central Bank of Nigeria, 461 U. S. 480 , 461 U. S. 492 -493 (1983). Title 28 U.S.C. § 1331 provides, in language that parrots the language of Article III, that the district courts shall have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." Although this language suggests that Congress intended in § 1331 to confer upon federal courts the full breadth of permissible "federal question" jurisdiction (an inference that is supported by the contemporary evidence, see Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1 , 463 U. S. 8 , n. 8 (1983); Forrester, The Nature of a "Federal Question," 16 Tulane L.Rev. 362, 374 376 (1942); Shapiro, Jurisdiction and Discretion, 60 N.Y.U.L.Rev. 543, 568 (1985)), § 1331 has been construed more narrowly than its constitutional counterpart. See Verlinden B.V., supra, at 461 U. S. 494 -495; Romero v. International Terminal Operating Co., 358 U. S. 354 , 358 U. S. 379 (1959). Nonetheless, given the language of the statute and its close relation to the constitutional grant of federal question jurisdiction, limitations on federal question jurisdiction under § 1331 must be justified by careful consideration of the reasons Page 478 U. S. 819 underlying the grant of jurisdiction and the need for federal review. Ibid. I believe that the limitation on federal jurisdiction recognized by the Court today is inconsistent with the purposes of § 1331. Therefore, I respectfully dissent. I While the majority of cases covered by § 1331 may well be described by Justice Holmes' adage that "[a] suit arises under the law that creates the cause of action," American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257 , 241 U. S. 260 (1916), it is firmly settled that there may be federal question jurisdiction even though both the right asserted and the remedy sought by the plaintiff are state created. See C. Wright, Federal Courts § 17, pp. 95-96 (4th ed.1983) (hereinafter Wright); M. Redish, Federal Jurisdiction: Tensions in the Allocation of Judicial Power 64-71 (1980) (hereinafter Redish). The rule as to such cases was stated in what Judge Friendly described as "[t]he path-breaking opinion" in Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921). T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (CA2 1964). In Smith, a shareholder of the defendant corporation brought suit in the federal court to enjoin the defendant from investing corporate funds in bonds issued under the authority of the Federal Farm Loan Act. The plaintiff alleged that Missouri law imposed a fiduciary duty on the corporation to invest only in bonds that were authorized by a valid law, and argued that, because the Farm Loan Act was unconstitutional, the defendant could not purchase bonds issued under its authority. Although the cause of action was wholly state-created, the Court held that there was original federal jurisdiction over the case: "The general rule is that, where it appears from the bill or statement of the plaintiff that the right to relief depends upon the construction or application of the Constitution or laws of the United States, and that such federal claim is not merely colorable, and rests upon a reasonable foundation, the District Court has jurisdiction Page 478 U. S. 820 under [the statute granting federal question jurisdiction]." 255 U.S. at 255 U. S. 199 . The continuing vitality of Smith is beyond challenge. We have cited it approvingly on numerous occasions, and reaffirmed its holding several times -- most recently just three Terms ago by a unanimous Court in Franchise Tax Board v. Construction Laborers Vacation Trust, supra, at 463 U. S. 9 . See American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 U. S. 350 , 256 U. S. 357 (1921); Bell v. Hood, 327 U. S. 678 , 327 U. S. 685 (1946); Association of Westinghouse Salaried Employees v. Westinghouse Electric Corp., 348 U. S. 437 , 348 U. S. 450 , and n. 18 (1955) (plurality opinion); Machinists v. Central Airlines, Inc., 372 U. S. 682 , 372 U. S. 696 (1963); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 , 438 U. S. 70 (1978). See also Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 356 (1936) (separate opinion of McReynolds, J.); Textile Workers v. Lincoln Mills, supra, at 353 U. S. 470 (Frankfurter, J., dissenting); Wheeldin v. Wheeler, 373 U. S. 647 , 373 U. S. 659 (1963) (BRENNAN, J., dissenting). Cf. Gully v. First National Bank, 299 U. S. 109 , 299 U. S. 112 (1936) ("To bring a case within [§ 1331], a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action"). Moreover, in addition to Judge Friendly's authoritative opinion in T.B. Harms Co. v. Eliscu, supra, at 827, Smith has been widely cited and followed in the lower federal courts. See, e.g., Hanes Corp. v. Millard, 174 U.S.App.D.C. 253, 263, n. 8, 531 F.2d 585, 595 n. 8 (1976); Mungin v. Florida East Coast R. Co., 416 F.2d 1169, 1176-1177 (CA5 1969); Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391 F.2d 486, 492 (CA2 1968); Warrington Sewer Co. v. Tracy, 463 F.2d 771, 772 (CA3 1972) (per curiam); New York by Abrams v. Citibank, N.A. 537 F. Supp. 1192 , 1196 (SDNY 1982); Kravitz v. Homeowners Warranty Corp., 542 F. Supp. 317 , 319 (ED Pa.1982). See also Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323 (CA2 1982); Christopher v. Cavallo, 662 F.2d 1082 (CA4 1981); Mountain Fuel Supply Co. v. Johnson oil Co., 586 F.2d 1375 (CA10 1978), Page 478 U. S. 821 cert. denied, 441 U.S. 952 (1979); Garrett v. Time-D.C., Inc., 502 F.2d 627 (CA9 1974), cert. denied, 421 U.S. 913 (1975); Sweeney v. Abramovitz, 449 F. Supp. 213 (Conn.1978). Furthermore, the principle of the Smith case has been recognized and endorsed by most commentators, as well. Redish 67, 69; American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 178 (1969) (hereinafter ALI); Wright § 17, at 96; P. Bator, P. Mistakin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 889 (2d ed., 1973); Mistakin, The Federal "Question" in the District Courts, 53 Colum.L.Rev. 157, 166 (1953); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp.Prob. 216, 225 (1948). [ Footnote 2/1 ] Page 478 U. S. 822 There is, to my mind, no question that there is federal jurisdiction over the respondents' fourth cause of action under the rule set forth in Smith and reaffirmed in Franchise Tax Page 478 U. S. 823 Board. Respondents pleaded that petitioner's labeling of the drug Bendectin constituted "misbranding" in violation of §§ 201 and 502(f)(2) and (j) of the Federal Food, Drug, and Cosmetic Act (FDCA), 52 Stat. 1040, as amended, 21 U.S.C. § 301 et seq. (1982 ed. and Supp. III), and that this violation "directly and proximately caused" their injuries. App. 21-22 (Thompson complaint), 31-32 (MacTavish complaint). Respondents asserted in the complaint that this violation established petitioner's negligence per se, and entitled them to recover damages without more. Ibid. No other basis for finding petitioner negligent was asserted in connection with this claim. As pleaded, then, respondents' "right to relief depend[ed] upon the construction or application of the Constitution or laws of the United States." Smith, 255 U.S. at 255 U. S. 199 ; see also Franchise Tax Board, 463 U.S. at 463 U. S. 28 (there is federal jurisdiction under § 1331 where the plaintiff's right to relief "necessarily depends" upon resolution of a federal question). [ Footnote 2/2 ] Furthermore, although petitioner disputes its liability under the FDCA, it concedes that respondents' claim that petitioner violated the FDCA is "colorable, and rests upon a reasonable foundation." Smith, supra, at 255 U. S. 199 . [ Footnote 2/3 ] Page 478 U. S. 824 Of course, since petitioner must make this concession to prevail in this Court, it need not be accepted at face value. However, independent examination of respondents' claim substantiates the conclusion that it is neither frivolous nor meritless. As stated in the complaint, a drug is "misbranded" under the FDCA if "the labeling or advertising fails to reveal facts material . . . with respect to consequences which may result from the use of the article to which the labeling or advertising relates. . . ." 21 U.S.C. § 321(n). Obviously, the possibility that a mother's ingestion of Bendectin during pregnancy could produce malformed children is material. Petitioner's principal defense is that the Act does not govern the branding of drugs that are sold in foreign countries. It is certainly not immediately obvious whether this argument is correct. Thus, the statutory question is one which "discloses a need for determining the meaning or application of [the FDCA]," T. B. Harms Co. v. Eliscu, 339 F.2d at 827, and the claim raised by the fourth cause of action is one "arising under" federal law within the meaning of § 1331. II The Court apparently does not disagree with any of this -- except, of course, for the conclusion. According to the Court, if we assume that Congress did not intend that there be a private federal cause of action under a particular federal law (and, presumably, a fortiori, if Congress' decision not to create a private remedy is express), we must also assume that Congress did not intend that there be federal jurisdiction over a state cause of action that is determined by that federal law. Therefore, assuming---only because the parties Page 478 U. S. 825 have made a similar assumption -- that there is no private cause of action under the FDCA, [ Footnote 2/4 ] the Court holds that there is no federal jurisdiction over the plaintiffs' claim: "The significance of the necessary assumption that there is no federal private cause of action thus cannot be overstated. For the ultimate import of such a conclusion, as we have repeatedly emphasized, is that it would flout congressional intent to provide a private federal remedy for the violation of the federal statute. We think it would similarly flout, or at least undermine, congressional intent to conclude that the federal courts might nevertheless exercise federal question jurisdiction and provide remedies for violations of that federal statute solely because the violation of the federal statute is said to be a 'rebuttable presumption' or a 'proximate cause' under state law, rather than a federal action under federal law." Ante at 478 U. S. 812 (footnotes omitted). The Court nowhere explains the basis for this conclusion. Yet it is hardly self-evident. Why should the fact that Congress chose not to create a private federal remedy mean that Congress would not want there to be federal jurisdiction to adjudicate a state claim that imposes liability for violating the federal law? Clearly, the decision not to provide a private federal remedy should not affect federal jurisdiction unless the reasons Congress withholds a federal remedy are also reasons for withholding federal jurisdiction. Thus, it is necessary Page 478 U. S. 826 to examine the reasons for Congress' decisions to grant or withhold both federal jurisdiction and private remedies, something the Court has not done. A In the early days of our Republic, Congress was content to leave the task of interpreting and applying federal laws in the first instance to the state courts; with one short-lived exception, [ Footnote 2/5 ] Congress did not grant the inferior federal courts original jurisdiction over cases arising under federal law until 1875. Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470. The reasons Congress found it necessary to add this jurisdiction to the district courts are well known. First, Congress recognized "the importance, and even necessity, of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution." Martin v. Hunter's Lessee, 1 Wheat. at 347-348 (Story, J.) (emphasis in original). See also Comment, Federal Preemption, Removal Jurisdiction, and the Well-Pleaded Complaint Rule, 51 U.Chi.L.Rev. 634, 636 (1984) (hereinafter Comment); D. Currie, Federal Courts 160 (3d ed.1982) (hereinafter Currie). Concededly, because federal jurisdiction is not always exclusive and because federal courts may disagree with one another, absolute uniformity has not been obtained even under § 1331. However, while perfect uniformity may not have been achieved, experience indicates that the availability of a federal forum in federal question cases has done much to advance that goal. This, in fact, was the conclusion of the American Law Institute's Study of the Division of Jurisdiction Between State and Federal Courts. ALI 164-168. In addition, § 1331 has provided for adjudication in a forum that specializes in federal law, and that is therefore more likely to apply that law correctly. Because federal question Page 478 U. S. 827 cases constitute the basic grist for federal tribunals, "[t]he federal courts have acquired a considerable expertness in the interpretation and application of federal law." Id.. at 164-165. By contrast, "it is apparent that federal question cases must form a very small part of the business of [state] courts." Id. at 165. As a result, the federal courts are comparatively more skilled at interpreting and applying federal law, and are much more likely correctly to divine Congress' intent in enacting legislation. [ Footnote 2/6 ] See ibid.; Redish 71; Currie 160; Comment 636; Hornstein, Federalism, Judicial Power and the "Arising Under" Jurisdiction of the Federal Courts: A Hierarchical Analysis, 56 Ind.L.J. 563, 564-565 (1981). These reasons for having original federal question jurisdiction explain why cases like this one and Smith, cases where the cause of action is a creature of state law, but an Page 478 U. S. 828 essential element of the claim is federal -- "arise under" federal law within the meaning of § 1331. Congress passes laws in order to shape behavior; a federal law expresses Congress' determination that there is a federal interest in having individuals or other entities conform their actions to a particular norm established by that law. Because all laws are imprecise to some degree, disputes inevitably arise over what specifically Congress intended to require or permit. It is the duty of courts to interpret these laws and apply them in such a way that the congressional purpose is realized. As noted above, Congress granted the district courts power to hear cases "arising under" federal law in order to enhance the likelihood that federal laws would be interpreted more correctly and applied more uniformly. In other words, Congress determined that the availability of a federal forum to adjudicate cases involving federal questions would make it more likely that federal laws would shape behavior in the way that Congress intended. By making federal law an essential element of a state law claim, the State places the federal law into a context where it will operate to shape behavior: the threat of liability will force individuals to conform their conduct to interpretations of the federal law made by courts adjudicating the state law claim. It will not matter to an individual found liable whether the officer who arrives at his door to execute judgment is wearing a state or a federal uniform; all he cares about is the fact that a sanction is being imposed, and may be imposed again in the future -- because he failed to comply with the federal law. Consequently, the possibility that the federal law will be incorrectly interpreted in the context of adjudicating the state law claim implicates the concerns that led Congress to grant the district courts power to adjudicate cases involving federal questions in precisely the same way as if it was federal law that "created" the cause of action. It therefore follows that there is federal jurisdiction under § 1331. Page 478 U. S. 829 B The only remaining question is whether the assumption that Congress decided not to create a private cause of action alters this analysis in a way that makes it inappropriate to exercise original federal jurisdiction. According to the Court, "the very reasons for the development of the modern implied remedy doctrine" support the conclusion that, where the legislative history of a particular law shows (whether expressly or by inference) that Congress intended that there be no private federal remedy, it must also mean that Congress would not want federal courts to exercise jurisdiction over a state law claim making violations of that federal law actionable. Ante at 478 U. S. 811 . These reasons are " the increased complexity of federal legislation,'" "`the increased volume of federal litigation,'" and "`the desirability of a more careful scrutiny of legislative intent.'" Ibid. (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353 , 456 U. S. 377 (1982)). These reasons simply do not justify the Court's holding. Given the relative expertise of the federal courts in interpreting federal law, supra, at 478 U. S. 826 -827, the increased complexity of federal legislation argues rather strongly in favor of recognizing federal jurisdiction. And, while the increased volume of litigation may appropriately be considered in connection with reasoned arguments that justify limiting the reach of § 1331, I do not believe that the day has yet arrived when this Court may trim a statute solely because it thinks that Congress made it too broad. [ Footnote 2/7 ] Page 478 U. S. 830 This leaves only the third reason: " the desirability of a more careful scrutiny of legislative intent.'" Ante at 478 U. S. 811 . I certainly subscribe to the proposition that the Court should consider legislative intent in determining whether or not there is jurisdiction under § 1331. But the Court has not examined the purposes underlying either the FDCA or § 1331 in reaching its conclusion that Congress' presumed decision not to provide a private federal remedy under the FDCA must be taken to withdraw federal jurisdiction over a private state remedy that imposes liability for violating the FDCA. Moreover, such an examination demonstrates not only that it is consistent with legislative intent to find that there is federal jurisdiction over such a claim, but, indeed, that it is the Court's contrary conclusion that is inconsistent with congressional intent. The enforcement scheme established by the FDCA is typical of other, similarly broad regulatory schemes. Primary responsibility for overseeing implementation of the Act has been conferred upon a specialized administrative agency, here, the Food and Drug Administration (FDA). [ Footnote 2/8 ] Congress has provided the FDA with a wide-ranging arsenal of weapons to combat violations of the FDCA, including authority to obtain an ex parte court order for the seizure of goods subject to the Act, see 21 U.S.C. § 334, authority to initiate proceedings in a federal district court to enjoin continuing violations of the FDCA, see § 332, and authority to request a United States Attorney to bring criminal proceedings against violators, see § 333. See generally 1 J. O'Reilly, Food and Drug Administration, chs. 6-10 (1979 and Supp.1985). Significantly, the FDA has no independent enforcement authority; final enforcement must come from the federal courts, Page 478 U. S. 831 which have exclusive jurisdiction over actions under the FDCA. See §§ 332(a), 333, 334(a)(1). Thus, while the initial interpretive function has been delegated to an expert administrative body whose interpretations are entitled to considerable deference, final responsibility for interpreting the statute in order to carry out the legislative mandate belongs to the federal courts. Cf. 467 U. S. S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 8 467 U. S. 43 , n. 9 (1984) ("The judiciary is the final authority on issues of statutory construction, and must reject administrative constructions which are contrary to clear congressional intent"). Given that Congress structured the FDCA so that all express remedies are provided by the federal courts, it seems rather strange to conclude that it either "flout[s]" or "undermine[s]" congressional intent for the federal courts to adjudicate a private state law remedy that is based upon violating the FDCA. See ante at 478 U. S. 812 . That is, assuming that a state cause of action based on the FDCA is not preempted, it is entirely consistent with the FDCA to find that it "arises under" federal law within the meaning of § 1331. Indeed, it is the Court's conclusion that such a state cause of action must be kept out of the federal courts that appears contrary to legislative intent, inasmuch as the enforcement provisions of the FDCA quite clearly express a preference for having federal courts interpret the FDCA and provide remedies for its violation. It may be that a decision by Congress not to create a private remedy is intended to preclude all private enforcement. If that is so, then a state cause of action that makes relief available to private individuals for violations of the FDCA is preempted. But if Congress' decision not to provide a private federal remedy does not preempt such a state remedy, then, in light of the FDCA's clear policy of relying on the federal courts for enforcement, it also should not foreclose federal jurisdiction over that state remedy. Both § 1331 and the enforcement provisions of the FDCA reflect Congress' strong Page 478 U. S. 832 desire to utilize the federal courts to interpret and enforce the FDCA, and it is therefore at odds with both these statutes to recognize a private state law remedy for violating the FDCA, but to hold that this remedy cannot be adjudicated in the federal courts. The Court's contrary conclusion requires inferring from Congress' decision not to create a private federal remedy that, while some private enforcement is permissible in state courts, it is "bad" if that enforcement comes from the federal courts. But that is simply illogical. Congress' decision to withhold a private right of action and to rely instead on public enforcement reflects congressional concern with obtaining more accurate implementation and more coordinated enforcement of a regulatory scheme. See National Railroad Passenger Corporation v. National Assn. of Railroad Passengers, 414 U. S. 453 , 414 U. S. 462 -465 (1974); Holloway v. Bristol-Myers Corp., 158 U.S.App.D.C. 207, 218-220, 485 F.2d 986, 997-999 (1973); Stewart & Sunstein, Public Programs and Private Rights, 95 Harv.L.Rev. 1193, 1208-1209 (1982). These reasons are closely related to the Congress' reasons for giving federal courts original federal question jurisdiction. Thus, if anything, Congress' decision not to create a private remedy strengthens the argument in favor of finding federal jurisdiction over a state remedy that is not preempted. [ Footnote 2/1 ] Some commentators have argued that the result in Smith conflicts with our decision in Moore v. Chesapeake & Ohio R. Co., 291 U. S. 205 (1934). See, e.g., Greene, Hybrid State Law in the Federal Courts, 83 Harv.L.Rev. 289, 323 (1969). In Moore, the plaintiff brought an action under Kentucky's Employer Liability Act, which provided that a plaintiff could not be held responsible for contributory negligence or assumption of risk where his injury resulted from the violation of any state or federal statute enacted for the safety of employees. The plaintiff in Moore alleged that his injury was due to the defendant's failure to comply with the Federal Safety Appliance Act; therefore, an important issue in the adjudication of the state cause of action was whether the terms of the federal law had been violated. The Court could have dismissed the complaint on the ground that the federal issue would arise only in response to a defense of contributory negligence or assumption of risk, and that, therefore, there was no jurisdiction under the well-pleaded complaint rule. Instead, the Court held that "a suit brought under the state statute which defines liability to employees who are injured while engaged in intrastate commerce, and brings within the purview of the statute a breach of the duty imposed by the federal statute, should [not] be regarded as a suit arising under the laws of the United States and cognizable in the federal court in the absence of diversity of citizenship." 291 U.S. at 291 U. S. 214 -215. The Court suggests that Smith and Moore may be reconciled if one views the question whether there is jurisdiction under § 1331 as turning upon "an evaluation of the nature of the federal interest at stake." Ante at 478 U. S. 814 , n. 12 (emphasis in original). Thus, the Court explains, while in Smith the issue was the constitutionality of "an important federal statute," in Moore, the federal interest was less significant, in that "the violation of the federal standard as an element of state tort recovery did not fundamentally change the state tort nature of the action." Ante at 478 U. S. 815 , n. 12. In one sense, the Court is correct in asserting that we can reconcile Smith and Moore on the ground that the "nature" of the federal interest was more significant in Smith than in Moore. Indeed, as the Court appears to believe, ante at 478 U. S. 814 -815, n. 12, we could reconcile many of the seemingly inconsistent results that have been reached under § 1331 with such a test. But this is so only because a test based upon an ad hoc evaluation of the importance of the federal issue is infinitely malleable: at what point does a federal interest become strong enough to create jurisdiction? What principles guide the determination whether a statute is "important" or not? Why, for instance, was the statute in Smith so "important" that direct review of a state court decision (under our mandatory appellate jurisdiction) would have been inadequate? Would the result in Moore have been different if the federal issue had been a more important element of the tort claim? The point is that, if one makes the test sufficiently vague and general, virtually any set of results can be "reconciled." However, the inevitable -- and undesirable -- result of a test such as that suggested in the Court's footnote 12 is that federal jurisdiction turns in every case on an appraisal of the federal issue, its importance and its relation to state law issues. Yet it is precisely because the Court believes that federal jurisdiction would be "ill-served" by such a case-by-case appraisal that it rejects petitioner's claim that the difficulty and importance of the statutory issue presented by its claim suffices to confer jurisdiction under § 1331. Ante at 478 U. S. 817 . The Court cannot have it both ways. My own view is in accord with those commentators who view the results in Smith and Moore as irreconcilable. See, e.g., Redish 67; D. Currie, Federal Jurisdiction in a Nutshell 109 (2d ed.1981). That fact does not trouble me greatly, however, for I view Moore as having been a "sport" at the time it was decided, and having long been in a state of innocuous desuetude. Unlike the jurisdictional holding in Smith, the jurisdictional holding in Moore has never been relied upon or even cited by this Court. Moore has similarly borne little fruit in the lower courts, leading Professor Redish to conclude, after comparing the vitality of Smith and Moore, that "the principle enunciated in Smith is the one widely followed by modern lower federal courts." Redish 67. Finally, as noted in text, the commentators have also preferred Smith. Supra at 478 U. S. 821 . Moore simply has not survived the test of time; it is presently moribund, and, to the extent that it is inconsistent with the well-established rule of the Smith case, it ought to be overruled. [ Footnote 2/2 ] As the Court correctly notes, the Court of Appeals erred in holding that respondents' right to relief did not depend upon the resolution of a federal question because respondents might prevail on one of their other, wholly state law, claims. The fourth cause of action presents an independent and independently sufficient claim for relief. Whether it "arises under" federal law within the meaning of § 1331 must therefore be determined without reference to any other claims, as if only that claim was asserted. If, after such consideration, it is determined that there is jurisdiction, the plaintiff may join additional state law claims meeting the test for pendent jurisdiction set forth in Mine Workers v. Gibbs, 383 U. S. 715 (1966). See ante at 478 U. S. 817 , n. 15. [ Footnote 2/3 ] Franchise Tax Board states that the plaintiff's right to relief must necessarily depend upon resolution of a "substantial" federal question. 463 U.S. at 463 U. S. 28 . In context, however, it is clear that this was simply another way of stating that the federal question must be colorable and have a reasonable foundation. This understanding is consistent with the manner in which the Smith test has always been applied, as well as with the way we have used the concept of a "substantial" federal question in other cases concerning federal jurisdiction. See, e.g., Hagans v. Lavine, 415 U. S. 528 , 415 U. S. 536 -537 (1974); Bell v. Hood, 327 U. S. 678 , 327 U. S. 682 (1946). [ Footnote 2/4 ] It bears emphasizing that the Court does not hold that there is no private cause of action under the FDCA. Rather, it expressly states that, "[f]or purposes of our decision, we assume that this is a correct interpretation of the FDCA." Ante at 478 U.S. 810 . The Court simply holds petitioner to its concession that the FDCA provides no private remedy, and decides petitioner's claim on the basis of this concession. I shall do the same. Under the Court's analysis, however, if a party persuaded a court that there is a private cause of action under the FDCA, there would be federal jurisdiction under Smith and Franchise Tax Board over a state cause of action making violations of the FDCA actionable. Such jurisdiction would apparently exist even if the plaintiff did not seek the federal remedy. [ Footnote 2/5 ] Congress granted original federal question jurisdiction briefly in the Midnight Judges Act, ch. 4, § 11, 2 Stat. 92 (1801), which was repealed in 1802, Act of Mar. 8, 1802, ch. 8, § 1, 2 Stat. 132. [ Footnote 2/6 ] Another reason Congress conferred original federal question jurisdiction on the district courts was its belief that state courts are hostile to assertions of federal rights. See Hornstein, Federalism, Judicial Power and the "Arising Under" Jurisdiction of the Federal Courts: A Hierarchical Analysis, 56 Ind.L.J. 563, 564-565 (1981); Comment 636; Redish 71. Although this concern may be less compelling today than it once was, the American Law Institute reported as recently as 1969 that "it is difficult to avoid concluding that federal courts are more likely to apply federal law sympathetically and understandingly than are state courts." ALI 166. In any event, this rationale is, like the rationale based on the expertise of the federal courts, simply an expression of Congress' belief that federal courts are more likely to interpret federal law correctly. One might argue that this Court's appellate jurisdiction over state court judgments in cases arising under federal law can be depended upon to correct erroneous state court decisions and to insure that federal law is interpreted and applied uniformly. However, as any experienced observer of this Court can attest, "Supreme Court review of state courts, limited by docket pressures, narrow review of the facts, the debilitating possibilities of delay, and the necessity of deferring to adequate state grounds of decision, cannot do the whole job." Currie 160. Indeed, having served on this Court for 30 years, it is clear to me that, realistically, it cannot even come close to "doing the whole job" and that §1331 is essential if federal rights are to be adequately protected. [ Footnote 2/7 ] Cf. 19 U. S. Virginia, 6 Wheat. 264, 19 U. S. 404 (1821) (Marshall, C.J.) ("It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. . . . We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given"). The narrow exceptions we have recognized to Chief Justice Marshall's famous dictum have all been justified by compelling judicial concerns of comity and federalism. See, e.g., Younger v. Harris, 401 U. S. 37 (1971); Burford v. Sun Oil Co., 319 U. S. 315 (1943). It would be wholly illegitimate, however, for this Court to determine that there was no jurisdiction over a class of cases simply because the Court thought that there were too many cases in the federal courts. [ Footnote 2/8 ] The Federal Trade Commission retains regulatory and enforcement authority over the advertising (as opposed to the labeling) of foods. drugs, and cosmetics. See 15 U.S.C. §§ 52-55.

The Supreme Court ruled that a federal statute violation as part of a state-level lawsuit does not constitute a claim "arising under the laws of the United States," and therefore, the case was improperly removed to federal court. The Court determined that Congress intended to prevent private federal lawsuits for violations of the Federal Food, Drug, and Cosmetic Act, indicating that the violation of the statute as part of a state claim is not enough to establish federal question jurisdiction.

Lawsuits & Legal Procedures

Phillips Petroleum Co. v. Shutts

https://supreme.justia.com/cases/federal/us/472/797/

U.S. Supreme Court Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) Phillips Petroleum Co. v. Shutts No. 84-233 Argued February 25, 1985 Decided June 26, 1985 472 U.S. 797 CERTIORARI TO THE SUPREME COURT OF KANSAS Syllabus During the 1970's, petitioner produced or purchased natural gas from leased land located in 11 States. Respondents, royalty owners possessing rights to leases from which petitioner produced the gas, brought a class action against petitioner in a Kansas state court, seeking to recover interest on royalty payments that had been delayed by petitioner. The trial court certified a class consisting of 33,000 royalty owners. Respondents provided each class member with a notice by first-class mail describing the action and informing each member that he could appear in person or by counsel, that otherwise he would be represented by respondents, and that class members would be included in the class and bound by the judgment unless they "opted out" of the action by returning a "request for exclusion." The final class consisted of some 28,000 members, who reside in all 50 States, the District of Columbia, and several foreign countries. Notwithstanding that over 99% of the gas leases in question and some 97% of the plaintiff class members had no apparent connection to Kansas except for the lawsuit, the trial court applied Kansas contract and equity law to every claim, and found petitioner liable for interest on the suspended royalties to all class members. The Kansas Supreme Court affirmed over petitioner's contentions that the Due Process Clause of the Fourteenth Amendment prevented Kansas from adjudicating the claims of all the class members, and that that Clause and the Full Faith and Credit Clause prohibited application of Kansas law to all of the transactions between petitioner and the class members. Held: 1. Petitioner has standing to assert the claim that Kansas did not have jurisdiction over the class members who were not Kansas residents and had no connection to Kansas. Whether it wins or loses on the merits, petitioner has a distinct and personal interest in seeing the entire plaintiff class bound by res judicata just as petitioner is bound. The only way petitioner can assure itself of this binding effect is to ascertain that the forum court has jurisdiction over every plaintiff whose claim it seeks to adjudicate, sufficient to support a res judicata defense in a later suit by class members. The alleged injury petitioner would incur if the class action judgment against it became final without binding the plaintiff class is sufficient to give petitioner standing on its own right to raise the jurisdiction claim in this Court. Pp. 472 U. S. 803 -806. Page 472 U. S. 798 2. The Kansas trial court properly asserted personal jurisdiction over the absent plaintiff class members and their claims against petitioner. The Due Process Clause requires notice, an opportunity to appear in person or by counsel, an opportunity to "opt out," and adequate representation. It does not require that absent class members affirmatively "opt in" to the class, rather than be deemed members of the class if they did not "opt out." The procedure followed by Kansas, where a fully descriptive notice is sent by first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process. The interests of the absent plaintiff class members are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the trial court. Pp. 472 U. S. 806 -814. 3. The Kansas Supreme Court erred in deciding that the application of Kansas law to all claims would be constitutional. Kansas must have a "significant contact or aggregation of contacts" to the claims asserted by each plaintiff class member in order to ensure that the choice of Kansas law was not arbitrary or unfair. Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict between Kansas law and the law of other States, such as Texas, where some of the leased land in question is located, application of Kansas law to every claim in this case was sufficiently arbitrary and unfair as to exceed constitutional limits. Pp. 472 U. S. 814 -823. 235 Kan.195, 679 P.2d 1159 , affirmed in part, reversed in part, and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, and in Parts I and II of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 472 U. S. 823 . POWELL, J., took no part in the decision of the case. Page 472 U. S. 799 JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner is a Delaware corporation which has its principal place of business in Oklahoma. During the 1970's it produced or purchased natural gas from leased land located in 11 different States, and sold most of the gas in interstate commerce. Respondents are some 28,000 of the royalty owners possessing rights to the leases from which petitioner produced the gas; they reside in all 50 States, the District of Columbia, and several foreign countries. Respondents brought a class action against petitioner in the Kansas state court, seeking to recover interest on royalty payments which had been delayed by petitioner. They recovered judgment in the trial court, and the Supreme Court of Kansas affirmed the judgment over petitioner's contentions that the Due Process Clause of the Fourteenth Amendment prevented Kansas from adjudicating the claims of all the respondents, and that the Due Process Clause and the Full Faith and Credit Clause of Article IV of the Constitution prohibited the application of Kansas law to all of the transactions between petitioner and respondents. 235 Kan.195, 679 P.2d 1159 (1984). We granted certiorari to consider these claims. 469 U.S. 879 (1984). We reject petitioner's jurisdictional claim, but sustain its claim regarding the choice of law. Because petitioner sold the gas to its customers in interstate commerce, it was required to secure approval for price increases from what was then the Federal Power Commission, and is now the Federal Energy Regulatory Commission. Under its regulations, the Federal Power Commission permitted petitioner to propose and collect tentative higher gas prices, subject to final approval by the Commission. If the Commission eventually denied petitioner's proposed price increase or reduced the proposed increase, petitioner would Page 472 U. S. 800 have to refund to its customers the difference between the approved price and the higher price charged, plus interest at a rate set by statute. See 18 CFR § 154.102 (1984). Although petitioner received higher gas prices pending review by the Commission, petitioner suspended any increase in royalties paid to the royalty owners because the higher price could be subject to recoupment by petitioner's customers. Petitioner agreed to pay the higher royalty only if the royalty owners would provide petitioner with a bond or indemnity for the increase, plus interest, in case the price increase was not ultimately approved and a refund was due to the customers. Petitioner set the interest rate on the indemnity agreements at the same interest rate the Commission would have required petitioner to refund to its customers. A small percentage of the royalty owners provided this indemnity and received royalties immediately from the interim price increases; these royalty owners are unimportant to this case. The remaining royalty owners received no royalty on the unapproved portion of the prices until the Federal Power Commission approval of those prices became final. Royalties on the unapproved portion of the gas price were suspended three times by petitioner, corresponding to its three proposed price increases in the mid-1970's. In three written opinions, the Commission approved all of petitioner's tentative price increases, so petitioner paid to its royalty owners the suspended royalties of $3.7 million in 1976, $4.7 million in 1977, and $2.9 million in 1978. Petitioner paid no interest to the royalty owners although it had the use of the suspended royalty money for a number of years. Respondents Irl Shutts, Robert Anderson, and Betty Anderson filed suit against petitioner in Kansas state court, seeking interest payments on their suspended royalties which petitioner had possessed pending the Commission's approval of the price increases. Shutts is a resident of Kansas, and the Andersons live in Oklahoma. Shutts and the Andersons Page 472 U. S. 801 own gas leases in Oklahoma and Texas. Over petitioner's objection the Kansas trial court granted respondents' motion to certify the suit as a class action under Kansas law. Kan.Stat.Ann. § 60-223 et seq. (1983). The class as certified was comprised of 33,000 royalty owners who had royalties suspended by petitioner. The average claim of each royalty owner for interest on the suspended royalties was $100. After the class was certified respondents provided each class member with notice through first-class mail. The notice described the action and informed each class member that he could appear in person or by counsel; otherwise each member would be represented by Shutts and the Andersons, the named plaintiffs. The notices also stated that class members would be included in the class and bound by the judgment unless they "opted out" of the lawsuit by executing and returning a "request for exclusion" that was included with the notice. The final class as certified contained 28, 100 members; 3,400 had "opted out" of the class by returning the request for exclusion, and notice could not be delivered to another 1,500 members, who were also excluded. Less than 1,000 of the class members resided in Kansas. Only a minuscule amount, approximately one quarter of one percent, of the gas leases involved in the lawsuit were on Kansas land. After petitioner's mandamus petition to decertify the class was denied, Phillips Petroleum v. Duckworth, No. 82-54608 (Kan. June 28, 1982), cert. denied, 459 U.S. 1103 (1983), the case was tried to the court. The court found petitioner liable under Kansas law for interest on the suspended royalties to all class members. The trial court relied heavily on an earlier, unrelated class action involving the same nominal plaintiff and the same defendant, Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977), cert. denied, 434 U.S. 1068 (1978). The Kansas Supreme Court had held in Shutts, Executor that a gas company owed interest to royalty owners for royalties suspended pending final Commission approval of a price increase. No federal statutes Page 472 U. S. 802 touched on the liability for suspended royalties, and the court in Shutts, Executor held as a matter of Kansas equity law that the applicable interest rates for computation of interest on suspended royalties were the interest rates at which the gas company would have had to reimburse its customers had its interim price increase been rejected by the Commission. The court in Shutts, Executor viewed these as the fairest interest rates because they were also the rates that petitioner required the royalty owners to meet in their indemnity agreements in order to avoid suspended royalties. The trial court in the present case applied the rule from Shutts, Executor, and held petitioner liable for prejudgment and postjudgment interest on the suspended royalties, computed at the Commission rates governing petitioner's three price increases. See 18 CFR § 154.102 (1984). The applicable interest rates were: 7% for royalties retained until October 1974; 9% for royalties retained between October 1974 and September 1979; and thereafter at the average prime rate. The trial court did not determine whether any difference existed between the laws of Kansas and other States, or whether another State's laws should be applied to non-Kansas plaintiffs or to royalties from leases in States other than Kansas. 235 Kan. at 221, 679 P.2d at 1180. Petitioner raised two principal claims in its appeal to the Supreme Court of Kansas. It first asserted that the Kansas trial court did not possess personal jurisdiction over absent plaintiff class members as required by International Shoe Co. v. Washington, 326 U. S. 310 (1945), and similar cases. Related to this first claim was petitioner's contention that the "opt-out" notice to absent class members, which forced them to return the request for exclusion in order to avoid the suit, was insufficient to bind class members who were not residents of Kansas or who did not possess "minimum contacts" with Kansas. Second, petitioner claimed that Kansas courts could not apply Kansas law to every claim in the dispute. The trial court should have looked to the laws of each State Page 472 U. S. 803 where the leases were located to determine, on the basis of conflict of laws principles, whether interest on the suspended royalties was recoverable, and at what rate. The Supreme Court of Kansas held that the entire cause of action was maintainable under the Kansas class action statute, and the court rejected both of petitioner's claims. 235 Kan.195, 679 P.2d 1159 (1984). First, it held that the absent class members were plaintiffs, not defendants, and thus the traditional minimum contacts test of International Shoe did not apply. The court held that nonresident class action plaintiffs were only entitled to adequate notice, an opportunity to be heard, an opportunity to opt out of the case, and adequate representation by the named plaintiffs. If these procedural due process minima were met, according to the court, Kansas could assert jurisdiction over the plaintiff class and bind each class member with a judgment on his claim. The court surveyed the course of the litigation and concluded that all of these minima had been met. The court also rejected petitioner's contention that Kansas law could not be applied to plaintiffs and royalty arrangements having no connection with Kansas. The court stated that generally the law of the forum controlled all claims unless "compelling reasons" existed to apply a different law. The court found no compelling reasons, and noted that "[t]he plaintiff class members have indicated their desire to have this action determined under the laws of Kansas." 235 Kan. at 222, 679 P.2d at 1181. The court affirmed as a matter of Kansas equity law the award of interest on the suspended royalties, at the rates imposed by the trial court. The court set the postjudgment interest rate on all claims at the Kansas statutory rate of 15%. Id. at 224, 679 P.2d at 1183. I As a threshold matter we must determine whether petitioner has standing to assert the claim that Kansas did not possess proper jurisdiction over the many plaintiffs in the Page 472 U. S. 804 class who were not Kansas residents and had no connection to Kansas. Respondents claim that a party generally may assert only his own rights, and that petitioner has no standing to assert the rights of its adversary, the plaintiff class, in order to defeat the judgment in favor of the class. Standing to sue in any Article III court is, of course, a federal question which does not depend on the party's prior standing in state court. Doremus v. Board of Education, 342 U. S. 429 , 342 U. S. 434 (1952); Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). Generally stated, federal standing requires an allegation of a present or immediate injury in fact, where the party requesting standing has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues." Ibid. There must be some causal connection between the asserted injury and the challenged action, and the injury must be of the type "likely to be redressed by a favorable decision." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464 , 454 U. S. 472 (1982). See Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 , 426 U. S. 41 -42 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 261 (1977). Additional prudential limitations on standing may exist even though the Article III requirements are met because "the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim." Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 , 441 U. S. 99 -100 (1979). One of these prudential limits on standing is that a litigant must normally assert his own legal interests rather than those of third parties. See Singleton v. Wulff, 428 U. S. 106 (1976); Craig v. Boren, 429 U. S. 190 (1976). Respondents claim that petitioner is barred by the rule requiring that a party assert only his own rights; they point out that respondents and petitioner are adversaries and do Page 472 U. S. 805 not have allied interests such that petitioner would be a good proponent of class members' interests. They further urge that petitioner's interference is unneeded because the class members have had opportunity to complain about Kansas' assertion of jurisdiction over their claim, but none have done so. See Singleton, supra, at 428 U. S. 113 -114. Respondents may be correct that petitioner does not possess standing jus tertii, but this is not the issue. Petitioner seeks to vindicate its own interests. As a class action defendant petitioner is in a unique predicament. If Kansas does not possess jurisdiction over this plaintiff class, petitioner will be bound to 28,100 judgment holders scattered across the globe, but none of these will be bound by the Kansas decree. Petitioner could be subject to numerous later individual suits by these class members because a judgment issued without proper personal jurisdiction over an absent party is not entitled to full faith and credit elsewhere and thus has no res judicata effect as to that party. Whether it wins or loses on the merits, petitioner has a distinct and personal interest in seeing the entire plaintiff class bound by res judicata just as petitioner is bound. The only way a class action defendant like petitioner can assure itself of this binding effect of the judgment is to ascertain that the forum court has jurisdiction over every plaintiff whose claim it seeks to adjudicate, sufficient to support a defense of res judicata in a later suit for damages by class members. While it is true that a court adjudicating a dispute may not be able to predetermine the res judicata effect of its own judgment, petitioner has alleged that it would be obviously and immediately injured if this class action judgment against it became final without binding the plaintiff class. We think that such an injury is sufficient to give petitioner standing on its own right to raise the jurisdiction claim in this Court. Petitioner's posture is somewhat similar to the trust settlor defendant in Hanson v. Denckla, 357 U. S. 235 (1958), who we found to have standing to challenge the forum's personal Page 472 U. S. 806 jurisdiction over an out-of-state trust company which was an indispensable party under the forum State's law. Because the court could not proceed with the action without jurisdiction over the trust company, we observed that "any defendant affected by the court's judgment ha[d] that 'direct and substantial personal interest in the outcome' that is necessary to challenge whether that jurisdiction was in fact acquired." Id. at 357 U. S. 245 , quoting Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77 (1958). II Reduced to its essentials, petitioner's argument is that unless out-of-state plaintiffs affirmatively consent, the Kansas courts may not exert jurisdiction over their claims. Petitioner claims that failure to execute and return the "request for exclusion" provided with the class notice cannot constitute consent of the out-of-state plaintiffs; thus Kansas courts may exercise jurisdiction over these plaintiffs only if the plaintiffs possess the sufficient "minimum contacts" with Kansas as that term is used in cases involving personal jurisdiction over out-of-state defendants. E.g., International Shoe Co. v. Washington, 326 U. S. 310 (1945); Shaffer v. Heitner, 433 U. S. 186 (1977); World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980). Since Kansas had no pre-litigation contact with many of the plaintiffs and leases involved, petitioner claims that Kansas has exceeded its jurisdictional reach and thereby violated the due process rights of the absent plaintiffs. In International Shoe we were faced with an out-of-state corporation which sought to avoid the exercise of personal jurisdiction over it as a defendant by a Washington state court. We held that the extent of the defendant's due process protection would depend "upon the quality and nature of the activity in relation to the fair and orderly administration of the laws. . . ." 326 U.S. at 326 U. S. 319 . We noted that the Due Process Clause did not permit a State to make a binding judgment against a person with whom the State had no contacts, Page 472 U. S. 807 ties, or relations. Ibid. If the defendant possessed certain minimum contacts with the State, so that it was "reasonable and just, according to our traditional conception of fair play and substantial justice" for a State to exercise personal jurisdiction, the State could force the defendant to defend himself in the forum, upon pain of default, and could bind him to a judgment. Id. at 326 U. S. 320 . The purpose of this test, of course, is to protect a defendant from the travail of defending in a distant forum, unless the defendant's contacts with the forum make it just to force him to defend there. As we explained in Woodson, supra, the defendant's contacts should be such that "he should reasonably anticipate being haled" into the forum. 444 U.S. at 444 U. S. 297 . In Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 , 456 U. S. 702 -703, and n. 10 (1982), we explained that the requirement that a court have personal jurisdiction comes from the Due Process Clause's protection of the defendant's personal liberty interest, and said that the requirement "represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." (Footnote omitted.) Although the cases like Shaffer and Woodson which petitioner relies on for a minimum contacts requirement all dealt with out-of-state defendants or parties in the procedural posture of a defendant, cf. New York Life Ins. Co. v. Dunlevy, 241 U. S. 518 (1916); Estin v. Estin, 334 U. S. 541 (1948), petitioner claims that the same analysis must apply to absent class action plaintiffs. In this regard petitioner correctly points out that a chose in action is a constitutionally recognized property interest possessed by each of the plaintiffs. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950). An adverse judgment by Kansas courts in this case may extinguish the chose in action forever through res judicata. Such an adverse judgment, petitioner claims, would be every bit as onerous to an absent plaintiff as an adverse judgment on the merits would be to a defendant. Page 472 U. S. 808 Thus, the same due process protections should apply to absent plaintiffs: Kansas should not be able to exert jurisdiction over the plaintiffs' claims unless the plaintiffs have sufficient minimum contacts with Kansas. We think petitioner's premise is in error. The burdens placed by a State upon an absent class action plaintiff are not of the same order or magnitude as those it places upon an absent defendant. An out-of-state defendant summoned by a plaintiff is faced with the full powers of the forum State to render judgment against it. The defendant must generally hire counsel and travel to the forum to defend itself from the plaintiff's claim, or suffer a default judgment. The defendant may be forced to participate in extended and often costly discovery, and will be forced to respond in damages or to comply with some other form of remedy imposed by the court should it lose the suit. The defendant may also face liability for court costs and attorney's fees. These burdens are substantial, and the minimum contacts requirement of the Due Process Clause prevents the forum State from unfairly imposing them upon the defendant. A class action plaintiff, however, is in quite a different posture. The Court noted this difference in Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 40 -41 (1940), which explained that a "class" or "representative" suit was an exception to the rule that one could not be bound by judgment in personam unless one was made fully a party in the traditional sense. Ibid., citing Pennoyer v. Neff, 95 U. S. 714 (1878). As the Court pointed out in Hansberry, the class action was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the litigation was too great to permit joinder. The absent parties would be bound by the decree so long as the named parties adequately represented the absent class and the prosecution of the litigation was within the common interest. [ Footnote 1 ] 311 U.S. at 311 U. S. 41 . Page 472 U. S. 809 Modern plaintiff class actions follow the same goals, permitting litigation of a suit involving common questions when there are too many plaintiffs for proper joinder. Class actions also may permit the plaintiffs to pool claims which would be uneconomical to litigate individually. For example, this lawsuit involves claims averaging about $100 per plaintiff; most of the plaintiffs would have no realistic day in court if a class action were not available. In sharp contrast to the predicament of a defendant haled into an out-of-state forum, the plaintiffs in this suit were not haled anywhere to defend themselves upon pain of a default judgment. As commentators have noted, from the plaintiffs' point of view a class action resembles a "quasi-administrative proceeding, conducted by the judge." 3B J. Moore & J. Kennedy, Moore's Federal Practice �23.45 [4.-5] (1984); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments to the Federal Rules of Civil Procedure (1), 81 Harv.L.Rev. 356, 398 (1967). A plaintiff class in Kansas and numerous other jurisdictions cannot first be certified unless the judge, with the aid of the named plaintiffs and defendant, conducts an inquiry into the common nature of the named plaintiffs' and the absent plaintiffs' claims, the adequacy of representation, the jurisdiction possessed over the class, and any other matters that will bear upon proper representation of the absent plaintiffs' interest. See, e.g., Kan.Stat.Ann. § 60-223 (1983); Fed.Rule Civ.Proc. 23. Unlike a defendant in a civil suit, a class action plaintiff is not required to fend for himself. See Kan.Stat.Ann. § 60-223(d) (1983). The court and named plaintiffs protect his interests. Indeed, the class action defendant itself has a great interest in ensuring that the absent plaintiffs' claims are properly before the forum. In this case, for Page 472 U. S. 810 example, the defendant sought to avoid class certification by alleging that the absent plaintiffs would not be adequately represented and were not amenable to jurisdiction. See Phillips Petroleum v. Duckworth, No. 82-54608 (Kan. June 28, 1982). The concern of the typical class action rules for the absent plaintiffs is manifested in other ways. Most jurisdictions, including Kansas, require that a class action, once certified, may not be dismissed or compromised without the approval of the court. In many jurisdictions such as Kansas the court may amend the pleadings to ensure that all sections of the class are represented adequately. Kan.Stat.Ann. § 60223(d) (1983); see also, e.g., Fed.Rule Civ.Proc. 23(d). Besides this continuing solicitude for their rights, absent plaintiff class members are not subject to other burdens imposed upon defendants. They need not hire counsel or appear. They are almost never subject to counterclaims or cross-claims, or liability for fees or costs. [ Footnote 2 ] Absent plaintiff class members are not subject to coercive or punitive remedies. Nor will an adverse judgment typically bind an absent plaintiff for any damages, although a valid adverse judgment may extinguish any of the plaintiff's claims which were litigated. Unlike a defendant in a normal civil suit, an absent class action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection. In most class actions an absent plaintiff is provided at least with an opportunity to "opt out" of the class, and if he takes advantage of that opportunity he is removed from the Page 472 U. S. 811 litigation entirely. This was true of the Kansas proceedings in this case. The Kansas procedure provided for the mailing of a notice to each class member by first-class mail. The notice, as we have previously indicated, described the action and informed the class member that he could appear in person or by counsel, in default of which he would be represented by the named plaintiffs and their attorneys. The notice further stated that class members would be included in the class and bound by the judgment unless they "opted out" by executing and returning a "request for exclusion" that was included in the notice. Petitioner contends, however, that the "opt out" procedure provided by Kansas is not good enough, and that an "opt in" procedure is required to satisfy the Due Process Clause of the Fourteenth Amendment. Insofar as plaintiffs who have no minimum contacts with the forum State are concerned, an "opt in" provision would require that each class member affirmatively consent to his inclusion within the class. Because States place fewer burdens upon absent class plaintiffs than they do upon absent defendants in nonclass suits, the Due Process Clause need not and does not afford the former as much protection from state court jurisdiction as it does the latter. The Fourteenth Amendment does protect "persons," not "defendants," however, so absent plaintiffs as well as absent defendants are entitled to some protection from the jurisdiction of a forum State which seeks to adjudicate their claims. In this case we hold that a forum State may exercise jurisdiction over the claim of an absent class action plaintiff, even though that plaintiff may not possess the minimum contacts with the forum which would support personal jurisdiction over a defendant. If the forum State wishes to bind an absent plaintiff concerning a claim for money damages or similar relief at law, [ Footnote 3 ] it must provide minimal Page 472 U. S. 812 procedural due process protection. The plaintiff must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable, "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, 339 U.S. at 399 U. S. 314 -315; cf. Eisen v. Carlisle & Jacquelin, 417 U. S. 156 , 417 U. S. 174 -175 (1974). The notice should describe the action and the plaintiffs' rights in it. Additionally, we hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an "opt out" or "request for exclusion" form to the court. Finally, the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members. Hansberry, 311 U.S. at 311 U. S. 42 -43, 45. We reject petitioner's contention that the Due Process Clause of the Fourteenth Amendment requires that absent plaintiffs affirmatively "opt in" to the class, rather than be deemed members of the class if they do not "opt out." We think that such a contention is supported by little, if any precedent, and that it ignores the differences between class action plaintiffs, on the one hand, and defendants in nonclass civil suits on the other. Any plaintiff may consent to jurisdiction. Keeton v. Hustler Magazine, Inc., 465 U. S. 770 (1984). The essential question, then, is how stringent the requirement for a showing of consent will be. We think that the procedure followed by Kansas, where a fully descriptive notice is sent first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process. Requiring a plaintiff to affirmatively Page 472 U. S. 813 request inclusion would probably impede the prosecution of those class actions involving an aggregation of small individual claims, where a large number of claims are required to make it economical to bring suit. See, e.g., Eisen, supra, at 417 U. S. 161 . The plaintiff's claim may be so small, or the plaintiff so unfamiliar with the law, that he would not file suit individually, nor would he affirmatively request inclusion in the class if such a request were required by the Constitution. [ Footnote 4 ] If, on the other hand, the plaintiff's claim is sufficiently large or important that he wishes to litigate it on his own, he will likely have retained an attorney or have thought about filing suit, and should be fully capable of exercising his right to "opt out." In this case over 3,400 members of the potential class did "opt out," which belies the contention that "opt out" procedures result in guaranteed jurisdiction by inertia. Another 1,500 were excluded because the notice and "opt out" form was undeliverable. We think that such results show that the "opt out" procedure provided by Kansas is by no means pro forma, and that the Constitution does not require more to protect what must be the somewhat rare species of class member who is unwilling to execute an "opt out" form, but whose claim is nonetheless so important that he cannot be presumed to consent to being a member of the class by his failure to do so. Petitioner's "opt in" requirement would require the invalidation of scores of state statutes and of the class action provision of the Federal Rules of Civil Procedure, [ Footnote 5 ] Page 472 U. S. 814 and for the reasons stated we do not think that the Constitution requires the State to sacrifice the obvious advantages in judicial efficiency resulting from the "opt out" approach for the protection of the raris avis portrayed by petitioner. We therefore hold that the protection afforded the plaintiff class members by the Kansas statute satisfies the Due Process Clause. The interests of the absent plaintiffs are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the court. See Insurance Corp. of Ireland, 456 U.S. at 456 U. S. 702 -703, and n. 10. Both the Kansas trial court and the Supreme Court of Kansas held that the class received adequate representation, and no party disputes that conclusion here. We conclude that the Kansas court properly asserted personal jurisdiction over the absent plaintiffs and their claims against petitioner. III The Kansas courts applied Kansas contract and Kansas equity law to every claim in this case, notwithstanding that Page 472 U. S. 815 over 99% of the gas leases and some 97% of the plaintiffs in the case had no apparent connection to the State of Kansas except for this lawsuit. [ Footnote 6 ] Petitioner protested that the Kansas Page 472 U. S. 816 courts should apply the laws of the States where the leases were located, or at least apply Texas and Oklahoma law because so many of the leases came from those States. The Kansas courts disregarded this contention and found petitioner liable for interest on the suspended royalties as a matter of Kansas law, and set the interest rates under Kansas equity principles. Petitioner contends that total application of Kansas substantive law violated the constitutional limitations on choice of law mandated by the Due Process Clause of the Fourteenth Amendment and the Full Faith and Credit Clause of Article IV, § 1. We must first determine whether Kansas law conflicts in any material way with any other law which could apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit. Petitioner claims that Kansas law conflicts with that of a number of States connected to this litigation, especially Texas and Oklahoma. These putative conflicts range from the direct to the tangential, and may be addressed by the Supreme Court of Kansas on remand under the correct constitutional standard. For example, there is no recorded Page 472 U. S. 817 Oklahoma decision dealing with interest liability for suspended royalties: whether Oklahoma is likely to impose liability would require a survey of Oklahoma oil and gas law. Even if Oklahoma found such liability, petitioner shows that Oklahoma would most likely apply its constitutional and statutory 6% interest rate rather than the much higher Kansas rates applied in this litigation. Okla.Const., Art XIV, § 2; Okla.Stat., Tit. 15, § 266 (Supp.1984-1985); Rendezvous Trails of America, Inc. v. Ayers, 612 P.2d 1384 , 1385 (Okla. App.1980); Smith v. Robinson, 594 P.2d 364 (Okla.1979); West Edmond Hunton Lime Unit v. Young, 325 P.2d 1047 (Okla.1958). Additionally, petitioner points to an Oklahoma statute which excuses liability for interest if a creditor accepts payment of the full principal without a claim for interest, Okla.Stat., Tit. 23, § 8 (1951). Cf. Webster Drilling Co. v. Sterling Oil of Oklahoma, Inc., 376 P.2d 236 (Okla.1962). Petitioner contends that by ignoring this statute the Kansas courts created liability that does not exist in Oklahoma. Petitioner also points out several conflicts between Kansas and Texas law. Although Texas recognizes interest liability for suspended royalties, Texas has never awarded any such interest at a rate greater than 6%, which corresponds with the Texas constitutional and statutory rate. [ Footnote 7 ] Tex.Const., Art. 16, § 11; Tex.Rev.Civ.Stat.Ann., Art. 5069-1.03 (Vernon 1971). See Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978); Phillips Petroleum Co. v. Adams, 513 F.2d 355 (CA5), cert. denied, 423 U.S. 930 (1975); cf. Maxey v. Texas Commerce Bank, 580 S.W.2d 340 , 341 (Tex.1979). Moreover, at least one court interpreting Texas law appears to have held that Texas excuses interest Page 472 U. S. 818 liability once the gas company offers to take an indemnity from the royalty owner and pay him the suspended royalty while the price increase is still tentative. Phillips Petroleum Co. v. Riverside Gas Compression Co., 409 F. Supp. 486 , 495-496 (ND Tex.1976). Such a rule is contrary to Kansas law as applied below, but if applied to the Texas plaintiffs or leases in this case, would vastly reduce petitioner's liability. The conflicts on the applicable interest rates, alone -- which we do not think can be labeled "false conflicts" without a more thoroughgoing treatment than was accorded them by the Supreme Court of Kansas -- certainly amounted to millions of dollars in liability. We think that the Supreme Court of Kansas erred in deciding on the basis that it did that the application of its laws to all claims would be constitutional. Four Terms ago we addressed a similar situation in Allstate Ins. Co. v. Hague, 449 U. S. 302 (1981). In that case we were confronted with two conflicting rules of state insurance law. Minnesota permitted the "stacking" of separate uninsured motorist policies while Wisconsin did not. Although the decedent lived in Wisconsin, took out insurance policies and was killed there, he was employed in Minnesota, and after his death his widow moved to Minnesota for reasons unrelated to the litigation, and was appointed personal representative of his estate. She filed suit in Minnesota courts, which applied the Minnesota stacking rule. The plurality in Allstate noted that a particular set of facts giving rise to litigation could justify, constitutionally, the application of more than one jurisdiction's laws. The plurality recognized, however, that the Due Process Clause and the Full Faith and Credit Clause provided modest restrictions on the application of forum law. These restrictions required "that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Id. at 449 U. S. 312 -313. The Page 472 U. S. 819 dissenting Justices were in substantial agreement with this principle. Id. at 449 U. S. 332 (opinion of POWELL, J., joined by BURGER, C.J., and REHNQUIST, J.). The dissent stressed that the Due Process Clause prohibited the application of law which was only casually or slightly related to the litigation, while the Full Faith and Credit Clause required the forum to respect the laws and judgments of other States, subject to the forum's own interests in furthering its public policy. Id. at 449 U. S. 335 -336. The plurality in Allstate affirmed the application of Minnesota law because of the forum's significant contacts to the litigation which supported the State's interest in applying its law. See id. at 449 U. S. 313 -329. Kansas' contacts to this litigation, as explained by the Kansas Supreme Court, can be gleaned from the opinion below. Petitioner owns property and conducts substantial business in the State, so Kansas certainly has an interest in regulating petitioner's conduct in Kansas. 235 Kan. at 210, 679 P.2d at 1174. Moreover, oil and gas extraction is an important business to Kansas, and although only a few leases in issue are located in Kansas, hundreds of Kansas plaintiffs were affected by petitioner's suspension of royalties; thus the court held that the State has a real interest in protecting "the rights of these royalty owners both as individual residents of [Kansas] and as members of this particular class of plaintiffs." Id. at 211-212, 679 P.2d at 1174. The Kansas Supreme Court pointed out that Kansas courts are quite familiar with this type of lawsuit, and "[t]he plaintiff class members have indicated their desire to have this action determined under the laws of Kansas." Id. at 211, 222, 679 P.2d at 1174, 1181. Finally, the Kansas court buttressed its use of Kansas law by stating that this lawsuit was analogous to a suit against a "common fund" located in Kansas. Id. at 201, 211-212, 679 P.2d at 1168, 1174. We do not lightly discount this description of Kansas' contacts with this litigation and its interest in applying its law. There is, however, no "common fund" located in Kansas that Page 472 U. S. 820 would require or support the application of only Kansas law to all these claims. See, e.g., Hartford Life Ins. Co. v. Ibs, 237 U. S. 662 (1915). As the Kansas court noted, petitioner commingled the suspended royalties with its general corporate accounts. 235 Kan. at 201, 679 P.2d at 1168. There is no specific identifiable res in Kansas, nor is there any limited amount which may be depleted before every plaintiff is compensated. Only by somehow aggregating all the separate claims in this case could a "common fund" in any sense be created, and the term becomes all but meaningless when used in such an expansive sense. We also give little credence to the idea that Kansas law should apply to all claims because the plaintiffs, by failing to opt out, evinced their desire to be bound by Kansas law. Even if one could say that the plaintiffs "consented" to the application of Kansas law by not opting out, plaintiff's desire for forum law is rarely, if ever controlling. In most cases, the plaintiff shows his obvious wish for forum law by filing there. "If a plaintiff could choose the substantive rules to be applied to an action . . . the invitation to forum shopping would be irresistible." Allstate, supra, at 449 U. S. 337 (opinion of POWELL, J.). Even if a plaintiff evidences his desire for forum law by moving to the forum, we have generally accorded such a move little or no significance. John Hancock Mut. Life Ins. Co. v. Yates, 299 U. S. 178 , 299 U. S. 182 (1936); Home Ins. Co. v. Dick, 281 U. S. 397 , 281 U. S. 408 (1930). In Allstate, the plaintiff's move to the forum was only relevant because it was unrelated and prior to the litigation. 449 U.S. at 449 U. S. 318 -319. Thus, the plaintiffs' desire for Kansas law, manifested by their participation in this Kansas lawsuit, bears little relevance. The Supreme Court of Kansas, in its opinion in this case, expressed the view that, by reason of the fact that it was adjudicating a nationwide class action, it had much greater latitude in applying its own law to the transactions in question than might otherwise be the case: Page 472 U. S. 821 "The general rule is that the law of the forum applies unless it is expressly shown that a different law governs, and in case of doubt, the law of the forum is preferred. . . . Where a state court determines it has jurisdiction over a nationwide class action and procedural due process guarantees of notice and adequate representation are present, we believe the law of the forum should be applied unless compelling reasons exist for applying a different law. . . . Compelling reasons do not exist to require this court to look to other state laws to determine the rights of the parties involved in this lawsuit." 235 Kan. at 221-222, 679 P.2d at 1181. We think that this is something of a "bootstrap" argument. The Kansas class action statute, like those of most other jurisdictions, requires that there be "common issues of law or fact." But while a State may, for the reasons we have previously stated, assume jurisdiction over the claims of plaintiffs whose principal contacts are with other States, it may not use this assumption of jurisdiction as an added weight in the scale when considering the permissible constitutional limits on choice of substantive law. It may not take a transaction with little or no relationship to the forum and apply the law of the forum in order to satisfy the procedural requirement that there be a "common question of law." The issue of personal jurisdiction over plaintiffs in a class action is entirely distinct from the question of the constitutional limitations on choice of law; the latter calculus is not altered by the fact that it may be more difficult or more burdensome to comply with the constitutional limitations because of the large number of transactions which the State proposes to adjudicate and which have little connection with the forum. Kansas must have a "significant contact or significant aggregation of contacts" to the claims asserted by each member of the plaintiff class, contacts "creating state interests," in order to ensure that the choice of Kansas law is not arbitrary Page 472 U. S. 822 or unfair. Allstate, 449 U.S. at 449 U. S. 312 -313. Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict with jurisdictions such as Texas, we conclude that application of Kansas law to every claim in this case is sufficiently arbitrary and unfair as to exceed constitutional limits. [ Footnote 8 ] When considering fairness in this context, an important element is the expectation of the parties. See Allstate, supra, at 449 U. S. 333 (opinion of POWELL, J.). There is no indication that, when the leases involving land and royalty owners outside of Kansas were executed, the parties had any idea that Kansas law would control. Neither the Due Process Clause nor the Full Faith and Credit Clause requires Kansas "to substitute for its own [laws], applicable to persons and events within it, the conflicting statute of another state," Pacific Employees Ins. Co. v. Industrial Accident Comm'n, 306 U. S. 493 , 306 U. S. 502 (1939), but Kansas "may not abrogate the rights of parties beyond its borders having no relation to anything done or to be done within them." Home Ins. Co. v. Dick, supra, at 281 U. S. 410 . Here the Supreme Court of Kansas took the view that in a nationwide class action where procedural due process guarantees Page 472 U. S. 823 of notice and adequate representation were met, "the law of the forum should be applied unless compelling reasons exist for applying a different law." 235 Kan. at 221, 679 P.2d at 1181. Whatever practical reasons may have commended this rule to the Supreme Court of Kansas, for the reasons already stated we do not believe that it is consistent with the decisions of this Court. We make no effort to determine for ourselves which law must apply to the various transactions involved in this lawsuit, and we reaffirm our observation in Allstate that in many situations a state court may be free to apply one of several choices of law. But the constitutional limitations laid down in cases such as Allstate and Home Ins. Co. v. Dick, supra, must be respected even in a nationwide class action. We therefore affirm the judgment of the Supreme Court of Kansas insofar as it upheld the jurisdiction of the Kansas courts over the plaintiff class members in this case, and reverse its judgment insofar as it held that Kansas law was applicable to all of the transactions which it sought to adjudicate. We remand the case to that court for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the decision of this case. [ Footnote 1 ] The holding in Hansberry, of course, was that petitioners in that case had not a sufficient common interest with the parties to a prior lawsuit such that a decree against those parties in the prior suit would bind the petitioners. But in the present case there is no question that the named plaintiffs adequately represent the class, and that all members of the class have the same interest in enforcing their claims against the defendant. [ Footnote 2 ] Petitioner places emphasis on the fact that absent class members might be subject to discovery, counterclaims, cross-claims, or court costs. Petitioner cites no cases involving any such imposition upon plaintiffs, however. We are convinced that such burdens are rarely imposed upon plaintiff class members, and that the disposition of these issues is best left to a case which presents them in a more concrete way. [ Footnote 3 ] Our holding today is limited to those class actions which seek to bind known plaintiffs concerning claims wholly or predominately for money judgments. We intimate no view concerning other types of class actions, such as those seeking equitable relief. Nor, of course, does our discussion of personal jurisdiction address class actions where the jurisdiction is asserted against a defendant class. [ Footnote 4 ] In this regard the Reporter for the 1966 amendments to the Federal Rules of Civil Procedure stated: "[R]equiring the individuals affirmatively to request inclusion in the lawsuit would result in freeing out the claims of people especially small claims held by small people -- who for one reason or another, ignorance, timidity, unfamiliarity with business or legal matters, will simply not take the affirmative step." Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv.L.Rev. 356, 397-398 (1967). [ Footnote 5 ] The following statutes or procedural rules permit "opt out" notice in some types of class actions: Rule Civ.Proc. 23(c)(2)(A); Ariz. Rule Civ.Proc. 23(c)(2)(A); Cal.Civ.Code Ann. § 1781(e)(1) (West 1973) (consumer class action); Colo.Rule Civ.Proc. 23(c)(2)(A); Del.Ch.Ct. Rule 23(c)(2)(A); D.C.Super.Ct. Rule Civ.Proc. 23(c)(2)(A); Fla.Rule Civ.Proc. 1.220(d)(2)(A); Idaho Rule Civ.Proc. 23(c)(2)(A); Ind.Rule Trial Proc. 23(C)(2)(A); Iowa Rule Civ.Proc. 42.8(b); Kan.Stat.Ann. § 60-223(c)(2) (1983); Ky. Rule Civ.Proc. 23.03(2)(a); Me.Rule Civ.Proc. 23(c)(2)(A); Md.Rule Civ.Proc. 2-231(e)(1); Mich.Ct.Rule 3.501(C 5)(b); Minn.Rule Civ.Proc. 23.03 (2)(A); Mo. Rule Civ.Proc. 52.08; Mont. Rule Civ.Proc. 23(c)(2)(A); Nev.Rule Civ.Proc. 23(c)(2)(A); N.J.Civ.Prac.Rule 4:32-2; N.Y.Civ.Prac.Law § 904 (McKinney 1976); N.D.Rule Civ.Proc. 23(g)(2)(B); Ohio Rule Civ.Proc. 23(C)(2)(a); Okla Stat., Tit. 12, § 2023(C)(2)(a) (Supp.19841985); Ore.Rule Civ.Proc. 32F(1)(b)(ii); Pa.Rule Civ.Proc. 1711(a); Tenn.Rule Civ.Proc. 23.03(2)(a); Vt.Rule Civ.Proc. 23(c)(2)(A); Wash.Ct. Rule 23(C)(2)(i); Wyo. Rule Civ.Proc. 23(c)(2)(A). [ Footnote 6 ] The Commission approved petitioner's price increases in Opinion Nos. 699, 749, and 770. Petitioner reimbursed royalty owners $3.7, $2.9, and $4.7 million in suspended royalties, respectively. The States where the leases were located and their resident plaintiffs are as follows. OPINION 699 -------------------------------------------------------- No. leases Royalties to No. Royalty States in state states leases owners in state -------------------------------------------------------- Oklahoma 1,266 $ 83,711.35 2,653 Texas 4,414 839,152.73 9,591 Kansas 3 152.88 496 Arkansas 6 3,228.22 173 Louisiana 68 2,187,548.06 1,244 New Mexico 941 433,574.85 621 Illinois ---- ---- 397 Wyoming 690 148,906.93 413 Mississippi ---- ---- 67 Utah ---- ---- 29 West Virginia ---- ---- 20 No State Code 1 [.05] 1,205 ----- ------- 7,389 $3,696,274.97 OPINION 749 -------------------------------------------------------- No. leases Royalties to No. Royalty States in state states leases owners in state -------------------------------------------------------- Oklahoma 1,948 $ 243,163.49 3,591 Texas 3,479 2,171,217.36 7,881 Kansas 15 2,619.24 553 Arkansas 32 1,769.33 171 Louisiana 178 352,539.45 740 New Mexico 350 22,670.27 339 Illinois 1 1.30 357 Wyoming 68 65,570.01 37 Mississippi 3 694.93 88 Utah 1 184.60 18 West Virginia 32 10,364.61 246 No State Code 2 1,032.59 1,553 ----- ------- 6,109 $2,873,827.18 OPINION 770 -------------------------------------------------------- No. leases Royalties to No. Royalty States in state states leases owners in state -------------------------------------------------------- Oklahoma 1,430 $ 471,122.53 2,684 Texas 3,702 2,615,744.46 8,550 Kansas 4 115.10 504 Arkansas 2 552.83 162 Louisiana 26 516,248.13 361 New Mexico 591 194,799.95 469 Illinois 1 .01 353 Wyoming 476 945,441.09 272 Mississippi ---- ---- 36 Utah ---- ---- 18 West Virginia ---- ---- 22 No State Code ---- ---- 1,046 ----- ------- 6,232 $4,744,024.10 [ Footnote 7 ] The Kansas interest rate also conflicts with the rate which is applicable in Louisiana. At the time this suit was filed that rate was 7%. See La.Civ.Code Ann., Art. 1938 (1977) (amended in 1982); Wurzlow v. Placid Oil Co., 279 So. 2d 749, 772-774 (La.App.1973) (applying Art.1938 to oil and gas royalties). [ Footnote 8 ] In this case the Kansas Supreme Court held that "[t]he trial court did not determine whether any difference existed between the laws of Kansas and other states or whether another state's law should be applied." 235 Kan.195, 221, 679 P.2d 1159 , 1180 (1984). Respondents contend that the trial court and the Supreme Court actually incorporated by reference the opinion in Shutts, Executor, 222 Kan. 527, 567 P.2d 1292 (1977), where the court looked to the Texas and Oklahoma interest rate statutes and found them inapplicable. We do not think that the Kansas Supreme Court fully adopted the choice-of-law discussion in Shutts, Executor as its holding in this case. But even if we agreed that Shutts, Executor was somehow incorporated below, that would be insufficient. Shutts, Executor was a pre Allstate case involving only 2 other States, rather than the 10 present here. Moreover, the gas region involved in Shutts, Executor was primarily within Kansas borders. Shutts, Executor only considered the conflict involving interest rate liability and state statutes, and in finding the 6% Texas rate inapplicable it cited but did not follow contrary Texas precedent. 222 Kan. at 562-565, 567 P.2d at 1317-1319. JUSTICE STEVENS, concurring in part and dissenting in part. For the reasons stated in Parts I and II of the Court's opinion, I agree that the Kansas courts properly exercised jurisdiction over this class action. I also recognize that the use of the word "compelling" in a portion of the Kansas Supreme Court's opinion, when read out of context, may create an inaccurate impression of that court's choice-of-law holding. See ante at 472 U. S. 821 . Our job, however, is to review judgments, not to edit opinions, and I am firmly convinced that there is no constitutional defect in the judgment under review. As the Court recognizes, there "can be no [constitutional] injury in applying Kansas law if it is not in conflict with that Page 472 U. S. 824 of any other jurisdiction connected to this suit." Ante at 472 U. S. 816 . A fair reading of the Kansas Supreme Court's opinion in light of its earlier opinion in Shutts v. Phillips Petroleum Co., 222 Kan. 527, 567 P.2d 1292 (1977) (hereinafter Shutts I ), cert. denied, 434 U.S. 1068 (1978), reveals that the Kansas court has examined the laws of connected jurisdictions and has correctly concluded that there is no "direct" or "substantive" conflict between the law applied by Kansas and the laws of those other States. Cf. ante at 472 U. S. 816 , 472 U. S. 821 -822. Kansas has merely developed general common law principles to accommodate the novel facts of this litigation -- other state courts either agree with Kansas or have not yet addressed precisely similar claims. Consequently, I conclude that the Full Faith and Credit Clause of the Constitution [ Footnote 2/1 ] did not require Kansas to apply the law of any other State, and the Fourteenth Amendment's Due Process Clause [ Footnote 2/2 ] did not prevent Kansas from applying its own law in this case. The Court errs today because it applies a loose definition of the sort of "conflict" of laws required to state a constitutional claim, allowing Phillips a tactical victory here merely on allegations of "putative" or "likely" conflicts. Ante at 472 U. S. 816 , 472 U. S. 817 . The Court's choice-of-law analysis also treats the two relevant constitutional provisions as though they imposed the same constraints on the forum court. In my view, however, the potential impact of the Kansas choice on the interests of other sovereign States and the fairness of its decision to the litigants should be separately considered. See Allstate Insurance Co. v. Hague, 449 U. S. 302 , 449 U. S. 320 (1981) (STEVENS, J., concurring in judgment). For both inquiries, it Page 472 U. S. 825 is essential to have a better understanding of the merits of the underlying dispute than can be gleaned from the Court's opinion. I therefore begin with an explanation of the background of this litigation. I Petitioner (Phillips) is a large independent producer, purchaser, and seller of natural gas. Beginning in 1954, the prices at which it sold natural gas to interstate pipeline companies were regulated by the Federal Power Commission (Commission). [ Footnote 2/3 ] Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672 (1954). As a party to a large number of producing oil and gas leases, Phillips is obligated to pay a percentage of the value of the production, usually one-eighth, to persons owning an interest in the leased areas, so-called "royalty owners." Some royalty owners are due monthly royalties by contractual agreements made directly with Phillips. See Shutts I, supra, at 532, 567 P.2d at 1298. Others are due royalties under contracts made with other gas producers who then sell their gas to Phillips -- by separate contract with those producers, Phillips has "assumed the producer's responsibility to distribute the royalties . . . to the royalty owners." 235 Kan.195, 218, 679 P.2d 1159 , 1178 (1984). The relationship between Phillips and the royalty owners is not regulated by the Commission although it is, of course, materially affected by the Commission's control over the pricing relationship between Phillips and its customers. In a series of orders entered after 1954, the Commission established a practice of suspending price increases proposed by Phillips until approved by the Commission, but allowing Phillips to collect the higher proposed prices upon the filing by Phillips with the Commission of a corporate undertaking to refund to its customers any portion of an increase Page 472 U. S. 826 that is ultimately disapproved by the Commission. Pursuant to Commission regulation, Phillips agrees that unapproved prices it collects are subject to refund "with interest at seven percent (7%) per annum from the date of receipt until September 18, 1970, and eight percent (8%) per annum thereafter until paid out, if the FPC [does] not approve the sales price." Shutts I, supra, at 533, 567 P.2d at 1299 (emphasis deleted) (citing 18 CFR § 154.102(c) (1977) and Commission opinion No. 586, 44 F. P. C. 761, 791 (1970)). Phillips' receipts during periods when its proposed price increases have not yet received final approval therefore include two components -- the "firm" proceeds and the "FPC suspense money." For example, while an increase in price from 11 cents per Mcf (thousand cubic feet) to 13 cents is under consideration, the collection of the higher price would include firm proceeds of 11 cents and 2 cents of FPC suspense money. In July 1961, while a price increase applicable to the tristate Hugoton-Anadarko area (Kansas, Oklahoma, and Texas) was pending, Phillips sent a notice to the royalty owners for that area advising them that "until further notice" they would be paid royalties on the basis of firm proceeds only and that royalties based on suspense money would be paid only after it was "determined that the sums collected are no longer subject to refund." The notice also advised the royalty owners that they could receive ongoing payment of royalties on the suspense money as well if they furnished Phillips with an "acceptable indemnity to cover their proportionate part of any required refunds, plus the required interest. " Shutts I, 222 Kan. at 534, 567 P.2d at 1299 (emphasis added). [ Footnote 2/4 ] The indemnity which Phillips required was a corporate Page 472 U. S. 827 security bond covering a principal amount based on estimated production for a 2-year period, plus the 7% interest rate Phillips would be required to pay to its customers if the price increase were not approved. Only 17 royalty owners provided Phillips with such an indemnity; approximately 6,400 royalty owners who did not do so did not receive royalties on the suspense proceeds until 11 years later, after the price increase was finally approved. The situation was succinctly summarized by the Kansas Supreme Court in Shutts I: "From June 1, 1961, to October 1, 1970, Phillips deposited the increased rate monies collected in its general account and commingled it with its other funds, without ever giving notice of this fact to royalty owners during the time it was holding money. It is important to note that during this period of time Phillips had no entitlement to the gas royalty owners' share of the 'suspense royalties,' whether or not the rates were approved by the FPC. Phillips never owned this money. While Phillips collected eight-eighths (8/8) of the increased rates, under no condition was the one-eighth (1/8) of the increase attributable to the royalty owners ever to go to Phillips. That royalty share, according to eventual FPC ruling, was either to go to Phillips' royalty owners, or back to Phillips' gas purchasers with interest, or part to one and part to the other." Id. at 535, 567 P.2d at 1300 (emphasis in original). Page 472 U. S. 828 In 1970, the Commission entered an order approving Phillips' Hugoton-Anadarko price increases to the extent of approximately $153,000,000 and disapproving them to the extent of approximately $29,000,000. Thus, over 18% of the suspense money had to be refunded to Phillips' customers, with interest at the rates to which Phillips had agreed under Commission regulation. Having no jurisdiction over the relationship between Phillips and the royalty owners, however, the Commission's order was silent on the subject of royalties on the $153 million of suspense money that did not have to be refunded. After the Commission's order was finally affirmed by the Ninth Circuit in 1972, In re Hugoton-Anadarko Area Rate Case, 466 F.2d 974, Phillips mailed checks to the royalty owners for their share of the suspense moneys based on the approved higher prices that had been collected since 1961. However, "Phillips neither paid nor offered to pay any interest for the use of the money, nor did Phillips say anything about interest or how long the money had been held or used by Phillips." Shutts I, supra, at 537, 567 P.2d at 1301. The foregoing facts gave rise to Shutts I. This case (Shutts II) involves suspense royalties due on similar price increases approved in 1976, 1977, and 1978 to a larger number of royalty owners (28,100) with interests in leased areas located in 11 States, including Kansas. Otherwise, however, "[w]ith a few exceptions this case is similar in legal issues and factual situation to that presented in Shutt [I]. " 235 Kan. at 198, 679 P.2d at 1165. Both cases involve what the Kansas Supreme Court has characterized as a "common fund" consisting of the suspense royalties undeniably owed by Phillips Page 472 U. S. 829 but not paid for periods of several years while Commission approval of rate increases were pending. [ Footnote 2/5 ] It is undisputed that Phillips enjoyed the unfettered use of that money. See 222 Kan. at 560, 567 P.2d at 1316 (testimony of Phillips' Treasurer). It is also undisputed that, when the Commission proceedings ended, none of the money could be retained by Phillips. To the extent that a price increase was disapproved, a refund to the purchasing pipelines, plus interest at the rate set by the Commission, would be required; to the extent that the increases were approved, the money was contractually owed to the royalty owners. As the Kansas court noted: "What is significant is these gas royalty suspense monies never did nor could belong to Phillips." Ibid. (emphasis deleted). [ Footnote 2/6 ] Page 472 U. S. 830 In Shutts I, the Kansas Supreme Court held that general equitable principles required the award of interest on royalties owed to royalty owners but used by Phillips for a number of years. In support of that conclusion it relied on general statements in two Kansas cases [ Footnote 2/7 ] and a long line of federal cases applying Texas law and concluding that equity requires "the award of interest on suspense royalties under similar circumstances." Id. at 561, 567 P.2d at 1317. [ Footnote 2/8 ] The court noted that Oklahoma had no decisions allowing interest on suspense royalties, but concluded that "several Oklahoma decisions hold that interest may be awarded on equitable grounds where necessary to arrive at a fair compensation. ( Smith v. Owens, 397 P.2d 673 [Okla.1963]; and First Nat. Bank & T. Co. v. Exchange Nat. Bank and T. Co., 517 P.2d 805 [Okla. App.1973]). [ Footnote 2/9 ]" Finally, the court construed the royalty agreements at issue as containing a "contractual Page 472 U. S. 831 obligation" to pay interest on the royalties "for the period of time the suspense money was held and used by Phillips." Id. at 562, 567 P.2d at 1317. Thus the Kansas court also found its result consistent with the only Texas state court decision on point, Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360 (Tex.Civ.App.1977), which had "awarded interest on suspended royalties" based on "the terms of the royalty agreement . . . rather than unjust enrichment." 222 Kan. at 561, 567 P.2d at 1317. Significantly, when the Texas Supreme Court subsequently affirmed the Stahl judgment, it relied on the Kansas Supreme Court's decision in Shutts I to decide that equity as well as contract law requires interest on suspense royalties. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 , 485-488, and n. 5 (1978). After determining that Phillips was liable for interest on the suspense royalties, the court reversed the trial court's decision that the rate should be 6%, because that was the statutory interest rate in Kansas, Oklahoma, and Texas. The Kansas Supreme Court noted that the statutory rate in all three States expressly applied only when no other rate had been agreed upon, [ Footnote 2/10 ] and that, in this case, Phillips had made an express agreement, evidenced by its corporate undertaking, to pay interest at the rate set by the Commission on suspense moneys found refundable. 222 Kan. at 564, 567 P.2d at 1319. The Kansas court therefore declined to apply any State's interest statute, including its own. "[E]quitable principles require, and contractual principles dictate, that the royalty owners receive the same treatment" as refunded purchasers, Page 472 U. S. 832 that is, payment at the same FPC rate of interest. [ Footnote 2/11 ] Id. at 563, 567 P.2d at 1318. Finally, the Kansas Supreme Court rejected Phillips' contention that royalty owners had "waived" their claims to interest by accepting payment of the royalties later or by failing to post an indemnity "acceptable" to Phillips in order to receive contemporaneous payment of suspense royalties. The court noted that the "conditions imposed by Phillips were far more stringent than the corporate undertaking Phillips filed with the FPC," id. at 567, 567 P.2d at 1320, and concluded that it was "apparent [that] Phillips' previous imposition of burdensome conditions upon royalty owners . . . was designed to accomplish precisely what the facts disclose. Virtually none of the royalty owners complied with the conditions, thereby leaving the suspense royalties in the hands of Phillips as stakeholder to use at its pleasure. . . ." Id. at 566, 567 P.2d at 1320. The court found the rule that "payment of the principal sum is a legal bar to a subsequent action for interest" inapplicable on these facts. Id. at 567, 567 P.2d at 1321. Instead, because "payment of [the royalties due] to the plaintiff class members, instead of extinguishing the debt, constituted only a partial payment on an interest-bearing debt[,] [t]his situation invokes application of the so-called 'United States Rule,' which provides that in applying partial payments to an interest-bearing debt which is due, in Page 472 U. S. 833 the absence of an agreement or statute to the contrary, the payment should be first applied to the interest due." Ibid. [ Footnote 2/12 ] In Shutts II, the case now under review, the Kansas Supreme Court adopted its earlier analysis in Shutts I without repeating it. "Although a larger class is involved than in Shutts I, the legal issues presented are substantially the same. While these issues are complex they were thoroughly reviewed in Shutts I. " 235 Kan. at 211, 679 P.2d at 1174. [ Footnote 2/13 ] Noting that "Phillips has not satisfactorily established why this court should not apply the rule enunciated in Shutts I, " the Kansas court went on to state that once jurisdiction over Page 472 U. S. 834 a "nationwide class action" is properly asserted, "the law of the forum should be applied unless compelling reasons exist for applying a different law." Id. at 221, 679 P.2d at 1181. II This Court, of course, can have no concern with the substantive merits of common law decisions reached by state courts faithfully applying their own law or the law of another State. When application of purely state law is at issue, "[t]he power delegated to us is for the restraint of unconstitutional [actions] by the States, and not for the correction of alleged errors committed by their judiciary." Commercial Bank of Cincinnati v. Buckingham's Executors , 5 How. 317, 46 U. S. 343 (1847). The Constitution does not expressly mandate particular or correct choices of law. Rather, a state court's choice of law can invoke constitutional protections, and hence our jurisdiction, only if it contravenes some explicit constitutional limitation. [ Footnote 2/14 ] Thus it has long been settled that "a mere misconstruction by the forum of the laws of a sister State is not a violation of the Full Faith and Credit Clause." Carroll v. Lanza, 349 U. S. 408 , 349 U. S. 414 , n. 1 (1955) (Frankfurter, J., dissenting). [ Footnote 2/15 ] That Clause requires only that States accord "full faith and credit" to other States' laws -- that is, acknowledge the validity and finality of such laws and attempt in good faith to apply them when necessary as they would be applied by home state Page 4728 U. S. 35 courts. [ Footnote 2/16 ] But as Justice Holmes explained, when there is "nothing to suggest that [one State's court] was not candidly construing [another State's law] to the best of its ability, . . . even if it was wrong something more than an error of construction is necessary" to invoke the Constitution. Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93 , 243 U. S. 96 (1917). Merely to state these general principles is to refute any argument that Kansas' decision below violated the Full Faith and Credit Clause. As the opinion in Shutts I indicates, the Kansas court made a careful survey of the relevant laws of Oklahoma and Texas, the only other States whose law is proffered as relevant to this litigation. But, as the Court acknowledges, ante at 472 U. S. 816 -818, no other State's laws or judicial decisions were precisely on point, and, in the Kansas court's judgment, roughly analogous Texas and Oklahoma cases supported the results the Kansas court reached. The Kansas court expressly declared that, in a multistate action, a "court should also give careful consideration, as we have attempted to do, to any possible conflict of law problems." 222 Kan. at 557, 567 P.2d at 1314. [ Footnote 2/17 ] While a common law judge might disagree with the substantive legal determinations made by the Kansas court (although nothing in its opinion seems erroneous to me), that court's approach to the possible choices of law evinces precisely the "full faith and credit" that the Constitution requires. Page 472 U. S. 836 It is imaginable that even a good faith review of another State's law might still "unjustifiably infring[e] upon the legitimate interests of another State" so as to violate the Full Faith and Credit Clause. Allstate, 449 U.S. at 449 U. S. 323 (STEVENS, J., concurring in judgment). If, for example, a Texas oil company or a Texas royalty owner with an interest in a Texas lease were treated directly contrary to a stated policy of the State of Texas by a Kansas court through some honest blunder, the Constitution might bar such "parochial entrenchment" on Texas' interests. Thomas v. Washington Gas Light Co., 448 U. S. 261 , 448 U. S. 272 (1980) (plurality opinion). [ Footnote 2/18 ] But this case is so distant from such a situation that I need not pursue this theoretical possibility. Even Phillips does not contend that any stated policies of other States have been plainly contravened, and the Court's discussion is founded merely on an absence of reported decisions and the Court's speculation of what Oklahoma or Texas courts might "most likely" do in a case like this. Ante at 472 U. S. 817 . There is simply no demonstration here that the Kansas Supreme Court's decision has impaired the legitimate interests of any other States or infringed on their sovereignty in the slightest. Page 472 U. S. 837 III It is nevertheless possible for a State's choice of law to violate the Constitution because it is so "totally arbitrary or . . . fundamentally unfair" to a litigant that it violates the Due Process Clause. Allstate, 449 U.S. at 449 U. S. 326 (STEVENS, J., concurring in judgment). If the forum court has no connection to the lawsuit other than its jurisdiction over the parties, a decision to apply the forum State's law might so "frustrat[e] the justifiable expectations of the parties" as to be unconstitutional. Id. at 327. [ Footnote 2/19 ] Again, however, a constitutional claim of "unfair surprise" cannot be based merely upon an unexpected choice of a particular State's law -- it must rest on a persuasive showing of an unexpected result arrived at by application of that law. Thus, absent any conflict of laws, in terms of the results they produce, the Due Process Clause simply has not been violated. This is because the underlying theory of a choice-of-law due process claim must be that parties plan their conduct and contractual relations based upon their legitimate expectations Page 472 U. S. 838 concerning the subsequent legal consequences of their actions. For example, they might base a decision on the belief that the law of a particular State will govern. But a change in that State's law in the interim between the execution and the performance of the contract would not violate the Due Process Clause. Nor would the Constitution be violated simply because a state court made an unanticipated ruling on a previously unanswered question of law -- perhaps a choice-of-law question. In this case it is perfectly clear that there has been no due process violation because this is a classic "false conflicts" case. [ Footnote 2/20 ] Phillips has not demonstrated that any significant conflicts exist merely because Oklahoma and Texas state case law is silent concerning the equitable theories developed by the Kansas courts in this litigation, or even because the language of some Oklahoma and Texas statutes suggests that those States would "most likely" reach different results. Ante at 472 U. S. 816 -818. The Court's heavy reliance on the characterization of the law provided by Phillips is not an adequate substitute for a neutral review. Ante at 472 U. S. 816 , 472 U. S. 817 ("Petitioner claims," "petitioner shows," "petitioner points to," "Petitioner also points out . . ."). As is unmistakable from a review of Shutts I, the Kansas Supreme Court has examined the same laws cited by the Court today as indicative of "direct" conflicts, and construed them as supportive of the Page 472 U. S. 839 Kansas result. [ Footnote 2/21 ] Our precedents, to say nothing of the Constitution and our statutory jurisdiction to review state court judgments, do not permit the Court to second-guess these substantive judgments. Moreover, an independent examination demonstrates solid support for the Kansas court's conclusions. [ Footnote 2/22 ] Page 472 U. S. 840 The crux of my disagreement with the Court is over the standard applied to evaluate the sufficiency of allegations of choice-of-law conflicts necessary to support a constitutional Page 472 U. S. 841 claim. Rather than potential, "putative," or even "likely" conflicts, I would require demonstration of an unambiguous conflict with the established law of another State as an essential element of a constitutional choice-of-law claim. Arguments that a state court has merely applied general common law principles in a novel manner, or reconciled arguably Page 472 U. S. 842 conflicting laws erroneously in the face of unprecedented factual circumstances should not suffice to make out a constitutional issue. In this case, the Kansas Supreme Court's application of general principles of equity, its interpretation of the agreements, its reliance on the Commission's regulations, [ Footnote 2/23 ] and its construction of general statutory terms contravened no established legal principles of other States and consequently cannot be characterized as either arbitrary or fundamentally unfair to Phillips. I therefore can find no due process violation in the Kansas court's decision. [ Footnote 2/24 ] Page 472 U. S. 843 IV In final analysis, the Court today may merely be expressing its disagreement with the Kansas Supreme Court's statement that in a "nationwide class action . . . the law of the forum should be applied unless compelling reasons exist for applying a different law." 235 Kan. at 221, 679 P.2d at 1181. Considering this statement against the background of the Kansas Supreme Court's careful analysis in Shutts I, however, I am confident that court would agree that every state court has an obligation under the Full Faith and Credit Clause to "respect the legitimate interests of other States and avoid infringement upon their sovereignty." Allstate, 449 U.S. at 449 U. S. 322 (STEVENS, J., concurring in judgment); see Nevada v. Hall, 440 U. S. 410 , 440 U. S. 421 , 440 U. S. 424 , n. 24 (1979). It is also agreed that "the fact that a choice-of-law decision may be unsound . . . does not necessarily implicate the federal concerns embodied in the Full Faith and Credit Clause." Allstate, 449 U.S. at 449 U. S. 323 (STEVENS, J., concurring in judgment); see ante at 472 U. S. 823 ("in many situations a state court may be free to apply one of several choices of law"); Allstate, 449 U.S. at 449 U. S. 307 (plurality opinion). When a suit involves claims connected to States other than the forum State, the Constitution requires only that the relevant laws of other States that are brought to the attention of the forum court be examined fairly prior to making a choice of law. [ Footnote 2/25 ] Because this Court "reviews judgments, not opinions," Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 842 (1984), criticism of a portion of the Kansas Page 472 U. S. 844 court's opinion taken out of context provides an insufficient basis for reversing its judgment. Unless the actual choice of Kansas law violated substantial constitutional rights of the parties, see 28 U.S.C. § 2111, our power to review judgments of state law -- including the state law of choice of law -- does not extend to reversal based on disagreement with the law's application. A review of the record and the underlying litigation here convincingly demonstrates that, despite Phillips' protestations regarding Kansas' development of common law principles, no disregard for the laws of other States nor unfair application of Kansas law to the litigants has occurred. [ Footnote 2/26 ] Phillips has no constitutional right to avoid judgment in Kansas because it might have convinced a court in another State to develop its law differently. I do not believe the Court should engage in detailed evaluations of various States' laws. To the contrary, I believe our limited jurisdiction to review state court judgments should foreclose such review. [ Footnote 2/27 ] Accordingly, I trust that today's Page 472 U. S. 845 decision is no more than a momentary aberration, and that the Court's opinion will not be read as a decision to constitutionalize novel state court developments in the common law whenever a litigant can claim that another State connected to the litigation "most likely" would reach a different result. The Court long ago decided that state court choices of law are unreviewable here absent demonstration of an unambiguous conflict in the established laws of connected States. See n. 472 U.S. 797 fn2/15|>15, supra. "To hold otherwise would render it possible to bring to this court every case wherein the defeated party claimed that the statute of another State had been construed to his detriment." Johnson v. New York Life Ins. Co., 187 U. S. 491 , 187 U. S. 496 (1903). Having ignored this admonition today, the Court may be forced to renew its turn-of-the-century efforts to convince the bar that state court judgments based on fair evaluations of other States' laws are final. Accordingly, while I join Parts I and II of the Court's opinion, I respectfully dissent from Part III and from the judgment. [ Footnote 2/1 ] "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." U.S.Const., Art. IV, § 1. See also 28 U.S.C. § 1738. [ Footnote 2/2 ] "No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S.Const., Amdt. 14, § 1. [ Footnote 2/3 ] The responsibilities of the Federal Power Commission were transferred to the Federal Energy Regulatory Commission in 1977. See 91 Stat. 578, 582-584. [ Footnote 2/4 ] The relevant portion of the 1961 notice provided in full: "Effective June 1, 1961, and until further notice, royalties paid you will be computed by excluding that portion of any price being collected subject to refund which exceeds 11 [cents] per Mcf (presently the maximum area price level for increased rates as recently announced by the Federal Power Commission in its Statement of General Policy). Payment of royalty based on the balance of the sums collected will be made at such time as it is determined that the sums collected are no longer subject to refund." "Interest owners desiring to receive payments computed currently on the full sums being collected may arrange to do so by furnishing Phillips Petroleum Company acceptable indemnity to cover their proportionate part of any required refunds, plus the required interest." Shutts I, 222 Kan. at 534, 567 P.2d at 1299. The practice of withholding suspense royalties pending final Commission price approval was sustained in Ashland Oil & Refining Co. v. Staats, Inc., 271 F. Supp. 571 , 579 (Kan.1967), and Boutte v. Chevron Oil Co., 316 F. Supp. 524 (ED La.1970), aff'd, 442 F.2d 1337 (CA5 1971) (per curiam). [ Footnote 2/5 ] "Had Phillips put the 'suspense royalties' into a common trust fund, separate from its operating funds, to be used solely to pay either the pipeline companies or the gas royalty owners once the FPC ultimately decided the rate increase question, this case would dovetail nicely into the 'common fund' cases." Shutts I, 222 Kan. at 552, 567 P.2d at 1311. Accord, 235 Kan. at 201, 212, 679 P.2d at 1168, 1174. The Court criticizes Kansas' use of the "common fund" concept as applied to these funds. Ante at 472 U. S. 819 -820. Kansas is not alone, however, in applying the common fund concept in a class action to a pool of readily identifiable moneys placed within the court's power by a liability determined by the lawsuit itself. See, e.g., Perlman v. First National Bank of Chicago, 15 Ill.App.3d 784, 799-802, 305 N.E.2d 236, 247-250 (1973) ( cited in Shutts I, 222 Kan. at 553, 567 P.2d at 1311-1312); see also Sprague v. Ticonic National Bank, 307 U. S. 161 , 307 U. S. 166 -167 (1939) (common fund may be "recovered" in litigation); Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv.L.Rev. 1597, 1615 (1974) ("Funds can also be created by the litigation itself"). Moreover, it is of course no concern of this Court how Kansas chooses to develop its state common law doctrines. Absent some constitutional foundation plainly lacking here, the Court's criticism of Kansas' substantive state law is entirely gratuitous. [ Footnote 2/6 ] Phillips argued below that some distinction should be made for purposes of interest liability between royalties owed on gas sold to pipeline companies who paid the higher "suspense" price and royalties owed on gas used by Phillips itself rather than sold. Yet "Phillips acknowledges . . . that its obligation to pay royalties under the various . . . contracts exists without regard to the actual disposition of the gas. " 235 Kan. at 215, 679 P.2d at 1177 (emphasis added). Thus, "[b]y choosing to withhold payment Phillips was allowed the use of the suspense monies during the suspense period which rightfully belonged to the royalty owners, and the royalty owners, in turn, were deprived of receiving and using those monies during that time." Id. at 216, 679 P.2d at 1177. Applying the same unjust enrichment theory developed in Shutts I, the Kansas Supreme Court accordingly rejected Phillips' proffered distinction. 235 Kan. at 217, 679 P.2d at 1178. Significantly, Phillips does not claim here that even a "putative" conflict of laws might turn on this distinction. Phillips pursues the argument only to contend in a footnote that, because it never actually collected higher prices on gas that it used itself, no "fund" actually existed. Brief for Petitioner 21, n. 18. As the Kansas court noted, however, the fund at issue is the "easily computed" amount of royalties that were due the royalty owners in any case, not the moneys collected by Phillips in return for sales. 235 Kan. at 217, 679 P.2d at 1178. [ Footnote 2/7 ] Lightcap v. Mobil Oil Corp., 221 Kan. 448, 562 P.2d 1 , cert. denied, 434 U.S. 876 (1977); Shapiro v. Kansas Public Employees Retirement System, 216 Kan. 353, 357, 532 P.2d 1081 , 1084 (1975). [ Footnote 2/8 ] The court cited six cases, four from the Fifth Circuit and two from the Northern District of Texas, in all of which Phillips was a named party. [ Footnote 2/9 ] The Kansas court also pointed out that "the United States Supreme Court has noted the imposition of interest on refunds ordered by the FPC is not an inappropriate means of preventing unjust enrichment. ( United Gas v. Callery Properties, 382 U. S. 223 )." 222 Kan. at 562, 567 P.2d at 1317-1318. [ Footnote 2/10 ] See Kan.Stat.Ann. § 16-201 (1974) ("Creditors shall be allowed to receive interest at the rate of six percent per annum, when no other rate of interest is agreed upon "); Okla.Stat., Tit. 15, § 266 (1971) ("The legal rate of interest shall be six per cent in the absence of any contract as to the rate of interest"); Tex.Rev.Civ.Stat.Ann., Art. 5069-1.03 (Vernon 1971) (" When no specified rate of interest is agreed upon by the parties, interest at the rate of 6% per annum shall be allowed") (all emphasis added). [ Footnote 2/11 ] The court also held that interest accruing after the entry of judgment should be determined by Kansas' post-judgment interest statute. Kan.Stat.Ann. § 16-204 (1974). Phillips does not and could not contend that the Constitution bars a Kansas court from applying the Kansas postjudgment interest statute to judgments entered by Kansas courts. Such statutes demonstrate an irrefutable state interest in the force carried by judgments entered by a State's own courts. See also Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487 , 313 U. S. 498 (1941) (State interest statutes concern "an incidental item of damages, interest, with respect to which courts at the forum have commonly been free to apply their own or some other law as they see fit"). [ Footnote 2/12 ] The court noted that the " United States Rule' is also followed in Oklahoma and Texas," and that Phillips had "raised and lost" its contention of waiver in a similar case in Texas. 222 Kan. at 568, 567 P.2d at 1321, citing Phillips Petroleum Co. v. Riverview Gas Compression Co., 409 F. Supp. 486 (ND Tex.1976). Moreover, because the relevant Oklahoma statute expressly stated that payment of a principal sum must be accepted "as such" to support a finding of waiver, Okla.Stat., Tit. 23, § 8 (1971), the statute was inapplicable here inasmuch as the royalty payments were not so accepted. 222 Kan. at 568, 567 P.2d at 1321. [ Footnote 2/13 ] The only apparently new argument raised by Phillips in Shutts II was that it should not be liable for interest to a subclass of the affected royalty owners whose direct contractual agreement for royalties was with other producers who sold their gas to Phillips under a separate agreement. Although Phillips assumed the obligation to pay royalties directly to the royalty owners in these separate agreements, the separate agreements also stated that, if a suspended price increase were ultimately approved by the Commission, Phillips would pay the other producers additional money "without interest." Phillips argued that this "without interest" clause barred interest to the royalty owners as well as to the other producers. The Kansas Supreme Court rejected this argument, however, because the royalty owners were not parties to the separate agreements and because no consideration was paid to the royalty owners by Phillips in return for this purported waiver of interest. 235 Kan. at 220, 679 P.2d at 1180. "[T]hese provisions, entered into between Phillips and the producers, cannot unilaterally deprive royalty owners of interest which they would otherwise be entitled to receive under casinghead gas contracts in which the provisions do not appear." Ibid. [ Footnote 2/14 ] See 28 U.S.C. § 1257: "Final judgments or decrees rendered by the highest court of a State . . . may be reviewed by the Supreme Court . . . (3) [b]y writ of certiorari . . . where any title, right, privilege or immunity is specially set up or claimed under the Constitution " (emphasis added). [ Footnote 2/15 ] This principle was settled in a number of cases decided on either side of the turn of this century. See, e.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U. S. 93 , 243 U. S. 96 (1917); Western Life Indemnity Co. v. Rupp, 235 U. S. 261 , 235 U. S. 275 (1914); Louisville & Nashville R. Co. v. Melton, 218 U. S. 36 , 218 U. S. 51 , 218 U. S. 52 (1910); Allen v. Alleghany Co., 196 U. S. 458 , 196 U. S. 464 -465 (1905); Johnson v. New York Life Ins. Co., 187 U. S. 491 , 187 U. S. 496 (1903); Glenn v. Garth, 147 U. S. 360 , 147 U. S. 367 -370 (1893). [ Footnote 2/16 ] Cf. Guaranty Trust Co. v. New York, 326 U. S. 99 , 326 U. S. 109 (1945) (federal courts should apply state law in furtherance of the goal that "the outcome of the litigation in the federal court should be substantially the same . . . as it would be if tried in a State court"). [ Footnote 2/17 ] The Kansas court also stated that Kansas' statutory class action requirements would "not be fulfilled" if "liability is to be determined according to varying and inconsistent state laws." 222 Kan. at 557, 567 P.2d at 1314. This belies any notion that the Kansas court plans to "bootstrap," ante at 472 U. S. 821 , its choice-of-law decisions onto its assertion of jurisdiction over multistate actions; precisely the opposite is suggested. [ Footnote 2/18 ] As I noted in Allstate, however, the litigant challenging a court's choice of law clearly "bears the burden of establishing" a constitutional infringement. 449 U.S. at 449 U. S. 325 , n. 13. " Prima facie every state is entitled to enforce in its own courts its own statutes. . . . One who challenges that right . . . assumes the burden of showing, upon some rational basis, that of the conflicting interests involved those of the foreign state are superior to those of the forum." Alaska Packers Assn. v. Industrial Accident Comm'n, 294 U. S. 532 , 294 U. S. 547 (1935). See Western Life Indemnity Co. v. Rupp, 235 U.S. at 235 U. S. 275 ("It does not appear that the court's attention was called to any decision by the courts of Illinois placing a different construction, or indeed any construction, upon the section in question. If such decision existed, it was incumbent upon defendant to prove it"). Thus, if a litigant has failed to call a state court's attention to relevant law in other jurisdictions, it cannot raise that law here to create a constitutional issue. [ Footnote 2/19 ] I noted in Allstate that choice of forum law might also violate the Due Process Clause in other ways, such as by irrationally favoring residents over nonresidents or representing a "dramatic departure from the rule that obtains in most American jurisdictions." 449 U.S. at 449 U. S. 327 . The first possibility is not applicable here; all royalty owners were treated exactly alike in the Kansas court's analysis. As for the second possibility, a "dramatic departure" must be distinguished from the application of general equitable principles to address new situations. Phillips may criticize Kansas' allegedly "unique notions of contract and oil and gas law," Brief for Petitioner 33, but such is not a constitutional objection. State courts, like this Court, constantly must apply and develop general legal principles to accommodate novel factual circumstances with the overarching goal of achieving a just result. Today's decision, for example, newly establishes lawful jurisdiction over a multistate plaintiffs' class action that Phillips likely could not have anticipated 15 years ago. Absent some demonstration of a departure from some clear rule obtaining in other States, an argument merely that "[n]o other state ever has hinted" at Kansas' result, id. at 32, is unavailing. [ Footnote 2/20 ] "'[F]alse conflict' really means 'no conflict of laws.' If the laws of both states relevant to the set of facts are the same, or would produce the same decision in the lawsuit, there is no real conflict between them." R. Leflar, American Conflicts Law § 93, p. 188 (3d ed.1977). See also E. Scoles & P. Hay, Conflict of Laws § 2.6, p. 17 (1982) ("A false conflict' exists when the potentially applicable laws do not differ"). The absence of any direct conflicts here distinguishes this case from decisions such as Hone Ins. Co. v. Dick, 281 U. S. 397 (1930), and John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178 (1936), where the interstate legal conflicts were clear, conceded, and dispositive. [ Footnote 2/21 ] In Shutts II the Kansas Supreme Court noted that "the legal issues presented are substantially the same" as in Shutts I, and that "[w]hile these issues are complex they were thoroughly reviewed in Shutts I. " 235 Kan. at 211, 679 P.2d at 1174. The court then addressed the award and rate of interest as "damages to compensate the plaintiffs for the unjust enrichment derived by Phillips from the use of the plaintiffs' money," and concluded that, "[i]n the instant case, Phillips has not satisfactorily established why this court should not apply the rule enunciated in Shutts I " respecting this claim. Id. at 221, 679 P.2d at 1181. Two sentences later in the same paragraph, the court made the broad statement that its forum law should apply absent "compelling reason." The only fair reading of this statement in context is that the Kansas court in Shutts II adopted its multistate choice-of-law survey performed in Shutts I, and properly placed the burden on Phillips, see n. 472 U.S. 797 fn2/18|>18, supra, to show why the Shutts I conclusions should be reexamined. Even if this were ambiguous, this Court should give the Kansas Supreme Court the benefit of the doubt when reviewing its judgment. Thus, I frankly do not understand the Court's summary rejection of that court's attempt to incorporate Shutts I. Ante at 472 U. S. 822 , n. 8. As for the implication in that same footnote that the choice-of-law discussion in Shutts I may have been erroneous on the merits, the statement that the Kansas court "did not follow contrary Texas precedent" (emphasis added), is simply wrong. See n. 472 U.S. 797 fn2/22|>22, infra. [ Footnote 2/22 ] The Court provides a list of "putative conflicts" ante at 472 U. S. 816 -818. The errors and omissions apparent in the Court's discussion demonstrate the dangers of relying on characterizations of state law provided by an interested party. 1. Although there technically may be "no recorded Oklahoma decision dealing with interest liability for suspended royalties, " ante at 472 U. S. 816 -817 (emphasis added), Oklahoma law expressly provides that the damages "caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation, with interest thereon. " Okla.Stat., Tit. 23, § 22 (1981) (emphasis added); see also § 6 ("Any person who is entitled to recover damages certain, or capable of being made certain by calculation, . . . is entitled also to recover interest thereon"). The Oklahoma Supreme Court has specifically held that oil field royalty owners may sue as a class to recover royalties due them and may recover interest on the amount of recovery. West Edmond Hunton Line Unit v. Young, 325 P.2d 1047 (1958). 2. No authority in the Court's string citation regarding Oklahoma's 6% statutory interest rate supports the statement that Oklahoma would "most likely" impose that rate in a suit such as this. Ante at 472 U. S. 817 . The constitutional and statutory provisions merely provide that "in the absence of any contract" the rate is indeed 6%. Okla.Stat.Ann., Tit. 15, § 266 (1981). The cited judicial decisions merely hold that interest is recoverable on certain obligations, including royalties due to oil field royalty owners, without discussing applicable limitations on the rate. After examining these Oklahoma authorities, the Kansas Supreme Court found the Oklahoma statutory rate, as well as that of Texas and Kansas, inapplicable by its own terms, because here Phillips had contractually agreed to the higher federal rate. 235 Kan. at 220-221, 679 P.2d at 1180; 222 Kan. at 563-565, 567 P.2d at 1318-1319. No reported Oklahoma decision contradicts this judgment, and the express terms of the Oklahoma statute permit it. See also McAnally v. Ideal Federal Credit Union, 428 P.2d 322 , 326 (Okla.1967) (where federal law provides for interest in excess of 12% per year, that rate "must govern" over Oklahoma statutory rate). 3. The Kansas court similarly reviewed Texas' 6% interest statute and found that Phillips' contractual agreement to the FPC rate rendered the statute inapplicable. 235 Kan. at 220, 679 P.2d at 1180; 222 Kan. at 563-565, 567 P.2d at 1318-1319. It is true that Texas has not awarded suspense royalty interest at a rate higher than 6% -- it is equally plain from the cited cases that no higher rate has been sought. Texas courts have, however, specifically permitted recovery at higher rates when a contract, even an implied or oral contract, evidences agreement to such rates. Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enterprises, 625 S.W.2d 295 (Tex.1981); Moody v. Main Bank of Houston, 667 S.W.2d 613 (Tex.App.1984). 4. While noting Phillips' reliance on an Oklahoma statute stating that "accepting payment of the whole principal, as such, waives all claim to interest," Okla.Stat.Ann., Tit. 23, § 8 (1981), the Court itself demonstrates that this statute's application here is open to question, by citing as "cf." Webster Drilling Co. v. Sterling Oil of Okla., Inc., 376 P.2d 236 , 238 (Okla.1962). In that case, the Oklahoma Supreme Court held that, when a right to interest is "based upon a contract, the interest has become a substantive part of the debt itself,'" and Title 23, § 8, "is not applicable." Id. at 238 (citation omitted). The claim to interest upheld in Webster Drilling was based on an implied contract, exactly as the Kansas Supreme Court found in Shutts I. 222 Kan. at 562, 565, 567 P.2d at 1317, 1319. The Kansas Supreme Court explicitly considered Title 23, § 8, and relied on Webster Drilling to find it inapplicable. 222 Kan. at 568, 567 P.2d at 1321. It is therefore impossible to suggest, as the Court does, that the Kansas court "ignor[ed]" the Oklahoma statute. Ante at 472 U. S. 817 . 5. Finally, the Court plainly misconstrues Texas law by suggesting that a mere "offer" to pay suspended royalties in return for an indemnity agreement would, by itself, excuse interest. In the federal decision cited by the Court, which mentions no Texas cases at the relevant pages, Phillips Petroleum Co. v. Riverside Gas Co., 409 F. Supp. at 495-496, indemnity agreements were actually entered into. Id. at 490. The Fifth Circuit case relied on for authority, which did cite Texas cases, states that an " unconditional offer to give up possession of a disputed fund" is necessary before a bar to interest is created. Phillips Petroleum Co. v. Adams, 513 F.2d 355, 370 (1975) (emphasis added). The Texas Supreme Court has subsequently agreed that Adams correctly stated Texas law. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 , 487 (1978). See also Fuller v. Phillips Petroleum Co., 408 F. Supp. 643 , 646 (ND Tex.1976) (entering indemnity agreement terminates interest liability because Phillips "lost the reasonably free use of the money"). No indemnity agreements were entered into by the plaintiffs here, however, and as the Kansas Supreme Court found, Phillips' indemnity offer was not "unconditional" -- to the contrary, it was "far more stringent than the corporate undertaking Phillips filed with the FPC." 222 Kan. at 567, 567 P.2d at 1320. It is also uncontested that Phillips continued to use freely the unpaid suspense royalties long after its "burdensome" conditions were not accepted by the royalty owners. Id. at 566, 567 P.2d at 1320. The Court errs drastically by relying on what one Federal District Court "appears" to have held to sustain a constitutional choice-of-law claim. [ Footnote 2/23 ] The fact that the Kansas court rejected its own State's statute in favor of the uniform federal interest rate, to which it found Phillips had contractually agreed, demonstrates the absence of parochialism from its decision. There is absolutely no indication that Texas or Oklahoma courts would have decided differently had the same claim been presented there. [ Footnote 2/24 ] Neither Phillips nor the Court contends that Kansas cannot constitutionally apply its own laws to the claims of Kansas residents, even though the leased land may lie in other States and no other apparent connection to Kansas may exist. Phillips has done business in Kansas throughout the years relevant to this litigation and it seems unarguable that application of Kansas law, or indeed the law of any of the 50 States where royalty owners reside, to the claims of at least some of the plaintiff class members was thus "perceived as possible" by Phillips "at the time of contracting." Allstate, 449 U.S. at 449 U. S. 331 , n. 24 (STEVENS, J., concurring in judgment); see id. at 449 U. S. 316 -318, and n. 22. It was also possible, of course, that any number of royalty owners might have moved to Kansas in the years Phillips held their suspense royalties, and that Kansas has a substantial interest in seeing its residents treated fairly when they invoke the jurisdiction of its courts. See Weinberg, Conflicts Cases and the Problem of Relevant Time, 10 Hofstra L.Rev. 1023, 1040-1043 (1982). Because Phillips must have anticipated application of Kansas law to some claims, the eventual geographic distribution of royalty owners' residences goes only to "likelihood" and not to fairness of the application of Kansas law. Allstate, 449 U.S. at 449 U. S. 331 , n. 24 (STEVENS, J., concurring in judgment). Additionally, it is easy enough for national firms like Phillips to make clear their expectations by placing express choice-of-law clauses in their contracts. See Allstate, 449 U.S. at 449 U. S. 318 , n. 24; id. at 449 U. S. 324 , 449 U. S. 328 (STEVENS, J., concurring in judgment); Clay v. Sun Ins. Office, Ltd., 377 U. S. 179 , 377 U. S. 182 (1964). No such clauses are present here, however. [ Footnote 2/25 ] See Allstate, 449 U.S. at 449 U. S. 326 (STEVENS, J., concurring in judgment) (footnote omitted): "I question whether a judge's decision to apply the law of his own State could ever be described as wholly irrational. For judges are presumably familiar with their own state law and may find it difficult and time consuming to discover and apply correctly the law of another State. The forum State's interest in fair and efficient administration of justice is therefore sufficient, in my judgment, to attach a presumption of validity to a forum State's decision to apply its own law to a dispute over which it has jurisdiction." [ Footnote 2/26 ] Accord, 3 H. Newberg, Newberg on Class Actions § 13.28, p. 63 (2d ed.1985) ("the Kansas court in Shutts II may have committed only harmless error in applying its own law because there appears to be no significant conflict of laws among the states involved"). [ Footnote 2/27 ] The Court's decision in Allstate has been criticized on the ground that there may well have been no true conflict of laws present, and, therefore, no need for extended constitutional discussion. See Weintraub, Who's Afraid of Constitutional Limitations on Choice of Law?, 10 Hofstra L.Rev. 17, 18-24 (1981). As I have demonstrated, the Court is once again open to this criticism. Indeed, unless our review is restricted to cases in which conflicts are unambiguous, the Court will constantly run the risk of misconstruing the common law of any number of States. For example, the Kansas Supreme Court has already decided that Oklahoma would not apply its statutory interest rates where there is evidence of a contractual agreement to a different rate, and that such an agreement is present here. 235 Kan. at 220, 679 P.2d at 1180; 222 Kan. at 562-565, 567 P.2d at 1318-1319. Yet today the Court speculates that Oklahoma "would most likely apply" its statutory rates in this lawsuit. Ante at 472 U. S. 817 . Since this Court has no more authority to resolve such issues of Oklahoma law than does the Kansas Supreme Court, however, the latter court remains free to abide by its former judgment.

Here is a summary of the case: Phillips Petroleum Co. v. Shutts (1985) concerned a class action lawsuit brought by royalty owners against Phillips Petroleum Co. for interest on delayed royalty payments. The case was filed in a Kansas state court, and the plaintiff class consisted of 33,000 royalty owners from across the United States and abroad. The main issue before the U.S. Supreme Court was whether the Kansas court had jurisdiction over the claims of non-resident plaintiffs and whether it correctly applied Kansas law to all the transactions. The Supreme Court held that Phillips Petroleum had standing to challenge the jurisdiction of the Kansas court over the non-resident plaintiffs, as it had an interest in ensuring that the judgment would bind all plaintiffs to prevent future lawsuits. The Court also ruled that the Kansas court properly asserted personal jurisdiction over the absent plaintiff class members, as they had received notice, an opportunity to appear or opt out, and adequate representation. Regarding the choice of law, the Court found that applying Kansas law to every claim did not violate the Due Process Clause or the Full Faith and Credit Clause. The Court noted that Phillips Petroleum should have anticipated the application of Kansas law to some claims and could have included express choice-of-law clauses in its contracts to avoid this issue. In conclusion, the Supreme Court affirmed the Kansas Supreme Court's decision, holding that the Kansas court had jurisdiction over the non-resident plaintiffs and correctly applied Kansas law to the claims. This case sets an important precedent for class action lawsuits and the application of state law in multi-state disputes.

Lawsuits & Legal Procedures

Martin v. Wilks

https://supreme.justia.com/cases/federal/us/490/755/

U.S. Supreme Court Martin v. Wilks, 490 U.S. 755 (1989) Martin v. Wilks No. 87-1614 Argued January 18, 1989 Decided June 12, 1989 490 U.S. 755 ast|>* 490 U.S. 755 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Syllabus Black individuals and a branch of the National Association for the Advancement of Colored People brought actions in Federal District Court against the city of Birmingham, Alabama, and the Jefferson County Personnel Board (Board), alleging that the defendants had engaged in racially discriminatory hiring and promotion practices in violation of Title VII of the Civil Rights Act of 1964 and other federal law. Consent decrees were eventually entered that included goals for hiring blacks as firefighters and for promoting them. Respondent white firefighters subsequently brought suit in the District Court against the city and the Board, alleging that, because of their race, they were being denied promotions in favor of less qualified blacks in violation of federal law. They argued that the city and the Board were making promotion decisions on the basis of race in reliance on the consent decrees, and that those decisions constituted impermissible racial discrimination. After trial, the District Court granted the defendants' motion to dismiss. It held that respondents were precluded from challenging employment decisions taken pursuant to the consent decrees, even though they had not been parties to the proceedings in which the decrees were entered. The Court of Appeals reversed, rejecting the "impermissible collateral attack" doctrine that immunizes parties to a consent decree from discrimination charges by nonparties for actions taken pursuant to the decree. Held: Respondents are not precluded from challenging the employment decisions taken pursuant to the consent decrees. Pp. 490 U. S. 761 -769. (a) "[O]ne is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 40 . Pp. 490 U. S. 761 -762. (b) Under ordinary application of the Federal Rules of Civil Procedure, a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined. Rule 24, governing intervention, is cast in permissive terms. Rule 19(a) provides for mandatory Page 490 U. S. 756 joinder in circumstances where a judgment rendered in the absence of a person may "leave . . . persons already parties subject to a substantial risk of incurring . . . inconsistent allegations," and Rule 19(b) sets forth the factors to be considered by a court in deciding whether to allow an action to proceed in the absence of an interested party. Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree. The linchpin of the "impermissible collateral attack" doctrine -- the attribution of preclusive effect to a failure to intervene -- is inconsistent with Rules 19 and 24. Pp. 490 U. S. 763 -765. (c) Neither Penn-Central Merger and N & W Inclusion Cases, 389 U. S. 486 , nor Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 , is authority for precluding respondents from challenging the actions taken under the consent decrees. Pp. 490 U. S. 765 -766. (d) Even if there were some merit to the argument that the need to join affected parties would be burdensome and ultimately discouraging to civil rights litigation, acceptance of that argument would require a rewriting, rather than an interpretation of, the relevant Federal Rules. In any event, the difficulties in identifying those who would be adversely affected by a decree arise from the nature of the relief sought, and not because of any choice between mandatory intervention and joinder. Plaintiffs who seek the aid of courts to alter employment policies, or the employer who might be subject to conflicting decrees, are best able to bear the burden of designating those who would be adversely affected if plaintiffs prevail. The alternative urged here does not eliminate the need for, or difficulty of, identifying persons who should be included in a lawsuit. It merely shifts that responsibility to less able shoulders. The system of joinder called for by the Federal Rules is not likely to produce more relitigation of issues than a converse rule, and best serves the interests involved in the run of litigated cases, including cases like the present one. Pp. 490 U. S. 766 -768. (e) With respect to the argument that the congressional policy favoring voluntary settlement of employment discrimination claims supports the "impermissible collateral attack" doctrine, it is essential to note what is meant by a "voluntary settlement." A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly "settle," voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement. Insofar as it may be easier to settle claims among a disparate group of affected persons if they are all before the court, joinder accomplishes Page 490 U. S. 757 that result as well as would a regime of mandatory intervention. P. 490 U. S. 768 . 833 F.2d 1492, affirmed. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 490 U. S. 769 . Page 490 U. S. 758 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. A group of white firefighters sued the city of Birmingham, Alabama (City), and the Jefferson County Personnel Board (Board) alleging that they were being denied promotions in favor of less qualified black firefighters. They claimed that the City and the Board were making promotion decisions on the basis of race in reliance on certain consent decrees, and that these decisions constituted impermissible racial discrimination in violation of the Constitution and federal statute. The District Court held that the white firefighters were precluded from challenging employment decisions taken pursuant to the decrees, even though these firefighters had not been parties to the proceedings in which the decrees were Page 490 U. S. 759 entered. We think this holding contravenes the general rule that a person cannot be deprived of his legal rights in a proceeding to which he is not a party. The litigation in which the consent decrees were entered began in 1974, when the Ensley Branch of the National Association for the Advancement of Colored People and seven black individuals filed separate class action complaints against the City and the Board. They alleged that both had engaged in racially discriminatory hiring and promotion practices in various public service jobs in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other federal law. After a bench trial on some issues, but before judgment, the parties entered into two consent decrees, one between the black individuals and the City and the other between them and the Board. These proposed decrees set forth an extensive remedial scheme, including long-term and interim annual goals for the hiring of blacks as firefighters. The decrees also provided for goals for promotion of blacks within the fire department. The District Court entered an order provisionally approving the decrees and directing publication of notice of the upcoming fairness hearings. 3 App. 694-696. Notice of the hearings, with a reference to the general nature of the decrees, was published in two local newspapers. At that hearing, the Birmingham Firefighters Association (BFA) appeared and filed objections as amicus curiae. After the hearing, but before final approval of the decrees, the BFA and two of its members also moved to intervene on the ground that the decrees would adversely affect their rights. The District Court denied the motions as untimely, and approved the decrees. United States v. Jefferson County, 28 FEP Cases 1834 (ND Ala.1981). Seven white firefighters, all members of the BFA, then filed a complaint against the City and the Board seeking injunctive relief against enforcement of the decrees. The seven argued that the decrees Page 490 U. S. 760 would operate to illegally discriminate against them; the District Court denied relief. App. to Pet. for Cert. 37a. Both the denial of intervention and the denial of injunctive relief were affirmed on appeal. United States v. Jefferson County, 720 F.2d 1511 (CA11 1983). The District Court had not abused its discretion in refusing to let the BFA intervene, thought the Eleventh Circuit, in part because the firefighters could "institut[e] an independent Title VII suit, asserting specific violations of their rights." Id. at 1518. And, for the same reason, petitioners had not adequately shown the potential for irreparable harm from the operation of the decrees necessary to obtain injunctive relief. Id. at 1520. A new group of white firefighters, the Wilks respondents, then brought suit against the City and the Board in District Court. They too alleged that, because of their race, they were being denied promotions in favor of less qualified blacks in violation of federal law. The Board and the City admitted to making race-conscious employment decisions, but argued that the decisions were unassailable because they were made pursuant to the consent decrees. A group of black individuals, the Martin petitioners, were allowed to intervene in their individual capacities to defend the decrees. The defendants moved to dismiss the reverse discrimination cases as impermissible collateral attacks on the consent decrees. The District Court denied the motions, ruling that the decrees would provide a defense to claims of discrimination for employment decisions "mandated" by the decrees, leaving the principal issue for trial whether the challenged promotions were indeed required by the decrees. App. 237-239, 250. After trial, the District Court granted the motion to dismiss. App. to Pet. for Cert. 67a. The court concluded that, "if in fact the City was required to [make promotions of blacks] by the consent decree, then they would not be guilty of [illegal] racial discrimination" and that the defendants had "establish[ed] that the promotions of the black individuals Page 490 U. S. 761 . . . were in fact required by the terms of the consent decree." Id. at 28a. On appeal, the Eleventh Circuit reversed. It held that, "[b]ecause . . . [the Wilks respondents] were neither parties nor privies to the consent decrees, . . . their independent claims of unlawful discrimination are not precluded." In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1498 (1987). The court explicitly rejected the doctrine of "impermissible collateral attack" espoused by other Courts of Appeals to immunize parties to a consent decree from charges of discrimination by nonparties for actions taken pursuant to the decree. Ibid. Although it recognized a "strong public policy in favor of voluntary affirmative action plans," the panel acknowledged that this interest "must yield to the policy against requiring third parties to submit to bargains in which their interests were either ignored or sacrificed." Ibid. The court remanded the case for trial of the discrimination claims, suggesting that the operative law for judging the consent decrees was that governing voluntary affirmative action plans. Id. at 1497. [ Footnote 1 ] We granted certiorari, 487 U.S. 1204 (1988), and now affirm the Eleventh Circuit's judgment. All agree that "[i]t is a principle of general application in anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 40 (1940). See, e.g., Page 490 U. S. 762 Parklane Hosiery Co. v. Shore, 439 U. S. 322 , 439 U. S. 327 , n. 7 (1979). See, e.g., Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U. S. 313 , 402 U. S. 328 -329 (1971); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100 , 395 U. S. 110 (1969). This rule is part of our "deep-rooted historic tradition that everyone should have his own day in court." 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4449, p. 417 (1981) (18 Wright). A judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings. [ Footnote 2 ] Petitioners argue that, because respondents failed to timely intervene in the initial proceedings, their current challenge to actions taken under the consent decree constitutes an impermissible "collateral attack." They argue that respondents were aware that the underlying suit might affect them, and if they chose to pass up an opportunity to intervene, they should not be permitted to later litigate the issues in a new action. The position has sufficient appeal to have commanded the approval of the great majority of the Federal Courts of Appeals, [ Footnote 3 ] but we agree with the contrary view expressed Page 490 U. S. 763 by the Court of Appeals for the Eleventh Circuit in this case. We begin with the words of Justice Brandeis in Chase National Bank v. Norwalk, 291 U. S. 431 (1934): "The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. . . . Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights." Id. at 291 U. S. 441 . While these words were written before the adoption of the Federal Rules of Civil Procedure, we think the Rules incorporate the same principle; a party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined. See Hazeltine, supra, at 395 U. S. 110 (judgment against Hazeltine vacated because it was not named as a party or served, even though, as the parent corporation of one of the parties, it clearly knew of the claim against it and had made a special appearance to contest jurisdiction). Against the background of permissive intervention set forth in Chase National Bank, the drafters cast Rule 24, governing intervention, in permissive terms. See Fed.Rule Civ.Proc. 24(a) (intervention as of right) ("Upon timely application anyone shall be permitted to intervene"); Fed.Rule Page 490 U. S. 764 Civ.Proc. 24(b) (permissive intervention) ("Upon timely application anyone may be permitted to intervene"). They determined that the concern for finality and completeness of judgments would be "better [served] by mandatory joinder procedures." 18 Wright § 4452, p. 453. Accordingly, Rule 19(a) provides for mandatory joinder in circumstances where a judgment rendered in the absence of a person may "leave . . . persons already parties subject to a substantial risk of incurring . . . inconsistent obligations. . . ." [ Footnote 4 ] Rule 19(b) sets forth the factors to be considered by a court in deciding whether to allow an action to proceed in the absence of an interested party. [ Footnote 5 ] Page 490 U. S. 765 Joinder as a party, rather than knowledge of a lawsuit and an opportunity to intervene, is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree. [ Footnote 6 ] The parties to a lawsuit presumably know better than anyone else the nature and scope of relief sought in the action, and at whose expense such relief might be granted. It makes sense, therefore, to place on them a burden of bringing in additional parties where such a step is indicated, rather than placing on potential additional parties a duty to intervene when they acquire knowledge of the lawsuit. The linchpin of the "impermissible collateral attack" doctrine -- the attribution of preclusive effect to a failure to intervene -- is therefore quite inconsistent with Rule 19 and Rule 24. Petitioners argue that our decisions in Penn-Central Merger and N & W Inclusion Cases, 389 U. S. 486 (1968), and Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 (1968) suggest an opposite result. The Penn-Central litigation took place in a special statutory framework enacted by Congress to allow reorganization of a huge railway system. Primary jurisdiction was in the Interstate Commerce Commission, with very restricted review in a statutory three-judge District Court. Review proceedings Page 490 U. S. 766 were channeled to the District Court for the Southern District of New York, and proceedings in other District Courts were stayed. The District Court upheld the decision of the Interstate Commerce Commission in both the merger and the inclusion proceedings, and the parties to that proceeding appealed to this Court. Certain Pennsylvania litigants had sued in the District Court for the Middle District of Pennsylvania to set aside the Commission's order, and this action was stayed pending the decision in the District Court for the Southern District of New York. We held that the borough of Moosic, one of the Pennsylvania litigants, could not challenge the Commission's approval of the merger and inclusion in the Pennsylvania District Court, pointing out the unusual nationwide character of the action and saying "[i]n these circumstances, it would be senseless to permit parties seeking to challenge the merger and the inclusion orders to bring numerous suits in many different district courts." 389 U.S. at 389 U. S. 505 , n. 4. We do not think that this holding in Penn-Central, based as it was upon the extraordinary nature of the proceedings challenging the merger of giant railroads and not even mentioning Rule 19 or Rule 24, affords a guide to the interpretation of the rules relating to joinder and intervention in ordinary civil actions in a district court. Petitioners also rely on our decision in Provident Bank, supra, as authority for the view which they espouse. In that case, we discussed Rule 19 shortly after parts of it had been substantially revised, but we expressly left open the question whether preclusive effect might be attributed to a failure to intervene. 390 U.S. 390 U. S. 114 -115. Petitioners contend that a different result should be reached because the need to join affected parties will be burdensome and ultimately discouraging to civil rights litigation. Potential adverse claimants may be numerous and difficult to identify; if they are not joined, the possibility for inconsistent Page 490 U. S. 767 judgments exists. Judicial resources will be needlessly consumed in relitigation of the same question. Even if we were wholly persuaded by these arguments as a matter of policy, acceptance of them would require a rewriting, rather than an interpretation, of the relevant Rules. But we are not persuaded that their acceptance would lead to a more satisfactory method of handling cases like this one. It must be remembered that the alternatives are a duty to intervene based on knowledge, on the one hand, and some form of joinder, as the Rules presently provide, on the other. No one can seriously contend that an employer might successfully defend against a Title VII claim by one group of employees on the ground that its actions were required by an earlier decree entered in a suit brought against it by another, if the later group did not have adequate notice or knowledge of the earlier suit. The difficulties petitioners foresee in identifying those who could be adversely affected by a decree granting broad remedial relief are undoubtedly present, but they arise from the nature of the relief sought, and not because of any choice between mandatory intervention and joinder. Rule 19's provisions for joining interested parties are designed to accommodate the sort of complexities that may arise from a decree affecting numerous people in various ways. We doubt that a mandatory intervention rule would be any less awkward. As mentioned, plaintiffs who seek the aid of the courts to alter existing employment policies, or the employer who might be subject to conflicting decrees, are best able to bear the burden of designating those who would be adversely affected if plaintiffs prevail; these parties will generally have a better understanding of the scope of likely relief than employees who are not named, but might be affected. Petitioners' alternative does not eliminate the need for, or difficulty of, identifying persons who, because of their interests, should be included in a lawsuit. It merely shifts that responsibility to less able shoulders. Page 490 U. S. 768 Nor do we think that the system of joinder called for by the Rules is likely to produce more relitigation of issues than the converse rule. The breadth of a lawsuit and concomitant relief may be at least partially shaped in advance through Rule 19 to avoid needless clashes with future litigation. And even under a regime of mandatory intervention, parties who did not have adequate knowledge of the suit would relitigate issues. Additional questions about the adequacy and timeliness of knowledge would inevitably crop up. We think that the system of joinder presently contemplated by the Rules best serves the many interests involved in the run of litigated cases, including cases like the present one. Petitioners also urge that the congressional policy favoring voluntary settlement of employment discrimination claims, referred to in cases such as Carson v. American Brands, Inc., 450 U. S. 79 (1981), also supports the "impermissible collateral attack" doctrine. But once again it is essential to note just what is meant by "voluntary settlement." A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly "settle," voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement. This is true even if the second group of employees is a party to the litigation: "[P]arties who choose to resolve litigation through settlement may not dispose of the claims of a third party . . . without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors." Firefighters v. Cleveland, 478 U. S. 501 , 478 U. S. 529 (1986). Insofar as the argument is bottomed on the idea that it may be easier to settle claims among a disparate group of affected persons if they are all before the court, joinder bids fair to accomplish that result as well as a regime of mandatory intervention. Page 490 U. S. 769 For the foregoing reasons we affirm the decision of the Court of Appeals for the Eleventh Circuit. That court remanded the case for trial of the reverse discrimination claims. Birmingham Reverse Discrimination, 833 F.2d at 1500-1502. Petitioners point to language in the District Court's findings of fact and conclusions of law which suggests that respondents will not prevail on the merits. We agree with the view of the Court of Appeals, however, that the proceedings in the District Court may have been affected by the mistaken view that respondents' claims on the merits were barred to the extent they were inconsistent with the consent decree. Affirmed. * Together with No. 87-1639, Personnel Board of Jefferson County, Alabama, et al. v. Wilks, et al., and No. 87-1668, Arrington et al. v. Wilks, et al., also on certiorari to the same court. [ Footnote 1 ] Judge Anderson, dissenting, "agree[d] with the opinion for the court that these plaintiffs [the Wilks respondents] were not parties to the prior litigation which resulted in the consent decree, and that the instant plaintiffs are not bound by the consent decree, and should be free on remand to challenge the consent decree prospectively and test its validity against the recent Supreme Court precedent." In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1503 (CA11 1987). He distinguished, however, between claims for prospective relief and claims for backpay, the latter being barred, in his opinion, by the city's good faith reliance on the decrees. Id. at 1502. [ Footnote 2 ] We have recognized an exception to the general rule when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party. See Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 41 -42 (1940) ("class" or "representative" suits); Fed.Rule Civ.Proc. 23 (same); Montana v. United States, 440 U. S. 147 , 440 U. S. 154 -155 (1979) (control of litigation on behalf of one of the parties in the litigation). Additionally, where a special remedial scheme exists expressly foreclosing successive litigation by nonlitigants, as for example in bankruptcy or probate, legal proceedings may terminate preexisting rights if the scheme is otherwise consistent with due process. See NLRB v. Bildisco & Bildisco, 465 U. S. 513 , 465 U. S. 529 -530, n. 10 (1984) ("proof of claim must be presented to the Bankruptcy Court . . . or be lost"); Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 , (1988) (nonclaim statute terminating unsubmitted claims against the estate). Neither of these exceptions, however, applies in this case. [ Footnote 3 ] For a sampling of cases from the Circuits applying the "impermissible collateral attack" rule or its functional equivalent, see, e.g., Striff v. Mason, 849 F.2d 240, 245 (CA6 1988); Marino v. Ortiz, 806 F.2d 1144, 1146-1147 (CA2 1986), aff'd by an equally divided Court, 484 U. S. 301 (1988); Thaggard v. Jackson, 687 F.2d 66, 68-69 (CA5 1982), cert. denied sub nom. Ashley v. City of Jackson, 464 U. S. 900 (1983) (REHNQUIST, J., joined by BRENNAN, J., dissenting); Stotts v. Memphis Fire Dept., 679 F.2d 541, 558 (CA6 1982), rev'd on other grounds sub nom. Firefighters v. Stotts, 467 U. S. 561 (1984); Dennison v. Los Angeles Dept. of Water & Power, 658 F.2d 694, 696 (CA9 1981); Goins v. Bethlehem Steel Corp., 657 F.2d 62, 64 (CA4 1981), cert. denied, 455 U.S. 940 (1982); Society Hill Civic Assn. v. Harris, 632 F.2d 1045, 1052 (CA3 1980). Apart from the instant one, the only Circuit Court decision of which we are aware that would generally allow collateral attacks on consent decrees by nonparties is Dunn v. Carey, 808 F.2d 555, 559-560 (CA7 1986). [ Footnote 4 ] Rule 19(a) provides: "A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction . . . shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action." (Emphasis added.) [ Footnote 5 ] Rule 19(b) provides: "If a person . . . cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." [ Footnote 6 ] The dissent argues, on the one hand, that respondents have not been "bound" by the decree, but, rather, that they are only suffering practical adverse effects from the consent decree. Post at 490 U. S. 770 -772. On the other hand, the dissent characterizes respondents' suit not as an assertion of their own independent rights, but as a collateral attack on the consent decrees which, it is said, can only proceed on very limited grounds. Post at 490 U. S. 783 -787. Respondents in their suit have alleged that they are being racially discriminated against by their employer in violation of Title VII: either the fact that the disputed employment decisions are being made pursuant to a consent decree is a defense to respondents' Title VII claims or it is not. If it is a defense to challenges to employment practices which would otherwise violate Title VII, it is very difficult to see why respondents are not being "bound" by the decree. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting. As a matter of law, there is a vast difference between persons who are actual parties to litigation and persons who merely have the kind of interest that may, as a practical matter, be impaired by the outcome of a case. Persons in the first category have a right to participate in a trial and to appeal from an adverse judgment; depending on whether they win or lose, their legal rights may be enhanced or impaired. Persons in the latter category have a right to intervene in the action in a timely fashion, [ Footnote 2/1 ] or they may be joined as parties against their will. [ Footnote 2/2 ] But if they remain on the sidelines, they Page 490 U. S. 770 may be harmed, as a practical matter, even though their legal rights are unaffected. [ Footnote 2/3 ] One of the disadvantages of sideline-sitting is that the bystander has no right to appeal from a judgment, no matter how harmful it may be. In these cases, the Court quite rightly concludes that the white firefighters who brought the second series of Title VII cases could not be deprived of their legal rights in the first series of cases because they had neither intervened nor been joined as parties. See Firefighters v. Cleveland, 478 U. S. 501 , 478 U. S. 529 -530 (1986); Parklane Hosiery Co. v. Shore, 439 U. S. 322 , 439 U. S. 327 , n. 7 (1979). The consent decrees obviously could not deprive them of any contractual rights, such as seniority, cf. W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757 (1983), or accrued vacation pay, cf. Massachusetts v. Morash, ante p. 107, or of any other legal rights, such as the right to have their employer comply with federal statutes like Title VII, cf. Firefighters v. Cleveland, supra, at 529. [ Footnote 2/4 ] There is no reason, however, why the consent decrees Page 490 U. S. 771 might not produce changes in conditions at the white firefighters' place of employment that, as a practical matter, may have a serious effect on their opportunities for employment or promotion even though they are not bound by the decrees in any legal sense. The fact that one of the effects of a decree is to curtail the job opportunities of nonparties does not mean that the nonparties have been deprived of legal rights or that they have standing to appeal from that decree without becoming parties. Persons who have no right to appeal from a final judgment -- either because the time to appeal has elapsed or because they never became parties to the case -- may nevertheless collaterally attack a judgment on certain narrow grounds. If the court had no jurisdiction over the subject matter, or if the judgment is the product of corruption, duress, fraud, collusion, or mistake, under limited circumstances it may be set aside in an appropriate collateral proceeding. See Restatement (Second) of Judgments §§ 69-72 (1982); Griffith v. Bank of New York, 147 F.2d 899, 901 (CA2) (Clark, J.), cert. denied, 325 U.S. 874 (1945). This rule not only applies to parties to the original action, but also allows interested third parties collaterally to attack judgments. [ Footnote 2/5 ] In both civil and criminal cases, however, the Page 490 U. S. 772 grounds that may be invoked to support a collateral attack are much more limited than those that may be asserted as error on direct appeal. [ Footnote 2/6 ] Thus, a person who can foresee that a lawsuit is likely to have a practical impact on his interests may pay a heavy price if he elects to sit on the sidelines instead of intervening and taking the risk that his legal rights will be impaired. In these cases, there is no dispute about the fact that respondents are not parties to the consent decrees. It follows as a matter of course that they are not bound by those decrees. [ Footnote 2/7 ] Those judgments could not, and did not, deprive Page 490 U. S. 773 them of any legal rights. The judgments did, however, have a practical impact on respondents' opportunities for advancement in their profession. For that reason, respondents had standing to challenge the validity of the decrees, but the grounds that they may advance in support of a collateral challenge are much more limited than would be allowed if they were parties prosecuting a direct appeal. [ Footnote 2/8 ] The District Court's rulings in this case have been described incorrectly by both the Court of Appeals and this Court. The Court of Appeals repeatedly stated that the District Page 490 U. S. 774 Court had "in effect" held that the white firefighters were "bound" by a decree to which they were not parties. [ Footnote 2/9 ] And this Court's opinion seems to assume that the District Court had interpreted its consent decrees in the earlier litigation as holding "that the white firefighters were precluded from challenging employment decisions taken pursuant to the decrees." Ante at 758. [ Footnote 2/10 ] It is important, therefore, to make clear exactly what the District Court did hold and why its judgment should be affirmed. I The litigation in which the consent decrees were entered was a genuine adversary proceeding. In 1974 and 1975, two groups of private parties and the United States brought three separate Title VII actions against the city of Birmingham (City), the Personnel Board of Jefferson County (Board), and various officials, [ Footnote 2/11 ] alleging discrimination in hiring Page 490 U. S. 775 and promotion in several areas of employment, including the fire department. After a full trial in 1976, the District Court found that the defendants had violated Title VII, and that a test used to screen job applicants was biased. App. 553. After a second trial in 1979 that focused on promotion practices -- but before the District Court had rendered a decision -- the parties negotiated two consent decrees, one with the City defendants and the other with the Board. App. to Pet. for Cert. 122a (City decree), 202a (Board decree). The United States is a party to both decrees. The District Court provisionally approved the proposed decrees and directed that the parties provide notice "to all interested persons informing them of the general provisions of the Consent Decrees . . . and of their right to file objections." App. 695. Approximately two months later, the District Court conducted a fairness hearing, at which a group of black employees objected to the decrees as inadequate and a group of white firefighters -- represented in part by the Birmingham Firefighters Association (BFA) -- opposed any race-conscious relief. Id. at 727. The District Court overruled both sets of objections and entered the decrees in August, 1981. App. to Pet. for Cert. 236a. In its decision approving the consent decrees, the District Court first noted "that there is no contention or suggestion that the settlements are fraudulent or collusive." Id. at 238a. The court then explained why it was satisfied that the affirmative action goals and quotas set forth in the decrees were "well within the limits upheld as permissible" in Steelworkers v. Weber, 443 U. S. 193 (1979), and other cases. App. to Pet. for Cert. 240a-241a. It pointed out that the decrees "do not preclude the hiring or promotion of whites and males even for a temporary period of time," id. at 241a, and that the City's commitment to promote blacks and whites to the position of fire lieutenant at the same rate was temporary and was subject both to the availability of qualified candidates Page 490 U. S. 776 and "to the caveat that the decree is not to be interpreted as requiring the hiring or promotion of a person who is not qualified or of a person who is demonstrably less qualified according to a job-related selection procedure," id. at 242a. It further found that the record provided "more than ample reason" to conclude that the City would eventually be held liable for discrimination against blacks at high-level positions in the fire and police departments. [ Footnote 2/12 ] Id. at 244a. Based on Page 490 U. S. 777 its understanding of the wrong committed, the court concluded that the remedy embodied in the consent decrees was "reasonably commensurate with the nature and extent of the indicated discrimination." Ibid. Cf. Milliken v. Bradley, 418 U. S. 717 , 418 U. S. 744 (1974). The District Court then rejected other specific objections, pointing out that the decrees would not impinge on any contractual rights of the unions or their members. App. to Pet. for Cert. 245a. Finally, after noting that it had fully considered the white firefighters' objections to the settlement, it denied their motion to intervene as untimely. Id. at 246a. Several months after the entry of the consent decrees, the Board certified to the City that five black firefighters, as well as eight whites, were qualified to fill six vacancies in the position of lieutenant. See App. 81. A group of white firefighters then filed suit against the City and Board challenging their policy of "certifying candidates and making promotions on the basis of race under the assumed protection of consent settlements." App. to Pet. for Cert. 113a. The complaint alleged, in the alternative, that the consent decrees were illegal and void, or that the defendants were not properly implementing them. Id. at 113a-114a. The plaintiffs filed motions for a temporary restraining order and a preliminary injunction. After an evidentiary hearing, the District Court found that the plaintiffs' collateral attack on the consent decrees was "without merit," and that four of the black officers were qualified for promotion in accordance with the terms of the decrees. App. 81-83. Accordingly, it denied the motions, id. at 83, 85-86, and, for the first time in its history, the City had a black lieutenant in its fire department. Page 490 U. S. 778 The plaintiffs' appeal from that order was consolidated with the appeal that had been previously taken from the order denying the motion to intervene filed in the earlier litigation. The Court of Appeals affirmed both orders. See United States v. Jefferson County, 720 F.2d 1511 (CA11 1983). While that appeal was pending, in September, 1983, the Wilks respondents filed a separate action against petitioners. The Wilks complaint alleged that petitioners were violating Title VII, but it did not contain any challenge to the validity of the consent decrees. App. 130. After various preliminary proceedings, the District Court consolidated these cases, along with four other reverse discrimination actions brought against petitioners, under the caption In re: Birmingham Reverse Discrimination Litigation. Id. at 218. In addition, over the course of the litigation, the court allowed further parties to intervene. [ Footnote 2/13 ] On February 18, 1985, the District Court ruled on the City's motion for partial summary judgment and issued an opinion that, among other things, explained its understanding of the relevance of the consent decrees to the issues raised in the reverse discrimination litigation. Id. at 277. After summarizing the proceedings that led up to the entry of the consent decrees, the District Court expressly "recognized that the consent decrees might not bar all claims of 'reverse discrimination.' since [the plaintiffs] had not been parties to the prior suits. [ Footnote 2/14 ]" Id. at 279. The court then took a position Page 490 U. S. 779 with respect to the relevance of the consent decrees that differed from that advocated by any of the parties. The plaintiffs contended that the consent decrees, even if valid, did not constitute a defense to their action, cf. W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757 (1983), and, in the alternative, that the decrees did not authorize the promotion of black applicants ahead of higher scoring white applicants, and thus did not justify race-conscious promotions. App. 281-282. The City, on the other hand, contended that the promotions were immunized from challenge if they were either required or permitted by the terms of the decrees. Id. at 282. The District Court took the intermediate position that promotions required by -- and made because of -- the decrees were justified. [ Footnote 2/15 ] However, it denied the City's summary judgment motion because it raised factual issues requiring a trial. Id. at 288-289. In December, 1985, the court conducted a 5-day trial limited to issues concerning promotions in the City's fire and engineering departments. [ Footnote 2/16 ] At that trial, respondents challenged Page 490 U. S. 780 the validity of the consent decrees; to meet that challenge, petitioners introduced the records of the 1976 trial, the 1979 trial, and the fairness hearing conducted in 1981. Respondents also tried to prove that they were demonstrably better qualified than the black firefighters who had been promoted ahead of them. At the conclusion of the trial, the District Court entered a partial final judgment dismissing portions of the plaintiffs' complaints. The judge explained his ruling in an oral opinion dictated from the bench, supplemented by the adoption, with some changes, of detailed findings and conclusions drafted by the prevailing parties. See App. to Pet. for Cert. 27a, 37a. In his oral statement, the judge adhered to the legal position he had expressed in his February ruling. He stated: "The conclusions there expressed either explicitly or implicitly were that under appropriate circumstances, a valid consent decree appropriately limited can be the basis for a defense against a charge of discrimination, even in the situation in which it is clear that the defendant to the litigation did act in a racially conscious manner." "In that February order, it was my view, as expressed then, that, if the City of Birmingham made promotions of blacks to positions as fire lieutenant, fire captain and civil engineer, because the City believed it was required to do so by the consent decree, and if in fact the City was required to do so by the Consent Decree, then they would not be guilty of racial discrimination, either Page 490 U. S. 781 under Title 7, Section 1981, 1983, or the 14th Amendment. That remains my conclusion, given the state of the law as I understand it." Id. at 77a. He then found as a matter of fact that petitioners had not promoted any black officers who were not qualified or who were demonstrably less qualified than the whites who were not promoted. He thus rejected respondents' contention that the City could not claim that it simply acted as required by terms of the consent decree: [ Footnote 2/17 ] "In this case, under the evidence as presented here, I find that, even if the burden of proof be placed on the defendants, they have carried that proof and that burden of establishing that the promotions of the black individuals in this case were in fact required by the terms of the consent decree." Id. at 78a. The written conclusions of law that he adopted are less clear than his oral opinion. He began by unequivocally stating: "The City Decree is lawful." [ Footnote 2/18 ] Id. at 106a. He explained that, "under all the relevant case law of the Eleventh Circuit and the Supreme Court, it is a proper remedial device, designed to overcome the effects of prior, illegal discrimination by the City of Birmingham. [ Footnote 2/19 ]" Id. at 106a-107a. Page 490 U. S. 782 In that same conclusion, however, he did state that "plaintiffs cannot collaterally attack the Decree's validity." Id. at 106a. Yet, when read in context -- and particularly in light of the court's finding that the decree was lawful under Eleventh Circuit and Supreme Court precedent -- it is readily apparent that, at the extreme, this was intended as an alternative holding. More likely, it was an overstatement of the rule that collateral review is narrower in scope than appellate review. In any event, and regardless of one's reading of this lone sentence, it is absolutely clear that the court did not hold that respondents were bound by the decree. Nowhere in the District Court's lengthy findings of fact and conclusions of law is there a single word suggesting that respondents were bound by the consent decree or that the court intended to treat them as though they had been actual parties to that litigation, and not merely as persons whose interests, as a practical matter, had been affected. Indeed, respondents, the Court of Appeals, and the majority opinion all fail to draw attention to any point in this case's long history at which the judge may have given the impression that any nonparty was legally bound by the consent decree. [ Footnote 2/20 ] Page 490 U. S. 783 II Regardless of whether the white firefighters were parties to the decrees granting relief to their black coworkers, it would be quite wrong to assume that they could never collaterally attack such a decree. If a litigant has standing, he or she can always collaterally attack a judgment for certain narrowly defined defects. See, e.g., Klapprott v. United States, 335 U. S. 601 (1949); and cases cited in n 5, supra. See also Korematsu v. United States, 584 F. Supp. 1406 (ND Cal.1984) (granting writ of coram nobis vacating conviction based on Government concealment of critical contradictory evidence in Korematsu v. United States, 323 U. S. 214 (1944)). On the other hand, a district court is not required to retry a case -- or to sit in review of another court's judgment -- every time an interested nonparty asserts that some error that might have been raised on direct appeal was committed. See nn. 6 and 8, supra. Such a broad allowance of collateral review would destroy the integrity of litigated judgments, would lead to an abundance of vexatious litigation, and would subvert the interest in comity between courts. [ Footnote 2/21 ] Here, respondents have offered no circumstance Page 490 U. S. 784 that might justify reopening the District Court's settled judgment. The implementation of a consent decree affecting the interests of a multitude of nonparties, and the reliance on that decree as a defense to a charge of discrimination in hiring and promotion decisions, raise a legitimate concern of collusion. No such allegation, however, has been raised. Moreover, there is compelling evidence that the decrees were not collusive. In its decision approving the consent decrees over the objection of the BFA and individual white firefighters, the District Court observed that there had been "no contention or suggestion" that the decrees were fraudulent or collusive. App. to Pet. for Cert. 238a. The record of the fairness hearing was made part of the record of this litigation, and this finding was not contradicted. More significantly, the consent decrees were not negotiated until after the 1976 trial and the court's finding that the City had discriminated against black candidates for jobs as police officers and firefighters, see App. 553, and until after the 1979 trial, at which substantial evidence was presented suggesting that the City also discriminated against black candidates for promotion in the fire department, see n. 12, supra. Like the record of the 1981 fairness hearing, the records of both of these prior proceedings Page 490 U. S. 785 were made part of the record in this case. Given this history, the lack of any indication of collusion, and the District Court's finding that "there is more than ample reason for . . . the City of Birmingham to be concerned that [it] would be in time held liable for discrimination against blacks at higher level positions in the police and fire departments," App. to Pet. for Cert. 244a, it is evident that the decree was a product of genuine arm's-length negotiations. Nor can it be maintained that the consent judgment is subject to reopening and further litigation because the relief it afforded was so out of line with settled legal doctrine that it "was transparently invalid or had only a frivolous pretense to validity." [ Footnote 2/22 ] Walker v. Birmingham, 388 U. S. 307 , 388 U. S. 315 (1967) (suggesting that a contemner might be allowed to challenge contempt citation on ground that underlying court order was "transparently invalid"). To the contrary, the type of race-conscious relief ordered in the consent decrees is entirely consistent with this Court's approach to affirmative action. Given a sufficient predicate of racial discrimination, neither the Equal Protection Clause of the Fourteenth Amendment [ Footnote 2/23 ] nor Title VII of the Civil Rights Act Page 490 U. S. 786 of 1964 [ Footnote 2/24 ] erects a bar to affirmative action plans that benefit nonvictims and have some adverse effect on nonwrongdoers. [ Footnote 2/25 ] As JUSTICE O'CONNOR observed in Wygant v. Page 490 U. S. 787 Jackson Bd. of Education, 476 U. S. 267 (1986): "This remedial purpose need not be accompanied by contemporaneous findings of actual discrimination to be accepted as legitimate as long as the public actor has a firm basis for believing that remedial action is required." Id. at 476 U. S. 286 (opinion concurring in part and concurring in judgment). Such a belief was clearly justified in these cases. After conducting the 1976 trial and finding against the City, and after listening to the five days of testimony in the 1979 trial, the judge was well qualified to conclude that there was a sound basis for believing that the City would likely have been found to have violated Title VII if the action had proceeded to a litigated judgment. [ Footnote 2/26 ] Hence, there is no basis for collaterally attacking the judgment as collusive, fraudulent, or transparently invalid. Moreover, respondents do not claim -- nor has there been any showing of -- mistake, duress, or lack of jurisdiction. Instead, respondents are left to argue that somewhat different relief would have been more appropriate than the relief that was actually granted. Although this sort of issue may provide the basis for a direct appeal, it cannot, and should not, serve to open the door to relitigation of a settled judgment. Page 490 U. S. 788 III The facts that respondents are not bound by the decree and that they have no basis for a collateral attack, moreover, do not compel the conclusion that the District Court should have treated the decree as nonexistent for purposes of respondents' discrimination suit. That the decree may not directly interfere with any of respondents' legal rights does not mean that it may not affect the factual setting in a way that negates respondents' claim. The fact that a criminal suspect is not a party to the issuance of a search warrant does not imply that the presence of a facially valid warrant may not be taken as evidence that the police acted in good faith. See Malley v. Briggs, 475 U. S. 335 , 475 U. S. 344 -345 (1986); United States v. Leon, 468 U. S. 897 , 468 U. S. 921 -922, 468 U. S. 924 (1984); United States v. Ross, 456 U. S. 798 , 456 U. S. 823 , n. 32 (1982). Similarly, the fact that an employer is acting under court compulsion may be evidence that the employer is acting in good faith and without discriminatory intent. Cf. Ashley v. City of Jackson, 464 U. S. 900 , 903 (1983) (REHNQUIST, J., dissenting from denial of certiorari) (suggesting that compliance with a consent decree "might be relevant to a defense of good faith immunity"); Restatement (Second) of Judgments § 76, Comment a, p. 217 (1982) ("If the judgment is held to be not binding on the person against whom it is invoked, it is then ignored in the determination of matters in issue in the subsequent litigation, unless it is relevant for some other purpose such as proving the good faith of a party who relied on it"). Indeed, the threat of a contempt citation provides as good a reason to act as most, if not all, other business justifications. [ Footnote 2/27 ] Page 490 U. S. 789 After reviewing the evidence, the District Court found that the City had in fact acted under compulsion of the consent decree. App. to Pet. for Cert. 107a; App. 280. Based on this finding, the court concluded that the City carried its burden of coming forward with a legitimate business reason for its promotion policy, and, accordingly, held that the promotion decisions were "not taken with the requisite discriminatory intent" necessary to make out a claim of disparate treatment under Title VII or the Equal Protection Clause. App. to Pet. for Cert. 107a, citing United States v. Jefferson County, 720 F.2d at 1518. For this reason, and not because it thought that respondents were legally bound by the consent decree, the court entered an order in favor of the City and defendant-intervenors. Of course, in some contexts a plaintiff might be able to demonstrate that reference to a consent decree is pretextual. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). For example, a plaintiff might be able to show that the consent decree was collusive, and that the defendants simply obtained the court's rubber stamp on a private agreement that was in no way related to the eradication of pervasive racial discrimination. The plaintiff, alternatively, might be able to show that the defendants were not bound to obey the consent decree because the court that entered it was without jurisdiction. See United States v. Mine Page 490 U. S. 790 Workers, 330 U. S. 258 , 330 U. S. 291 -294 (1947). Similarly, although more tenuous, a plaintiff might argue that the parties to the consent judgment were not bound because the order was "transparently invalid," and thus unenforceable. [ Footnote 2/28 ] If the defendants were as a result not bound to implement the affirmative action program, then the plaintiff might be able to show that the racial preference was not a product of the court order. In a case such as this, however, in which there has been no showing that the decree was collusive, fraudulent, transparently invalid, or entered without jurisdiction, it would be "unconscionable" to conclude that obedience to an order remedying a Title VII violation could subject a defendant to additional liability. Cf. Farmers v. WDAY, Inc., 360 U. S. 525 , 360 U. S. 531 (1959). Rather, all of the reasons that support the Court's view that a police officer should not generally be held liable when he carries out the commands in a facially valid warrant apply with added force to city officials, or indeed to private employers, who obey the commands contained in a decree entered by a federal court. [ Footnote 2/29 ] In fact, Equal Employment Page 490 U. S. 791 Opportunity Commission regulations concur in this assessment. They assert: "The Commission interprets Title VII to mean that actions taken pursuant to the direction of a Court Order cannot give rise to liability under Title VII." 29 CFR § 1608.8 (1989). [ Footnote 2/30 ] Assuming that the District Court's findings of fact were not clearly erroneous -- which of course is a matter that is not before us -- it seems perfectly clear that its judgment should have been affirmed. Any other conclusion would subject large employers who seek to comply with the law by remedying past discrimination to a never-ending stream of litigation and potential liability. It is unfathomable that either Title VII or the Equal Protection Clause demands such a counterproductive result. IV The predecessor to this litigation was brought to change a pattern of hiring and promotion practices that had discriminated against black citizens in Birmingham for decades. The white respondents in this case are not responsible for that history of discrimination, but they are nevertheless beneficiaries of the discriminatory practices that the litigation was designed to correct. Any remedy that seeks to create employment conditions that would have obtained if there had been no violations of law will necessarily have an adverse impact on whites, who must now share their job and promotion opportunities Page 490 U. S. 792 with blacks. [ Footnote 2/31 ] Just as white employees in the past were innocent beneficiaries of illegal discriminatory practices, so is it inevitable that some of the same white employees will be innocent victims who must share some of the burdens resulting from the redress of the past wrongs. There is nothing unusual about the fact that litigation between adverse parties may, as a practical matter, seriously impair the interests of third persons who elect to sit on the sidelines. Indeed, in complex litigation, this Court has squarely held that a sideline-sitter may be bound as firmly as an actual party if he had adequate notice and a fair opportunity to intervene, and if the judicial interest in finality is sufficiently strong. See Penn-Central Merger and N & W Inclusion Cases, 389 U. S. 486 , 389 U. S. 505 -506 (1968). Cf. Bergh v. Washington, 535 F.2d 505, 507 (CA9), cert. denied, 429 U.S. 921 (1976); Safir v. Dole, 231 U.S.App.D.C. 63, 70-71, 718 F.2d 475, 482-83 (1983), cert. denied, 467 U.S. 1206 (1984); James & Hazard § 11.31, pp. 651-652. There is no need, however, to go that far in order to agree with the District Court's eminently sensible view that compliance with the terms of a valid decree remedying violations of Title VII cannot itself violate that statute or the Equal Protection Clause. [ Footnote 2/32 ] The city of Birmingham, in entering into Page 490 U. S. 793 and complying with this decree, has made a substantial step toward the eradication of the long history of pervasive racial discrimination that has plagued its fire department. The District Court, after conducting a trial and carefully considering respondents' arguments, concluded that this effort is lawful, and should go forward. Because respondents have thus already had their day in court and have failed to carry their burden, I would vacate the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. [ Footnote 2/1 ] Federal Rule of Civil Procedure 24(a) provides, in part: "Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." [ Footnote 2/2 ] Federal Rule of Civil Procedure 19(a) provides, in part: "A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if . . . (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest. . . ." [ Footnote 2/3 ] See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 , 390 U. S. 110 (1968). [ Footnote 2/4 ] As CHIEF JUSTICE REHNQUIST has observed: "Suppose, for example, that the Government sues a private corporation for alleged violations of the antitrust laws, and then enters a consent decree. Surely, the existence of that decree does not preclude a future suit by another corporation alleging that the defendant company's conduct, even if authorized by the decree, constitutes an antitrust violation. The nonparty has an independent right to bring his own private antitrust action for treble damages or for injunctive relief. See 2 P. Areeda & D. Turner, Antitrust Law � 330, p. 143 (1978). Similarly, if an action alleging unconstitutional prison conditions results in a consent decree, a prisoner subsequently harmed by prison conditions is not precluded from bringing suit on the mere plea that the conditions are in accordance with the consent decree. Such compliance might be relevant to a defense of good faith immunity, see Pet. for Cert. in Bennett v. Williams, O.T. 1982, No. 82-1704, but it would not suffice to block the suit altogether." Ashley v. City of Jackson, 464 U. S. 900 , 902-903 (1983) (opinion dissenting from denial of certiorari). In suggesting that compliance with a consent decree might be relevant to a defense of good faith immunity, this passage recognizes that neither due process nor the Rules of Civil Procedure foreclose judicial recognition of a judgment that may have a practical effect on the interests of a nonparty. [ Footnote 2/5 ] See F. James & G. Hazard, Civil Procedure § 12.15, p. 681 (3d ed.1985) (hereinafter James & Hazard). Since at least 1874, this Court has recognized that a third party may collaterally attack a judgment if the original judgment was obtained through fraud or collusion. In a case brought by an assignee in bankruptcy seeking to recover property allegedly transferred in fraud of the bankrupt's debtors, the Court wrote: "Judgments of any court, it is sometimes said, may be impeached by strangers to them for fraud or collusion, but the proposition as stated is subject to certain limitations, as it is only those strangers who, if the judgment is given full credit and effect, would be prejudiced in regard to some preexisting right who are permitted to set up such a defense. Defenses of the kind may be set up by such strangers. Hence the rule that whenever a judgment or decree is procured through the fraud of either of the parties, or by the collusion of both, for the purpose of defrauding some third person, such third person may escape from the injury thus attempted by showing, even in a collateral proceeding, the fraud or collusion by which the judgment was obtained." Michaels v. Post , 21 Wall. 398, 88 U. S. 426 -427 (1874) (footnote omitted). See also Wells Fargo & Co. v. Taylor, 254 U. S. 175 , 254 U. S. 184 (1920);1 A. Freeman, Judgments § 318, p. 634 (5th ed.1925). Similarly, strangers to a decree are sometimes allowed to challenge the decree by showing that the court was without jurisdiction. Id. at p. 633. But cf. Johnson v. Muelberger, 340 U. S. 581 (1951) (noting that, under Florida law, a child, seeking to protect her interest in her father's estate, may not collaterally attack her parents' divorce for want of jurisdiction). Of course, unlike parties to a decree, the question of subject matter jurisdiction is not res judicata as to interested third parties. Cf. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 , 456 U. S. 702 , n. 9 (1982). [ Footnote 2/6 ] We have long held that proceedings brought before a court collaterally "are by no means subject to all the exceptions which might be taken on a direct appeal." Thompson v. Tolmie , 2 Pet. 157, 27 U. S. 162 (1829). See also Teague v. Lane, 489 U. S. 288 , 489 U. S. 303 -310 (1989) (petition for writ of habeas corpus); Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847 , 486 U. S. 863 -864 (1988) (Rule 60(b) motion); United States v. Frady, 456 U. S. 152 , 456 U. S. 165 (1982) (§ 2255 motion); Ackermann v. United States, 340 U. S. 193 , 340 U. S. 197 -202 (1950) (Rule 60(b) motion); Sunal v. Large, 332 U. S. 174 , 332 U. S. 177 -179 (1947) (petition for writ of habeas corpus). [ Footnote 2/7 ] As we held in Firefighters v. Cleveland, 478 U. S. 501 , 478 U. S. 529 -530 (1986): "Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and, a fortiori, may not impose duties or obligations on a third party, without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting [individuals]. . . . And, of course, a court may not enter a consent decree that imposes obligations on a party that did not consent to the decree. See, e.g., United States v. Ward Baking Co., 376 U. S. 327 (1964); Hughes v. United States, 342 U. S. 353 (1952); Ashley v. City of Jackson, 464 U.S. at 902 (REHNQUIST, J., dissenting from denial of certiorari); 1B Moore � 0.409[5], p. 326, n. 2. However, the consent decree entered here does not bind Local 93 to do or not to do anything. It imposes no legal duties or obligations on the Union at all; only the parties to the decree can be held in contempt of court for failure to comply with its terms. See United States v. Armour & Co., 402 U.S. at 402 U. S. 676 -677." [ Footnote 2/8 ] The Eleventh Circuit, in a decision involving a previous attempt by white firefighters to set aside the consent decrees at issue in this litigation, itself observed: "There are . . . Limitations on the extent to which a nonparty can undermine a prior judgment. A nonparty may not reopen the case and relitigate the merits anew; neither may he destroy the validity of the judgment between the parties." United States v. Jefferson County, 720 F.2d 1511, 1518 (1983). Professors James and Hazard describe the rule as follows: "Ordinarily, a nonparty has no legal interest in a judgment in an action between others. Such a judgment does not determine the nonparty's rights and obligations under the rules of res judicata, and he may so assert if the judgment is relied upon against him. But in some situations, one's interests, particularly in one's own personal legal status or claims to property, may be placed in practical jeopardy by a judgment between others. In such circumstances, one may seek the aid of a court of equity, but the grounds upon which one may rely are severely limited. The general rule is that one must show either that the judgment was void for lack of jurisdiction of the subject matter or that it was the product of fraud directed at the petitioner." James & Hazard § 12.15, p. 681 (emphasis supplied) (footnotes omitted). [ Footnote 2/9 ] The Court of Appeals wrote: "Both the City and the Board, however, denied that they had violated Title VII or the equal protection clause. Both contended that the plaintiffs were bound by the consent decrees, and that the promotions were therefore lawful as a matter of law because they had been made pursuant to those decrees." In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 1496 (CA11 1987). "Without expressly so stating, the district judge treated the plaintiffs as if they were bound by the consent decrees and as if they were alleging solely that the City had violated the City decree." Ibid. "The court held that the plaintiffs -- both the United States and the individual plaintiffs -- were bound by the consent decrees." Id. at 1497. "In effect, the court treated the plaintiffs as if they were parties to the City decree seeking an order to show cause why the City should not be held in civil contempt for violating the terms of the decree." Id. at 1497, n. 16. [ Footnote 2/10 ] See also ante at 490 U. S. 762 , where the Court suggests that the District Court held that its consent decrees had "conclude[d] the rights of strangers to those proceedings. (Footnote omitted.) [ Footnote 2/11 ] These parties, along with six black firefighters who were party plaintiffs to the 1974-1975 litigation, are petitioners herein. [ Footnote 2/12 ] In approving the decree, the District Court expressed confidence that the United States and the black firefighters brought suit in good faith, and that there was a strong evidentiary basis for their complaints. It observed: "The objectors treat this case as one in which discrimination on the basis of race or sex has not been established. That is only partially true, at least as it relates to positions in the police and fire departments. This court at the first trial found -- and the Fifth Circuit agreed -- that blacks applying for jobs as police officers and firefighters were discriminated against by the tests used by the Personnel Board to screen and rank applicants. The evidence presented at the second trial established, at the .01 level of statistical significance, that blacks were adversely affected by the exam used by the Personnel Board to screen and rank applicants for the position of police sergeant. Since governmental employers such as the City of Birmingham have been limited by state law to selecting candidates from among those certified by the Board, one would hardly be surprised to find that the process as a whole has had an adverse effect upon blacks seeking employment as Birmingham police officers, police sergeants, or firefighters -- regardless of whether or not there was any actual bias on the part of selecting officials of the City. A natural consequence of discrimination against blacks at entry-level positions in the police and fire departments would be to limit their opportunities for promotion to higher levels in the departments." "Employment statistics for Birmingham's police and fire departments as of July 21, 1981, certainly lend support to the claim made in this litigation against the City -- that, notwithstanding this court's directions in 1977 with respect to certifications by the Personnel Board for the entry-level police officer and firefighters positions, and despite the City's adoption of a 'fair hiring ordinance' and of affirmative action plans, the effects of past discrimination against blacks persist. According to those figures, 79 of the 480 police officers are black, 3 of the 131 police sergeants are black, and none of the 40 police lieutenants and captains are black. In the fire department, 42 of the 453 firefighters are black, and none of the 140 lieutenants, captains, and battalion chiefs are black." App. to Pet. for Cert. 242a-243a. The evidence of discrimination presented at the 1979 trial is described in greater detail in the United States' 100-page post-trial brief, which is reprinted in the Joint Appendix. See App. 594-693. [ Footnote 2/13 ] Among those allowed to intervene were seven black firefighters who were parties to the consent decrees and who sought to defend the decrees; the United States, which reversed course in the litigation and aligned itself with the plaintiffs; and additional white firefighters pressing individual reverse discrimination claims. [ Footnote 2/14 ] During an earlier hearing, the District Court informed counsel: "I do believe that the Court of Appeals said there is no per se prohibition against an attack, an indirect attack, in any event by a person whose rights may be affected during the implementation or claims implementation of the decree. To the extent the motions to dismiss or summary judgment take that position, I think the Court of Appeals said, no, that is not the law of this Circuit." Id. at 237. [ Footnote 2/15 ] The court indicated that, if the race-conscious promotions were a product of the City's adherence to pending court orders ( i.e., the consent decrees), it could not be said that the City acted with the requisite racially discriminatory intent. See id. at 280 ("[T]he court is persuaded that the defendants can . . . defend these reverse discrimination claims if they establish that the challenged promotions were made because of the requirements of the consent decree"). See also Tr. (May 14, 1984), reprinted in App. 237. In reaching this conclusion, the District Court was well aware of the Court of Appeals' previous suggestion that such a defense might be available: "'The consent decree would only become an issue if the defendant attempted to justify its conduct by saying that it was mandated by the consent decree. If this were the defense, the trial judge would have to determine whether the defendant's action was mandated by the decree, and, if so, whether that fact alone would relieve the defendant of liability that would otherwise attach. This is, indeed, a difficult question. . . . We should not, however, preclude potentially wronged parties from raising such a question merely because it is perplexing.'" App. 280-281, n. 6, quoting United States v. Jefferson County, 720 F.2d at 1518-1519. [ Footnote 2/16 ] At the close of the plaintiffs' case, the District Court granted the motion of the Board to dismiss the claims against it pursuant to Federal Rule of Civil Procedure 41(b). The basis for the motion was the fact that, even without regard to the consent decrees, the plaintiffs had not proved a prima facie case against the Board, which had done nothing more than provide the City with the names of employees, both white and black, who were qualified for promotion. There was no evidence that the Board's certification process, or its testing procedures, adversely affected whites. I am at a loss to understand why the Court of Appeals did not affirm the judgment in favor of the Board. [ Footnote 2/17 ] Paragraph 2 of the City decree provides, in pertinent part: "Nothing herein shall be interpreted as requiring the City to . . . promote a person who is not qualified . . . or promote a less qualified person, in preference to a person who is demonstrably better qualified based upon the results of a job related selection procedure." App. to Pet. for Cert. 124a. [ Footnote 2/18 ] The District Court's opinion does not refer to the second consent decree because the claims against the Board had been dismissed at the end of the plaintiffs' case. See 490 U.S. 755 fn2/16|>n. 16, supra. [ Footnote 2/19 ] In support of this proposition, the court cited, inter alia, our decision in Steelworkers v. Weber, 443 U. S. 193 (1979). We recently reaffirmed the Weber decision in Johnson v. Transportation Agency, Santa Clara County, 480 U. S. 616 (1987). See also Sheet Metal Workers v. EEOC, 478 U. S. 421 (1986) (plurality opinion); id. at 478 U. S. 483 (Powell, J., concurring in part and concurring in judgment); id. at 478 U. S. 489 (O'CONNOR, J., concurring in part and dissenting in part); id. at 478 U. S. 499 (WHITE, J., dissenting) (all reaffirming that courts are vested with discretion to award race-conscious relief). [ Footnote 2/20 ] In Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. at 390 U. S. 114 , we expressly did not decide whether a litigant might "be bound by [a] previous decision because, although technically a nonparty, he had purposely bypassed an adequate opportunity to intervene." See Note, Preclusion of Absent Disputants to Compel Intervention, 79 Colum.L.Rev. 1551 (1979) (arguing in favor of such a rule of mandatory intervention); 7 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1608, p. 115, n. 33 (2d ed.1986) (drawing a parallel between the mandatory intervention rule and this Court's decision in Penn-Central Merger and N & W Inclusion Cases, 389 U. S. 486 (1968)). Today, the Court answers this question, at least in the limited context of the instant dispute, holding that "[j]oinder as a party [under Federal Rule of Civil Procedure 19], rather than knowledge of a lawsuit and an opportunity to intervene [under Federal Rule of Civil Procedure 24], is the method by which potential parties are subjected to the jurisdiction of the court and bound by a judgment or decree." Ante at 490 U. S. 765 . See also ante at 490 U. S. 763 ("[A] party seeking a judgment binding on another cannot obligate that person to intervene; he must be joined"). Because I conclude that the District Court did not hold that respondents were bound by the consent decrees, I do not reach this issue. [ Footnote 2/21 ] One leading commentator relies on the following poignant language employed by the Virginia Supreme Court to explain the significance of the doctrine limiting collateral attacks: "'It is one . . . which has been adopted in the interest of the peace of society and the permanent security of titles. If, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for error, another court may in another suit inquire into the irregularities or errors in such judgment, there would be no end to litigation and no fixed established rights. A judgment, though unreversed and irreversible, would no longer be a final adjudication of the rights of the litigants, but the starting point from which a new litigation would spring up; acts of limitation would become useless and nugatory; purchasers on the faith of judicial process would find no protection; every right established by a judgment would be insecure and uncertain; and a cloud would rest upon every title.'" 1 H. Black, Law of Judgments § 245, pp. 365-366 (2d ed.1902), quoting Lancaster v. Wilson, 27 Gratt. 624, 629 (Va. 1876). In addition to undermining this interest in finality, permitting collateral attacks also leads to the anomaly that courts will, on occasion, be required to sit in review of judgments entered by other courts of equal -- or even greater -- authority. Cf. ASARCO Inc. v. Kadish, ante, at 490 U. S. 622 -623; District of Columbia Court of Appeals v. Feldman, 460 U. S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U. S. 413 , 263 U. S. 415 -416 (1923). The rule is also supported by the fact that there is no assurance that a second round of litigation is more likely than the first to reach a just result or obtain uniformity in the law. [ Footnote 2/22 ] It was argued during the 1981 fairness hearing, in the first complaint filed in this litigation, see App. to Pet. for Cert. 113a, and in at least one of the subsequently filed complaints, see App. 96, that race-conscious relief for persons who are not proven victims of past discrimination is absolutely prohibited by the Equal Protection Clause of the Fourteenth Amendment and by Title VII of the Civil Rights Act of 1964. As I have pointed out, the Wilks complaint did not challenge the validity of the decrees. See App. 135-137. [ Footnote 2/23 ] See Wygant v. Jackson Bd. of Education, 476 U. S. 267 , 476 U. S. 286 (1986) (O'CONNOR, J., concurring in part and concurring in judgment) ("The Court is in agreement that, whatever the formulation employed, remedying past discrimination by a state actor is a sufficiently weighty state interest to warrant the remedial use of a carefully constructed affirmative action program"). See also Sheet Metal Workers, 478 U.S. at 478 U. S. 479 -481 (plurality opinion); id. at 478 U. S. 484 -489 (Powell, J., concurring in part and concurring in judgment). [ Footnote 2/24 ] In distinguishing the Court's decision in Firefighters v. Stotts, 467 U. S. 561 (1984), the plurality in Sheet Metal Workers, 478 U.S. at 478 U. S. 474 -475, asserted: "However, this limitation on individual make-whole relief does not affect a court's authority to order race-conscious affirmative action. The purpose of affirmative action is not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future. Such relief is provided to the class as a whole, rather than to individual members; no individual is entitled to relief, and beneficiaries need not show that they were themselves victims of discrimination. In this case, neither the membership goal nor the Fund order required petitioners to indenture or train particular individuals, and neither required them to admit to membership individuals who were refused admission for reasons unrelated to discrimination. We decline petitioners' invitation to read Stotts to prohibit a court from ordering any kind of race-conscious affirmative relief that might benefit nonvictims. This reading would distort the language of § 706(g), and would deprive the courts of an important means of enforcing Title VII's guarantee of equal employment opportunity." See also id. at 474 U. S. 483 (Powell, J., concurring in part and concurring in judgment) ("plain language of Title VII does not clearly support a view that all remedies must be limited to benefiting victims," and "although the matter is not entirely free from doubt," the legislative history of Title VII indicates that nonvictims may be benefited); id. at 474 U.S. 490 (O'CONNOR, J., concurring in part and dissenting in part) ("It is now clear . . . that a majority of the Court believes that the last sentence of § 706(g) does not in all circumstances prohibit a court in a Title VII employment discrimination case from ordering relief that may confer some racial preferences with regard to employment in favor of nonvictims of discrimination"); id. at 474 U. S. 499 (WHITE, J., dissenting) ("I agree that § 706(g) does not bar relief for nonvictims in all circumstances"). [ Footnote 2/25 ] In my view, an affirmative action plan need not be supported by a predicate of racial discrimination by the employer, provided that the plan "serve[s] a valid public purpose, that it was adopted with fair procedures and given a narrow breadth, that it transcends the harm to [the nonminority employees], and that it is a step toward that ultimate goal of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being's race." Wygant, 476 U.S. at 476 U. S. 320 (STEVENS, J., dissenting). In this case, however, the plan was undoubtedly preceded by an adequate predicate of racial discrimination; thus, I need not consider whether there is some present-day purpose that might justify a race-conscious promotion scheme. [ Footnote 2/26 ] Moreover, the District Court, in its opinion approving the consent decrees, found that the remedies are "reasonably commensurate with the nature and extent of the indicated discrimination," are "limited in duration, expiring as particular positions generally reflect the racial . . . composition of the labor market in the county as a whole," allow for "substantial opportunity for employment advancement of whites and males," and "do not require the selection of blacks . . . who are unqualified or who are demonstrably less qualified than their competitors." App. to Pet. for Cert. 244a-245a. Therefore, it cannot be claimed that the court failed to consider whether the remedies were tailored "to fit the nature of the violation." Sheet Metal Workers, 478 U.S. at 478 U. S. 476 . See also id. at 478 U. S. 496 (O'CONNOR, J., concurring in part and dissenting in part). [ Footnote 2/27 ] Because consent decrees "have attributes both of contracts and judicial decrees," they are treated differently for different purposes. United States v. ITT Continental Baking Co., 420 U. S. 223 , 420 U. S. 236 , n. 10 (1975). See also Firefighters v. Cleveland, 478 U.S. at 478 U. S. 519 . For example, because the content of a consent decree is generally a product of negotiations between the parties, decrees are construed for enforcement purposes as contracts. See ITT Continental Baking Co., supra, at 420 U. S. 238 ; Stotts v. Memphis Fire Dept., 679 F.2d 541, 557 (CA6 1982), rev'd on other grounds, 467 U. S. 561 (1984). For purposes of determining whether an employer can be held liable for intentional discrimination merely for complying with the terms of a consent decree, however, it is appropriate to treat the consent decree as a judicial order. Unlike the typical contract, a consent decree, such as the one at issue here, is developed in the context of adversary litigation. Moreover, the court reviews the consent decree to determine whether it is lawful, reasonable, and equitable. In placing the judicial imprimatur on the decree, the court provides the parties with some assurance that the decree is legal, and that they may rely on it. Most significantly, violation of a consent decree is punishable as criminal contempt. See 18 U.S.C. §§ 401, 402; Fed.Rule Crim.Proc. 42. [ Footnote 2/28 ] In Walker v. Birmingham, 388 U. S. 307 (1967), we held that a party can be held in contempt of court for violating an injunction, even if the injunction was invalid under the Federal Constitution. However, in upholding the contempt citations at issue, we made clear that that was "not a case where the injunction was transparently invalid or had only a frivolous pretense to validity." Id. at 388 U. S. 315 . Courts and commentators have relied on this reservation in positing that a contempt citation may be collaterally attacked if the underlying order was "transparently invalid." See, e.g., In re Providence Journal Co., 820 F.2d 1342 (CA1 1986), cert. dism'd sub nom. United States v. Providence Journal, 485 U. S. 693 (1988); 3 C. Wright, Federal Practice and Procedure § 702, p. 815, n. 17 (2d ed.1982). [ Footnote 2/29 ] Both warrants and consent decrees bear the indicium of reliability that a judicial officer has reviewed the proposed act and determined that it is lawful. See United States v. Alexandria, 614 F.2d 1358, 1361 (CA5 1980) ("trial court must satisfy itself that the consent decree is not unlawful, unreasonable, or inequitable before it can be approved"); App. to Pet. for Cert. 238a. Unlike the police officer in receipt of a facially valid warrant, however, an employer with notice of an affirmative injunction has no choice but to act. This added element of compulsion renders imposition of liability for acting pursuant to a valid consent decree all the more inequitable. [ Footnote 2/30 ] Section 1608.8 does not differentiate between orders "entered by consent or after contested litigation." 29 CFR § 1608.8 (1989). Indeed, the reasoning in the Court's opinion today would seem equally applicable to litigated orders and consent decrees. The Court's unwillingness to acknowledge that the grounds for a collateral attack on a judgment are significantly narrower than the grounds available on direct review, see ante at 490 U. S. 765 , n. 6, is difficult to reconcile with the host of cases cited in United States v. Frady, 456 U.S. at 456 U. S. 165 , the cases cited in n. 490 U.S. 755 fn2/6|>6, supra, and those cited in the scholarly writings cited in n. 5 supra. [ Footnote 2/31 ] It is inevitable that nonminority employees or applicants will be less well off under an affirmative action plan than without it, no matter what form it takes. For example, even when an employer simply agrees to recruit minority job applicants more actively, white applicants suffer the "nebulous" harm of facing increased competition and the diminished likelihood of eventually being hired. See Schwarzchild, Public Law By Private Bargain: Title VII Consent Decrees and the Fairness of Negotiated Institutional Reform, 1984 Duke L.J. 887, 909-910. [ Footnote 2/32 ] In professing difficulty in understanding why respondents are not "bound" by a decree that provides a defense to employment practices that would otherwise violate Title VII, see ante at 490 U. S. 765 , n. 6, the Court uses the word "bound" in a sense that is different from that used earlier in its opinion. A judgment against an employer requiring it to institute a seniority system may provide the employer with a defense to employment practices that would otherwise violate Title VII. In the sense in which the word "bound" is used in the cases cited by the Court, ante at 490 U. S. 761 -762 of its opinion, only the parties to the litigation would be "bound" by the judgment. But employees who first worked for the company 180 days after the litigation ended would be "bound" by the judgment in the sense that the Court uses when it responds to my argument. The cases on which the Court relies are entirely consistent with my position. Its facile use of the word "bound" should not be allowed to conceal the obvious flaws in its analysis.

In Martin v. Wilks, the US Supreme Court ruled that respondents were not precluded from challenging employment decisions made under consent decrees, even if they were not parties to the original case. The Court held that only those who are designated as parties or served with process are bound by a judgment in personam (a court order requiring a person to perform or refrain from a specific action). The ruling emphasized the difference between being joined as a party and merely having knowledge of a lawsuit with the opportunity to intervene. This case addressed issues of racially discriminatory hiring and promotion practices and the impact of consent decrees on non-parties.

Lawsuits & Legal Procedures

Finley v. U.S.

https://supreme.justia.com/cases/federal/us/490/545/

U.S. Supreme Court Finley v. United States, 490 U.S. 545 (1989) Finley v. United States No. 87-1973 Argued February 28, 1989 Decided May 22, 1989 490 U.S. 545 CERTIORARI TO THE UNITED STATES COURTOF APPEALS FOR THE NINTH CIRCUIT Syllabus Petitioner's decedents were killed when their plane struck electric power lines on its approach to a city-run airfield in San Diego. She filed the present action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), claiming that the Federal Aviation Administration had been negligent in its operation and maintenance of runway lights and in its performance of air traffic control functions. Petitioner subsequently moved to amend her complaint to add state tort law claims against both the city and the utility company that maintained the power lines. The District Court granted the motion and asserted "pendent" jurisdiction under Mine Workers v. Gibbs, 383 U. S. 715 , concluding that "judicial economy and efficiency" favored trying the actions together, and that the claims arose "from a common nucleus of operative facts." The Court of Appeals reversed on interlocutory appeal, categorically rejecting pendent-party jurisdiction under the FTCA. Held: The text of the FTCA -- which provides in pertinent part that the federal district courts shall have jurisdiction over "civil actions on claims against the United States" -- defines jurisdiction in a manner that does not reach defendants other than the United States. This Court's decision in Aldinger v. Howard, 427 U. S. 1 , made explicit the nontransferability of Gibbs to the context of pendent party jurisdiction. Aldinger, Zahn v. International Paper Co., 414 U. S. 291 , and Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 , establish that a grant of jurisdiction over claims involving particular parties does not confer jurisdiction over additional claims by or against different parties, even if consideration of the additional claims would promote "judicial economy and efficiency," and all of the claims "derive from a common nucleus of operative fact." Nor do the circumstances here suffice to establish "ancillary" jurisdiction. The unavailability of jurisdiction over the additional claims is unaltered by the exclusivity of federal jurisdiction under the FTCA, even though that may sometimes require separate suits in state and federal court. Finally, the 1948 revision of the Judicial Code, which changed the relevant language of the FTCA from "any claim against the United States" to its present form, does not suggest an affirmative grant of pendent party jurisdiction, but is more naturally understood as a stylistic Page 490 U. S. 546 change reflecting the terminology of the Federal Rules of Civil Procedure. See Fed.Rule Civ.Proc. 2. Pp. 490 U. S. 547 -556. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, post, p. 490 U. S. 556 . STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 558 . JUSTICE SCALIA delivered the opinion of the Court. On the night of November 11, 1983, a twin-engine plane carrying petitioner's husband and two of her children struck electric transmission lines during its approach to a San Diego, California, airfield. No one survived the resulting crash. Petitioner brought a tort action in state court, claiming that San Diego Gas and Electric Company had negligently positioned and inadequately illuminated the transmission lines, and that the city of San Diego's negligent maintenance of the airport's runway lights had rendered them inoperative the night of the crash. When she later discovered that the Federal Aviation Administration (FAA) was in fact the party responsible for the runway lights, petitioner filed the present action against the United States in the United States District Court for the Southern District of California. The complaint based jurisdiction upon the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging negligence in the FAA's operation and maintenance of the runway lights and performance of air traffic control functions. Almost a year later, she moved to amend the federal complaint to include claims against the original state court defendants, as to which no independent basis for federal jurisdiction existed. The District Court Page 490 U. S. 547 granted petitioner's motion and asserted "pendent" jurisdiction under Mine Workers v. Gibbs, 383 U. S. 715 (1966), finding it "clear" that "judicial economy and efficiency" favored trying the actions together, and concluding that they arose "from a common nucleus of operative facts." App. to Pet. for Cert. A-8 to A-9. The District Court certified an interlocutory appeal to the Court of Appeals for the Ninth Circuit under 28 U.S.C. § 1292(b). That court summarily reversed on the basis of its earlier opinion in Ayala v. United States, 550 F.2d 1196 (1977), cert. dism'd, 435 U. S. 982 (1978), which had categorically rejected pendent party jurisdiction under the FTCA. We granted certiorari, 488 U.S. 815 (1988), to resolve a split among the Circuits on whether the FTCA permits an assertion of pendent jurisdiction over additional parties. Compare, e.g., Ayala v. United States, supra, with Lykins v. Pointer, Inc., 725 F.2d 645 (CA11 1984), and Stewart v. United States, 716 F.2d 755 (CA10 1982), cert. denied, 469 U.S. 1018 (1984). The FTCA provides that "the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States" for certain torts of federal employees acting within the scope of their employment. 28 U.S.C. § 1346(b). Petitioner seeks to append her claims against the city and the utility to her FTCA action against the United States, even though this would require the District Court to extend its authority to additional parties for whom an independent jurisdictional base -- such as diversity of citizenship, 28 U.S.C. § 1332(a)(1) -- is lacking. In 1807, Chief Justice Marshall wrote for the Court that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied." Ex parte Bollman , 4 Cranch 75, 8 U. S. 93 (1807). It Page 490 U. S. 548 remains rudimentary law that "[a]s regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. . . . To the extent that such action is not taken, the power lies dormant." The Mayor v. Cooper , 6 Wall. 247, 73 U. S. 252 (1868) (emphasis added); accord, Christianson v. Colt Industries Operating Co., 486 U. S. 800 , 486 U. S. 818 (1988); Firestone Tire & Rubber Co. v. Risjord, 449 U. S. 368 , 449 U. S. 379 -380 (1981); Kline v. Burke Construction Co., 260 U. S. 226 , 260 U. S. 233 -234 (1922); Case of the Sewing Machine Companies , 18 Wall. 553, 85 U. S. 577 -578, 85 U. S. 586 -587 (1874); Sheldon v. Sill , 8 How. 441, 49 U. S. 449 (1850); Cary v. Curtis , 3 How. 236, 44 U. S. 245 (1845); McIntire v. Wood , 7 Cranch 504, 11 U. S. 506 (1813). Despite this principle, in a line of cases by now no less well established, we have held, without specific examination of jurisdictional statutes, that federal courts have "pendent" claim jurisdiction -- that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court -- to the full extent permitted by the Constitution. Mine Workers v. Gibbs, supra; Hurn v. Oursler, 289 U. S. 238 (1933); Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909). [ Footnote 1 ] Gibbs, which has come to stand for the principle in question, held that "[p]endent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,' U.S.Const., Art. III, § 2, and the relationship Page 490 U. S. 549 between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.'" 383 U.S. at 383 U. S. 725 (emphasis in original). The requisite relationship exists, Gibbs said, when the federal and nonfederal claims "derive from a common nucleus of operative fact" and are such that a plaintiff "would ordinarily be expected to try them in one judicial proceeding." Ibid. Petitioner contends that the same criterion applies here, leading to the result that her state law claims against San Diego Gas and Electric Company and the city of San Diego may be heard in conjunction with her FTCA action against the United States. Analytically, petitioner's case is fundamentally different from Gibbs in that it brings into question what has become known as pendent party jurisdiction, that is, jurisdiction over parties not named in any claim that is independently cognizable by the federal court. [ Footnote 2 ] We may assume, without deciding, that the constitutional criterion for pendent party jurisdiction is analogous to the constitutional criterion for pendent claim jurisdiction, and that petitioner's state law claims pass that test. Our cases show, however, that, with respect to the addition of parties, as opposed to the addition of only claims, we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly. In Zahn v. International Paper Co., 414 U. S. 291 , 414 U. S. 301 (1973), we refused to allow a plaintiff pursuing a diversity action worth less than the jurisdictional minimum of $10,000 to append his claim to the jurisdictionally adequate diversity claims of other members of a plaintiff class -- even though all of the claims would together Page 490 U. S. 550 have amounted to a single "case" under Gibbs, see Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 , 437 U. S. 372 (1978). We based this holding upon "the statutes defining the jurisdiction of the District Court," 414 U.S. at 414 U. S. 292 , and did not so much as mention Gibbs. Two years later, the nontransferability of Gibbs to pendent party claims was made explicit. In Aldinger v. Howard, 427 U. S. 1 (1976), the plaintiff brought federal claims under 42 U.S.C. § 1983 against individual defendants, and sought to append to them a related state claim against Spokane County, Washington. (A federal § 1983 claim was unavailable against the county because of this Court's decision in Monroe v. Pape, 365 U. S. 167 (1961).) [ Footnote 3 ] We specifically disapproved application of the Gibbs mode of analysis, finding a "significant legal difference." 427 U.S. at 427 U. S. 15 . "[T]he addition of a completely new party," we said, "would run counter to the well-established principle that federal courts . . . are courts of limited jurisdiction marked out by Congress." Ibid. "Resolution of a claim of pendent party jurisdiction . . . calls for careful attention to the relevant statutory language." Id. at 427 U. S. 17 . We held in Aldinger that the jurisdictional statute under which suit was brought, 28 U.S.C. § 1343, which conferred district court jurisdiction over civil actions of certain types "authorized by law to be commenced," did not mean to include as "authorized by law" a state law claim against a party that had been statutorily insulated from similar federal suit. The county had been " excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3)." Ibid. (emphasis in original). We reaffirmed and further refined our approach to pendent party jurisdiction in Owen Equipment & Erection Co. v. Kroger, supra, at 437 U. S. 372 -375 -- a case, like Zahn, involving the diversity statute, 28 U.S.C. § 1332(a)(1), but focusing on the requirement that the suit be "between . . . citizens of different Page 490 U. S. 551 states," rather than the requirement that it "excee[d] the sum or value of $10,000." We held that the jurisdiction which § 1332(a)(1) confers over a "matter in controversy" between a plaintiff and defendant of diverse citizenship cannot be read to confer pendent jurisdiction over a different, nondiverse defendant, even if the claim involving that other defendant meets the Gibbs test. " Gibbs, " we said, "does not end the inquiry into whether a federal court has power to hear the nonfederal claims along with the federal ones. Beyond this constitutional minimum, there must be an examination of the posture in which the nonfederal claim is asserted and of the specific statute that confers jurisdiction over the federal claim," 437 U.S. at 437 U. S. 373 . The most significant element of "posture" or of "context," id. at 376, in the present case (as in Zahn, Aldinger, and Kroger ) is precisely that the added claims involve added parties over whom no independent basis of jurisdiction exists. While in a narrow class of cases a federal court may assert authority over such a claim "ancillary" to jurisdiction otherwise properly vested -- for example, when an additional party has a claim upon contested assets within the court's exclusive control, see, e.g., Krippendorf v. Hyde, 110 U. S. 276 (1884); Freeman v. Howe , 24 How. 450, 65 U. S. 460 (1861), or when necessary to give effect to the court's judgment, see, e.g., Local Loan Co. v. Hunt, 292 U. S. 234 , 292 U. S. 239 (1934); Julian v. Central Trust Co., 193 U. S. 93 , 193 U. S. 112 -114 (1904) -- we have never reached such a result solely on the basis that the Gibbs test has been met. [ Footnote 4 ] And little more basis than that can be relied Page 490 U. S. 552 upon by petitioner here. As in Kroger, the relationship between petitioner's added claims and the original complaint is one of "mere factual similarity," which is of no consequence, since "neither the convenience of the litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction," 437 U.S. at 437 U. S. 376 -377. It is true that here, unlike in Kroger, see id. at 437 U. S. 376 , the party seeking to bring the added claims had little choice but to be in federal rather than state court, since the FTCA permits the Federal Government to be sued only there. But that alone is not enough, since we have held that suits against the United States under the Tucker Act, 24 Stat. 505 (which can of course be brought only in federal court, see 28 U.S.C. §§ 1346(a)(2), 1491(a)(1)), cannot include private defendants. United States v. Sherwood, 312 U. S. 584 (1941). The second factor invoked by Kroger, the text of the jurisdictional statute at issue, likewise fails to establish petitioner's case. The FTCA, § 1346(b), confers jurisdiction over "civil actions on claims against the United States." It does not say "civil actions on claims that include requested relief against the United States," nor "civil actions in which there is a claim against the United States" -- formulations one might expect if the presence of a claim against the United States constituted merely a minimum jurisdictional requirement, rather than a definition of the permissible scope of FTCA actions. Just as the statutory provision "between . . . citizens of different States" has been held to mean citizens of different States and no one else, see Kroger, supra, so also here we conclude that "against the United States" means against the United States and no one else. [ Footnote 5 ] "Due regard for the rightful Page 490 U. S. 553 independence of state governments . . . requires that [federal courts] scrupulously confine their own jurisdiction to the precise limits which the statute has defined." Healy v. Ratta, 292 U. S. 263 , 292 U. S. 270 (1934); accord, Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249 , 409 U. S. 272 -273 (1972); Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100 , 313 U. S. 108 -109 (1941). The statute here defines jurisdiction in a manner that does not reach defendants other than the United States. [ Footnote 6 ] Petitioner contends, however, that an affirmative grant of pendent party jurisdiction is suggested by changes made to the jurisdictional grant of the FTCA as part of the comprehensive 1948 revision of the Judicial Code. See Pub.L. 773, Page 490 U. S. 554 62 Stat. 869. In its earlier form, the FTCA had conferred upon district courts "exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States" for specified torts. 28 U.S.C. § 931 (1946 ed.) (emphasis added). In the 1948 revision, this provision was changed to "exclusive jurisdiction of civil actions on claims against the United States." 28 U.S.C. § 1346(b) (1952 ed.) (emphasis added). Petitioner argues that this broadened the scope of the statute, permitting the assertion of jurisdiction over any "civil action," so long as that action includes a claim against the United States. We disagree. Under established canons of statutory construction, "it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed." Anderson v. Pacific Coast S.S. Co., 225 U. S. 187 , 225 U. S. 199 (1912); see United States v. Ryder, 110 U. S. 729 , 110 U. S. 740 (1884). Concerning the 1948 recodification of the Judicial Code in particular, we have stated that "no changes in law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed." Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 , 353 U. S. 227 (1957); see Tidewater Oil Co. v. United States, 409 U. S. 151 , 409 U. S. 162 (1972). We have found no suggestion, much less a clear expression, that the minor rewording at issue here imported a substantive change. The change from "claim against the United States" to "civil actions on claims against the United States" would be a strange way to express the substantive revision asserted by petitioner -- but a perfectly understandable way to achieve another objective. The 1948 recodification came relatively soon after the adoption of the Federal Rules of Civil Procedure, which provide that "[t]here shall be one form of action to be known as civil action.'" Fed.Rule Civ.Proc. 2. Consistent with this new terminology, the 1948 revision inserted the expression "civil action" throughout the provisions governing Page 490 U. S. 555 district court jurisdiction. See H.R.Rep. No. 308, 80th Cong., 1st Sess., App. A114-A125 (1947) (Reviser's Notes). Reliance upon the 1948 recodification also ignores the fact that the concept of pendent party jurisdiction was not considered remotely viable until Gibbs liberalized the concept of pendent claim jurisdiction -- nearly 20 years later. See 13B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3567.2, pp. 146-148 (2d ed.1984); Miller, Ancillary and Pendent Jurisdiction, 26 S.Tex.L.J. 1, 11 (1985). Indeed, in 1948, even a relatively limited substantive expansion of pendent claim jurisdiction with respect to unfair competition actions provoked considerable discussion, see Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Prob. 216, 232 (1948); Note, The Proposed Revision of the Federal Judicial Code, 60 Harv.L.Rev. 424, 430-431 (1947), and was described by the chief reviser as one of a dozen "major changes of law" effected by his handiwork, W. Barron, The Judicial Code 1948 Revision, 8 F.R.D. 439, 441-445 (1949). That change, in the already accepted realm of pendent claim jurisdiction, was accomplished by wording that could not be mistaken, referring to "any civil action asserting a claim of unfair competition when joined with a substantial and related claim under the copyright, patent, or trademark laws." § 1338(b), 62 Stat. 931. It is inconceivable that the much more radical change of adopting pendent party jurisdiction would have been effected by the minor and obscure change of wording at issue here -- especially when that revision is more naturally understood as stylistic. Because the FTCA permits the Government to be sued only in federal court, our holding that parties to related claims cannot necessarily be sued there means that the efficiency and convenience of a consolidated action will sometimes have to be forgone in favor of separate actions in state and federal courts. We acknowledged this potential consideration Page 490 U. S. 556 in Aldinger, 427 U.S. at 427 U. S. 18 , but now conclude that the present statute permits no other result. * * * * As we noted at the outset, our cases do not display an entirely consistent approach with respect to the necessity that jurisdiction be explicitly conferred. The Gibbs line of cases was a departure from prior practice, and a departure that we have no intent to limit or impair. But Aldinger indicated that the Gibbs approach would not be extended to the pendent party field, and we decide today to retain that line. Whatever we say regarding the scope of jurisdiction conferred by a particular statute can, of course, be changed by Congress. What is of paramount importance is that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts. All our cases -- Zahn, Aldinger, and Kroger -- have held that a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties. Our decision today reaffirms that interpretive rule; the opposite would sow confusion. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] JUSTICE STEVENS apparently does not acknowledge the divergence in these lines of authority. Nothing else can explain the belief expressed in his dissent that there is force in the argument that, "[i]f the Court's demonstration [of lack of statutory authority] were controlling, Gibbs, Hurn, and Moore, as well as a good many other cases, were incorrectly decided." Post at 490 U. S. 572 . For that is entirely canceled by the equally valid argument that, if lack of statutory authority were not controlling, Christianson, Firestone, Sewing Machine Companies, and McIntire, as well as a good many other cases, were incorrectly decided. [ Footnote 2 ] JUSTICE STEVENS is thus mistaken to rely upon, post at 490 U. S. 559 -560, n. 6, this Court's decision in Moore v. New York Cotton Exchange, 270 U. S. 593 (1926). That case involved jurisdiction over a counterclaim brought by and against parties who were already properly before the court on other, federal question, grounds. His dissent generally ignores this distinction -- a central distinction, as we shall later discuss -- between new parties and parties already before the court. [ Footnote 3 ] Monroe v. Pape was later overruled by Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). [ Footnote 4 ] This Court's decision in Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 (1887), which JUSTICE STEVENS cites in his dissent, see post at 490 U. S. 560 , n. 6, explicitly rested upon "ancillary" jurisdiction, citing Krippendorf v. Hyde, 110 U. S. 276 (1884), in support of its holding that "[t]he suit in equity was an exercise of jurisdiction . . . ancillary to that which it had already acquired in the action at law." 123 U.S. at 123 U. S. 333 . In Dewey, the new defendant added in the equitable counterclaim was asserted to have been the recipient of a fraudulent conveyance from the insolvent plaintiff, and the counterclaim was brought under a West Virginia statute authorizing suits to set aside such conveyances in assistance of an anticipated judgment or decree against the conveying debtor. Any decree on the counterclaim would presumably have been worthless if the fraudulent conveyance could not have been recaptured. [ Footnote 5 ] JUSTICE STEVENS would distinguish Kroger (and Zahn v. International Paper Co., 414 U. S. 291 (1973)) from the present case on the ground that, where Congress "has unequivocally indicated its intent that the federal right be litigated in a federal forum, there is reason to believe that Congress did not intend that the substance of the federal right be diminished by the increased costs in efficiency and convenience of litigation in two forums." Post at 490 U. S. 577 . It seems to us, however, that one could say precisely the same thing about the diversity jurisdiction involved in Kroger and Zahn: when Congress has unequivocally indicated its intent that a plaintiff have a right to bring a diversity action in federal court, there is reason to believe that Congress did not intend that the substance of that right be diminished, etc. We simply do not agree with the inference in either context. [ Footnote 6 ] JUSTICE STEVENS says that "it is perfectly clear that the District Court has . . . statutory power to decide this case," post at 490 U. S. 560 -- which is true if one means this case against the United States. His dissent then continues, however, "[i]t is also undisputed that this power will not be defeated by the joinder of two private defendants," ibid., supporting that statement by references to Federal Rules of Civil Procedure 14(a) and 20(a), which permit the impleader and joinder of parties, post at 490 U. S. 560 -561. Unfortunately, the proposition in that second sentence is disputed. Indeed, it is what this case is all about. More precisely, it is not that the "statutory power to decide this case" is defeated by the joinder of a private party for purposes of a claim over which the District Court has no independent jurisdiction, but that the statutory power to decide a case including such a claim simply does not exist, since the FTCA provides jurisdiction only for claims against the United States. Rules 14(a) and 20(a) in no way alter that reality, since the Federal Rules explicitly provide that they "shall not be construed to extend . . . the jurisdiction of the United States district courts," Fed.Rule Civ.Proc. 82. JUSTICE BLACKMUN, dissenting. If Aldinger v. Howard, 427 U. S. 1 (1976), required us to ask whether the Federal Tort Claims Act embraced "an affirmative grant of pendent party jurisdiction," ante at 490 U. S. 553 , I would agree with the majority that no such specific grant of jurisdiction is present. But, in my view, that is not the appropriate question under Aldinger. I read the Court's opinion in that case, rather, as requiring us to consider whether Congress has demonstrated an intent to exempt "the party as to whom jurisdiction pendent to the principal claim" is asserted from being haled into federal court. 427 U.S. at 427 U. S. 16 (emphasis omitted). And, as those of us in dissent in Aldinger observed, the Aldinger test would be rendered meaningless Page 490 U. S. 557 if the required intent could be found in the failure of the relevant jurisdictional statute to mention the type of party in question, "because all instances of asserted pendent party jurisdiction will by definition involve a party as to whom Congress has impliedly 'addressed itself' by not expressly conferring subject matter jurisdiction on the federal courts." Id. at 427 U. S. 23 (BRENNAN, J., dissenting). In Aldinger, the Court found the requisite intent to exclude municipalities from the relevant jurisdictional statute, because (the Court then thought) municipalities had been affirmatively excluded by Congress from the scope of 42 U.S.C. § 1983. In such a case, the Court barred the use of the pendent party doctrine, for otherwise the doctrine would permit an end run around an express congressional limitation of federal power. See id. at 427 U. S. 16 -17. In the present case, I find no such substantive limitation. Nor, in my view, is there any other expression of congressional intent to exclude private defendants from federal tort claims litigation. United States v. Sherwood, 312 U. S. 584 (1941), is not to the contrary. There, this Court held that Congress did not intend under the Tucker Act to permit the district courts to adjudicate any cause of action that could not have been brought in the Court of Claims, an Article I court in which no private party could be a defendant. Sherwood did not turn solely on a canon of "conservatism which is appropriate in the case of a waiver of sovereign immunity." Id. at 312 U. S. 590 . It turned also upon "the history of the Court of Claims' jurisdiction." Id. at 312 U. S. 590 -591. There is no equivalent history of adjudication of tort claims against the United States in a tribunal without power to litigate the liability of private tortfeasors; thus, Sherwood does not require the result the Court reaches today. In a case not controlled by any express intent to limit the scope of a constitutional "case," Aldinger suggests that the appropriateness of pendent party jurisdiction might turn on the "alignmen[t] of parties and claims," and that one significant factor is whether "the grant of jurisdiction to [the] federal Page 490 U. S. 558 court is exclusive," 427 U.S. at 427 U. S. 18 , as is the situation here. Where, as here, Congress' preference for a federal forum for a certain category of claims makes the federal forum the only possible one in which the constitutional case may be heard as a whole, the sensible result is to permit the exercise of pendent party jurisdiction. Aldinger imposes no obstacle to that result, and I would not reach out to create one. I therefore dissent. JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. The Court's holding is not faithful to our precedents and casually dismisses the accumulated wisdom of our best judges. As we observed more than 16 years ago, "numerous decisions throughout the courts of appeals since [ Mine Workers v. Gibbs, 383 U. S. 715 (1966),] have recognized the existence of judicial power to hear pendent claims involving pendent parties where "the entire action before the court comprises but one constitutional case'" as defined in Gibbs. " Moor v. County of Alameda, 411 U. S. 693 , 411 U. S. 713 (1973). I shall first explain why the position taken by the overwhelming consensus of federal judges is correct, and then comment on major flaws in the opinion the Court announces today. I Article III of the Constitution identifies the categories of "Cases" and "Controversies" that federal courts may have jurisdiction to decide. [ Footnote 2/1 ] If a case is not within one of the Page 490 U. S. 559 specified categories, neither Congress nor the parties may authorize a federal court to decide it. [ Footnote 2/2 ] Objections to a federal court's jurisdiction over the subject matter of a case cannot be waived. [ Footnote 2/3 ] Although Article III strictly confines the subject matter jurisdiction of federal courts, it does not limit the extent of the courts' personal jurisdiction over individual parties [ Footnote 2/4 ] or their power to decide individual claims in cases within any of the specified categories. [ Footnote 2/5 ] A party beyond the reach of a federal court's process may voluntarily submit to its jurisdiction over his person, but he cannot create subject matter jurisdiction -- by waiver, estoppel, or the filing of a lawsuit -- over a non-Article III case. [ Footnote 2/6 ] Page 490 U. S. 560 The case before us today is one in which the United States is a party. Given the plain language of Article III, there is not even an arguable basis for questioning the federal court's constitutional power to decide it. [ Footnote 2/7 ] Moreover, by enacting the Federal Tort Claims Act (FTCA) in 1946, 28 U.S.C. § 1346(b), Congress unquestionably authorized the District Court to accept jurisdiction of "civil actions on claims against the United States." Thus, it is perfectly clear that the District Court has both constitutional and statutory power to decide this case. It is also undisputed that this power will not be defeated by the joinder of two private defendants. Rule 14(a) of the Federal Rules of Civil Procedure expressly authorizes the defendant to implead joint tortfeasors, [ Footnote 2/8 ] and this Rule is applicable Page 490 U. S. 561 to FTCA cases. [ Footnote 2/9 ] Moreover, if the claim against nonfederal defendants had been properly brought in a federal court, those defendants could require the United States to defend their claim for contribution in that action. [ Footnote 2/10 ] The dispute between all the parties derives from a common nucleus of operative fact. There is accordingly ample basis for regarding this entire three-cornered controversy as a single "case," and for allowing petitioners to assert additional claims against the nonfederal defendants as they are authorized to do by Rule 20(a) of the Federal Rules. [ Footnote 2/11 ] Prior to the adoption of the Federal Rules of Civil Procedure in 1938, the federal courts routinely decided state law claims in cases in which they had subject matter jurisdiction, see, e.g., Hurn v. Oursler, 289 U. S. 238 , 289 U. S. 246 (1933); Siler Page 490 U. S. 562 v. Louisville & Nashville R. Co., 213 U. S. 175 (1909), and granted relief against nondiverse parties on state claims as to which there was no independent basis for federal jurisdiction, see, e.g., Moore v. New York Cotton Exchange, 270 U. S. 593 (1926); Julian v. Central Trust Co., 193 U. S. 93 , 193 U. S. 112 -114 (1904); Freeman v. Howe , 24 How. 450, 65 U. S. 460 (1861). [ Footnote 2/12 ] Although the contours of the federal cause of action -- or "case" -- were then more narrowly defined than they are today, see, e.g., Hurn v. Oursler, supra, the doctrine of "pendent" or "ancillary" jurisdiction had long been firmly established. The relevant change that was effectuated by the adoption of the Rules in 1938 was, in essence, a statutory broadening of the dimensions of the cases that federal courts may entertain. The Court's unanimous opinion [ Footnote 2/13 ] in Mine Workers v. Gibbs, 383 U. S. 715 (1966), highlights the modern conception of a "civil action" and a "constitutional case." At issue was the exercise of pendent jurisdiction over a state law claim in an action brought under the Labor Management Relations Act, 1947. [ Footnote 2/14 ] We wrote: Page 490 U. S. 563 "Hurn was decided in 1933, before the unification of law and equity by the Federal Rules of Civil Procedure. At the time, the meaning of 'cause of action' was a subject of serious dispute; the phrase might 'mean one thing for one purpose and something different for another.' United States v. Memphis Cotton Oil Co., 288 U. S. 62 , 288 U. S. 67 -68. The Court in Hurn identified what it meant by the term by citation of Baltimore S. S. Co. v. Phillips, 274 U. S. 316 , a case in which 'cause of action' had been used to identify the operative scope of the doctrine of res judicata. In that case, the Court had noted that 'the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time.' 274 U.S. at 274 U. S. 320 ." " * * * *" "With the adoption of the Federal Rules of Civil Procedure and the unified form of action, Fed.Rule Civ.Proc. 2, much of the controversy over 'cause of action' abated. The phrase remained as the keystone of the Hurn test, however, and, as commentators have noted, has been the source of considerable confusion. Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged. Yet because the Hurn question involves issues of jurisdiction as well as convenience, there has been some tendency to limit its application to cases in which the state and federal claims are, as in Hurn, 'little more than the equivalent of different epithets to characterize the same group of circumstances.' 289 U.S. at 289 U. S. 246 ." "This limited approach is unnecessarily grudging. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,' Page 490 U. S. 564 U.S.Const., Art III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. Levering & Garrigues Co. v. Morrin, 289 U. S. 103 . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole." Id. at 383 U. S. 722 -725 (emphasis in original; footnotes omitted). [ Footnote 2/15 ] Immediately after Gibbs was decided, [ Footnote 2/16 ] federal judges throughout the Nation recognized that its reasoning applied to cases in which it was necessary to add an additional party on a pendent, nonfederal claim in order to grant complete relief. For example, Judge Henry Friendly considered this Page 490 U. S. 565 precise question in three separate opinions. [ Footnote 2/17 ] Because he is universally recognized not only as one of our wisest judges, [ Footnote 2/18 ] but also as one with special learning and expertise in matters of federal jurisdiction, [ Footnote 2/19 ] a reference to each of those opinions is appropriate. In Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800 (CA2 1971), Judge Friendly summarized the understanding of the Gibbs doctrine that prevailed in 1971, as follows: "To be sure, the Gibbs Court was not confronted with the question whether pendent jurisdiction extended to a state claim against a party not named in the federal claim. But as we have recently observed in Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627, 629 (2 Cir.1971)," "Mr. Justice Brennan's language and the common sense considerations underlying it seem broad enough to cover that problem also. See Note, UMW v. Gibbs and Pendent Jurisdiction, 81 Harv.L.Rev. 657, 664 (1968)." "In Page 490 U. S. 566 that decision, involving federal claims under the copyright laws and state claims of unfair trade practice and unfair competition, including a defendant not named in the copyright claims, we held that a federal court had power to hear a state claim against a party not named in the federal claim, provided the Gibbs test was met, noting that this conclusion was buttressed by our decisions concerning ancillary jurisdiction to entertain compulsory counterclaims under F.R.Civ.P. 13(a), United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213 (2 Cir.1955), and third-party claims under F.R.Civ.P. 14(a), Dery v. Wyer, 265 F.2d 804 (2 Cir.1959)." Id. at 809-810. It is noteworthy that, in his Leather's Best opinion, Judge Friendly relied, in part, on the Federal Rules of Civil Procedure, just as JUSTICE BRENNAN had done in the Gibbs opinion itself. Indeed, in another paragraph of his opinion, Judge Friendly concluded that the 1966 amendments to the Rules made it appropriate to extend the ancillary jurisdiction doctrine to the admiralty context, as well as to ordinary civil cases. [ Footnote 2/20 ] In another opinion in 1971, he unequivocally concluded Page 490 U. S. 567 that "the doctrine of pendent jurisdiction is sufficiently broad to support a claim within the limits of Gibbs against a person not a party to the primary, jurisdiction-granting claim." Almenares v. Wyman, 453 F.2d 1075, 1083 (CA2 1971), cert. denied, 405 U. S. 944 (1972). [ Footnote 2/21 ] Before Judge Friendly addressed this issue for the third time, we decided Aldinger v. Howard, 427 U. S. 1 (1976). In that case, after declining to announce any general rule governing pendent party jurisdiction, we held that such jurisdiction should not be exercised if Congress has "expressly or by implication negated its existence" in the statute granting subject matter jurisdiction over the particular claim before the Court. Id. at 427 U. S. 18 -19. Specifically, we concluded that the Civil Rights Acts, as then interpreted, precluded the joinder of a municipal corporation as a defendant to a claim asserted pursuant to 42 U.S.C. § 1983 or to a state law claim pendent to such a federal claim. Although a reasonable argument can be made that the Court misconstrued the intent of Congress in that case, see 427 U.S. at 427 U. S. 23 -37 (BRENNAN, J., dissenting), there surely can be no quarrel with the proposition that Congress may withdraw or deny pendent jurisdiction over particular claims or parties. In his third "pendent party" opinion, Judge Friendly correctly described the limited scope of our holding in Aldinger. He wrote: "Although the Aldinger Court disapproved of the joinder of a pendent party defendant in the case before it, the Page 490 U. S. 568 Court explicitly limited its conclusion to "the issue of so-called pendent party' jurisdiction with respect to a claim brought under [28 U.S.C.] § 1343(3) and [42 U.S.C. §]1983," id. at 427 U. S. 18 , and noted that "[o]ther statutory grants and other alignments of parties and claims might call for a different result," id. and that "it would be as unwise as it would be unnecessary to lay down any sweeping pronouncement upon the existence or exercise of such jurisdiction," id. " "The circumstances here are about as powerful for the exercise of pendent party jurisdiction as can be imagined. The exclusivity of federal jurisdiction over claims for violation of the Securities Exchange Act makes a federal court the only one where a complete disposition of federal and related state claims can be rendered. Cf. the Court's comment in Aldinger that" "[w]hen the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in federal court may all of the claims be tried together," "427 U.S. at 427 U. S. 18 ." Weinberger v. Kendrick, 698 F.2d 61, 76-77 (CA2 1982), cert. denied, 464 U.S. 818 (1983). In the Weinberger case, the circumstances were "about as powerful for the exercise of pendent party jurisdiction as can be imagined" because Congress had vested the federal courts with exclusive jurisdiction over claims arising under the Securities Exchange Act. The federal district court was therefore the only forum in which the entire constitutional case could be tried at one time. That powerful circumstance is also present in cases arising under the FTCA. In fact, in dicta, the Aldinger Court suggested that pendent party jurisdiction Page 490 U. S. 569 might be available under the FTCA for precisely this reason. 427 U.S. at 427 U. S. 18 . I would thus hold that the grant of jurisdiction to hear "civil actions on claims against the United States" authorizes the federal courts to hear state law claims against a pendent party. As many other judges have recognized, [ Footnote 2/22 ] the fact that such claims are within the exclusive federal jurisdiction, together with the absence of any evidence of congressional disapproval of the exercise of pendent party jurisdiction in FTCA cases, [ Footnote 2/23 ] provides a fully sufficient Page 490 U. S. 570 justification for applying the holding in Gibbs to this case. [ Footnote 2/24 ] Page 490 U. S. 571 II The Court's contrary conclusion rests on an insufficient major premise, a failure to distinguish between diversity and federal question cases, and an implicit reliance on a narrow view of the waiver of sovereign immunity in the FTCA. [ Footnote 2/25 ] Page 490 U. S. 572 The Court treats the absence of an affirmative grant of jurisdiction by Congress as though it constituted the kind of implicit rejection of pendent jurisdiction that we found in Aldinger v. Howard, 427 U. S. 1 (1976). Its opinion laboriously demonstrates that the FTCA "defines jurisdiction in a manner that does not reach defendants other than the United States," ante at 490 U. S. 553 , and that the language of the statute cannot be construed as "adopting pendent party jurisdiction," ante at 490 U. S. 555 . That, of course, is always the predicate for the question whether a federal court may rely on the doctrine of ancillary or pendent jurisdiction to fill a gap in the relevant jurisdictional statute. If the Court's demonstration were controlling, Gibbs, Hurn , and Moore, as well as a good many other cases, were incorrectly decided. [ Footnote 2/26 ] Page 490 U. S. 573 In Aldinger, we adopted a rule of construction that assumed the existence of pendent jurisdiction unless "Congress in the statutes conferring jurisdiction has . . . expressly or by implication negated its existence," 427 U.S. at 427 U. S. 18 . [ Footnote 2/27 ] We rejected the assertion of pendent party jurisdiction there because it arose "not in the context of congressional silence or tacit encouragement, but in quite the opposite context." Id. at 427 U. S. 15 -16. [ Footnote 2/28 ] Congress' exclusion of municipal corporations from the definition of persons under § 1983, we concluded, evinced an intent to preclude the exercise of federal court jurisdiction over them. If congressional silence were sufficient to defeat pendent jurisdiction, the careful reasoning in our Aldinger opinion was wholly unnecessary, for obviously the civil rights statutes do not affirmatively authorize the joinder of any state law claims. A similar approach, focusing on a legislative intent to bar a party from federal court, guided our analysis in Zahn v. International Paper Co., 414 U. S. 291 (1973), and Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978). Page 490 U. S. 574 In Zahn, we surveyed the "firmly rooted" law that "multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional amount requirement for suit in federal courts," 414 U.S. at 414 U. S. 294 , and refused to adopt a rule that would allow putative plaintiffs who could not meet the jurisdictional amount to assert claims pendent to jurisdictionally sufficient claims. We noted that adoption of such a rule "would undermine the purpose and intent of Congress in providing that plaintiffs in diversity cases must present claims in excess of the specified jurisdictional amount" and would depart from "the historic construction of the jurisdictional statutes, left undisturbed by Congress over these many years." Id. at 414 U. S. 301 . In Kroger, the rule at issue was the requirement that a plaintiff invoking diversity jurisdiction plead complete diversity. After noting the historical evidence demonstrating "a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same State as any defendant," 437 U.S. at 437 U. S. 374 , we held that that jurisdictional requirement could not be circumvented through the exercise of pendent jurisdiction. [ Footnote 2/29 ] The Court today adopts a sharply different approach. Without even so much as acknowledging our statement in Aldinger that, before a federal court may exercise pendent Page 490 U. S. 575 party jurisdiction, it must satisfy itself that Congress "has not expressly or by implication negated its existence," 427 U.S. at 427 U. S. 18 , it now instructs that "a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties." Ante at 490 U. S. 556 . This rule, the Court asserts, is necessary to provide Congress "a background of clear interpretative rules" and to avoid sowing confusion. Ibid. But as a method of statutory interpretation, the Court's approach is neither clear nor faithful to our judicial obligation to discern congressional intent. While with respect to the joinder of additional defendants on pendent state claims, the Court's mandate is now clear, its approach offers little guidance with respect to the many other claims that a court must address in the course of deciding a constitutional case. Because the Court provides no reason why the joinder of pendent defendants over whom there is no other basis of federal jurisdiction should differ from the joinder of pendent claims and other pendent parties, [ Footnote 2/30 ] I fear that its approach will confuse more than it clarifies. Page 490 U. S. 576 How much more clear to assume -- especially when the courts have long so held -- that, with respect to all of these situations, Congress intended the Federal Rules to govern unless Congress has indicated otherwise. The Court's focus on diversity cases may explain why it loses sight of the purpose behind the principle of pendent jurisdiction. [ Footnote 2/31 ] The doctrine of pendent jurisdiction rests in part on a recognition that forcing a federal plaintiff to litigate his or her case in both federal and state courts impairs the ability of the federal court to grant full relief, Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 , 255 U. S. 367 (1921), and "imparts a fundamental bias against utilization of the federal forum owing to the deterrent effect imposed by the needless requirement of duplicate litigation if the federal forum is chosen." Aldinger, 427 U.S. at 427 U. S. 36 (BRENNAN, J., dissenting). [ Footnote 2/32 ] "The courts, by recognizing pendent jurisdiction, are Page 490 U. S. 577 effectuating Congress' decision to provide the plaintiff with a federal forum for litigating a jurisdictionally sufficient claim." Miller, Ancillary and Pendent Jurisdiction, 26 S.Tex.L.J. 1, 4 (1985). This is especially the case when, by virtue of the grant of exclusive federal jurisdiction, " only in a federal court may all of the claims be tried together." Aldinger, 427 U.S. at 427 U. S. 18 . In such circumstances, in which Congress has unequivocally indicated its intent that the federal right be litigated in a federal forum, there is reason to believe that Congress did not intend that the substance of the federal right be diminished by the increased costs in efficiency and convenience of litigation in two forums. Cf. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1 , 460 U. S. 25 (1983); Will v. Calvert Fire Ins. Co., 437 U. S. 655 , 437 U. S. 673 -675 (1978) (BRENNAN, J., dissenting). [ Footnote 2/33 ] No such special federal interest is present when federal jurisdiction is invoked on the basis of the diverse citizenship of the parties and the state law claims may be litigated in a state forum. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. at 437 U. S. 376 ; Currie, The Federal Courts and the American Law Institute, 36 U. Chi.L.Rev. 1, 21 (1968). [ Footnote 2/34 ] To be sure, "[w]hatever we say regarding the scope of jurisdiction conferred by a particular statute can . . . be changed by Congress," Page 490 U. S. 578 ante at 490 U. S. 556 , but that does not relieve us of our responsibility to be faithful to the congressional design. The Court is quite incorrect to presume that, because Congress did not sanction the exercise of pendent party jurisdiction in the diversity context, it has not permitted its exercise with respect to claims within the exclusive federal jurisdiction. Finally, the Court seeks to draw support from United States v. Sherwood, 312 U. S. 584 (1941), a case that involved a narrow issue [ Footnote 2/35 ] and a narrow construction of the jurisdiction conferred by the Tucker Act. [ Footnote 2/36 ] The Court's holding was based partly on the special history of the Court of Claims, see id. at 490 U. S. 587 , and partly on the view that the sovereign's consent to be sued "must be strictly interpreted," id. at 490 U. S. 590 . Fortunately, after the enactment of the FTCA in 1946, the Court took a much more enlightened view of the waiver of sovereign immunity effected by that statute. Thus, in its decision upholding jurisdiction of a claim against the United States for contribution -- incidentally, a claim that was not expressly covered by the Act -- the Court wrote: "This brings the instant cases within the principle approved in United States v. Aetna Surety Co., 338 U. S. 366 , 338 U. S. 383 :" " In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo's statement in Anderson v. Page 490 U. S. 579 Hayes Construction Co., 243 N.Y. 140, 147, 153 N.E. 28, 29-30: 'The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.'" "Once we have concluded that the Federal Tort Claims Act covers an action for contribution due a tortfeasor, we should not, by refinement of construction, limit that consent to cases where the procedure is by separate action, and deny it where the same relief is sought in a third-party action. As applied to the State of New York, Judge Cardozo said, in language which is apt here:" "No sensible reason can be imagined why the State, having consented to be sued, should thus paralyze the remedy." "243 N.Y. at 147, 153 N.E. at 29." "A sense of justice has brought a progressive relaxation by legislative enactments of the rigor of the immunity rule. As representative governments attempt to ameliorate inequalities as necessities will permit, prerogatives of the government yield to the needs of the citizen. . . . When authority is given, it is liberally construed." " United States v. Shaw, 309 U. S. 495 , 309 U. S. 501 ." United States v. Yellow Cab Co., 340 U.S. at 340 U. S. 554 -555. [ Footnote 2/37 ] Page 490 U. S. 580 Today we should be guided by the wisdom of Cardozo and Friendly, rather than by the "unnecessarily grudging" approach that was unanimously rebuffed in Gibbs. See 383 U.S. at 383 U. S. 725 . I respectfully dissent. [ Footnote 2/1 ] Article III, § 2 provides, in part: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States; -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." [ Footnote 2/2 ] See, e.g., Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480 , 461 U. S. 491 (1983); National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582 , 337 U. S. 646 -655 (1949) (Frankfurter, J., dissenting). [ Footnote 2/3 ] See, e.g., Insurance Corp. of Ireland v. Compagnie des Bauxites, 456 U. S. 694 , 456 U. S. 702 (1982); Sosna v. Iowa, 419 U. S. 393 , 419 U. S. 398 (1975); Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 (1884). [ Footnote 2/4 ] See, e.g., Insurance Corp. of Ireland v. Compagnie des Bauxites, supra; Petrowski v. Hawkeye-Security Ins. Co., 350 U. S. 495 (1956). [ Footnote 2/5 ] See, e.g., Verlinden B. V., 461 U.S. at 461 U. S. 491 ; Osborn v. Bank of United States , 9 Wheat. 738 (1824). [ Footnote 2/6 ] " Gibbs concerned a state law claim jurisdictionally pendent to one of federal law, but no reason appears why the identical principles should not equally apply to pendent state law claims involving the joinder of additional parties. In either case, the Art. III question concerns only the subject matter, and not the in personam jurisdiction, of the federal courts. In either case the question of Art. III power in the federal judiciary to exercise subject matter jurisdiction concerns whether the claims asserted are such as 'would ordinarily be expected to [be tried] in one judicial proceeding,' and the question of discretion addresses 'considerations of judicial economy, convenience and fairness to litigants.'" "To recognize that the addition of parties under the pendent jurisdiction of the federal courts will sometimes alter the balance of 'judicial economy, convenience and fairness,' or sometimes threaten to embroil federal courts in the resolution of uncertain questions of state law, and thereby make the exercise of this discretionary jurisdiction inappropriate, is only to speak to the question of the proper exercise of judicial discretion in the circumstances, and does not vitiate the Gibbs analysis or its application to the question of pendent party jurisdiction." Aldinger v. Howard, 427 U. S. 1 , 427 U. S. 20 -21 (1976) (BRENNAN, J., dissenting) (footnote omitted). See also Currie, Pendent Parties, 45 U.Chi.L.Rev. 753, 755 (1978); Fortune, Pendent Jurisdiction -- The Problem of "Pendenting Parties," 33 U.Pitt.L.Rev. 1, 12 (1972); Schenkier, Ensuring Access to Federal Courts: A Revised Rationale for Pendent Jurisdiction, 75 Nw.U.L.Rev. 245, 281 (1980); Note, 64 B.U.L.Rev. 895, 942 (1985). The Court has upheld the authority of a federal court to entertain counterclaims against a plaintiff, see Moore v. New York Cotton Exchange, 270 U. S. 593 (1926), and a third-party defendant, Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 (1887), notwithstanding that the claims do not have an independent jurisdictional basis. See also Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 , 437 U. S. 375 (1978) ("[T]he exercise of ancillary jurisdiction over nonfederal claims has often been upheld in situations involving impleader, cross-claims or counterclaims"). [ Footnote 2/7 ] Federal jurisdiction is supported not only by the fact that the case is one arising under a law of the United States, but also that it is a controversy to which the United States is a party. See Glidden Co. v. Zdanok, 370 U. S. 530 , 370 U. S. 565 (1962) (opinion of Harlan, J.); Minnesota v. Hitchcock, 185 U. S. 373 , 185 U. S. 384 -386 (1902); Ortiz v. United States Government, 595 F.2d 65, 69-70 (CA1 1979). [ Footnote 2/8 ] Rule 14(a) provides in part: "At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff." [ Footnote 2/9 ] "Of course, there is no immunity from suit by the Government to collect claims for contribution due it from its joint tortfeasors. The Government should be able to enforce this right in a federal court not only in a separate action but by impleading the joint tortfeasor as a third-party defendant. See 3 Moore's Federal Practice (2d ed.1948) 507, et seq. It is fair that this should work both ways." United States v. Yellow Cab Co., 340 U. S. 543 , 340 U. S. 551 -552 (1951). [ Footnote 2/10 ] "The Government contends that, even if the Federal Tort Claims Act carries the Government's consent to be sued in a separate action for contribution due a joint tortfeasor, it does not carry consent to be impleaded as a third-party defendant to meet such a claim." "We find nothing in the nature of the rights and obligations of joint tortfeasors to require such a procedural distinction, nor does the Act state such a requirement. On the contrary, the Act expressly makes the Federal Rules of Civil Procedure applicable, and Rule 14 provides for third-party practice." Id. at 340 U. S. 553 (footnotes omitted). [ Footnote 2/11 ] Rule 20(a) provides in part: "All persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." [ Footnote 2/12 ] See also Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 (1887). [ Footnote 2/13 ] Although Chief Justice Warren took no part in the decision and Justices Harlan and Clark wrote separately with respect to certain issues, JUSTICE BRENNAN's opinion on the jurisdictional issue was unanimous. [ Footnote 2/14 ] Jurisdiction was asserted on the basis of § 303 of the Labor Management Relations Act, 1947, which provided: "(a) It shall be unlawful, for the purpose of this section only, in an industry or activity affecting commerce, for any labor organization to engage in any activity or conduct defined as an unfair labor practice in section 158(b)(4) of this title." "(b) Whoever shall be injured in his business or property by reason [of] any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit." 61 Stat. 158, 29 U.S.C. § 187 (1964 ed.). See Mine Workers v. Gibbs, 383 U. S. 715 , 383 U. S. 717 , n. 1 (1966). [ Footnote 2/15 ] The Court is correct to treat Gibbs as established law. See ante at 490 U. S. 548 -549, 490 U. S. 556 . Just last Term, we stated: " Gibbs establishes that the pendent jurisdiction doctrine is designed to enable courts to handle cases involving state law claims in the way that will best accommodate the values of economy, convenience, fairness, and comity, and Gibbs further establishes that the judicial branch is to shape and apply the doctrine in that light." Carnegie-Mellon Univ. v. Cohill, 484 U. S. 343 , 484 U. S. 351 (1988). See also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 , 478 U. S. 817 , n. 15 (1986); Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 , 465 U. S. 117 (1984); Schmidt v. Oakland Unified School Dist., 457 U. S. 594 (1982); Moor v. County of Alameda, 411 U. S. 693 (1973). Cf. Hagans v. Lavine, 415 U. S. 528 , 415 U. S. 545 -548 (1974); Rosado v. Wyman, 397 U. S. 397 , 397 U. S. 404 -405 (1970). [ Footnote 2/16 ] Although the Court suggests that "the concept of pendent party jurisdiction was not considered remotely viable until Gibbs liberalized the concept of pendent-claim jurisdiction," ante at 490 U. S. 555 , some courts exercised a form of pendent party jurisdiction even prior to that decision. See, e.g., Borror v. Sharon Steel Co., 327 F.2d 165 (CA3 1964); Morris v. Gimbel Bros., Inc., 246 F. Supp. 984 (ED Pa.1965). [ Footnote 2/17 ] The opinions were anticipated by Judge Friendly's opinions in United States v. Heyward-Robinson Co., 430 F.2d 1077, 1087 (CA2 1970) (concurring opinion), cert. denied, 400 U.S. 1021 (1971), involving permissive counterclaims, and Astor-Honor, Inc. v. Grosset & Dunlap, Inc., 441 F.2d 627 (CA2 1971), upholding pendent party jurisdiction under 28 U.S.C. § 1338(b). [ Footnote 2/18 ] In 1963, Justice Frankfurter regarded him "as the best judge now writing opinions on the American scene," see Freund, In Memoriam: Henry J. Friendly, 99 Harv.L.Rev. 1709, 1720 (1986); Erwin Griswold has described him as "the ablest lawyer of my generation," ibid., and Judge Posner called him "the greatest federal appellate judge of his time," id. at 1724. [ Footnote 2/19 ] See H. Friendly, Federal Jurisdiction: A General View (1973); see also, Paul Freund's comments in 99 Harv.L.Rev. at 1716-1718, and David Currie's comments in On Blazing Trails: Judge Friendly and The Federal Jurisdiction, 133 U. Pa.L.Rev. 5 (1984). The authors of Hart & Wechsler's The Federal Courts and The Federal System, who dedicated the first two editions of the book to Justice Frankfurter and Professor Henry M. Hart, Jr., respectively, dedicate the third edition to Judge Friendly, whom they describe as "man for all seasons in the law; master of this subject." P. Bator, D. Meltzer, P. Mistakin, & D. Shapiro, Hart and Wechsler's The Federal Courts and The Federal System xix (3d ed.1988). [ Footnote 2/20 ] "It is true that, in those cases, as well as in Astor-Honor, [441 F.2d 627 (CA2 1971),] the federal claim had arisen in the ordinary civil jurisdiction, whereas the federal claim in this action had been brought under the admiralty jurisdiction. At an earlier date, this difference might have affected our decision here. But the rules of procedure in the admiralty and civil jurisdictions were merged in 1966, and we are of the opinion that, at least since that merger, the constitutional rationale which underlies the doctrine of ancillary jurisdiction in the context of Rule 13(a) and Rule 14 may be applied to support the conclusion that a federal court has the power to hear a related state claim against a defendant not named in the federal claim regardless of whether the federal claim arises in the civil or admiralty jurisdiction. Thus, we conclude that, in a case such as this, where the facts underlying the state and federal claims are identical, a federal court vested with admiralty jurisdiction over a shipper's claim against the carrier for breach of contract of carriage does have the 'power' also to entertain its state tort claim against a pier operator." Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 810-811 (CA2 1971) (footnotes omitted). [ Footnote 2/21 ] Relying on an earlier opinion authored by then-judge Blackmun, Hatridge v. Aetna Casualty & Surety Co., 415 F.2d 809 (CA8 1969), the Court of Appeals for the Eighth Circuit in 1973 advanced this additional reason for not excluding pendent party jurisdiction from the Gibbs doctrine: "'[I]t would be an unjustifiable waste of judicial and professional time -- indeed, a travesty on sound judicial administration -- to allow plaintiff to try his [federal and state claims against certain codefendants] in Federal court, but to require him to prosecute a claim involving precisely the same facts against [a codefendant joined pursuant only to the pendent state law claim] in a State court.'" Schulman v. Huck Finn, Inc., 472 F.2d 864, 866 (1973) (quoting 350 F. Supp. 853 , 858 (Minn.1972)). [ Footnote 2/22 ] In Moor, 411 U.S. at 411 U. S. 713 -714, in 1973, we noted that the Ninth Circuit rule denying pendent party jurisdiction "stands virtually alone against this post- Gibbs trend in the courts of appeals." An overwhelming number of judges adhered to that view after Aldinger was decided. See, e.g., Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (CA5 1978), cert. denied, 440 U.S. 908 (1979); Ortiz v. United States Government, 595 F.2d 65 (CA1 1979); Edwards v. United States, 672 F. Supp. 910 (ED Va.1987); Kennedy v. United States, 643 F. Supp. 1072 (EDNY 1986); Verdi v. United States, 636 F. Supp. 114 (EDNY 1986); Fried v. United States, 579 F. Supp. 1212 (ND Ill.1983); Kattner v. United States, 585 F. Supp. 240 (ED Tex.1984); Rogers v. United States, 568 F. Supp. 894 (EDNY 1983); Desellas v. United States, 542 F. Supp. 999 (SDNY 1982); Johnston v. United States, 546 F. Supp. 879 (Kan.1982); Obenshain v. Halliday, 504 F. Supp. 946 (ED Va.1980); Dumansky v. United States, 486 F. Supp. 1078 (NJ 1980); Pearce v. United States, 450 F. Supp. 613 (Kan.1978); Wood v. Standard Products Co., 456 F. Supp. 1098 (ED Va.1978); Maltais v. United States, 439 F. Supp. 540 (NDNY 1977). [ Footnote 2/23 ] "[W]e find no congressional disapproval of the exercise of such pendent party jurisdiction in the FTCA. The waiver of immunity, granting jurisdiction to the federal district courts of such tort suits against the Government, was made in 'sweeping language." United States v. Yellow Cab Co., 340 U. S. 543 (1951). Moreover, the grant of jurisdiction was made exclusively to the federal courts. Thus there is no indication that Congress declined to extend federal jurisdiction over such a pendent party as was the case in Aldinger. "We hold, therefore, that subject matter jurisdiction in the district court existed of the claim against Nuss as one over which the district court properly exercised jurisdiction, pendent to the claim against the Government under the FTCA over which the federal court has exclusive jurisdiction." Stewart v. United States, 716 F.2d 755, 757-759 (CA10 1982) (footnote and citation omitted), cert. denied, 469 U.S. 1018 (1984). In Lykins v. Pointer, Inc., 725 F.2d 645 (CA11 1984), another Court of Appeals reached the same conclusion: "Turning first to a consideration of 28 U.S.C. § 1346(b), the statute granting federal jurisdiction over plaintiff's tort claim against the United States, we find no express or implied negation of the federal courts' power to hear pendent party claims when that statute is invoked to confer jurisdiction on the district court. In this respect this case is distinguishable from Kroger and Aldinger. . . ." " * * * *" "No such indicia of a restrictive legislative intent toward pendent party jurisdiction exist here. Neither the FTCA nor its jurisdiction-granting statute contains any express proscription of such jurisdiction, and the statute has not spawned any restrictive judicial interpretations that could have been tacitly embraced by Congress. Ortiz, 595 F.2d at 73.[4]" Id. at 647-648. In footnote 4, the court wrote: "In addition, the primary purpose of the FTCA is to 'avoid injustice to those having meritorious claims hitherto barred by sovereign immunity.' United States v. Muniz, 374 U. S. 150 , 154. . . . This goal reflects a congressional attitude sensitive to plaintiffs seeking recovery, one which is furthered by permitting plaintiffs to pursue in a single lawsuit their claims for injuries suffered in a single accident. As the Supreme Court noted in Aldinger, since Congress in section 1346(b) granted the district courts exclusive jurisdiction, only in federal court can all such claims be heard together. 427 U.S. at 427 U. S. 18 . . . ." Id. at 648, n. 4. [ Footnote 2/24 ] The Government argues that the panoply of special rules applicable to claims against the United States "underscores the importance of respecting the single-party limit on the jurisdictional grant of 28 U.S.C. 1346(b)." Brief for the United States 30. It notes that an FTCA claim against the Government must be tried without a jury, whereas pendent state law claims would generally be subject to trial by jury under the Seventh Amendment; that the Government cannot be held liable for punitive damages or on a strict liability theory, whereas both may be available against a private party; that the Government has numerous defenses and immunities not available to a private party; and that a claimant against the Government under the FTCA must comply with the Act's administrative claim procedures. Id. at 29-30. That submission ignores the fact that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Mine Workers v. Gibbs, 383 U.S. at 383 U. S. 726 ; see Moor v. County of Alameda, 411 U.S. at 411 U. S. 716 -717. While the presence of any of these factors in a particular case may weigh against the exercise of pendent jurisdiction, they certainly do not deprive the court of the power to hear the pendent claim. The Yellow Cab Court provided sufficient answer in response to a similar complaint regarding the impleader of the United States in an action between private parties: "Such difficulties are not insurmountable. If, for example, a jury had been demanded in the Yellow Cab case, the decision of jury and nonjury issues could have been handled in a manner comparable to that used when issues of law are tried to a jury and issues of an equitable nature in the same case are tried by the court alone. If special circumstances had demonstrated the inadvisability, in the first instance, of impleading the United States as a third-party defendant, the leave of court required by Rule 14 could have been denied. If, at a later stage, the situation had called for a separation of the claims, the court could have ordered their separate trial. Fed.Rules Civ.Proc. 42(b). The availability of third-party procedure is intended to facilitate, not to preclude, the trial of multiple claims which otherwise would be triable only in separate proceedings. The possibility of such procedural difficulties is not sufficient ground for so limiting the scope of the Act as to preclude its application to all cases of contribution or even to all cases of contribution arising under third-party practice." United States v. Yellow Cab Co., 340 U.S. at 340 U. S. 555 -556. [ Footnote 2/25 ] The Court notes that the 1948 recodification of the Judicial Code, which amended the jurisdictional grant in the FTCA to provide for " civil actions on claims against the United States,'" came shortly after the adoption of the Federal Rules of Civil Procedure, providing that "`[t]here shall be one form of action to be known as "civil action."'" Ante at 490 U. S. 554 (quoting Fed.Rule Civ.Proc. 2). The Court, however, rejects reliance on the plain meaning of the words "civil action" -- which after all might explain the assertion of pendent claim, as well as pendent party, jurisdiction, see Freer, A Principled Statutory Approach to Supplemental Jurisdiction, 1987 Duke L.J. 34, 56-58 -- on the basis of dubious legislative history that the revisers did not intend to effect such a radical change through "the minor and obscure change of wording at issue here." Ante at 490 U. S. 555 . The authorities the Court cites do not support this proposition. See W. Barron, The Judicial Code 1948 Revision, 8 F.R.D. 439, 442 (1949) (characterizing § 1338(b) as "statutory confirmation of the jurisdiction of federal courts"). Ironically, the Court does not rely on the legislative history that could support its judgment. The legislative history of the FTCA indicates that Congress may have originally intended that the United States not be joined as a defendant in an action with private parties. The House Report on an earlier version of what eventually became the FTCA thus stated: "The bill therefore does not permit any person to be joined as a defendant with the United States, and does not lift the immunity of the United States from tort actions except as jurisdiction is specifically conferred upon the district courts by this bill. ( See United States v. Sherwood, 312 U. S. 584 (1941); Lynn v. United States, 110 F.2d 586, 588 (C.C.A. 5th 1940); Waite v. United States, 57 C.Cls. 546 (1922); Jackson v. United States, 27 C.Cls. 74, 84 (1891))." H.R.Rep. No. 1287, 79th Cong., 1st Sess., 5 (1945). The Court in Yellow Cab rejected the identical argument, noting that those statements "were entirely omitted from even the sectional analysis of the measure when, in 1946, it was incorporated in the Reorganization Bill and the report on it was made by the Senate Committee on the Organization of Congress." Yellow Cab, 340 U.S. at 340 U. S. 551 -552, and n. 8. The Government here has not offered sufficient reason to reject the Yellow Cab Court's understanding of that legislative history. [ Footnote 2/26 ] The Court is mistaken in asserting that this approach is somehow inconsistent with the principle that a court does not have subject matter jurisdiction over an action unless an Act of Congress has supplied it. The District Court clearly had jurisdiction over this case, and the only question is the scope of its authority to consider specific claims. [ Footnote 2/27 ] See also Owen Equipment & Erection Co. v. Kroger, 437 U.S. at 437 U. S. 373 . [ Footnote 2/28 ] Although we did state in Aldinger that "'the addition of a completely new party would run counter to the well established principle that federal courts . . . are courts of limited jurisdiction marked out by Congress,'" ante at 490 U. S. 550 (quoting Aldinger, 427 U.S. at 15), the Court is incorrect to suggest that we found from that principle a "significant legal difference" between the addition of claims and the addition of parties. That statement came in the context of the discussion of the "purely factual" differences in efficiency between the two situations -- concerns which the Court accurately notes do not go to the power to exercise pendent jurisdiction. The only legal difference the Aldinger Court identified was one of statutory construction. In § 1343 and § 1983, as opposed to the statutes under which the Court had exercised pendent claim jurisdiction, "Congress ha[d] addressed itself to the party as to whom jurisdiction pendent to the principal claim [was] sought" and expressly excluded it from federal jurisdiction. 427 U.S. at 427 U. S. 16 . [ Footnote 2/29 ] We stated: "The relevant statute in this case, 28 U.S.C. § 1332(a)(1), confers upon federal courts jurisdiction over" "civil actions where the matter in controversy exceeds the sum or value of $10,000 . . . and is between . . . citizens of different States." "This statute and its predecessors have consistently been held to require complete diversity of citizenship. That is, diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff. Over the years, Congress has repeatedly reenacted or amended the statute conferring diversity jurisdiction, leaving intact this rule of complete diversity. Whatever may have been the original purposes of diversity of citizenship jurisdiction, this subsequent history clearly demonstrates a congressional mandate that diversity jurisdiction is not to be available when any plaintiff is a citizen of the same State as any defendant." Kroger, 437 U.S. at 437 U. S. 373 -374. [ Footnote 2/30 ] Consider, for example, the counterclaim cases in which the Federal Rules of Civil Procedure defined the scope of the jurisdiction granting statute in precisely the same way the Rules did in Gibbs: "We conclude that, in the case of a counterclaim which is compulsory, ancillary jurisdiction should extend to additional parties, regardless of an ensuing lack of diversity. This is the position taken by the commentators, Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure, supra, 45 Yale L.J. 393, 418, and the few courts which have ruled on the question. Carter Oil Co. v. Wood, supra, D.C.E.D.Ill., 30 F. Supp. 875 ; King v. Edward B. Marks Music Corp., D.C.S.D.N.Y. 56 F. Supp. 446 ; and see Black v. London Assur. Co. of London, England, D.C.W.D.S.C. 122 F. Supp. 330, where the court arrived at the desired result through realignment of the parties. We ourselves have come to the same conclusion in the past on the similar issue of venue requirements for additional defendants, see Lesnik v. Public Industrials Corp., supra, 2 Cir., 144 F.2d 968, and with respect to impleader of third-party defendants under F.R. 14. Friend v. Middle Atlantic Transp. Co., 2 Cir., 153 F.2d 778, 779-780, certiorari denied, 328 U.S. 865. 2A liberal attitude toward the inclusion of parties is a necessary concomitant to the liberalized third-party practice authorized by the Federal Rules of Civil Procedure. The presence of these defendants is necessary to a complete adjudication of the issues involved in this litigation, which should not be retried at another time in another forum." United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 217 (CA2 1955). [ Footnote 2/31 ] The unwisdom of having "lumped together indiscriminately cases involving each of the three different contexts in which the question of pendent parties has been litigated" has been sufficiently criticized by Professors Wright, Miller, and Cooper. See their treatise on Federal Practice and Procedure § 3567.2, pp. 152-153 (2d ed 1984). They explain: "The distinctions are there, and do not become less real because they are not mentioned. The meaning of 'amount in controversy' in § 1332 raises one question, the meaning of 'between citizens of different states' in the same statute raises a different question, and the permissible scope of cases 'arising under' federal law within the Constitution and § 1331 raises still a third question. The considerations for allowing 'pendent parties' in a federal question case may well be more compelling than for doing so when the only effect is to broaden the scope -- and attractiveness -- of diversity jurisdiction." [ Footnote 2/32 ] See P. Bator, D. Meltzer, P. Mistakin, & D. Shapiro, Hart and Wechsler's The Federal Courts and The Federal System 1046 (3d ed.1988); Fortune, Pendent Jurisdiction -- The Problem of "Pendenting Parties," 34 U.Pitt.L.Rev. 1, 12 (1972); Mistakin, The Federal "Question" in the District Courts, 53 Colum.L.Rev. 157, 167 (1953); Schenkier, Ensuring Access to the Federal Courts: A Revised Rationale for Pendent Jurisdiction, 75 Nw.U.L.Rev. 245, 254-256 (1980). [ Footnote 2/33 ] See also Musher Foundation v. Alba Trading Co., 127 F.2d 9, 11 (CA2 1942) (Clark, J., dissenting) ("If the roast must be reserved exclusively for the federal bench, it is anomalous to send the gravy across the street to the state court house"). [ Footnote 2/34 ] "The continued need for exercise of diversity jurisdiction, at least where a showing of prejudice is not made, has been challenged by respected authorities. But a sharply different view has been taken of the federal question jurisdiction, and the Court has reflected that view in its decisions upholding the exercise of jurisdiction over pendent claims under state law." Zahn v. International Paper Co., 414 U. S. 291 , 414 U. S. 304 , n. 5 (1973) (BRENNAN, J., dissenting). [ Footnote 2/35 ] The Court held that the Tucker Act should not be construed to give the consent of the United States to be sued in effect as a post-judgment garnishee on a claim that, in the hands of the judgment debtor, would not be within its jurisdiction. [ Footnote 2/36 ] Professor Moore convincingly argues that the Sherwood decision is based on an unsound and outdated application of the maxim that sovereign consent to be sued must be strictly construed. See 3A J. Moore, J. Lucas, & G. Grotheer, Moore's Federal Practice � 20.07(3), pp. 20-55 to 20-58 (2d ed.1987). [ Footnote 2/37 ] See also Larson v. Domestic and Foreign Commerce Corp., 337 U. S. 682 , 337 U. S. 709 (1949) (Frankfurter, J., dissenting) ("In the course of a century or more, a steadily expanding conception of public morality regarding "governmental responsibility" has led to a "generous policy of consent for suits against the government" to compensate for the negligence of its agents, as well as to secure obedience to its contracts"); Great Northern Life Ins. Co. v. Read, 322 U. S. 47 , 322 U. S. 59 (1944) (Frankfurter, J., dissenting) ("[C]onsent does not depend on some ritualistic formula. Nor are any words needed to indicate submission to the law of the land. The readiness or reluctance with which courts find such consent has naturally been influenced by prevailing views regarding the moral sanction to be attributed to a State's freedom from suability. Whether this immunity is an absolute survival of the monarchical privilege, or is a manifestation merely of power, or rests on abstract legal grounds, it undoubtedly runs counter to modern democratic notions of the moral responsibility of the State. Accordingly, courts reflect a strong legislative momentum in their tendency to extend the legal responsibility of Government and to confirm Maitland's belief, expressed nearly fifty years ago, that it is a wholesome sight to see "the Crown" sued and answering for its torts.'").

In Finley v. United States, the Supreme Court held that the Federal Tort Claims Act (FTCA) does not allow federal courts to exercise "pendent-party" jurisdiction, meaning they cannot hear additional claims against parties other than the United States in the same lawsuit. The Court's decision was based on the text of the FTCA, which grants jurisdiction over "civil actions on claims against the United States," and previous case law establishing that a grant of jurisdiction over specific claims involving particular parties does not extend to additional claims involving different parties. The Court also rejected the argument that the 1948 revision of the Judicial Code, which changed the FTCA's language, impliedly granted pendent-party jurisdiction.

Lawsuits & Legal Procedures

Chauffeurs Local 391 v. Terry

https://supreme.justia.com/cases/federal/us/494/558/

U.S. Supreme Court Chauffeurs Local 391 v. Terry, 494 U.S. 558 (1990) Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry No. 88-1719 Argued December 6, 1989 Decided March 20, 1990 494 U.S. 558 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus McLean Trucking Company and petitioner Chauffeurs, Teamsters and Helpers Local No. 391 (Union) were parties to a collective bargaining agreement which covered respondent employees. When the Union declined to refer to the grievance committee respondents' charges against McLean -- arising from McLean's layoff and recall policies -- on the ground that the relevant issues had been determined in two prior proceedings concerning complaints that the Union had referred to the committee on respondents' behalf, respondents filed suit in the District Court. Alleging that McLean had breached the collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 1947, and that the Union had violated its duty of fair representation, they requested injunctive relief and, inter alia, compensatory damages for lost wages and health benefits. They also made a jury demand for all issues triable by a jury. After McLean filed for bankruptcy, the action against it, and all claims for injunctive relief, were dismissed. The Union then moved to strike the jury demand on the ground that no right to a jury trial exists in a duty of fair representation suit. The District Court denied the motion, and the Court of Appeals affirmed, holding that the Seventh Amendment entitled respondents to a jury trial on their claim for monetary relief. Held: The judgment is affirmed. 863 F.2d 334, affirmed. JUSTICE MARSHALL delivered the opinion of the Court with respect to Parts I, II, III-B, and IV, concluding that the Seventh Amendment entitles respondents to a jury trial. Pp. 494 U. S. 563 -564, 494 U. S. 570 -574. (a) To recover money damages in an action for breach of the duty of fair representation, an employee must prove both that the employer's action violated the terms of the collective bargaining agreement and that the union breached its duty of fair representation in handling the grievance. DelCostello v. Teamsters, 462 U. S. 151 , 462 U. S. 163 -164. Pp. 462 U. S. 563 -564. (b) The remedy respondents seek entitles them to a jury trial on all issues presented in the suit. That remedy -- compensatory damages -- is traditionally legal relief, and has none of the attributes that must be present before this Court will characterize money damages as equitable. Page 494 U. S. 559 The relief is not restitutionary, because the backpay sought is not money wrongfully held by the Union, but wages and benefits respondents would have received from McLean had the Union processed their grievances properly. Nor is the monetary award incidental to, or intertwined with, injunctive relief, because respondents here are seeking only money damages. Moreover, although backpay under Title VII of the Civil Rights Act of 1964 is considered an equitable remedy, this characterization does not require that money damages for breach of the duty of fair representation be considered equitable as well. Congress has specifically characterized Title VII backpay as a form of "equitable relief," but it has made no similar pronouncement regarding damages for breach of the duty of fair representation. Further, this Court has noted that Title VII backpay sought from an employer would generally be restitutionary in nature. Pp. 494 U. S. 570 -574. JUSTICE MARSHALL, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE BLACKMUN, concluded in Part III-A: 1. To determine whether a particular action will resolve legal (as opposed to equitable) rights, such that the plaintiff is entitled to a jury trial, courts must examine both the nature of the issues involved and, more importantly, the remedy sought. Tull v. United States, 481 U. S. 412 , 481 U. S. 417 -418. Pp. 494 U. S. 564 -565. 2. A comparison of respondents' action to 18th-century causes of action leaves the jury trial question in equipoise, because it reveals that this action presents both equitable and legal issues. The duty of fair representation claim is comparable to an equitable action by a trust beneficiary against a trustee for breach of fiduciary duty. DelCostello, supra -- which, in determining the appropriate statute of limitations in a hybrid action, noted in dicta that an attorney malpractice action, historically an action at law, is the closest state law analogy to a duty of fair representation claim -- did not consider the trust analogy, which more fully captures the relationship between the Union and the represented employees. Nevertheless, respondents' action cannot be characterized as wholly equitable, since the § 301 issue -- which respondents must prove in order to prevail -- is comparable to a breach of contract claim, a legal issue. United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 . Pp. 494 U. S. 565 -570. JUSTICE BRENNAN proposed that the historical test mandated by the Seventh Amendment should turn solely on the comparison of the relief sought to relief historically available in equity or at law, and that the Court should dispense with the process of comparing the right at issue with 18th-century English forms of action. Since the nature of the remedy is always given more weight than the nature of the analogous right, it is unlikely that the proposed analysis would result in different decisions. Page 494 U. S. 560 Comparisons of contemporary rights with ancient writs have needlessly convoluted Seventh Amendment jurisprudence and embroiled courts in recondite controversies better left to legal historians. Moreover, the nature of the rights available under modern statutes is so remote in form and concept from 18th-century forms of action that, too often, there is no firm basis for comparison. Because the nature of remedies available today corresponds far more directly to the nature of remedies available in Georgian England, the proposed analysis would not only be more manageable than the current test, but also more reliably grounded in history. Pp. 494 U. S. 574 -581. JUSTICE STEVENS concluded that the relevant historical question is not whether the suit was specifically recognized at common law, but whether the nature of the substantive right asserted is analogous to common law rights, and whether the relief sought is typical of an action at law. A sufficient basis for the Court's holding is provided by the evolution of the duty of fair representation doctrine through suits tried to juries, the well-recognized duty to scrutinize any proposed curtailment of the right to a jury trial with the utmost care, and the fact that a duty of fair representation action resembles a common law attorney malpractice action more closely than it does any other action. Pp. 494 U. S. 581 -584. MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, and IV, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part III-A, in which REHNQUIST, C.J., and WHITE and BLACKMUN, JJ., joined. BRENNAN, J., post, p. 494 U. S. 574 , and STEVENS, J., post, p. 494 U. S. 581 , filed opinions concurring in part and concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 494 U. S. 584 . Page 494 U. S. 561 JUSTICE MARSHALL delivered the opinion of the Court except as to Part III-A. This case presents the question whether an employee who seeks relief in the form of backpay for a union's alleged breach of its duty of fair representation has a right to trial by jury. We hold that the Seventh Amendment entitles such a plaintiff to a jury trial. I McLean Trucking Company and the Chauffeurs, Teamsters and Helpers Local No. 391 (Union) were parties to a collective bargaining agreement that governed the terms and conditions of employment at McLean's terminals. The 27 respondents were employed by McLean as truckdrivers in bargaining units covered by the agreement, and all were members of the Union. In 1982, McLean implemented a change in operations that resulted in the elimination of some of its terminals and the reorganization of others. As part of that change, McLean transferred respondents to the terminal located in Winston-Salem and agreed to give them special seniority rights in relation to "inactive" employees in Winston-Salem who had been laid off temporarily. After working in Winston-Salem for approximately six weeks, respondents were alternately laid off and recalled several times. Respondents filed a grievance with the Union, contesting the order of the layoffs and recalls. Respondents also challenged McLean's policy of stripping any driver who was laid off of his special seniority rights. Respondents claimed that McLean breached the collective bargaining agreement by giving inactive drivers preference over respondents. After these proceedings, the grievance committee ordered McLean to recall any respondent who was then laid off and to lay off any inactive driver who had been recalled; in addition, the committee ordered McLean to recognize respondents' special seniority rights until the inactive employees were properly recalled. Page 494 U. S. 562 On the basis of this decision, McLean recalled respondents and laid off the drivers who had been on the inactive list when respondents transferred to Winston-Salem. Soon after this, though, McLean recalled the inactive employees, thereby allowing them to regain seniority rights over respondents. In the next round of layoffs, then, respondents had lower priority than inactive drivers, and were laid off first. Accordingly, respondents filed another grievance, alleging that McLean's actions were designed to circumvent the initial decision of the grievance committee. The Union representative appeared before the grievance committee and presented the contentions of respondents and those of the inactive truckdrivers. At the conclusion of the hearing, the committee held that McLean had not violated the committee's first decision. McLean continued to engage in periodic layoffs and recalls of the workers at the Winston-Salem terminal. Respondents filed a third grievance with the Union, but the Union declined to refer the charges to a grievance committee on the ground that the relevant issues had been determined in the prior proceedings. In July, 1983, respondents filed an action in District Court, alleging that McLean had breached the collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185 (1982 ed.), [ Footnote 1 ] and that the Union had violated its duty of fair representation. Respondents requested a permanent injunction requiring the defendants to cease their illegal acts and to reinstate Page 494 U. S. 563 them to their proper seniority status; in addition, they sought, inter alia, compensatory damages for lost wages and health benefits. In 1986, McLean filed for bankruptcy; subsequently, the action against it was voluntarily dismissed, along with all claims for injunctive relief. Respondents had requested a jury trial in their pleadings. The Union moved to strike the jury demand on the ground that no right to a jury trial exists in a duty of fair representation suit. The District Court denied the motion to strike. After an interlocutory appeal, the Fourth Circuit affirmed the trial court, holding that the Seventh Amendment entitled respondents to a jury trial of their claim for monetary relief. 863 F.2d 334 (1988). We granted the petition for certiorari to resolve a Circuit conflict on this issue, [ Footnote 2 ] 491 U.S. 903 (1989), and now affirm the judgment of the Fourth Circuit. II The duty of fair representation is inferred from unions' exclusive authority under the National Labor Relations Act (NLRA), 49 Stat. 449, 29 U.S.C. § 159(a) (1982 ed.), to represent all employees in a bargaining unit. Vaca v. Sipes, 386 U. S. 171 , 386 U. S. 177 (1967). The duty requires a union "to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." Ibid. A union must discharge its duty both in bargaining with the employer and in its enforcement of the resulting collective bargaining agreement. Ibid. Thus, the Union here was required to pursue respondents' grievances in a manner consistent with the principles of fair representation. Page 494 U. S. 564 Because most collective bargaining agreements accord finality to grievance or arbitration procedures established by the collective bargaining agreement, an employee normally cannot bring a § 301 action against an employer unless he can show that the union breached its duty of fair representation in its handling of his grievance. DelCostello v. Teamsters, 462 U. S. 151 , 462 U. S. 163 -164 (1983). Whether the employee sues both the labor union and the employer or only one of those entities, he must prove the same two facts to recover money damages: that the employer's action violated the terms of the collective bargaining agreement and that the union breached its duty of fair representation. Id. at 462 U. S. 164 -165. III We turn now to the constitutional issue presented in this case -- whether respondents are entitled to a jury trial. [ Footnote 3 ] The Seventh Amendment provides that "[i]n Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The right to a jury trial includes more than the common law forms of action recognized in 1791; the phrase "Suits at common law" refers to "suits in which legal rights [are] to be ascertained and determined, in contradistinction to those where equitable rights alone [are] recognized, and equitable remedies [are] administered." Parsons v. Bedford , 3 Pet. 433, 28 U. S. 447 (1830); see also ibid. ("[T]he amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights"). The right extends to Page 494 U. S. 565 causes of action created by Congress. Tull v. United States, 481 U. S. 412 , 481 U. S. 417 (1987). Since the merger of the systems of law and equity, see Fed.Rule Civ.Proc. 2, this Court has carefully preserved the right to trial by jury where legal rights are at stake. As the Court noted in Beacon Theatres, Inc. v. Westover, 359 U. S. 500 , 359 U. S. 501 (1959), "'Maintenance of the jury as a factfinding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.'" (quoting Dimick v. Schiedt, 293 U. S. 474 , 293 U. S. 486 (1935)). To determine whether a particular action will resolve legal rights, we examine both the nature of the issues involved and the remedy sought. "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature." Tull, supra, at 481 U. S. 417 -418 (citations omitted). The second inquiry is the more important in our analysis. Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 , 492 U. S. 42 (1989). [ Footnote 4 ] A An action for breach of a union's duty of fair representation was unknown in 18th-century England; in fact, collective bargaining Page 494 U. S. 566 was unlawful. See N. Citrine, Trade Union Law 4-7 (2d ed.1960). We must therefore look for an analogous cause of action that existed in the 18th century to determine whether the nature of this duty of fair representation suit is legal or equitable. The Union contends that this duty of fair representation action resembles a suit brought to vacate an arbitration award because respondents seek to set aside the result of the grievance process. In the 18th century, an action to set aside an arbitration award was considered equitable. 2 J. Story, Commentaries on Equity Jurisprudence § 1452, pp. 789-790 (13th ed.1886) (equity courts had jurisdiction over claims that an award should be set aside on the ground of "mistake of the arbitrators"); see, e.g., 58 U. S. Marsh, 17 How. 344 (1855) (reviewing bill in equity to vacate an arbitration award). In support of its characterization of the duty of fair representation claim, the Union cites United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 (1981), in which we held that, for purposes of selecting from various state statutes an appropriate limitations period for a § 301 suit against an employer, such a suit was more analogous to a suit to vacate an arbitration award than to a breach of contract action. Id. at 451 U. S. 62 . [ Footnote 5 ] The arbitration analogy is inapposite, however, to the Seventh Amendment question posed in this case. No grievance committee has considered respondents' claim that the Union violated its duty of fair representation; the grievance process was concerned only with the employer's alleged breach of the collective bargaining agreement. Thus, respondents' claim against the Union cannot be characterized as an action to vacate Page 494 U. S. 567 an arbitration award because "'[t]he arbitration proceeding did not, and indeed, could not, resolve the employee's claim against the union. . . . Because no arbitrator has decided the primary issue presented by this claim, no arbitration award need be undone, even if the employee ultimately prevails.'" DelCostello, 462 U.S. at 462 U. S. 167 (quoting Mitchell, supra, at 451 U. S. 73 (STEVENS, J., concurring in part and dissenting in part) (footnotes omitted)). The Union next argues that respondents' duty of fair representation action is comparable to an action by a trust beneficiary against a trustee for breach of fiduciary duty. Such actions were within the exclusive jurisdiction of courts of equity. 2 Story, supra, § 960, p. 266; Restatement (Second) of Trusts § 199(c) (1959). This analogy is far more persuasive than the arbitration analogy. Just as a trustee must act in the best interests of the beneficiaries, 2A W. Fratcher, Scott on Trusts § 170 (4th ed.1987), a union, as the exclusive representative of the workers, must exercise its power to act on behalf of the employees in good faith, Vaca v. Sipes, 386 U.S. at 386 U. S. 177 . Moreover, just as a beneficiary does not directly control the actions of a trustee, 3 Fratcher, supra, § 187, an individual employee lacks direct control over a union's actions taken on his behalf, see Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1, 21 (1958). The trust analogy extends to a union's handling of grievances. In most cases, a trustee has the exclusive authority to sue third parties who injure the beneficiaries' interest in the trust, 4 Fratcher, supra, § 282, pp. 25-29, including any legal claim the trustee holds in trust for the beneficiaries, Restatement (Second) of Trusts, supra, § 82, comment a. The trustee then has the sole responsibility for determining whether to settle, arbitrate, or otherwise dispose of the claim. Restatement (Second) of Trusts, supra, § 192. Similarly, the union typically has broad discretion in its decision whether and how to pursue an employee's grievance against Page 494 U. S. 568 an employer. See, e.g., Vaca v. Sipes, supra, at 386 U. S. 185 . Just as a trust beneficiary can sue to enforce a contract entered into on his behalf by the trustee only if the trustee "improperly refuses or neglects to bring an action against the third person," Restatement (Second) of Trusts, supra, § 282(2), so an employee can sue his employer for a breach of the collective bargaining agreement only if he shows that the union breached its duty of fair representation in its handling of the grievance, DelCostello, supra, at 462 U. S. 163 -164. See Bowen v. United States Postal Service, 459 U. S. 212 , 459 U. S. 243 (1983) (WHITE, J., concurring in judgment in part and dissenting in part). Respondents contend that their duty of fair representation suit is less like a trust action than an attorney malpractice action, which was historically an action at law, see, e.g., Russell v. Palmer, 2 Wils. K.B. 325, 95 Eng.Rep. 837 (1767). In determining the appropriate statute of limitations for a hybrid § 301/duty of fair representation action, this Court in DelCostello noted in dictum that an attorney malpractice action is "the closest state law analogy for the claim against the union." 462 U.S. at 462 U. S. 167 . The Court in DelCostello did not consider the trust analogy, however. Presented with a more complete range of alternatives, we find that, in the context of the Seventh Amendment inquiry, the attorney malpractice analogy does not capture the relationship between the union and the represented employees as fully as the trust analogy does. The attorney malpractice analogy is inadequate in several respects. Although an attorney malpractice suit is in some ways similar to a suit alleging a union's breach of its fiduciary duty, the two actions are fundamentally different. The nature of an action is in large part controlled by the nature of the underlying relationship between the parties. Unlike employees represented by a union, a client controls the significant decisions concerning his representation. Moreover, a client can fire his attorney if he is dissatisfied with his attorney's Page 494 U. S. 569 performance. This option is not available to an individual employee who is unhappy with a union's representation, unless a majority of the members of the bargaining unit share his dissatisfaction. See J. I. Case Co. v. NLRB, 321 U. S. 332 , 321 U. S. 338 -339 (1944). Thus, we find the malpractice analogy less convincing than the trust analogy. Nevertheless, the trust analogy does not persuade us to characterize respondents' claim as wholly equitable. The Union's argument mischaracterizes the nature of our comparison of the action before us to 18th-century forms of action. As we observed in Ross v. Bernhard, 396 U. S. 531 (1970), "The Seventh Amendment question depends on the nature of the issue to be tried, rather than the character of the overall action." Id. at 396 U. S. 538 (emphasis added) (finding a right to jury trial in a shareholder's derivative suit, a type of suit traditionally brought in courts of equity, because plaintiffs' case presented legal issues of breach of contract and negligence). As discussed above, see supra, at 494 U. S. 564 , to recover from the Union here, respondents must prove both that McLean violated § 301 by breaching the collective bargaining agreement and that the Union breached its duty of fair representation. [ Footnote 6 ] When viewed in isolation, the duty of fair representation issue is analogous to a claim against a trustee for breach of fiduciary duty. The § 301 issue, however, Page 494 U. S. 570 is comparable to a breach of contract claim -- a legal issue. [ Footnote 7 ] Respondents' action against the Union thus encompasses both equitable and legal issues. The first part of our Seventh Amendment inquiry, then, leaves us in equipoise as to whether respondents are entitled to a jury trial. B Our determination under the first part of the Seventh Amendment analysis is only preliminary. Granfinanciera, S. A. v. Nordberg, 492 U.S. at 492 U. S. 47 . In this case, the only remedy sought is a request for compensatory damages representing backpay and benefits. Generally, an action for money damages was "the traditional form of relief offered in the courts of law." Curtis v. Loether, 415 U. S. 189 , 415 U. S. 196 (1974). This Court has not, however, held that "any award of monetary relief must necessarily be legal' relief." Ibid. (emphasis added). See also Granfinanciera, supra, at 492 U. S. 86 , n. 9 (WHITE, J., dissenting). Nonetheless, because we conclude that the remedy respondents seek has none of the attributes that must be present before we will find an exception to the general rule and characterize damages as equitable, we find that the remedy sought by respondents is legal. First, we have characterized damages as equitable where they are restitutionary, such as in "action[s] for disgorgement of improper profits," Tull, 481 U.S. at 481 U. S. 424 . See also Curtis v. Loether, supra, at 415 U. S. 197 ; Porter v. Warner Holding Co., 328 U. S. 395 , 328 U. S. 402 (1946). The backpay sought by respondents Page 494 U. S. 571 is not money wrongfully held by the Union, but wages and benefits they would have received from McLean had the Union processed the employees' grievances properly. Such relief is not restitutionary. Second, a monetary award "incidental to or intertwined with injunctive relief" may be equitable. Tull, supra, at 481 U. S. 424 . See, e.g., Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288 , 361 U. S. 291 -292 (1960) (District Court had power, incident to its injunctive powers, to award backpay under the Fair Labor Standards Act; also backpay in that case was restitutionary). Because respondents seek only money damages, this characteristic is clearly absent from the case. [ Footnote 8 ] The Union argues that the backpay relief sought here must nonetheless be considered equitable because this Court has labeled backpay awarded under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982 ed.), as equitable. See Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 415 -418 (1975) (characterizing backpay awarded against employer Page 494 U. S. 572 under Title VII as equitable in context of assessing whether judge erred in refusing to award such relief). It contends that the Title VII analogy is compelling in the context of the duty of fair representation because the Title VII backpay provision was based on the NLRA provision governing backpay awards for unfair labor practices, 29 U.S.C. § 160(c) (1982 ed.) ("[W]here an order directs reinstatement of an employee, back pay may be required of the employer or labor organization"). See Albemarle Paper Co. v. Moody, supra, at 422 U. S. 419 . We are not convinced. The Court has never held that a plaintiff seeking backpay under Title VII has a right to a jury trial. See Lorillard v. Pons, 434 U. S. 575 , 434 U. S. 581 -582 (1978). Assuming, without deciding, that such a Title VII plaintiff has no right to a jury trial, the Union's argument does not persuade us that respondents are not entitled to a jury trial here. Congress specifically characterized backpay under Title VII as a form of "equitable relief." 42 U.S.C. § 2000e-5(g) (1982 ed.) ("[T]he court may . . . order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . or any other equitable relief as the court deems appropriate"). See also Curtis v. Loether, supra, at 415 U. S. 196 -197 (distinguishing backpay under Title VII from damages under Title VIII, the fair housing provision of the Civil Right Act, 42 U.S.C. §§ 3601-3619 (1982 ed.), which the Court characterized as "legal" for Seventh Amendment purposes). Congress made no similar pronouncement regarding the duty of fair representation. Furthermore, the Court has noted that backpay sought from an employer under Title VII would generally be restitutionary in nature, see Curtis v. Loether, supra, at 415 U. S. 197 , in contrast to the damages sought here from the Union. Thus, the remedy sought in this duty of fair representation case is clearly different from backpay sought for violations of Title VII. Page 494 U. S. 573 Moreover, the fact that Title VII's backpay provision may have been modeled on a provision in the NLRA concerning remedies for unfair labor practices does not require that the backpay remedy available here be considered equitable. The Union apparently reasons that, if Title VII is comparable to one labor law remedy, it is comparable to all remedies available in the NLRA context. Although both the duty of fair representation and the unfair labor practice provisions of the NLRA are components of national labor policy, their purposes are not identical. Unlike the unfair labor practice provisions of the NLRA, which are concerned primarily with the public interest in effecting federal labor policy, the duty of fair representation targets " the wrong done the individual employee.'" Electrical Workers v. Foust, 442 U. S. 42 , 442 U. S. 49 , n. 12 (1979) (quoting Vaca v. Sipes, 386 U.S. at 386 U. S. 182 , n. 8) (emphasis deleted). Thus, the remedies appropriate for unfair labor practices may differ from the remedies for a breach of the duty of fair representation, given the need to vindicate different goals. Certainly, the connection between backpay under Title VII and damages under the unfair labor practice provision of the NLRA does not require us to find a parallel connection between Title VII backpay and money damages for breach of the duty of fair representation. We hold, then, that the remedy of backpay sought in this duty of fair representation action is legal in nature. Considering both parts of the Seventh Amendment inquiry, we find that respondents are entitled to a jury trial on all issues presented in their suit. IV On balance, our analysis of the nature of respondents' duty of fair representation action and the remedy they seek convinces us that this action is a legal one. Although the search for an adequate 18th-century analog revealed that the claim includes both legal and equitable issues, the money damages respondents seek are the type of relief traditionally awarded by courts of law. Thus, the Seventh Amendment entitles respondents Page 494 U. S. 574 to a jury trial, and we therefore affirm the judgment of the Court of Appeals. It is so ordered. [ Footnote 1 ] Section 301(a) of the Labor Management Relations Act, 1947, provides for suits by and against labor unions: "Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." 61 Stat. 156, 29 U.S.C. § 185(a) (1982 ed.). [ Footnote 2 ] Compare Leach v. Pan American World Airways, 842 F.2d 285 (CA11 1988) (no right to a jury trial), with United Transportation Union, Local 74 v. Consolidated Rail Corp., 881 F.2d 282 (CA6 1989) (allowing plaintiff the right to a jury trial); Terry v. Chauffeurs, Teamsters and Helpers, Local 391, 863 F.2d 334 (CA4 1988) (same); Quinn v. DiGiulian, 238 U.S.App.D.C. 247, 739 F.2d 637 (1984) (same); Roscello v. Southwest Airlines Co., 726 F.2d 217 (CA5 1984) (same). [ Footnote 3 ] Because the NLRA, 49 Stat. 449, 29 U.S.C. § 159(a) (1982 ed.), does not expressly create the duty of fair representation, resort to the statute to determine whether Congress provided for a jury trial in an action for breach of that duty is unavailing. Cf. Curtis v. Loether, 415 U. S. 189 , 415 U. S. 192 , n. 6 (1974) (recognizing the " cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided'" (quoting United States v. Thirty-seven Photographs, 402 U. S. 363 , 403 U. S. 369 (1971))). [ Footnote 4 ] JUSTICE STEVENS' analysis emphasizes a third consideration, namely whether "the issues [presented by the claim] are typical grist for the jury's judgment." Post at 494 U. S. 583 . This Court, however, has never relied on this consideration "as an independent basis for extending the right to a jury trial under the Seventh Amendment." Tull v. United States, 481 U. S. 412 , 481 U. S. 418 , n. 4 (1987). We recently noted that this consideration is relevant only to the determination "whether Congress has permissibly entrusted the resolution of certain disputes to an administrative agency or specialized court of equity, and whether jury trials would impair the functioning of the legislative scheme." Granfinanciera, S. A. v. Nordberg, 492 U.S. at 492 U. S. 42 , n. 4. No one disputes that an action for breach of the duty of fair representation may properly be brought in an Article III court; thus, the factor does not affect our analysis. [ Footnote 5 ] We later abandoned the reliance on state statutes of limitations for § 301 actions, and instead applied the federal limitations period for unfair labor practice charges, § 10(b) of the NLRA, 49 Stat. 453, as amended, 29 U.S.C. § 160(b) (1982 ed.), to both a § 301 claim against an employer and a duty of fair representation claim against a union. DelCostello v. Teamsters, 462 U. S. 151 (1983). [ Footnote 6 ] The dissent characterizes this opinion as "pars[ing] legal elements out of equitable claims. " Post at 494 U. S. 590 . The question whether the Seventh Amendment analysis requires an examination of the nature of each element of a typical claim is not presented by this case. The claim we confront here is not typical; instead, it is a claim consisting of discrete issues that would normally be brought as two claims, one against the employer and one against the union. Had the employer remained a defendant in this action, the dissent would surely agree that the § 301 claim against the employer was a separate claim. The Seventh Amendment analysis should not turn on the ability of the plaintiff to maintain his suit against both defendants, when the issues in the suit remain the same even when he can sue only the union. Consideration of the nature of the two issues in this hybrid action is therefore warranted. [ Footnote 7 ] In United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 (1981), we found a § 301 action against the employer more analogous to a suit to set aside an arbitration award than to a breach of contract suit because the employee, to overturn the grievance committee's decision, had to prove that the union violated its duty of fair representation. Id. at 451 U. S. 62 . In that case, we analyzed the action as a whole; in this case, however, the Seventh Amendment requires that we treat each issue separately. When considered by itself, the § 301 issue is closely analogous to a breach of contract claim. [ Footnote 8 ] Both the Union and the dissent argue that the backpay award sought here is equitable because it is closely analogous to damages awarded to beneficiaries for a trustee's breach of trust. See post at 494 U. S. 587 . Such damages were available only in courts of equity, because those courts had exclusive jurisdiction over actions involving a trustee's breach of his fiduciary duties. See 3 W. Fratcher, Scott on Trusts § 205, p. 240 (4th ed.1987); Restatement (Second) of Trusts § 205(a), and comment c, illustration 2 (1959). The Union's argument, however, conflates the two parts of our Seventh Amendment inquiry. Under the dissent's approach, if the action at issue were analogous to an 18th-century action within the exclusive jurisdiction of the courts of equity, we would necessarily conclude that the remedy sought was also equitable because it would have been unavailable in a court of law. This view would, in effect, make the first part of our inquiry dispositive. We have clearly held, however, that the second part of the inquiry -- the nature of the relief -- is more important to the Seventh Amendment determination. See supra at 494 U. S. 565 . The second part of the analysis, therefore, should not replicate the "abstruse historical" inquiry of the first part, Ross v. Bernhard, 396 U. S. 531 , 396 U. S. 538 , n. 10 (1970), but requires consideration of the general types of relief provided by courts of law and equity. JUSTICE BRENNAN, concurring in part and concurring in the judgment. I agree with the Court that respondents seek a remedy that is legal in nature, and that the Seventh Amendment entitles respondents to a jury trial on their duty of fair representation claims. I therefore join Parts I, II, III-B, and IV of the Court's opinion. I do not join that part of the opinion which reprises the particular historical analysis this Court has employed to determine whether a claim is a "Sui[t] at common law" under the Seventh Amendment, ante at 494 U. S. 564 , because I believe the historical test can and should be simplified. The current test, first expounded in Curtis v. Loether, 415 U. S. 189 , 415 U. S. 194 (1974), requires a court to compare the right at issue to 18th-century English forms of action to determine whether the historically analogous right was vindicated in an action at law or in equity, and to examine whether the remedy sought is legal or equitable in nature. However, this Court, in expounding the test, has repeatedly discounted the significance of the analogous form of action for deciding where the Seventh Amendment applies. I think it is time we dispense with it altogether. [ Footnote 2/1 ] I would decide Seventh Amendment questions on the basis of the relief sought. If the relief is legal in nature, i.e., if it is the kind of relief that historically was available from courts of law, I would hold that the parties have a constitutional right to a trial by jury -- unless Congress has permissibly delegated the particular dispute to a non-Article III decisionmaker and jury trials would Page 494 U. S. 575 frustrate Congress' purposes in enacting a particular statutory scheme. [ Footnote 2/2 ] I believe that our insistence that the jury trial right hinges in part on a comparison of the substantive right at issue to forms of action used in English courts 200 years ago needlessly convolutes our Seventh Amendment jurisprudence. For the past decade and a half, this Court has explained that the two parts of the historical test are not equal in weight, that the nature of the remedy is more important than the nature of the right. See ante at 494 U. S. 565 ; Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 , 492 U. S. 42 (1989); Tull v. United States, 481 U. S. 412 , 481 U. S. 421 (1987); Curtis v. Loether, supra, at 415 U. S. 196 . Since the existence of a right to jury trial therefore turns on the nature of the remedy, absent congressional delegation to a specialized decisionmaker, [ Footnote 2/3 ] there remains little purpose to our rattling through dusty attics of ancient writs. The time has come to borrow William of Occam's razor and sever this portion of our analysis. Page 494 U. S. 576 We have long acknowledged that, of the factors relevant to the jury trial right, comparison of the claim to ancient forms of action, "requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply." Ross v. Bernhard, 396 U. S. 531 , 396 U. S. 538 , n. 10 (1970). Requiring judges, with neither the training nor time necessary for reputable historical scholarship, to root through the tangle of primary and secondary sources to determine which of a hundred or so writs is analogous to the right at issue has embroiled courts in recondite controversies better left to legal historians. For example, in Granfinanciera, S. A. supra, decided last Term, both JUSTICE WHITE, in dissent, and I, writing for the Court, struggled with the question whether an equity court would have heard the suit that was comparable to the modern statutory action at issue. I quoted Professor Garrard Glenn. Id. at 492 U. S. 44 . JUSTICE WHITE countered that "[o]ther scholars have looked at the same history and come to a different conclusion. Still others have questioned the soundness of the distinction that Professor Glenn drew. . . . Trying to read the ambiguous history concerning fraudulent conveyance actions in equity. . . has perplexed jurists in each era, who have come to conflicting decisions each time that the question has found relevance." Id. at 492 U. S. 85 (footnote omitted). I countered with an item-by-item evaluation of JUSTICE WHITE's sources. See id. at 492 U. S. 47 , n. 6. [ Footnote 2/4 ] Page 494 U. S. 577 To be sure, it is neither unusual nor embarrassing for members of a court to disagree, and disagree vehemently. But it better behooves judges to disagree within the province of judicial expertise. Furthermore, inquiries into the appropriate historical analogs for the rights at issue are not necessarily susceptible of sound resolution under the best of circumstances. As one scholar observes: "[T]he line between law and equity (and therefore between jury and nonjury trial) was not a fixed and static one. There was a continual process of borrowing by one jurisdiction from the other; there were less frequent instances of a sloughing off of older functions. . . . The borrowing by each jurisdiction from the other was not accompanied by an equivalent sloughing off of functions. This led to a very large overlap between law and equity." James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 658-659 (1963). In addition, modern statutory rights did not exist in the 18th century, and even the most exacting historical research may not elicit a clear historical analog. [ Footnote 2/5 ] The right at issue here, for example, is a creature of modern labor law quite foreign to Georgian England. See ante at 494 U. S. 565 -566. Justice Stewart recognized the perplexities involved in this task in his dissent in Ross v. Bernhard, supra, at 396 U. S. 550 , albeit drawing a different conclusion. "The fact is," he said, "that there are, for the most part, no such things as inherently 'legal issues' or inherently 'equitable issues.' There are only factual issues, and, 'like chameleons, [they] take their color from surrounding circumstances.' Thus, the Court's 'nature of the Page 494 U. S. 578 issue' approach is hardly meaningful. [ Footnote 2/6 ]" I have grappled with this kind of inquiry for three decades on this Court, and have come to the realization that engaging in such inquiries is impracticable and unilluminating. To rest the historical test required by the Seventh Amendment solely on the nature of the relief sought would not, of course, offer the federal courts a rule that is in all cases self-executing. Courts will still be required to ask which remedies were traditionally available at law, and which only in equity. But this inquiry involves fewer variables and simpler choices, on the whole, and is far more manageable than the scholasticist debates in which we have been engaged. Moreover, the rule I propose would remain true to the Seventh Amendment, as it is undisputed that, historically, "[j]urisdictional lines [between law and equity] were primarily a matter of remedy." McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U.Pa.L.Rev. 1 (1967). See also Redish, Seventh Amendment Right to Jury Trial: A Study in the Irrationality of Rational Decision Making, 70 Nw.U.L.Rev. 486, 490 (1975) ("In the majority of cases at common law, the equitable or legal nature of a suit was determined not by the substantive nature of the cause of action, but by the remedy sought"). [ Footnote 2/7 ] Page 494 U. S. 579 This is not to say that the resulting division between claims entitled to jury trials and claims not so entitled would exactly mirror the division between law and equity in England in 1791. But it is too late in the day for this Court to profess that the Seventh Amendment preserves the right to jury trial only in cases that would have been heard in the British law courts of the 18th century. See, e.g., Curtis v. Loether, 415 U.S. at 415 U. S. 193 ("Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common law forms of action recognized at that time"); Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959) (rejecting the relevance of the chancellor's historic ability to decide legal claims incidental to a case brought in equity and holding that, in mixed cases, the parties are not only entitled to a jury trial on the legal claims, but that this jury trial must precede a decision on the equitable claims -- with the attendant collateral estoppel effects); Ross v. Bernhard, 396 U. S. 531 (1970) (requiring a jury trial on the legal issues in a shareholders' Page 494 U. S. 580 derivative suit even though the procedurally equivalent suit in the 18th century would have been heard only in equity). Indeed, given this Court's repeated insistence that the nature of the remedy is always to be given more weight than the nature of the historically analogous right, it is unlikely that the simplified Seventh Amendment analysis I propose will result in different decisions than the analysis in current use. In the unusual circumstance that the nature of the remedy could be characterized equally as legal or equitable, I submit that the comparison of a contemporary statutory action unheard of in the 18th century to some ill-fitting ancient writ is too shaky a basis for the resolution of an issue as significant as the availability of a trial by jury. If, in the rare case, a tie-breaker is needed, let us break the tie in favor of jury trial. [ Footnote 2/8 ] What Blackstone described as "the glory of the English law" and "the most transcendent privilege which any subject can enjoy," 3 W. Blackstone, Commentaries *379, was crucial in the eyes of those who founded this country. The encroachment on civil jury trial by colonial administrators was a "deeply divisive issue in the years just preceding the outbreak of hostilities between the colonies and England," and all 13 States reinstituted the right after hostilities ensued. Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639, 654-655 (1973). "In fact, [t]he right to trial by jury was probably the only one universally secured by the first American constitutions.'" Id. at 655 (quoting L. Levy, Freedom of Speech and Press in Early American History -- Legacy of Suppression 281 (1963 reprint)). Fear of a Federal Government that had not guaranteed Page 494 U. S. 581 jury trial in civil cases, voiced first at the Philadelphia Convention in 1787 and regularly during the ratification debates, was the concern that precipitated the maelstrom over the need for a bill of rights in the United States Constitution. Wolfram, supra, at 657-660. This Court has long recognized the caliber of this right. In Parsons v. Bedford , 3 Pet. 433, 28 U. S. 446 (1830), Justice Story stressed: "The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy." Similarly, in Jacob v. New York City, 315 U. S. 752 , 315 U. S. 752 -753 (1942), we said that "[t]he right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence . . . [a] right so fundamental and sacred to the citizen [that it] should be jealously guarded by the courts." We can guard this right and save our courts from needless and intractable excursions into increasingly unfamiliar territory simply by retiring that prong of our Seventh Amendment test which we have already cast into a certain doubt. If we are not prepared to accord the nature of the historical analog sufficient weight for this factor to affect the outcome of our inquiry, except in the rarest of hypothetical cases, what reason do we have for insisting that federal judges proceed with this arduous inquiry? It is time we read the writing on the wall, especially as we ourselves put it there. [ Footnote 2/1 ] I therefore also do not join Part III-A of JUSTICE MARSHALL's opinion because it considers which 18th-century actions are comparable to the modern-day statutory claim brought here. [ Footnote 2/2 ] As the majority notes, ante at 494 U. S. 565 , n. 4, where Congress has delegated a particular claim to an administrative agency or specialized court of equity, a court must consider whether the delegation is a permissible one and "whether jury trials would impair the functioning of the legislative scheme." Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 , 492 U. S. 42 , n. 4 (1989). These questions are not implicated in this case, as it is undisputed that an action for breach of the duty of fair representation may be brought in an Article III court. Ante at 494 U. S. 565 , n. 4. [ Footnote 2/3 ] Even where Congress has assigned resolution of a dispute to a specialized forum, the right to a jury trial does not turn on whether the analogous 18th-century action was legal or equitable. As we explained in Granfinanciera, S. A. supra, at 492 U. S. 42 and n. 4, a court first looks to the analogous historical form of action and the nature of the relief sought, alloting greater weight to the nature of the relief. If this inquiry leads the court to conclude that the party is entitled to a jury trial, the court must consider whether the party is asserting a public right or private right -- a distinction contingent on the government's role in creating the right, see 492 U.S. at 492 U. S. 42 , n. 4 -- and whether jury trials would impair the functioning of the legislative scheme. The result of the search for a historical analog is subordinate to the nature of the relief sought and irrelevant to the subsequent inquiry. [ Footnote 2/4 ] The lower courts have not had an easier time of it. In Danuk v v. Zavatt, 289 F.2d 46 (CA2 1961), Judge Friendly, writing for the majority, admitted that his exegesis of the history of the Court of Exchequer from the 12th to the 18th century "may seem to reek unduly of the study." Id. at 48. Judge Clark, in dissent, quipped " if not of the museum,'" id. at 59, and denounced the majority for constructing its argument of "unreal and unjustified" steps beginning with the attachment to the claim of "an inapt label, namely, that of the writ of debt," which "as set forth, say, in Chitty" did not look to Judge Clark like the modern statutory tax claims at issue. Ibid. He called this a "venture in nomenclature" and berated the majority for its fast reliance on "somewhat uncertain history" as well. Ibid. [ Footnote 2/5 ] See also McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U.Pa.L.Rev. 1, 2 (1967) ("[C]omplications stem from historical shifts and overlapping jurisdiction. Moreover, the careful historian encounters difficulty in applying the fruits of his study to contemporary civil litigation involving subject matter and procedural patterns unused, and sometimes unknown, in 1791") (footnotes omitted). [ Footnote 2/6 ] Quoting James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655, 692 (1963). [ Footnote 2/7 ] There are, to be sure, some who advocate abolishing the historical test altogether. See, e.g., Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn.L.Rev. 639, 742-747 (1973). Contrary to the intimations in JUSTICE KENNEDY's dissent, see post at 494 U. S. 592 -594, I am not among them. I believe that it is imperative to retain a historical test for determining when parties have a right to jury trial for precisely the same reasons JUSTICE KENNEDY does. It is mandated by the language of the Seventh Amendment, and it is a bulwark against those who would restrict a right our forefathers held indispensable. Like JUSTICE KENNEDY, I have no doubt that courts can and do look to legal history for the answers to constitutional questions, see post at 494 U. S. 593 -594, and therefore the Seventh Amendment test I propose today obliges courts to do exactly that. Where JUSTICE KENNEDY and I differ is in our evaluations of which historical test provides the more reliable results. That three learned Justices of the Supreme Court cannot arrive at the same conclusion in this very case, on what is essentially a question of fact, does not speak well for the judicial solvency of the current test. My concern is not merely the competence of courts to delve into this peculiarly recalcitrant aspect of legal history, and certainly not, as JUSTICE KENNEDY summarizes it, the "competence of the Court to understand legal history" in general. Post at 494 U. S. 594 . My concern is that, all too often, the first prong of the current test requires courts to measure modern statutory actions against 18th-century English actions so remote in form and concept that there is no firm basis for comparison. In such cases, the result is less the discovery of a historical analog than the manufacture of a historical fiction. By contrast, the nature of relief available today corresponds more directly to the nature of relief available in Georgian England. Thus the historical test I propose, focusing on the nature of the relief sought, is not only more manageable than the current test, it is more reliably founded in history. [ Footnote 2/8 ] See also Granfinanciera, S. A., 492 U.S. at 492 U. S. 92 (BLACKMUN, J., dissenting) ("The uncertainty in the historical record should lead us, for purposes of the present inquiry, to give the constitutional right to a jury trial the benefit of the doubt"). JUSTICE STEVENS, concurring in part and concurring in the judgment. Because I believe the Court has made this case unnecessarily difficult by exaggerating the importance of finding a precise common law analogue to the duty of fair representation, I do not join Part III-A of its opinion. Ironically, by stressing the importance of identifying an exact analogue, the Court has diminished the utility of looking for any analogue. Page 494 U. S. 582 As I have suggested in the past, I believe the duty of fair representation action resembles a common law action against an attorney for malpractice more closely than it does any other form of action. See United Parcel Service, Inc. v. Mitchell, 451 U. S. 56 , 451 U. S. 74 (1981) (opinion concurring in part and dissenting in part). Of course, this action is not an exact counterpart to a malpractice suit. Indeed, by definition, no recently recognized form of action -- whether the product of express congressional enactment or of judicial interpretation -- can have a precise analog in 17th- or 18th-century English law. Were it otherwise, the form of action would not in fact be "recently recognized." But the Court surely overstates this action's similarity to an action against a trustee. Collective bargaining involves no settlor, no trust corpus, and no trust instrument executed to convey property to beneficiaries chosen at the settlor's pleasure. Nor are these distinctions reified matters of pure form. The law of trusts originated to expand the varieties of land ownership in feudal England, and evolved to protect the paternalistic beneficence of the wealthy, often between generations and always over time. See 1 W. Fratcher, Scott on Trusts § 1 (4th ed.1987); L. Friedman, A History of American Law 212, 222-223 (1973). Beneficiaries are protected from their own judgment. [ Footnote 3/1 ] The attorney-client relationship, by contrast, advances the client's interests in dealings with adverse parties. Clients are saved from their lack of skill, but their judgment is honored. Union members, as a group, accordingly have the power to hire, fire, and direct the actions of their representatives -- prerogatives anathema to the paternalistic forms of the equitable trust. [ Footnote 3/2 ] Page 494 U. S. 583 Equitable reasoning calibrated by the sophisticated judgment of the jurist, the accountant, and the chancellor is thus appropriately invoked when the impact of a trustee's conduct on the future interests of contingent remaindermen must be reviewed. However, the common sense understanding of the jury, selected to represent the community, is appropriately invoked when disputes in the factory, the warehouse, and the garage must be resolved. In most duty of fair representation cases, the issues, which require an understanding of the realities of employment relationships, are typical grist for the jury's judgment. Indeed, the law defining the union's duty of fair representation has developed in cases tried to juries. Thus, Vaca v. Sipes, 386 U. S. 171 (1967), was itself a jury trial as were, for example, Electrical Workers v. Foust, 442 U. S. 42 (1979), and Bowen v. United States Postal Service, 459 U. S. 212 (1983). As the Court correctly observed in Curtis v. Loether, 415 U. S. 189 , 415 U. S. 195 (1974), "in an ordinary civil action in the district courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law." As I had occasion to remark at an earlier proceeding in the same case, the relevant historical question is not whether a suit was "specifically recognized at common law," but whether "the nature of the substantive right asserted . . . is analogous to common law rights," and whether the relief sought is "typical of an action at law." Rogers v. Loether, 467 F.2d 1110, 1116-1117 (CA7 1972). Duty of fair representation suits are for the most part ordinary civil actions involving the stuff of contract and malpractice disputes. There is accordingly no ground for excluding these actions from the jury right. In my view, the evolution of this doctrine through suits tried to juries, the useful analogy to common law malpractice Page 494 U. S. 584 cases, and the well-recognized duty to scrutinize any proposed curtailment of the right to a jury trial "with the utmost care," ante at 494 U. S. 565 , provide a plainly sufficient basis for the Court's holding today. I therefore join its judgment and all of its opinion except for Part III-A. [ Footnote 3/1 ] "The duties of the trustee are such as the creator of the trust may choose to impose; the interests of the beneficiaries are such as he may choose to confer upon them." 1 Fratcher, Scott on Trusts § 1, p. 2. [ Footnote 3/2 ] Indeed, to make sense of the trust analogy, the majority must apparently be willing to assume that the union members, considered collectively, are both beneficiary and settlor, and that the settlor retains considerable power over the corpus, including the power to revoke the trust. That is an odd sort of trust. JUSTICE KENNEDY, with whom JUSTICE O'CONNOR and JUSTICE SCALIA join, dissenting. This case asks whether the Seventh Amendment guarantees the respondent union members a jury trial in a duty of fair representation action against their labor union. The Court is quite correct, in my view, in its formulation of the initial premises that must govern the case. Under Curtis v. Loether, 415 U. S. 189 , 415 U. S. 194 (1974), the right to a jury trial in a statutory action depends on the presence of "legal rights and remedies." To determine whether rights and remedies in a duty of fair representation action are legal in character, we must compare the action to the 18th-century cases permitted in the law courts of England, and we must examine the nature of the relief sought. See Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 , 492 U. S. 42 (1989). I agree also with those Members of the Court who find that the duty of fair representation action resembles an equitable trust action more than a suit for malpractice. See ante at 494 U. S. 568 -569. I disagree with the analytic innovation of the Court that identification of the trust action as a model for modern duty of fair representation actions is insufficient to decide the case. The Seventh Amendment requires us to determine whether the duty of fair representation action "is more similar to cases that were tried in courts of law than to suits tried in courts of equity." Tull v. United States, 481 U. S. 412 , 481 U. S. 417 (1987). Having made this decision in favor of an equitable action, our inquiry should end. Because the Court disagrees with this proposition, I dissent. Page 494 U. S. 585 I Both the Union and the respondents identify historical actions to which they find the duty of fair representation action most analogous. The Union contends that the action resembles a traditional equitable suit by a beneficiary against a trustee for failing to pursue a claim that he holds in trust. See, e.g., Caffrey v. Darby, 6 Ves. Jun. 489, 495-496, 31 Eng.Rep. 1159, 1162 (Ch. 1801); Restatement (Second) of Trusts § 205(a), and Illustration 2, pp. 458, 459 (1957) (Restatement). In other words, the Union compares itself to a trustee that, in its discretion, has decided not to press certain claims. The respondents argue that the duty of fair representation action resembles a traditional legal malpractice suit by a client against his lawyer for mishandling a claim. See, e.g., Pitt v. Yalden, 4 Burr. 2060, 98 Eng.Rep. 74 (K.B. 1767); Russell v. Palmer, 2 Wils. K.B. 325, 95 Eng.Rep. 837 (1767). They contend that the Union, when acting as their legal representative, had a duty to press their grievances. JUSTICE MARSHALL, speaking for four Members of the Court, states an important and correct reason for finding the trust model better than the malpractice analogy. He observes that the client of an attorney, unlike a union member or beneficiary, controls the significant decisions concerning his litigation, and can fire the attorney if not satisfied. See ante at 494 U. S. 568 -569. Put another way, although a lawyer acts as an agent of his client, unions and trustees do not serve as agents of their members and beneficiaries in the conventional sense of being subject to their direction and control in pursuing claims. An individual union member cannot require his union to pursue a claim, and cannot choose a different representative. See 29 U.S.C. § 159(a) (1982 ed.) (making the union elected by the employees in a bargaining unit the exclusive representative); Vaca v. Sipes, 386 U. S. 171 , 386 U. S. 177 (1967) (allowing a union to exercise discretion in fulfilling its duty of fair representation). A trustee, likewise, may exercise Page 494 U. S. 586 proper discretion in deciding whether to press claims held in trust, see Blue v. Marshall, 3 P. Wms. 381, 383-384, 24 Eng.Rep. 1110, 1111 (Ch. 1735); Restatement, supra, § 192, and in general does not act as an agent of his beneficiaries, see Taylor v. Davis, 110 U. S. 330 , 334-335 (1884) ("A trustee is not an agent. An agent represents and acts for his principal. . . . [A trustee] has no principal"); 1 A. Scott, Law of Trusts § 8, pp. 74-79 (3d ed.1967) (distinguishing trustees from agents). Further considerations fortify the conclusion that the trust analogy is the controlling one here. A union's duty of fair representation accords with a trustee's duty of impartiality. The duty of fair representation requires a union "to make an honest effort to serve the interests of all of [its] members, without hostility to any." Ford Motor Co. v. Huffman, 345 U. S. 330 , 345 U. S. 337 (1953). This standard may require a union to act for the benefit of employees who, as in this case, have antithetical interests. See Cox, The Legal Nature of Collective Bargaining Agreements, 57 Mich.L.Rev. 1, 21 (1958). Trust law, in a similar manner, long has required trustees to serve the interests of all beneficiaries with impartiality. See Stuart v. Stuart, 3 Beav. 430, 431, 49 Eng.Rep. 169, 169-170 (1841); Restatement, supra, § 183 ("When there are two or more beneficiaries of a trust, the trustee is under a duty to deal impartially with them"); 2 Scott, supra, § 183, pp. 1471-1472, and n. 2. A lawyer's duty of loyalty is cast in different terms. Although the union is charged with the responsibility of reconciling the positions of its members, the lawyer's duty of loyalty long has precluded the representation of conflicting interests. See Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me. 1824) (Story, J.); H. Drinker, Legal Ethics 103 (1953) (describing the ancient history of the prohibition on simultaneous representation). A lawyer, at least absent knowing waiver by the parties, could not represent both the respondents and the senior laid-off workers as the Page 494 U. S. 587 Union has done in this case. Cf. ABA Model Rules of Professional Conduct 1.7(b) (1984); ABA Model Code of Professional Responsibility DR 5-l05(C) (1980). The relief available in a duty of fair representation action also makes the trust action the better model. To remedy a breach of the duty of fair representation, a court must issue an award "fashioned to make the injured employee whole." Electrical Workers v. Foust, 442 U. S. 42 , 442 U. S. 49 (1979); see Steele v. Louisville & Nashville R. Co., 323 U. S. 192 , 323 U. S. 206 -207 (1944); Vaca v. Sipes, supra, at 386 U. S. 187 . The court may order an injunction compelling the union, if it is still able, to pursue the employee's claim, and may require monetary compensation, but it cannot award exemplary or punitive damages. See Foust, supra, at 442 U. S. 52 . This relief parallels the remedies prevailing in the courts of equity in actions against trustees for failing to pursue claims. See, e.g., Caffrey v. Darby, supra, at 497, 31 Eng.Rep. at 1163 (ordering the trustee to make a beneficiary whole for failing to make a timely claims); see also Restatement, supra, § 205, and Comment a; G. Bogert & G. Bogert, Law of Trusts and Trustees § 862, p. 40, n. 10 (rev.2d ed.1982). These remedies differ somewhat from those available in attorney malpractice actions. Because legal malpractice was a common law claim, clients sued their attorneys for breach of professional obligations in the law courts. See R. Mallen & V. Levit, Legal Malpractice §§ 4 and 5, pp. 14-18 (2d ed.1981). No one maintains that clients could obtain from these courts the injunctive relief offered in duty of fair representation actions. The evidence suggests that compensatory damages in malpractice cases resembled the monetary relief now awarded in duty of fair representation actions. See, e.g., Pitt v. Yalden, supra, at 2062, 98 Eng.Rep. at 75-76 (opinion of Yates, J.) (discussing the measure of damages). Yet, as a historical matter, juries did have the authority to award exemplary damages in at least some tort actions. See Browning-Ferris Industries v. Kelco Disposal, Inc. , 492 Page 494 U. S. 588 U.S. 257, 492 U. S. 274 , and n. 20 (1989); Curtis v. Loether, 415 U.S. at 415 U. S. 196 . Although the parties have not cited any punitive damage award in an attorney malpractice action prior to 1791, courts have awarded such damages since the 19th century. See Mallen & Levit, supra, § 315, pp. 365-367; Wade, The Attorney's Liability for Negligence, 12 Vand.L.Rev. 755, 772 (1959). For all these reasons, the suit here resembles a trust action, not a legal malpractice action. By this I do not imply that a union acts as a trustee in all instances or that trust law, as a general matter, should inform any particular aspects of federal labor law. Obvious differences between a union and a trustee will exist in other contexts. I would conclude only that, under the analysis directed by our precedents, the respondents may not insist on a jury trial. When all rights and remedies are considered, their action resembles a suit heard by the courts of equity more than a case heard by the courts of law. See Tull, 481 U.S. at 481 U. S. 417 . From this alone it follows that the respondents have no jury trial right on their duty of fair representation claims against the Union. II The Court relies on two lines of precedents to overcome the conclusion that the trust action should serve as the controlling model. The first consists of cases in which the Court has considered simplifications in litigation resulting from modern procedural reforms in the federal courts. JUSTICE MARSHALL asserts that these cases show that the Court must look at the character of individual issues, rather than claims as a whole. See ante at 494 U. S. 569 . The second line addresses the significance of the remedy in determining the equitable or legal nature of an action for the purpose of choosing the most appropriate analogy. Under these cases, the Court decides that the respondents have a right to a jury because they seek money damages. See ante at 494 U. S. 570 -573. These authorities do not support the Court's holding. Page 494 U. S. 589 A In three cases we have found a right to trial by jury where there are legal claims that, for procedural reasons, a plaintiff could have or must have raised in the courts of equity before the systems merged. In Beacon Theatres, Inc. v. Westover, 359 U. S. 500 (1959), Fox, a potential defendant threatened with legal antitrust claims, brought an action for declaratory and injunctive relief against Beacon, the likely plaintiff. Because only the courts of equity had offered such relief prior to the merger of the two court systems, Fox had thought that it could deprive Beacon of a jury trial. Beacon, however, raised the antitrust issues as counterclaims and sought a jury. We ruled that, because Beacon would have had a right to a jury trial on its antitrust claims, Fox could not deprive it of a jury merely by taking advantage of modern declaratory procedures to sue first. The result was consistent with the spirit of the Federal Rules of Civil Procedure, which allow liberal joinder of legal and equitable actions, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202 (1982 ed.), which preserves the right to jury trial to both parties. See 359 U.S. at 359 U. S. 509 -510. In Dairy Queen, Inc. v. Wood, 369 U. S. 469 (1962), we held, in a similar manner, that a plaintiff, by asking in his complaint for an equitable accounting for trademark infringement, could not deprive the defendant of a jury trial on contract claims subsumed within the accounting. Although a court of equity would have heard the contract claims as part of the accounting suit, we found them severable under modern procedure. See id. at 369 U. S. 477 -479. In Ross v. Bernhard, 396 U. S. 531 (1970), a shareholder-plaintiff demanded a jury trial in a derivative action asserting a legal claim on behalf of his corporation. The defendant opposed a jury trial. In deciding the case, we recognized that only the courts of equity had procedural devices allowing shareholders to raise a corporation's claims. We nonetheless Page 494 U. S. 590 again ruled that modern procedure allowed trial of the legal claim to a jury. See id. at 396 U. S. 542 . These three cases responded to the difficulties created by a merged court system. See McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U.Pa.L.Rev. 1 (1967). They stand for the proposition that, because distinct courts of equity no longer exist, the possibility or necessity of using former equitable procedures to press a legal claim no longer will determine the right to a jury. JUSTICE MARSHALL reads these cases to require a jury trial whenever a cause of action contains legal issues and would require a jury trial in this case because the respondents must prove a breach of the collective bargaining agreement as one element of their claim. See ante at 494 U. S. 569 -570. I disagree. The respondents, as shown above, are asserting an equitable claim. Having reached this conclusion, the Beacon, Dairy Queen, and Ross cases are inapplicable. Although we have divided self-standing legal claims from equitable declaratory, accounting, and derivative procedures, we have never parsed legal elements out of equitable claims absent specific procedural justifications. Actions which, beyond all question, are equitable in nature may involve some predicate inquiry that would be submitted to a jury in other contexts. For example, just as the plaintiff in a duty of fair representation action against his union must show breach of the collective bargaining agreement as an initial matter, in an action against a trustee for failing to pursue a claim, the beneficiary must show that the claim had some merit. See 3 A. Scott, Law of Trusts § 192, pp. 1589-1590, and n. 6 (3d ed.1967). But the question of the claim's validity, even if the claim raises contract issues, would not bring the jury right into play in a suit against a trustee. Our own writing confirms the consistency of this view with respect to the action before us. We have not deemed the elements of a duty of fair representation action to be independent of each other. Proving breach of the collective Page 494 U. S. 591 bargaining agreement is but a preliminary and indispensable step to obtaining relief in a duty of fair representation action. We have characterized the breach of contract and duty issues as "inextricably interdependent," and have said that, "[t]o prevail against either the company or the Union, . . . [employee-plaintiffs] must not only show that their discharge was contrary to the contract, but must also carry the burden of demonstrating breach of duty by the Union." DelCostello v. Teamsters, 462 U. S. 151 , 462 U. S. 164 -165 (1983) (internal quotation marks omitted). The absence of distinct equitable courts provides no procedural reason for wresting one of these elements from the other. The Court also rules that, despite the appropriateness of the trust analogy as a whole, the respondents have a right to a jury trial because they seek money damages. See ante at 494 U. S. 570 -573. The nature of the remedy remains a factor of considerable importance in determining whether a statutory action had a legal or equitable analog in 1791, but we have not adopted a rule that a statutory action permitting damages is, by definition, more analogous to a legal action than to any equitable suit. In each case, we look to the remedy to determine whether, taken with other factors, it places an action within the definition of "Suits at common law." In Curtis, 415 U.S. at 415 U. S. 195 -196, for example, we ruled that the availability of actual and punitive damages made a statutory antidiscrimination action resemble a legal tort action more than any equitable action. We made explicit that we did not "go so far as to say that any award of monetary relief must necessarily be legal' relief." Id. at 415 U. S. 196 . Although monetary damages might cause some statutory actions to resemble tort suits, the presence of monetary damages in this duty of fair representation action does not make it more analogous to a legal action than to an equitable action. Indeed, as shown above, the injunctive and monetary remedies Page 494 U. S. 592 available make the duty of fair representation suit less analogous to a malpractice action than to a suit against a trustee. In Tull, 481 U.S. at 481 U. S. 422 , the availability of damages again played a critical role in determining the right to a jury trial. In an environmental suit by the Government for injunctive relief and a civil penalty, both an equitable public nuisance action and a legal action in debt seemed appropriate historical models. We decided between them by noting that only the courts of law could award civil penalties. See id. at 481 U. S. 422 -425. In the present case, however, one cannot characterize both the trust analogy and the legal malpractice comparisons as appropriate; the considerations discussed above, including the remedy available, all make the trust model superior. As we stated in Tull, "[o]ur search is for a single historical analog, taking into consideration the nature of the cause of action and the remedy as two important factors." Id. at 481 U. S. 422 , n. 6. The trust action alone satisfies this standard. In Granfinanciera, S. A. v. Nordberg, 492 U. S. 33 (1989), we again found the presence of monetary relief critical in determining the nature of a statutory action as a whole. We held that, despite some evidence that both the courts of law and equity had jurisdiction over fraudulent conveyances, only a court of law could entertain an action to recover an alleged fraudulent transfer of a determinate sum of money. See id. at 492 U. S. 43 -47. As in Curtis and Tull, however, the particular importance of monetary damages in Granfinanciera does not carry forward into this case. The courts of equity could and did award the kind of damages sought by the respondents here. The respondents' mere request for backpay in no way entitles them to a jury under the Seventh Amendment. The Court must adhere to the historical test in determining the right to a jury, because the language of the Constitution Page 494 U. S. 593 requires it. The Seventh Amendment "preserves" the right to jury trial in civil cases. We cannot preserve a right existing in 1791 unless we look to history to identify it. Our precedents are in full agreement with this reasoning, and insist on adherence to the historical test. No alternatives short of rewriting the Constitution exist. See F. James, Civil Procedure § 8.5, p. 352 (1965) ("For good or evil, both the constitutio[n] and the charters of the merged procedure embody the policy judgment, quite deliberately made, to leave the extent of jury trial about where history had come to place it"); Shapiro & Coquillette, The Fetish of Jury Trial in Civil Cases: A Comment on Rachal v. Hill, 85 Harv.L.Rev. 442, 449 (1971) ("Even the most ardent critic of any historical test would concede that matters that would have fallen entirely within the jurisdiction of a court of equity or admiralty in 1791 do not come within the definition of a suit at common law' under the seventh amendment"). If we abandon the plain language of the Constitution to expand the jury right, we may expect Courts with opposing views to curtail it in the future. It is true that a historical inquiry into the distinction between law and equity may require us to enter into a domain becoming less familiar with time. Two centuries have passed since the Seventh Amendment's ratification, and the incompleteness of our historical records makes it difficult to know the nature of certain actions in 1791. The historical test, nonetheless, has received more criticism than it deserves. Although our application of the analysis in some cases may seem biased in favor of jury trials, the test has not become a nullity. We do not require juries in all statutory actions. See, e.g., Lehman v. Nakshian, 453 U. S. 156 , 453 U. S. 162 , n. 9 (1981) (no jury trial right in suits against the United States); Katchen v. Landy, 382 U. S. 323 , 382 U. S. 337 -340 (1966) (no jury trial right on certain bankruptcy claims); Luria v. United States, 231 U. S. 9 , 231 U. S. 27 -28 (1913) (no jury trial right in action to cancel naturalization). The historical test, in fact, resolves most cases without difficulty. See C. Wright, Law Page 494 U. S. 594 of Federal Courts § 92, p. 609 (4th ed.1983) ("[T]he vast and controversial literature that has developed as to the scope of the jury right is, fortunately, not in proportion to the practical importance of the problem in the actual working of the courts"). I would hesitate to abandon or curtail the historical test out of concern for the competence of the Court to understand legal history. We do look to history for the answers to constitutional questions. See, e.g., Fay v. Noia, 372 U. S. 391 , 372 U. S. 399 -415 (1963) (opinion of BRENNAN, J.); Atascadero State Hospital v. Scanlon, 473 U. S. 234 , 473 U. S. 260 -302 (1985) (BRENNAN, J., dissenting). Although opinions will differ on what this history shows, the approach has no less validity in the Seventh Amendment context than elsewhere. If Congress has not provided for a jury trial, we are confined to the Seventh Amendment to determine whether one is required. Our own views respecting the wisdom of using a jury should be put aside. Like JUSTICE BRENNAN, I admire the jury process. Other judges have taken the opposite view. See, e.g., J. Frank, Law and the Modern Mind 170-185 (1931). But the judgment of our own times is not always preferable to the lessons of history. Our whole constitutional experience teaches that history must inform the judicial inquiry. Our obligation to the Constitution and its Bill of Rights, no less than the compact we have with the generation that wrote them for us, do not permit us to disregard provisions that some may think to be mere matters of historical form. IV Because of the employer's bankruptcy, the respondents are proceeding only against the Union in the suit before us. In a typical duty of fair representation action, however, union members may sue both their union and their employer. See Vaca v. Sipes, 386 U.S. at 386 U. S. 186 . The Union argues that a duty of fair representation action against an employer also would have an equitable character because it resembles another Page 494 U. S. 595 trust action entertained in the courts of equity. It contends that, if a trustee fails to pursue a claim according to his duty, the beneficiary may join the trustee and the third party in one action and assert in his own name both the claim of breach of fiduciary duty and the claim against the third party. See Restatement § 282(1), p. 44 (1957); 4 A. Scott, Law of Trusts § 282.1, pp. 2338-2340 (3d ed.1967); Bowen v. United States Postal Service, 459 U. S. 212 , 459 U. S. 243 (1983) (WHITE, J., concurring in judgment in part and dissenting in part). In this case, we do not have to determine the correctness of this analogy, nor must we decide whether Beacon, Dairy Queen, or Ross would require a jury trial in a suit against an employer. I would deny a jury trial to the respondents here, but would leave these other questions for a later time. Because the Court has reached a different result, I dissent.

In Chauffeurs, Teamsters and Helpers Local No. 391 v. Terry, the Supreme Court ruled that employees seeking monetary damages for lost wages and health benefits due to a union's breach of its duty of fair representation are entitled to a jury trial under the Seventh Amendment. The Court affirmed the lower court's decision, holding that the remedy sought by the employees was traditionally legal relief and had none of the attributes of equitable relief.

Lawsuits & Legal Procedures

Temple v. Synthes Corp., Ltd.

https://supreme.justia.com/cases/federal/us/498/5/

U.S. Supreme Court Temple v. Synthes Corp., Ltd., 498 U.S. 5 (1990) Temple v. Synthes Corporation, Ltd. No. 90-295 Decided Nov. 5, 1990 498 U.S. 5 ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PER CURIAM. Petitioner Temple, a Mississippi resident, underwent surgery in October, 1986, in which a "plate and screw device" was implanted in his lower spine. The device was manufactured by respondent Synthes, Ltd. (U.S.A.) (Synthes), a Pennsylvania corporation. Dr. S. Henry LaRocca performed the surgery at St. Charles General Hospital in New Orleans, Page 498 U. S. 6 Louisiana. Following surgery, the device's screws broke off inside Temple's back. Temple filed suit against Synthes in the United States District Court for the Eastern District of Louisiana. The suit, which rested on diversity jurisdiction, alleged defective design and manufacture of the device. At the same time, Temple filed a state administrative proceeding against Dr. LaRocca and the hospital for malpractice and negligence. At the conclusion of the administrative proceeding, Temple filed suit against the doctor and the hospital in Louisiana state court. Synthes did not attempt to bring the doctor and the hospital into the federal action by means of a third-party complaint, as provided in Federal Rule of Civil Procedure 14(a). Instead, Synthes filed a motion to dismiss Temple's federal suit for failure to join necessary parties pursuant to Federal Rule of Civil Procedure 19. Following a hearing, the District Court ordered Temple to join the doctor and the hospital as defendants within twenty days or risk dismissal of the lawsuit. According to the court, the most significant reason for requiring joinder was the interest of judicial economy. App. C to Pet. for Cert. A-12. The court relied on this Court's decision in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 (1968), wherein we recognized that one focus of Rule 19 is "the interest of the courts and the public in complete, consistent, and efficient settlement of controversies." Id. at 390 U. S. 111 . When Temple failed to join the doctor and the hospital, the court dismissed the suit with prejudice. Temple appealed, and the United States Court of Appeals for the Fifth Circuit affirmed. 898 F.2d 152 (1990) (judgment order). The court deemed it "obviously prejudicial to the defendants to have the separate litigations being carried on," because Synthes' defense might be that the plate was not defective, but that the doctor and the hospital were negligent, while the doctor and hospital, on the other hand, might claim that they were not negligent, but that the plate was defective. Page 498 U. S. 7 App. A to Pet. for Cert. A-3. The Court of Appeals found that the claims overlapped and that the District Court therefore had not abused its discretion in ordering joinder under Rule 19. A petition for rehearing was denied. In his petition for certiorari to this Court, Temple contends that it was error to label joint tortfeasors as indispensable parties under Rule 19(b) and to dismiss the lawsuit with prejudice for failure to join those parties. We agree. Synthes does not deny that it, the doctor, and the hospital are potential joint tortfeasors. It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. See Lawlor v. National Screen Service Corp., 349 U. S. 322 , 349 U. S. 329 -330 (1955); Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111 , 225 U. S. 132 (1912). See also Nottingham v. General American Communications Corp., 811 F.2d 873, 880 (CA5) (per curiam ), cert. denied, 484 U.S. 854 (1987). Nothing in the 1966 revision of Rule 19 changed that principle. See Provident Bank, supra, 390 U.S. at 390 U. S. 116 -117, n. 12. The Advisory Committee Notes to Rule 19(a) explicitly state that "a tortfeasor with the usual 'joint-and-several' liability is merely a permissive party to an action against another with like liability." Advisory Committee's Notes on Fed.Rule Civ. Proc. 19, 28 U.S.C.App., p. 594, at 595. There is nothing in Louisiana tort law to the contrary. See Mullin v. Skains, 252 La. 1009, 1014, 215 So. 2d 643 , 645 (1968); La.Civ.Code Ann., Arts. 1794, 1795 (West 1987). The opinion in Provident Bank, supra, does speak of the public interest in limiting multiple litigation, but that case is not controlling here. There, the estate of a tort victim brought a declaratory judgment action against an insurance company. We assumed that the policyholder was a person "who, under § (a), should be joined if feasible.'" 390 U.S. at 390 U. S. 108 , and went on to discuss the appropriate analysis under Rule 19(b), because the policyholder could not be joined without destroying diversity. Id. at 109-116. After examining the factors set forth in Rule 19(b), we determined that the Page 498 U. S. 8 action could proceed without the policyholder; he therefore was not an indispensable party whose absence required dismissal of the suit. Id. at 390 U. S. 116 , 390 U. S. 119 . Here, no inquiry under Rule 19(b) is necessary, because the threshold requirements of Rule 19(a) have not been satisfied. As potential joint tortfeasors with Synthes, Dr. LaRocca and the hospital were merely permissive parties. The Court of Appeals erred by failing to hold that the District Court abused its discretion in ordering them joined as defendants and in dismissing the action when Temple failed to comply with the court's order. For these reasons, we grant the petition for certiorari, reverse the judgment of the Court of Appeals for the Fifth Circuit, and remand for further proceedings consistent with this opinion. It is so ordered.

In Temple v. Synthes Corp., Ltd., the U.S. Supreme Court ruled that potential joint tortfeasors are merely permissive parties in a lawsuit and are not indispensable under Federal Rule of Civil Procedure 19. The Court reversed the lower court's decision, which had ordered the joinder of a doctor and hospital as defendants in a product liability suit against a medical device manufacturer, and dismissed the case when the plaintiff failed to comply. The Supreme Court held that Rule 19(a)'s threshold requirements were not met, as the doctor and hospital were potential joint tortfeasors and thus, permissive parties. The case was remanded for further proceedings.

Lawsuits & Legal Procedures

Burnham v. Superior Court

https://supreme.justia.com/cases/federal/us/495/604/

U.S. Supreme Court Burnham v. Superior Court, 495 U.S. 604 (1990) Burnham v. Superior Court of California, County of Marin No. 89-44 Argued Feb. 28, 1990 Decided May 29, 1990 495 U.S. 604 CERTIORARI TO THE COURT OF APPEALS OF CALIFORNIA, FIRST APPELLATE DISTRICT Syllabus During a trip to California to conduct business and visit his children, petitioner Burnham, a New Jersey resident, was served with a California court summons and his estranged wife's divorce petition. The California Superior Court denied his motion to quash the service of process, and the State Court of Appeal denied mandamus relief, rejecting his contention that the Due Process Clause of the Fourteenth Amendment prohibited California courts from asserting jurisdiction over him because he lacked "minimum contacts" with the State. The latter court held it to be a valid predicate for in personam jurisdiction that he was personally served while present in the forum State. Held: The judgment is affirmed. Justice SCALIA, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice KENNEDY, concluded in Parts II-A, II-B, and II-C that the Due Process Clause does not deny a State's courts jurisdiction over a nonresident, who was personally served with process while temporarily in that State, in a suit unrelated to his activities in the State. Pp. 495 U. S. 2 -12. (a) To determine whether the assertion of personal jurisdiction is consistent with due process, this Court has long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. See Pennoyer v. Neff, 95 U. S. 714 , 95 U. S. 722 . The classic expression of that criterion appeared in International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 , which held that a state court's assertion of personal jurisdiction must not violate "traditional notions of fair play and substantial justice." Pp. 495 U. S. 608 -610. (b) A formidable body of precedent, stretching from common law antecedents through decisions at or near the crucial time of the Fourteenth Amendment's adoption to many recent cases, reflects the near-unanimous view that service of process confers state court jurisdiction over a physically present nonresident, regardless of whether he was only briefly in the State or whether the cause of action is related to his activities there. Pp. 495 U. S. 610 -616. (c) Burnham's contention that, in the absence of "continuous and systematic" contacts with the forum, a nonresident defendant can be subjected Page 495 U. S. 605 to judgment only as to matters that arise out of or relate to his contacts with the forum misreads this Court's decisions applying that standard. The standard was developed by analogy to the traditional "physical presence" requirement as a means of evaluating novel state procedures designed to do away with that requirement with respect to in personam jurisdiction over absent defendants. Nothing in International Shoe or the subsequent cases supports the proposition that a defendant's presence in the forum is not only unnecessary to validate such novel assertions of jurisdiction, but is itself no longer sufficient to establish jurisdiction. Pp. 495 U. S. 616 -619. Justice SCALIA, joined by THE CHIEF JUSTICE and Justice KENNEDY, concluded in Parts II-D and III that: 1. Shaffer v. Heitner, 433 U. S. 186 -- which applied the jurisdictional rules developed under International Shoe to invalidate a Delaware court's assertion of quasi in rem jurisdiction over absent defendants whose sole contact with the State (ownership of property) was unrelated to the suit -- does not support Burnham's position. When read in context, Shaffer's statement that "all assertions of state court jurisdiction must be evaluated according to the [ International Shoe ] standards," id. at 433 U. S. 212 , means only that quasi in rem jurisdiction, like other forms of in personam jurisdiction over absent defendants, must satisfy the litigation-relatedness requirement. Nothing in Shaffer compels the conclusion that physically present defendants must be treated identically to absent ones or expands the "minimum contacts" requirement beyond situations involving the latter persons. Pp. 495 U. S. 619 -622. 2. The proposal of Justice BRENNAN's concurrence to apply "contemporary notions of due process" to the constitutional analysis constitutes an outright break with the International Shoe standard, and, without authority, seeks to measure state court jurisdiction not only against traditional doctrines and current practice, but also against each Justice's subjective assessment of what is fair and just. In effect, the proposed standard amounts to a "totality of the circumstances" test, guaranteeing uncertainty and unnecessary litigation over the preliminary issue of the forum's competence. Pp. 495 U. S. 622 -627. Justice WHITE concluded that the traditionally accepted rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum State cannot be invalidated absent a showing that, as a general proposition, it is so arbitrary and lacking in common sense in so many instances that it should be held violative of due process in every case. Until such a difficult showing is made, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained, at least in the usual instance where presence in the forum State is intentional. P. 495 U. S. 628 . Page 495 U. S. 606 Justice BRENNAN, joined by Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR, although agreeing that the traditional "transient jurisdiction" rule is generally valid, concluded that historical pedigree, although important, is not the only factor to be taken into account in establishing whether a jurisdictional rule satisfies due process, and that an independent inquiry into the fairness of the prevailing in-State service rule must be undertaken. Pp. 495 U. S. 628 -640. (a) Reliance solely on historical precedent is foreclosed by International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 , and Shaffer v. Heitner, 433 U. S. 186 , 433 U. S. 212 , which demonstrate that all rules of state court jurisdiction, even ancient ones such as transient jurisdiction, must satisfy contemporary notions of due process. While Shaffer's holding may have been limited to quasi in rem jurisdiction, its mode of analysis -- which discarded an "ancient form without substantial modern justification" -- was not. Minimum contacts analysis represents a far more sensible construct for the exercise of state court jurisdiction. Pp. 495 U. S. 629 -633. (b) The transient jurisdiction rule will generally satisfy due process requirements. Tradition, although alone not dispositive, is relevant, because the fact that American courts have announced the rule since the latter part of the 19th century provides a defendant voluntarily present in a particular State today with clear notice that he is subject to suit in that forum. Thus, the rule is consistent with reasonable expectations, and is entitled to a strong presumption that it comports with due process. Moreover, by visiting the forum State, a transient defendant actually avails himself of significant benefits provided by the State: police, fire, and emergency services, the freedom to travel its roads and waterways, the enjoyment of the fruits of its economy, the protection of its laws, and the right of access to its courts. Without transient jurisdiction, the latter right would create an asymmetry, since a transient would have the full benefit of the power of the State's courts as a plaintiff while retaining immunity from their authority as a defendant. Furthermore, the potential burdens on a transient defendant are slight in light of modern transportation and communications methods, and any burdens that do arise can be ameliorated by a variety of procedural devices. Pp. 495 U. S. 633 -640. Justice STEVENS concluded that the historical evidence, a persisting consensus, considerations of fairness, and common sense all indicated that the judgment should be affirmed. P. 495 U. S. 640 . SCALIA, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and KENNEDY, J., joined, and in which Page 495 U. S. 607 WHITE, J., joined as to Parts I, II-A, II-B, and II-C. WHITE, J., filed an opinion concurring in part and concurring in the judgment, post, p. 495 U. S. 628 . BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, post, p. 495 U. S. 628 . STEVENS, J., filed an opinion concurring in the judgment, post, p. 495 U. S. 640 . Justice SCALIA announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join, and in which Justice WHITE joins with respect to Parts I, II-A, II-B, and II-C. The question presented is whether the Due Process Clause of the Fourteenth Amendment denies California courts jurisdiction over a nonresident who was personally served with process while temporarily in that State in a suit unrelated to his activities in the State. I Petitioner Dennis Burnham married Francie Burnham in 1976, in West Virginia. In 1977, the couple moved to New Jersey, where their two children were born. In July, 1987, the Burnhams decided to separate. They agreed that Mrs. Burnham, who intended to move to California, would take custody of the children. Shortly before Mrs. Burnham departed for California that same month, she and petitioner agreed that she would file for divorce on grounds of "irreconcilable differences." In October 1987, petitioner filed for divorce in New Jersey state court on grounds of "desertion." Petitioner did not, however, obtain an issuance of summons against his wife, and did not attempt to serve her with process. Mrs. Burnham, after unsuccessfully demanding that petitioner adhere to Page 495 U. S. 608 their prior agreement to submit to an "irreconcilable differences" divorce, brought suit for divorce in California state court in early January, 1988. In late January, petitioner visited southern California on business, after which he went north to visit his children in the San Francisco Bay area, where his wife resided. He took the older child to San Francisco for the weekend. Upon returning the child to Mrs. Burnham's home on January 24, 1988, petitioner was served with a California court summons and a copy of Mrs. Burnham's divorce petition. He then returned to New Jersey. Later that year, petitioner made a special appearance in the California Superior Court, moving to quash the service of process on the ground that the court lacked personal jurisdiction over him because his only contacts with California were a few short visits to the State for the purposes of conducting business and visiting his children. The Superior Court denied the motion, and the California Court of Appeal denied mandamus relief, rejecting petitioner's contention that the Due Process Clause prohibited California courts from asserting jurisdiction over him because he lacked "minimum contacts" with the State. The court held it to be "a valid jurisdictional predicate for in personam jurisdiction" that the "defendant [was] present in the forum state and personally served with process." App. to Pet. for Cert. 5. We granted certiorari. 493 U.S. 807 (1989). II A The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y.B.Mich. 22 Edw. 4, f. 30, pl. 11, 145 Eng.Rep. 97 (1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Co.Rep. 68b, 77 Eng.Rep. 1027, 1041 (K.B. 1612). Traditionally that proposition was embodied in the phrase coram non judice, Page 495 U. S. 609 "before a person not a judge" -- meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment. American courts invalidated, or denied recognition to, judgments that violated this common law principle long before the Fourteenth Amendment was adopted. See, e.g., Grumon v. Raymond, 1 Conn. 40 (1814); Picquet v. Swan, 19 F. Cas. 609 (No. 11, 134) (CC Mass.1828); Dunn v. Dunn, 4 Paige 425 (N.Y.Ch. 1834); Evans v. Instine, 7 Ohio 273 (1835); Steel v. Smith, 7 Watts & Serg. 447 (Pa.1844); Boswell's Lessee v. Otis, 50 U. S. 336 , 51 U. S. 350 (1850). In Pennoyer v. Neff, 95 U. S. 714 , 95 U. S. 732 (1878), we announced that the judgment of a court lacking personal jurisdiction violated the Due Process Clause of the Fourteenth Amendment as well. To determine whether the assertion of personal jurisdiction is consistent with due process, we have long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. That criterion was first announced in Pennoyer v. Neff, supra, in which we stated that due process "mean[s] a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights," id. at 733, including the "well-established principles of public law respecting the jurisdiction of an independent State over persons and property," id. at 95 U. S. 722 . In what has become the classic expression of the criterion, we said in International Shoe Co. v. Washington, 326 U. S. 310 (1945), that a State court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate " traditional notions of fair play and substantial justice.'" Id. at 326 U. S. 316 , quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). See also Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S. 694 , 456 U. S. 703 (1982). Since International Shoe, we have only been called upon to decide whether these "traditional notions" permit Page 495 U. S. 610 States to exercise jurisdiction over absent defendants in a manner that deviates from the rules of jurisdiction applied in the 19th century. We have held such deviations permissible, but only with respect to suits arising out of the absent defendant's contacts with the State. [ Footnote 1 ] See, e.g., Helicopteros Nacionales de Colombia v. Hall, 466 U. S. 408 , 466 U. S. 414 (1984). The question we must decide today is whether due process requires a similar connection between the litigation and the defendant's contacts with the State in cases where the defendant is physically present in the State at the time process is served upon him. B Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that, once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter Page 495 U. S. 611 judgment against him, no matter how fleeting his visit. See, e.g., Potter v. Allin, 2 Root 63, 67 (Conn.1793); Barrell v. Benjamin, 15 Mass. 354 (1819). That view had antecedents in English common law practice, which sometimes allowed "transitory" actions, arising out of events outside the country, to be maintained against seemingly nonresident defendants who were present in England. See, e.g., Mostyn v. Fabrigas, 98 Eng.Rep. 1021 (K.B.1774); Cartwright v. Pettus, 22 Eng.Rep. 916 (Ch. 1675). Justice Story believed the principle, which he traced to Roman origins, to be firmly grounded in English tradition: "[B]y the common law[,] personal actions, being transitory, may be brought in any place, where the party defendant may be found," for "every nation may . . . rightfully exercise jurisdiction over all persons within its domains." J. Story, Commentaries on the Conflict of Laws §§ 554, 543 (1846). See also §§ 530-538; Picquet v. Swan, supra, at 611-612 (Story, J.) ("Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced, on such process, against him"). Recent scholarship has suggested that English tradition was not as clear as Story thought, see Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct.Rev. 241, 253-260; Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289 (1956). Accurate or not, however, judging by the evidence of contemporaneous or near-contemporaneous decisions, one must conclude that Story's understanding was shared by American courts at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted. The following passage in a decision of the Supreme Court of Georgia, in an action on a debt having no apparent relation to the defendant's temporary presence in the State, is representative: "Can a citizen of Alabama be sued in this State, as he passes through it? " Page 495 U. S. 612 "Undoubtedly he can. The second of the axioms of Huberus, as translated by Story, is:" "that all persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof." "(Stor.Conf.Laws, § 29, Note 3.)" ". . . [A] citizen of another State, who is merely passing through this, resides, as he passes, wherever he is. Let him be sued, therefore, wherever he may, he will be sued where he resides." "The plaintiff in error, although a citizen of Alabama, was passing through the County of Troup, in this State, and whilst doing so, he was sued in Troup. He was liable to be sued in this State, and in Troup County of this State." Murphy v. J.S. Winter & Co., 18 Ga. 690, 691-692 (1855). See also, e.g., Peabody v. Hamilton, 106 Mass. 217, 220 (1870) (relying on Story for the same principle); Alley v. Caspari, 80 Me. 234, 236-237, 14 A. 12, 13 (1888) (same). Decisions in the courts of many States in the 19th and early 20th centuries held that personal service upon a physically present defendant sufficed to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there. See, e.g., Vinal v. Core, 18 W.Va. 1, 20 (1881); Roberts v. Dunsmuir, 75 Cal. 203, 204, 16 P. 782 (1888); De Poret v. Gusman, 30 La.Ann., pt. 2, pp. 930, 932 (1878); Smith v. Gibson, 83 Ala. 284, 285, 3 So. 321 (1887); Savin v. Bond, 57 Md. 228, 233 (1881); Hart v. Granger, 1 Conn. 154, 165 (1814); Mussina v. Belden, 6 Abb.Pr. 165, 176 (N.Y.1858); Darrah v. Watson, 36 Iowa 116, 120-121(1872); Baisley v. Baisley, 113 Mo. 544, 549-550, 21 S.W. 29, 30 (1893); Bowman v. Flint, 37 Tex.Civ.App. 28, 29, 82 S.W. 1049, 1050 (1904). See also Reed v. Hollister, 106 Ore. 407, 412-414, 212 P. 367, 369-370 (1923); Hagen v. Viney, 124 Fla. 747, 751, 169 So. 391, 392-393 (1936); Vaughn Page 495 U. S. 613 v. Love, 324 Pa. 276, 280, 188 A. 299, 302 (1936). [ Footnote 2 ] Although research has not revealed a case deciding the issue in every State's courts, that appears to be because the issue was so well settled that it went unlitigated. See R. Leflar, American Conflicts Law § 24, p. 43 (1968) ("The law is so clear on this point that there are few decisions on it"); Note, Developments in the Law -- State Court Jurisdiction, 73 Harv.L.Rev. 909, 937-938 (1960). Opinions from the courts of other States announced the rule in dictum. See, e.g., Reed v. Browning, 130 Ind. 575, 577, 30 N.E. 704, 705 (1892); Nathanson v. Spitz, 19 R.I. 70, 72, 31 A. 690, 691 (1895); McLeod v. Connecticut & P.R. Co., 58 Vt. 727, 733-734, 6 A. 648, 649, 650 (1886); New Orleans J & G.N.R. Co. v. Wallace, 50 Miss. 244, 248-249 (1874); Wagner v. Hallack, 3 Colo. 176, 182-183 (1877); Downer v. Shaw, 22 N.H. 277, 281 (1851); Moore v. Smith, 41 Ky. 340, 341 (1842); Adair County Bank v. Forrey, 74 Neb. 811, 815, 105 N.W. 714, 715-716 (1905). Most States, moreover, had statutes or common law rules that exempted from service of process individuals who were brought into the forum by force or fraud, see, e.g., Wanzer v. Bright, 52 Ill. 35 (1869), or who were there as a party or witness in unrelated judicial proceedings, see, e.g., Burroughs v. Cocke & Willis, 56 Okla. 627 , 156 P. 196 (1916); Malloy v. Brewer, 7 S.D. 587, 64 N.W. 1120 (1895). These exceptions obviously rested upon the premise that service of process conferred jurisdiction. See Anderson v. Atkins, 161 Tenn. 137, 140, 29 S.W.2d 248, 249 (1930). Particularly striking is the fact that, as far as we have been able to determine, not one American case Page 495 U. S. 614 from the period (or, for that matter, not one American case until 1978) held, or even suggested, that in-state personal service on an individual was insufficient to confer personal jurisdiction. [ Footnote 3 ] Commentators were also seemingly unanimous Page 495 U. S. 615 on the rule. See, e.g., 1 A. Freeman, Law of Judgments 470-471 (1873); 1 H. Black, Law of Judgments 276-277 (1891); W. Alderson, Law of Judicial Writs and Process 225-226 (1895). See also Restatement of Conflict of Laws, §§ 77-78 (1934). This American jurisdictional practice is, moreover, not merely old; it is continuing. It remains the practice of not only a substantial number of the States, but, as far as we are aware, all the States and the federal government -- if one disregards (as one must for this purpose) the few opinions since 1978 that have erroneously said, on grounds similar to those that petitioner presses here, that this Court's due process decisions render the practice unconstitutional. See Nehemiah v. Athletics Congress of the U.S.A., 765 F.2d 42, 46-47 (CA3 1985); Schreiber v. Allis-Chalmers Corp., 448 F. Supp. 1079 , 1088-1091 (D.Kan.1978), rev'd on other grounds, 611 F.2d 790 (CA10 1979); Harold M. Pitman Co. v. Typecraft Software, 626 F. Supp. 305 , 310-314 (N.D.Ill.1986); Bershaw v. Sarbacher, 40 Wash. App. 653, 700 P.2d 347, 349 (1985); Duehring v. Vasquez, 490 So. 2d 667, 671 (La.App.1986). We do not know of a single State or federal statute, or a single judicial decision resting upon State law, that has abandoned in-State service as a basis of jurisdiction. Many recent cases reaffirm it. See Hutto v. Plagens, 254 Ga. 512, Page 495 U. S. 616 513, 330 S.E.2d 341 , 342 (1985); Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 273 N.W.2d 285 (1979); Lockert v. Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987); Nutri-West v. Gibson, 764 P.2d 693 (Wyo.1988); Klavan v. Klavan, 405 Mass. 1105, 1106, 544 N.E.2d 863, 864 (1989); Nielsen v. Braland, 264 Minn. 481, 483, 484, 119 N.W.2d 737, 738 (1963); Read v. Sonat Offshore Drilling, Inc., 515 So. 2d 1229 , 1230 (Miss.1987); Cariaga v. Eighth Judicial District Court, 104 Nev. 544, 762 P.2d 886 (1988); El-Maksoud v. El-Maksoud, 237 N.J.Super. 483, 486-490, 568 A.2d 140 , 142-144 (1989); Carr v. Carr, 375 S.E.2d 190 , 192 (W.Va.1988); O'Brien v. Eubanks, 701 P.2d 614 , 616 (Colo.App. 1985); Wolfson v. Wolfson, 455 So. 2d 577, 578 (Fla.App.1984); In re Marriage of Pridemore, 146 Ill.App.3d 990, 991-992, 100 Ill.Dec. 640, 641-642, 497 N.E.2d 818, 819-820 (1986); Swarts v. Dean, 13 Kan.App.2d 228, 766 P.2d 1291 , 1292 (1989). C Despite this formidable body of precedent, petitioner contends, in reliance on our decisions applying the International Shoe standard, that in the absence of "continuous and systematic" contacts with the forum, see note 1 supra, a nonresident defendant can be subjected to judgment only as to matters that arise out of or relate to his contacts with the forum. This argument rests on a thorough misunderstanding of our cases. The view of most courts in the 19th century was that a court simply could not exercise in personam jurisdiction over a nonresident who had not been personally served with process in the forum. See, e.g., Reber v. Wright, 68 Pa. 471, 476-477 (1871); Sturgis v. Fay, 16 Ind. 429, 431 (1861); Weil v. Lowenthal, 10 Iowa 575, 578 (1860); Freeman, Law of Judgments, at 468-470; see also D'Arcy v. Ketchum, 52 U. S. 165 , 53 U. S. 176 (1851); Knowles v. Gaslight & Coke Co., 86 U. S. 58 (1874). Pennoyer v. Neff, while renowned for its statement of the principle that the Fourteenth Amendment Page 495 U. S. 617 prohibits such an exercise of jurisdiction, in fact set that forth only as dictum, and decided the case (which involved a judgment rendered more than two years before the Fourteenth Amendment's ratification) under "well established principles of public law." 95 U.S. at 95 U. S. 722 . Those principles, embodied in the Due Process Clause, required (we said) that when proceedings "involv[e] merely a determination of the personal liability of the defendant, he must be brought within [the court's] jurisdiction by service of process within the State, or his voluntary appearance." Id. at 95 U. S. 733 . We invoked that rule in a series of subsequent cases, as either a matter of due process or a "fundamental principl[e] of jurisprudence," Wilson v. Seligman, 144 U. S. 41 , 144 U. S. 46 (1892). See, e.g., New York Life Ins. Co. v. Dunlevy, 241 U. S. 518 , 241 U. S. 522 -523 (1916); Goldey v. Morning News, 156 U. S. 518 , 156 U. S. 521 (1895). Later years, however, saw the weakening of the Pennoyer rule. In the late 19th and early 20th centuries, changes in the technology of transportation and communication, and the tremendous growth of interstate business activity led to an "inevitable relaxation of the strict limits on state jurisdiction" over nonresident individuals and corporations. Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 260 (1958) (Black, J., dissenting). States required, for example, that nonresident corporations appoint an in-state agent upon whom process could be served as a condition of transacting business within their borders, see, e.g., St. Clair v. Cox, 106 U. S. 350 (1882), and provided in-state "substituted service" for nonresident motorists who caused injury in the State and left before personal service could be accomplished, see, e.g., Kane v. New Jersey, 242 U. S. 160 (1916); Hess v. Pawloski, 274 U. S. 352 (1927). We initially upheld these laws under the Due Process Clause on grounds that they complied with Pennoyer's rigid requirement of either "consent," see, e.g., Hess v. Pawloski, supra, at 274 U. S. 356 , or "presence," see, e.g., Philadelphia & Reading R. Co. v. McKibbin, 243 U. S. 264 , 243 U. S. 265 (1917). As many observed, Page 495 U. S. 618 however, the consent and presence were purely fictional. See, e.g., 1 J. Beale, Treatise on the Conflict of Laws 360, 384 (1935); Hutchinson v. Chase & Gilbert, Inc., 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). Our opinion in International Shoe cast those fictions aside, and made explicit the underlying basis of these decisions: due process does not necessarily require the States to adhere to the unbending territorial limits on jurisdiction set forth in Pennoyer. The validity of assertion of jurisdiction over a nonconsenting defendant who is not present in the forum depends upon whether "the quality and nature of [his] activity" in relation to the forum, 326 U.S. at 326 U. S. 319 , renders such jurisdiction consistent with " traditional notions of fair play and substantial justice.'" Id. at 326 U. S. 316 (citation omitted). Subsequent cases have derived from the International Shoe standard the general rule that a State may dispense with in-forum personal service on nonresident defendants in suits arising out of their activities in the State. See generally Helicopteros Nacionales de Colombia v. Hall, 466 U.S. at 466 U. S. 414 -415. As International Shoe suggests, the defendant's litigation-related "minimum contacts" may take the place of physical presence as the basis for jurisdiction: "Historically, the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding on him. Pennoyer v. Neff, 95 U. S. 714 , 95 U. S. 733 . But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Page 495 U. S. 619 326 U.S. at 326 U. S. 316 (citations omitted). Nothing in International Shoe or the cases that have followed it, however, offers support for the very different proposition petitioner seeks to establish today: that a defendant's presence in the forum is not only unnecessary to validate novel, nontraditional assertions of jurisdiction, but is itself no longer sufficient to establish jurisdiction. That proposition is unfaithful to both elementary logic and the foundations of our due process jurisprudence. The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental, as we observed over a century ago: "[A] process of law which is not otherwise forbidden must be taken to be due process of law if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. . . . [That which], in substance, has been immemorially the actual law of the land . . . therefor[e] is due process of law. But to hold that such a characteristic is essential to due process of law would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians." Hurtado v. California, 110 U. S. 516 , 110 U. S. 528 -529 (1884). The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of "traditional notions of fair play and substantial justice." That standard was developed by analogy to "physical presence," and it would be perverse to say it could now be turned against that touchstone of jurisdiction. D Petitioner's strongest argument, though we ultimately reject it, relies upon our decision in Shaffer v. Heitner, 433 U. S. 186 Page 495 U. S. 620 (1977). In that case, a Delaware court hearing a shareholder's derivative suit against a corporation's directors secured jurisdiction quasi in rem by sequestering the out-of-State defendants' stock in the company, the situs of which was Delaware under Delaware law. Reasoning that Delaware's sequestration procedure was simply a mechanism to compel the absent defendants to appear in a suit to determine their personal rights and obligations, we concluded that the normal rules we had developed under International Shoe for jurisdiction over suits against absent defendants should apply -- viz., Delaware could not hear the suit because the defendants' sole contact with the State (ownership of property there) was unrelated to the lawsuit. 433 U.S. at 433 U. S. 213 -215. It goes too far to say, as petitioner contends, that Shaffer compels the conclusion that a State lacks jurisdiction over an individual unless the litigation arises out of his activities in the State. Shaffer, like International Shoe, involved jurisdiction over an absent defendant, and it stands for nothing more than the proposition that, when the "minimum contact" that is a substitute for physical presence consists of property ownership, it must, like other minimum contacts, be related to the litigation. Petitioner wrenches out of its context our statement in Shaffer that "all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny," 433 U.S. at 433 U. S. 212 . When read together with the two sentences that preceded it, the meaning of this statement becomes clear: "The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction over the owner of the property supports an ancient form without substantial modern justification. Its continued acceptance would serve only to allow state court jurisdiction that is fundamentally unfair to the defendant." "We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the Page 495 U. S. 621 standards set forth in International Shoe and its progeny." Ibid. (emphasis added). Shaffer was saying, in other words, not that all bases for the assertion of in personam jurisdiction (including, presumably, in-state service) must be treated alike and subjected to the "minimum contacts" analysis of International Shoe, but rather that quasi in rem jurisdiction, that fictional "ancient form," and in personam jurisdiction, are really one and the same, and must be treated alike -- leading to the conclusion that quasi in rem jurisdiction, i.e., that form of in personam jurisdiction based upon a "property ownership" contact and by definition unaccompanied by personal, in-state service, must satisfy the litigation-relatedness requirement of International Shoe. The logic of Shaffer's holding -- which places all suits against absent nonresidents on the same constitutional footing, regardless of whether a separate Latin label is attached to one particular basis of contact -- does not compel the conclusion that physically present defendants must be treated identically to absent ones. As we have demonstrated at length, our tradition has treated the two classes of defendants quite differently, and it is unreasonable to read Shaffer as casually obliterating that distinction. International Shoe confined its "minimum contacts" requirement to situations in which the defendant "be not present within the territory of the forum," 326 U.S. at 326 U. S. 316 , and nothing in Shaffer expands that requirement beyond that. It is fair to say, however, that while our holding today does not contradict Shaffer, our basic approach to the due process question is different. We have conducted no independent inquiry into the desirability or fairness of the prevailing in-state service rule, leaving that judgment to the legislatures that are free to amend it; for our purposes, its validation is its pedigree, as the phrase " traditional notions of fair play and substantial justice" makes clear. Shaffer did conduct such an independent inquiry, asserting that "'traditional notions of fair play and substantial justice' can be as readily offended Page 495 U. S. 622 by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage." 433 U.S. at 433 U. S. 212 . Perhaps that assertion can be sustained when the "perpetuation of ancient forms" is engaged in by only a very small minority of the States. [ Footnote 4 ] Where, however, as in the present case, a jurisdictional principle is both firmly approved by tradition and still favored, it is impossible to imagine what standard we could appeal to for the judgment that it is "no longer justified." While in no way receding from or casting doubt upon the holding of Shaffer or any other case, we reaffirm today our time-honored approach, see, e.g., Ownbey v. Morgan, 256 U. S. 94 , 256 U. S. 110 -112 (1921); Hurtado v. California, 110 U. S. 516 , 110 U. S. 528 -529 (1884); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U. S. 272 , 60 U. S. 276 -277 (1856). For new procedures, hitherto unknown, the Due Process Clause requires analysis to determine whether "traditional notions of fair play and substantial justice" have been offended. International Shoe, 326 U.S. at 326 U. S. 316 . But a doctrine of personal jurisdiction that dates back to the adoption of the Fourteenth Amendment and is still generally observed unquestionably meets that standard. III A few words in response to Justice BRENNAN's concurrence: It insists that we apply "contemporary notions of due process" to determine the constitutionality of California's assertion of jurisdiction. Post at 495 U. S. 632 . But our analysis today comports with that prescription, at least if we give it the only sense allowed by our precedents. The "contemporary notions of due process" applicable to personal Page 495 U. S. 623 jurisdiction are the enduring " traditional notions of fair play and substantial justice" established as the test by International Shoe. By its very language, that test is satisfied if a state court adheres to jurisdictional rules that are generally applied and have always been applied in the United States. But the concurrence's proposed standard of "contemporary notions of due process" requires more: it measures state court jurisdiction not only against traditional doctrines in this country, including current state court practice, but against each Justice's subjective assessment of what is fair and just. Authority for that seductive standard is not to be found in any of our personal jurisdiction cases. It is, indeed, an outright break with the test of "traditional notions of fair play and substantial justice," which would have to be reformulated " our notions of fair play and substantial justice." The subjectivity, and hence inadequacy, of this approach becomes apparent when the concurrence tries to explain why the assertion of jurisdiction in the present case meets its standard of continuing-American-tradition- plus -innate-fairness. Justice BRENNAN lists the "benefits" Mr. Burnham derived from the State of California -- the fact that, during the few days he was there, "his health and safety [were] guaranteed by the State's police, fire, and emergency medical services; he [was] free to travel on the State's roads and waterways; he likely enjoy[ed] the fruits of the State's economy." Post at 495 U. S. 637 -638. Three days' worth of these benefits strike us as powerfully inadequate to establish, as an abstract matter, that it is "fair" for California to decree the ownership of all Mr. Burnham's worldly goods acquired during the ten years of his marriage, and the custody over his children. We daresay a contractual exchange swapping those benefits for that power would not survive the "unconscionability" provision of the Uniform Commercial Code. Even less persuasive are the other "fairness" factors alluded to by Justice BRENNAN. It would create "an asymmetry," we are told, if Burnham were permitted (as he is) to appear Page 495 U. S. 624 in California courts as a plaintiff, but were not compelled to appear in California courts as defendant; and travel being as easy as it is nowadays, and modern procedural devices being so convenient, it is no great hardship to appear in California courts. Post at 638-639. The problem with these assertions is that they justify the exercise of jurisdiction over everyone, whether or not he ever comes to California. The only "fairness" elements setting Mr. Burnham apart from the rest of the world are the three-days' "benefits" referred to above -- and even those do not set him apart from many other people who have enjoyed three days in the Golden State (savoring the fruits of its economy, the availability of its roads and police services) but who were fortunate enough not to be served with process while they were there, and thus are not (simply by reason of that savoring) subject to the general jurisdiction of California's courts. See, e.g., Helicopteros Nacionales de Colombia v. Hall, 466 U.S. at 466 U. S. 414 -416. In other words, even if one agreed with Justice BRENNAN's conception of an equitable bargain, the "benefits" we have been discussing would explain why it is "fair" to assert general jurisdiction over "Burnham returned to New Jersey after service" only at the expense of proving that it is also "fair" to assert general jurisdiction over "Burnham returned to New Jersey without service" -- which we know does not conform with "contemporary notions of due process." There is, we must acknowledge, one factor mentioned by Justice BRENNAN that both relates distinctively to the assertion of jurisdiction on the basis of personal in-state service and is fully persuasive -- namely, the fact that a defendant voluntarily present in a particular State has a "reasonable expectatio[n]" that he is subject to suit there. Post at 495 U. S. 637 . By formulating it as a "reasonable expectation" Justice BRENNAN makes that seem like a "fairness" factor; but in reality, of course, it is just tradition masquerading as "fairness." The only reason for charging Mr. Burnham with the reasonable expectation of being subject to suit is that the Page 495 U. S. 625 States of the Union assert adjudicatory jurisdiction over the person, and have always asserted adjudicatory jurisdiction over the person, by serving him with process during his temporary physical presence in their territory. That continuing tradition, which anyone entering California should have known about, renders it "fair" for Mr. Burnham, who voluntarily entered California, to be sued there for divorce -- at least "fair" in the limited sense that he has no one but himself to blame. Justice BRENNAN's long journey is a circular one, leaving him, at the end of the day, in complete reliance upon the very factor he sought to avoid: The existence of a continuing tradition is not enough; fairness also must be considered; fairness exists here because there is a continuing tradition. While Justice BRENNAN's concurrence is unwilling to confess that the Justices of this Court can possibly be bound by a continuing American tradition that a particular procedure is fair, neither is it willing to embrace the logical consequences of that refusal -- or even to be clear about what consequences (logical or otherwise) it does embrace. Justice BRENNAN says that "[f]or these reasons [ i.e., because of the reasonableness factors enumerated above], as a rule the exercise of personal jurisdiction over a defendant based on his voluntary presence in the forum will satisfy the requirements of due process." Post at 495 U. S. 639 . The use of the word "rule" conveys the reassuring feeling that he is establishing a principle of law one can rely upon -- but of course he is not. Since Justice BRENNAN's only criterion of constitutionality is "fairness," the phrase "as a rule" represents nothing more than his estimation that, usually, all the elements of "fairness" he discusses in the present case will exist. But what if they do not? Suppose, for example, that a defendant in Mr. Burnham's situation enjoys not three days' worth of California's "benefits," but fifteen minutes' worth. Or suppose we remove one of those "benefits" -- "enjoy[ment of] the fruits of the State's economy" -- by positing that Mr. Burnham had not Page 495 U. S. 626 come to California on business, but only to visit his children. Or suppose that Mr. Burnham were demonstrably so impecunious as to be unable to take advantage of the modern means of transportation and communication that Justice BRENNAN finds so relevant. Or suppose, finally, that the California courts lacked the "variety of procedural devices," post at 495 U. S. 639 , that Justice BRENNAN says can reduce the burden upon out-of-state litigants. One may also make additional suppositions relating not to the absence of the factors that Justice BRENNAN discusses, but to the presence of additional factors bearing upon the ultimate criterion of "fairness." What if, for example, Mr. Burnham were visiting a sick child? Or a dying child? Cf. Kulko v. California Superior Court, 436 U. S. 84 , 436 U. S. 93 (1978) (finding the exercise of long-arm jurisdiction over an absent parent unreasonable because it would "discourage parents from entering into reasonable visitation agreements"). Since, so far as one can tell, Justice BRENNAN's approval of applying the in-state service rule in the present case rests on the presence of all the factors he lists, and on the absence of any others, every different case will present a different litigable issue. Thus, despite the fact that he manages to work the word "rule" into his formulation, Justice BRENNAN's approach does not establish a rule of law at all, but only a "totality of the circumstances" test, guaranteeing what traditional territorial rules of jurisdiction were designed precisely to avoid: uncertainty and litigation over the preliminary issue of the forum's competence. It may be that those evils, necessarily accompanying a freestanding "reasonableness" inquiry, must be accepted at the margins, when we evaluate non traditional forms of jurisdiction newly adopted by the states, see, e.g., Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U. S. 102 , 480 U. S. 115 (1987). But that is no reason for injecting them into the core of our American practice, exposing to such a "reasonableness" inquiry the ground of jurisdiction that has hitherto Page 495 U. S. 627 been considered the very baseline of reasonableness, physical presence. The difference between us and Justice BRENNAN has nothing to do with whether "further progress [is] to be made" in the "evolution of our legal system." Post at 495 U. S. 631 , n. 3. It has to do with whether changes are to be adopted as progressive by the American people or decreed as progressive by the Justices of this Court. Nothing we say today prevents individual States from limiting or entirely abandoning the in-state service basis of jurisdiction. And nothing prevents an overwhelming majority of them from doing so, with the consequence that the "traditional notions of fairness" that this Court applies may change. But the states have overwhelmingly declined to adopt such limitation or abandonment, evidently not considering it to be progress. [ Footnote 5 ] The question is whether, armed with no authority other than individual Justices' perceptions of fairness that conflict with both past and current practice, this Court can compel the states to make such a change on the ground that "due process" requires it. We hold that it cannot. Page 495 U. S. 628 * * * * Because the Due Process Clause does not prohibit the California courts from exercising jurisdiction over petitioner based on the fact of in-state service of process, the judgment is Affirmed. [ Footnote 1 ] We have said that "[e]ven when the cause of action does not arise out of or relate to the foreign corporation's activities in the forum State, due process is not offended by a State's subjecting the corporation to its in personam jurisdiction when there are sufficient contacts between the State and the foreign corporation." Helicopteros Nacionales de Colombia v. Hall, 466 U.S. at 466 U. S. 414 . Our only holding supporting that statement, however, involved "regular service of summons upon [the corporation's] president while he was in [the forum State] acting in that capacity." See Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437 , 342 U. S. 440 (1952). It may be that whatever special rule exists permitting "continuous and systematic" contacts, id. at 438, to support jurisdiction with respect to matters unrelated to activity in the forum, applies only to corporations, which have never fitted comfortably in a jurisdictional regime based primarily upon " de facto power over the defendant's person." International Shoe Co. v. Washington, 326 U. S. 310 , 326 U. S. 316 (1945). We express no views on these matters -- and, for simplicity's sake, omit reference to this aspect of "contacts"-based jurisdiction in our discussion. [ Footnote 2 ] Justice BRENNAN's assertion that some of these cases involved dicta rather than holdings, post at 495 U. S. 636 -637, n. 10, is incorrect. In each case, personal service within the State was the exclusive basis for the judgment that jurisdiction existed, and no other factor was relied upon. Nor is it relevant for present purposes that these holdings might instead have been rested on other available grounds. [ Footnote 3 ] Given this striking fact, and the unanimity of both cases and commentators in supporting the in-state service rule, one can only marvel at Justice BRENNAN's assertion that the rule "was rather weakly implanted in American jurisprudence," post at 495 U. S. 633 -634, and "did not receive wide currency until well after our decision in Pennoyer v. Neff," post at 495 U. S. 635 . I have cited pre- Pennoyer cases clearly supporting the rule from no less than nine States, ranging from Mississippi to Colorado to New Hampshire, and two highly respected pre- Pennoyer commentators. (It is, moreover, impossible to believe that the many other cases decided shortly after Pennoyer represented some sort of instant mutation -- or, for that matter, that Pennoyer itself was not drawing upon clear contemporary understanding.) Justice BRENNAN cites neither cases nor commentators from the relevant period to support his thesis (with exceptions I shall discuss presently), and instead relies upon modern secondary sources that do not mention, and were perhaps unaware of, many of the materials I have discussed. The cases cited by Justice BRENNAN, post at 495 U. S. 634 -635, n. 9, do not remotely support his point. The dictum he quotes from Coleman's Appeal, 75 Pa. 441, 458 (1874), to the effect that "a man shall only be liable to be called on to answer for civil wrongs in the forum of his home, and the tribunal of vicinage," was addressing the situation where no personal service in the State had been obtained. This is clear from the court's earlier statements that "there is no mode of reaching by any process issuing from a court of common law, the person of a nonresident defendant not found within the jurisdiction," id. at 456, and "[u]pon a summons, unless there is service within the jurisdiction, there can be no judgment for want of appearance against the defendant." Ibid. Gardner v. Thomas, 14 John. *134 (N.Y.1817), and Molony v. Dows, 8 Abb.Pr.R. 316 (N.Y. Common Pleas 1859), are irrelevant to the present discussion. Gardner, in which the court declined to adjudicate a tort action between two British subjects for a tort that occurred on the high seas aboard a British vessel, specifically affirmed that jurisdiction did exist, but said that its exercise "must, on principles of policy, often rest in the sound discretion of the Court." Gardner v. Thomas, supra, at 120. The decision is plainly based, in modern terms, upon the doctrine of forum non conveniens. Molony did indeed hold that in-state service could not support the adjudication of an action for physical assault by one Californian against another in California (acknowledging that this appeared to contradict an earlier New York case), but it rested that holding upon a doctrine akin to the principle that no state will enforce the penal laws of another -- that is, resting upon the injury to the public peace of the other state that such an assault entails, and upon the fact that the damages awarded include penal elements. Molony v. Dows, supra, at 330. The fairness or propriety of exercising jurisdiction over the parties had nothing to do with the decision, as is evident from the court's acknowledgment that if the Californians were suing one another over a contract dispute jurisdiction would lie, no matter where the contract arose. Id. at 328. As for Justice BRENNAN's citation of the 1880 commentator John Cleland Wells, post at 495 U. S. 635 n. 9, it suffices to quote what is set forth on the very page cited: "It is held to be a principle of the common law that any nonresident defendant voluntarily coming within the jurisdiction may be served with process, and compelled to answer." 1 J. Wells, Jurisdiction of Courts 76 (1880). [ Footnote 4 ] Shaffer may have involved a unique state procedure in one respect: Justice STEVENS noted that Delaware was the only State that treated the place of incorporation as the situs of corporate stock when both owner and custodian were elsewhere. See 433 U.S. at 433 U. S. 218 (opinion concurring in judgment). [ Footnote 5 ] I find quite unacceptable as a basis for this Court's decisions Justice BRENNAN's view that "the raison d'etre of various constitutional doctrines designed to protect out-of-staters such as the Art. IV Privileges and Immunities Clause and the Commerce Clause," post at 495 U. S. 640 , n. 14, entitles this Court to brand as "unfair," and hence unconstitutional, the refusal of all 50 states "to limit or abandon bases of jurisdiction that have become obsolete," post at 495 U. S. 639 , n. 14. "Due process" (which is the constitutional text at issue here) does not mean that process which shifting majorities of this Court feel to be "due," but that process which American society -- self-interested American society, which expresses its judgments in the laws of self-interested states -- has traditionally considered "due." The notion that the Constitution, through some penumbra emanating from the Privileges and Immunities Clause and the Commerce Clause, establishes this Court as a platonic check upon the society's greedy adherence to its traditions can only be described as imperious. Justice WHITE, concurring in part and concurring in the judgment. I join Part I and Parts II-A, II-B, and II-C of Justice SCALIA's opinion and concur in the judgment of affirmance. The rule allowing jurisdiction to be obtained over a nonresident by personal service in the forum state, without more, has been and is so widely accepted throughout this country that I could not possibly strike it down, either on its face or as applied in this case, on the ground that it denies due process of law guaranteed by the Fourteenth Amendment. Although the Court has the authority under the Amendment to examine even traditionally accepted procedures and declare them invalid, e.g., Shaffer v. Heitner, 433 U. S. 186 (1977), there has been no showing here or elsewhere that, as a general proposition, the rule is so arbitrary and lacking in common sense in so many instances that it should be held violative of Due Process in every case. Furthermore, until such a showing is made, which would be difficult indeed, claims in individual cases that the rule would operate unfairly as applied to the particular nonresident involved need not be entertained. At least this would be the case where presence in the forum state is intentional, which would almost always be the fact. Otherwise, there would be endless, fact-specific litigation in the trial and appellate courts, including this one. Here, personal service in California, without more, is enough, and I agree that the judgment should be affirmed. Justice BRENNAN, with whom Justice MARSHALL, Justice BLACKMUN, and Justice O'CONNOR join, concurring in the judgment. I agree with Justice SCALIA that the Due Process Clause of the Fourteenth Amendment generally permits a state Page 495 U. S. 629 court to exercise jurisdiction over a defendant if he is served with process while voluntarily present in the forum State. [ Footnote 2/1 ] I do not perceive the need, however, to decide that a jurisdictional rule that " has been immemorially the actual law of the land,'" ante at 495 U. S. 619 , quoting Hurtado v. California, 110 U. S. 516 , 110 U. S. 528 (1884), automatically comports with due process simply by virtue of its "pedigree." Although I agree that history is an important factor in establishing whether a jurisdictional rule satisfies due process requirements, I cannot agree that it is the only factor such that all traditional rules of jurisdiction are, ipso facto, forever constitutional. Unlike Justice SCALIA, I would undertake an "independent inquiry into the . . . fairness of the prevailing in-state service rule." Ante at 495 U. S. 621 . I therefore concur only in the judgment. I I believe that the approach adopted by Justice SCALIA's opinion today -- reliance solely on historical pedigree -- is foreclosed by our decisions in International Shoe Co. v. Washington, 326 U. S. 310 (1945), and Shaffer v. Heitner, 433 U. S. 186 (1977). In International Shoe, we held that a state court's assertion of personal jurisdiction does not violate the Due Process Clause if it is consistent with " traditional notions of fair play and substantial justice.'" 326 U.S. at 326 U. S. 316 , quoting Milliken v. Meyer, 311 U. S. 457 , 311 U. S. 463 (1940). [ Footnote 2/2 ] In Shaffer, we stated that " all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny." 433 U.S. at 433 U. S. 212 Page 495 U. S. 630 (emphasis added). The critical insight of Shaffer is that all rules of jurisdiction, even ancient ones, must satisfy contemporary notions of due process. No longer were we content to limit our jurisdictional analysis to pronouncements that "[t]he foundation of jurisdiction is physical power," McDonald v. Mabee, 243 U. S. 90 , 243 U. S. 91 (1917), and that "every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory." Pennoyer v. Neff, 95 U. S. 714 (1878). While acknowledging that "history must be considered as supporting the proposition that jurisdiction based solely on the presence of property satisfie[d] the demands of due process," we found that this factor could not be "decisive." 433 U.S. at 433 U. S. 211 -212. We recognized that "'[t]raditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage." Id. at 433 U. S. 212 (citations omitted). I agree with this approach, and continue to believe that "the minimum contacts analysis developed in International Shoe . . . represents a far more sensible construct for the exercise of state court jurisdiction than the patchwork of legal and factual fictions that has been generated from the decision in Pennoyer v. Neff." Id. at 433 U. S. 219 (citation omitted) (BRENNAN, J., concurring in part and dissenting in part). While our holding in Shaffer may have been limited to quasi in rem jurisdiction, our mode of analysis was not. Indeed, that we were willing in Shaffer to examine anew the appropriateness of the quasi in rem rule -- until that time dutifully accepted by American courts for at least a century -- demonstrates that we did not believe that the "pedigree" of a jurisdictional practice was dispositive in deciding whether it was consistent with due process. We later characterized Shaffer as "abandon[ing] the outworn rule of Harris v. Balk, 198 U. S. 215 (1905), that the interest of a creditor in a debt Page 495 U. S. 631 could be extinguished or otherwise affected by any State having transitory jurisdiction over the debtor." World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 296 (1980); see also Rush v. Savchuk, 444 U. S. 320 , 444 U. S. 325 -326 (1980). If we could discard an "ancient form without substantial modern justification" in Shaffer, supra, 433 U.S. at 433 U. S. 212 , we can do so again. [ Footnote 2/3 ] Lower courts, [ Footnote 2/4 ] commentators, [ Footnote 2/5 ] and the American Law Page 495 U. S. 632 Institute [ Footnote 2/6 ] all have interpreted International Shoe and Shaffer to mean that every assertion of state court jurisdiction, even one pursuant to a "traditional" rule such as transient jurisdiction, must comport with contemporary notions of due process. Notwithstanding the nimble gymnastics of Justice Page 495 U. S. 633 SCALIA's opinion today, it is not faithful to our decision in Shaffer. II Tradition, though alone not dispositive, is of course relevant to the question whether the rule of transient jurisdiction is consistent with due process. [ Footnote 2/7 ] Tradition is salient not in the sense that practices of the past are automatically reasonable today; indeed, under such a standard, the legitimacy of transient jurisdiction would be called into question because the rule's historical "pedigree" is a matter of intense debate. The rule was a stranger to the common law [ Footnote 2/8 ] and was rather Page 495 U. S. 634 weakly implanted in American jurisprudence "at the crucial time for present purposes: 1868, when the Fourteenth Amendment was adopted." Ante at 495 U. S. 611 . For much of the 19th century, American courts did not uniformly recognize the concept of transient jurisdiction, [ Footnote 2/9 ] and it appears that the Page 495 U. S. 635 transient rule did not receive wide currency until well after our decision in Pennoyer v. Neff, 95 U. S. 714 (1878). [ Footnote 2/10 ] Rather, I find the historical background relevant because, however murky the jurisprudential origins of transient jurisdiction, Page 495 U. S. 636 the fact that American courts have announced the rule for perhaps a century (first in dicta, more recently in holdings) provides a defendant voluntarily present in a particular State today "clear notice that [he] is subject to suit" in Page 495 U. S. 637 the forum. World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 297 (1980). Regardless of whether Justice Story's account of the rule's genesis is mythical, our common understanding now, fortified by a century of judicial practice, is that jurisdiction is often a function of geography. The transient rule is consistent with reasonable expectations, and is entitled to a strong presumption that it comports with due process. "If I visit another State, . . . I knowingly assume some risk that the State will exercise its power over my property or my person while there. My contact with the State, though minimal, gives rise to predictable risks." Shaffer, 433 U.S. at 433 U. S. 218 (STEVENS, J., concurring in judgment); see also Burger King Corp. v. Rudzewicz, 471 U. S. 462 , 471 U. S. 476 (1985) ("[t]erritorial presence frequently will enhance a potential defendant's affiliation with a State and reinforce the reasonable foreseeability of suit there"); Glen, An Analysis of "Mere Presence" and Other Traditional Bases of Jurisdiction, 45 Brooklyn L. Rev. 607, 611-612 (1979). Thus, proposed revisions to the Restatement (Second) of Conflict of Laws § 28, p. 39 (1986), provide that "[a] state has power to exercise judicial jurisdiction over an individual who is present within its territory unless the individual's relationship to the state is so attenuated as to make the exercise of such jurisdiction unreasonable. [ Footnote 2/11 ]" By visiting the forum State, a transient defendant actually "avail[s]" himself, Burger King, supra, at 471 U. S. 476 , of significant benefits provided by the State. His health and safety are guaranteed by the State's police, fire, and emergency medical services; he is free to travel on the State's roads and waterways; Page 495 U. S. 638 he likely enjoys the fruits of the State's economy as well. Moreover, the Privileges and Immunities Clause of Article IV prevents a state government from discriminating against a transient defendant by denying him the protections of its law or the right of access to its courts. [ Footnote 2/12 ] See Supreme Court of New Hampshire v. Piper, 470 U. S. 274 , 470 U. S. 281 , n. 10 (1985); Baldwin v. Fish and Game Comm'n of Montana, 436 U. S. 371 , 436 U. S. 387 (1978); see also Supreme Court of Virginia v. Friedman, 487 U. S. 59 , 487 U. S. 64 -65 (1988). Subject only to the doctrine of forum non conveniens, an out-of-state plaintiff may use state courts in all circumstances in which those courts would be available to state citizens. Without transient jurisdiction, an asymmetry would arise: a transient would have the full benefit of the power of the forum State's courts as a plaintiff while retaining immunity from their authority as a defendant. See Maltz, Sovereign Authority, Fairness, and Personal Jurisdiction: The Case for the Doctrine of Transient Jurisdiction, 66 Wash.U.L.Q. 671, 698-699 (1988). The potential burdens on a transient defendant are slight. " [M]odern transportation and communications have made it much less burdensome for a party sued to defend himself'" in a State outside his place of residence. Burger King, 471 U.S. at 471 U. S. 474 , quoting McGee v. International Life Insurance Co., 355 U. S. 220 , 355 U. S. 223 (1957). That the defendant has already journeyed Page 495 U. S. 639 at least once before to the forum -- as evidenced by the fact that he was served with process there -- is an indication that suit in the forum likely would not be prohibitively inconvenient. Finally, any burdens that do arise can be ameliorated by a variety of procedural devices. [ Footnote 2/13 ] For these reasons, as a rule the exercise of personal jurisdiction over a defendant based on his voluntary presence in the forum will satisfy the requirements of due process. [ Footnote 2/14 ] See 495 U.S. 604 fn2/11|>n. 11, supra. Page 495 U. S. 640 In this case, it is undisputed that petitioner was served with process while voluntarily and knowingly in the State of California. I therefore concur in the judgment. [ Footnote 2/1 ] 1 use the term "transient jurisdiction" to refer to jurisdiction premised solely on the fact that a person is served with process while physically present in the forum State. [ Footnote 2/2 ] Our reference in International Shoe to " traditional notions of fair play and substantial justice,'" 326 U.S. at 326 U. S. 316 , meant simply that those concepts are indeed traditional ones, not that, as Justice SCALlA's opinion suggests, see ante at 495 U. S. 621 , 495 U. S. 622 , their specific content was to be determined by tradition alone. We recognized that contemporary societal norms must play a role in our analysis. See, e.g., 326 U.S. at 326 U. S. 317 (considerations of "reasonable[ness], in the context of our federal system of government"). [ Footnote 2/3 ] Even Justice SCALIA's opinion concedes that sometimes courts may discard "traditional" rules when they no longer comport with contemporary notions of due process. For example, although, beginning with the Romans, judicial tribunals for over a millenium permitted jurisdiction to be acquired by force, see L. Wenger, Institutes of the Roman Law of Civil Procedure 46-47 (O. Fisk trans., rev. ed. 1986), by the 19th century, as Justice SCALIA acknowledges, this method had largely disappeared. See ante at 495 U. S. 613 . I do not see why Justice SCALIA's opinion assumes that there is no further progress to be made, and that the evolution of our legal system, and the society in which it operates, ended 100 years ago. [ Footnote 2/4 ] Some lower courts have concluded that transient jurisdiction did not survive Shaffer. See Nehemiah v. Athletics Congress of U.S.A., 765 F.2d 42, 46-47 (CA3 1985); Schreiber v. Allis-Chalmers Corp., 448 F. Supp. 1079 , 1088-1091 (Kan.1978), rev'd on other grounds, 611 F.2d 790 (CA10 1979); Harold M. Pitman Co. v. Typecraft Software Ltd., 626 F. Supp. 305 , 310-314 (ND Ill.1986); Bershaw v. Sarbacher, 40 Wash. App. 653, 657, 700 P.2d 347, 349 (1985). Others have held that transient jurisdiction is alive and well. See ante at 495 U. S. 615 -616. But even cases falling into the latter category have engaged in the type of due process analysis that Justice SCALIA's opinion claims is unnecessary today. See, e.g., Amusement Equipment, Inc. v. Mordelt, 779 F.2d 264, 270 (CA5 1985); Hutto v. Plagens, 254 Ga. 512, 513, 330 S.E.2d 341 , 342 (1985); In re Marriage of Pridemore, 146 Ill.App.3d 990, 992, 100 Ill.Dec. 640, 641-642, 497 N.E.2d 818, 819820 (1986); Oxmans' Erwin Meat Co. v. Blacketer, 86 Wis.2d 683, 688-692, 273 N.W.2d 285 , 287-290 (1979); Lockert v. Breedlove, 321 N.C. 66, 71-72, 361 S.E.2d 581 , 585 (1987); NutriWest v. Gibson, 764 P.2d 693 , 695-696 (Wyo. 1988); Cariaga v. Eighth Judicial District Court, 104 Nev. 544, 547, 762 P.2d 886 , 888 (1988); El-Maksoud v. El-Maksoud, 237 N.J.Super. 483, 489, 568 A.2d 140 , 143 (1989); Carr v. Carr, 375 S.E.2d 190 , 192, and n. 5 (W.Va.1988). [ Footnote 2/5 ] Although commentators have disagreed over whether the rule of transient jurisdiction is consistent with modern conceptions of due process, that they have engaged in such a debate at all shows that they have rejected the methodology employed by Justice SCALIA's opinion today. See Bernstine, Shaffer v. Heitner: A Death Warrant for the Transient Rule of In Personam Jurisdiction?, 25 Vill.L.Rev. 38, 47-68 (1979-1980); Brilmayer, et al., A General Look at General Jurisdiction, 66 Tex.L.Rev. 721, 748-755 (1988); Fyr, Shaffer v. Heitner: The Supreme Court's Latest Last Words on State Court Jurisdiction, 26 Emory L.J. 739, 770-773 (1977); Lacy, Personal Jurisdiction and Service of Summons After Shaffer v. Heitner, 57 Ore.L.Rev. 505, 510 (1978); Posnak, A Uniform Approach to Judicial Jurisdiction After Worldwide and the Abolition of the "Gotcha" Theory, 30 Emory L.J. 729, 735, n. 30 (1981); Redish, Due Process, Federalism, and Personal Jurisdiction: A Theoretical Evaluation, 75 Nw.U.L.Rev. 1112, 1117 n. 35 (1981); Sedler, Judicial Jurisdiction and Choice of Law: The Consequences of Shaffer v. Heitner, 63 Iowa L.Rev. 1031, 1035 (1978); Silberman, Shaffer v. Heitner: The End of an Era, 53 N.Y.U.L.Rev. 33, 75 (1978); Vernon, Single Factor Bases of In Personam Jurisdiction -- A Speculation on the Impact of Shaffer v. Heitner 1978 Wash.U.L.Q. 273, 303; Von Mehren, Adjudicatory Jurisdiction: General Theories Compared and Evaluated, 63 B.U.L.Rev. 279, 300-307 (1983); Zammit, Reflections on Shaffer v. Heitner, 5 Hastings Const.L.Q. 15, 24 (1978). [ Footnote 2/6 ] See Restatement (Second) of Conflict of Laws § 24, Comment h p. 29 (Proposed Revisions 1986) ("One basic principle underlies all rules of jurisdiction. This principle is that a state does not have jurisdiction in the absence of some reasonable basis for exercising it. With respect to judicial jurisdiction, this principle was laid down by the Supreme Court of the United States in International Shoe. . . . "); id. at 30 ("Three factors are primarily responsible for existing rules of judicial jurisdiction. Present-day notions of fair play and substantial justice constitute the first factor"); id. at 41, § 28, Comment b, ("The Supreme Court held in Shaffer v. Heitner that the presence of a thing in a state gives that state jurisdiction to determine interests in the thing only in situations where the exercise of such jurisdiction would be reasonable. . . . It must likewise follow that considerations of reasonableness qualify the power of a state to exercise personal jurisdiction over an individual on the basis of his physical presence within its territory"); Restatement (Second) of Judgments § 8, Comment a, p. 64 (Tent. Draft No. 5, Mar. 10, 1978) ( Shaffer establishes " minimum contacts' in place of presence as the principal basis for territorial jurisdiction"). [ Footnote 2/7 ] I do not propose that the "contemporary notions of due process" to be applied are no more than "each Justice's subjective assessment of what is fair and just." Ante at 495 U. S. 623 . Rather, the inquiry is guided by our decisions beginning with International Shoe Co. v. Washington, 326 U. S. 310 (1945), and the specific factors that we have developed to ascertain whether a jurisdictional rule comports with "traditional notions of fair play and substantial justice." See, e.g., Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U. S. 102 , 480 U. S. 113 (1987) (noting "several factors," including "the burden on the defendant, the interests of the forum State, and the plaintiff's interest in obtaining relief"). This analysis may not be "mechanical or quantitative," International Shoe, 326 U.S. at 326 U. S. 319 , but neither is it "freestanding," ante at 495 U. S. 626 , or dependent on personal whim. Our experience with this approach demonstrates that it is well within our competence to employ. [ Footnote 2/8 ] As Justice SCALIA's opinion acknowledges, American courts in the 19th century erected the theory of transient jurisdiction largely upon Justice Story's historical interpretation of Roman and continental sources. Justice SCALIA's opinion concedes that the rule's tradition "was not as clear as Story thought," ante at 495 U. S. 611 ; in fact, it now appears that, as a historical matter, Story was almost surely wrong. See Ehrenzweig, The Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L.J. 289, 293-303 (1956); Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct. Rev. 241, 261 ("Story's system reflected neither decided authority nor critical analysis"). Undeniably, Story's views are in considerable tension with English common law -- a "tradition" closer to our own, and thus, I would imagine, one that in Justice SCALIA's eyes is more deserving of our study than civil law practice. See R. Boote, An Historical Treatise of an Action or Suit at Law 97 (3d ed. 1805); G. Cheshire, Private International Law 601 (4th ed. 1952); J. Westlake, Private International Law 101-102 (1859); Note, British Precedents for Due Process Limitations on In Personam Jurisdiction, 48 Colum.L.Rev. 605, 610-611 (1948) ("The [British] cases evidence a judicial intent to limit the rules to those instances where their application is consonant with the demands of fair play' and 'substantial justice' "). It seems that Justice Story's interpretation of historical practice amounts to little more than what Justice Story himself perceived to be "fair and just." See ante at 495 U. S. 611 (quoting Justice Story's statement that " [w]here a party is within a territory, he may justly be subjected to its process'") (emphasis added and citation omitted). I see no reason to bind ourselves forever to that perception. [ Footnote 2/9 ] In Molony v. Dows, 8 Abbott's Pr. R. 316 (N.Y. Common Pleas 1859), for example, the court dismissed an action for a tort that had occurred in California, even though the defendant was served with process while he was in the forum State of New York. The court rejected the plaintiff's contention that it possessed "jurisdiction of all actions, local and transitory, where the defendant resides, or is personally served with process," id. at 325, with the comment that "an action cannot be maintained in this court, or in any court of this State, to recover a pecuniary satisfaction in damages for a willful injury to the person, inflicted in another State, where, at the time of the act, both the wrongdoer and the party injured were domiciled in that State as resident citizens." Id. at 326. The court reasoned that it could not "undertake to redress every wrong that may have happened in any part of the world, [merely] because the parties, plaintiff or defendant, may afterwards happen to be within [the court's] jurisdiction." Id. at 327-328. Similarly, the Pennsylvania Supreme Court declared it "the most important principle of all municipal law of Anglo-Saxon origin, that a man shall only be liable to be called upon to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage." Coleman's Appeal, 75 Pa. 441, 458 (1874) (emphasis added). And in Gardner v. Thomas, 14 John. *134 (N.Y.1817), the court was faced with the question "whether this Court will lake cognizance of a tort committed on the high seas, on board of a foreign vessel, both the parties being subjects or citizens of the country to which the vessel belongs," after the ship had docked in New York and suit was commenced there. The court observed that Lord Mansfield had appeared "to doubt whether an action may be maintained in England for an injury in consequence of two persons fighting in France, [even] when both are within the jurisdiction of the Court." Id. at 137. The court distinguished the instant case as an action "for an injury on the high seas" -- a location, "of course, without the actual or exclusive territory of any nation." Ibid. Nevertheless, the court found that, while "our Courts may take cognizance of torts committed on the high seas, on board of a foreign vessel where both parties are foreigners, . . . it must, on principles of policy, often rest in the sound discretion of the Court to afford jurisdiction or not, according to the circumstances of the case." Id. at 137-138. In the particular case before it, the court found jurisdiction lacking. See id. at 138. See also 1 J. Wells, Jurisdiction of Courts 76 (1880) (reporting that a state court had argued that "courts have jurisdiction of actions for torts as to property, even where the parties are nonresident, and the torts were committed out of the state, if the defendant is served with process within the state," but also noting that "Clerke, J., very vigorously dissented in the case, and, I judge, with good reason"). It is possible to distinguish these cases narrowly on their facts, as Justice SCALIA demonstrates. See ante at 495 U. S. 614 -615, n. 3. Thus, Molony could be characterized as a case about the reluctance of one State to punish assaults occurring in another, Gardner as a forum non conveniens case, and Coleman's Appeal as a case in which there was no in-state service of process. But such an approach would mistake the trees for the forest. The truth is that the transient rule as we now conceive it had no clear counterpart at common law. Just as today there is an interaction among rules governing jurisdiction, forum non conveniens, and choice of law, see, e.g., Ferens v. John Deere Co., 494 U. S. 516 , 494 U. S. 530 -531 (1990); Shaffer, 433 U.S. at 433 U. S. 224 -226 (BRENNAN, J., concurring in part and in the judgment); Hanson v. Denckla, 357 U. S. 235 , 357 U. S. 254 (1958) (Black, J., dissenting), at common law there was a complex interplay among pleading requirements, venue, and substantive law -- an interplay which in large part substituted for a theory of "jurisdiction:" "A theory of territorial jurisdiction would in any event have been premature in England before, say, 1688, or perhaps even 1832. Problems of jurisdiction were the essence of medieval English law, and remained significant until the period of Victorian reform. But, until after 1800, it would have been impossible, even if it had been thought appropriate, to disentangle the question of territorial limitations on jurisdiction from those arising out of charter, prerogative, personal privilege, corporate liberty, ancient custom, and the fortuities of rules of pleading, venue, and process. The intricacies of English jurisdictional law of that time resist generalization on any theory except a franchisal one; they seem certainly not reducible to territorial dimension. The English precedents on jurisdiction were therefore of little relevance to American problems of the nineteenth century." Hazard, A General Theory of State Court Jurisdiction, 1965 Sup.Ct.Rev. 241, 252-253. See also Twitchell, The Myth of General Jurisdiction, 101 Harv.L.Rev. 610, 617 (1988). The salient point is that many American courts followed English precedents and restricted the place where certain actions could be brought, regardless of the defendant's presence or whether he was served there. [ Footnote 2/10 ] One distinguished legal historian has observed that "notwithstanding dogmatic generalizations later sanctioned by the Restatement [of Conflict of Laws], appellate courts hardly ever in fact held transient service sufficient as such" and that, "although the transient rule has often been mouthed by the courts, it has but rarely been applied." Ehrenzweig, supra, at 292, 295 (footnote omitted). Many of the cases cited in Justice SCALIA's opinion, see ante at 2111-2112, involve either announcement of the rule in dictum or situations where factors other than in-state service supported the exercise of jurisdiction. See, e.g., Alley v. Caspari, 80 Me. 234, 236, 14 A. 12 (1888) (defendant found to be resident of forum); De Poret v. Gusman, 30 La.Ann. 930, 930 (1878) (cause of action arose in forum); Savin v. Bond, 57 Md. 228, 233 (1881) (both defendants residents of forum State); Hart v. Granger, 1 Conn. 154, 154-155 (1814) (suit brought against former resident of forum State based on contract entered into there); Baisley v. Baisley, 113 Mo. 544, 550 (1893) (court ruled for plaintiff on grounds of estoppel because defendant had failed to raise timely objection to jurisdiction in a prior suit); Bowman v. Flint, 37 Tex.Civ.App. 28, 28-29, 82 S.W. 1049, 1049-1050 (1904) (defendant did business within forum State, and cause of action arose there as well). In Picquet v. Swan, 19 F. Cas. 609 (No. 11, 134) (C.C.Mass.1828), Justice Story found jurisdiction to be lacking over a suit by a French citizen (a resident of Paris) against an American citizen also residing in Paris. See also Hazard, supra, at 261 (criticizing Story's reasoning in Picquet as "at variance" with both American and English decisions). [ Footnote 2/11 ] As the Restatement suggests, there may be cases in which a defendant's involuntary or unknowing presence in a State does not support the exercise of personal jurisdiction over him. The facts of the instant case do not require us to determine the outer limits of the transient jurisdiction rule. [ Footnote 2/12 ] That these privileges may independently be required by the Constitution does not mean that they must be ignored for purposes of determining the fairness of the transient jurisdiction rule. For example, in the context of specific jurisdiction, we consider whether a defendant "has availed himself of the privilege of conducting business" in the forum State, Burger King Corp. v. Rudzewicz. 471 U. S. 462 , 471 U. S. 476 (1985), or has " invok[ed] the benefits and protections of its laws,'" id. at 475, quoting Hanson v. Denckla, 357 U. S. 235 , 357 U.S. 253 (1958), even though the State could not deny the defendant the right to do so. See also Asahi Metal Industry Co. v. Superior Court of California, Solano County, 480 U.S. at 480 U. S. 108 -109 (plurality opinion); Keeton v. Hustler Magazine, Inc., 465 U. S. 770 , 465 U. S. 781 (1984); World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 , 444 U. S. 297 (1980). [ Footnote 2/13 ] For example, in the federal system, a transient defendant can avoid protracted litigation of a spurious suit through a motion to dismiss for failure to state a claim or though a motion for summary judgment. Fed. Rules Civ. Proc. 12(b)(6) and 56. He can use relatively inexpensive methods of discovery, such as oral deposition by telephone (Rule 30(b)(7)), deposition upon written questions (Rule 31), interrogatories (Rule 33), and requests for admission (Rule 36), while enjoying protection from harassment (Rule 26(c)), and possibly obtaining costs and attorney's fees for some of the work involved (Rule 37(a)(4), (b)-(d)). Moreover, a change of venue may be possible. 28 U.S.C. § 1404. In state court, many of the same procedural protections are available, as is the doctrine of forum non conveniens, under which the suit may be dismissed. See generally Abrams, Power, Convenience, and the Elimination of Personal Jurisdiction in the Federal Courts, 58 Ind. L.J. 1, 23-25 (1982). [ Footnote 2/14 ] Justice SCALIA's opinion maintains that, viewing transient jurisdiction as a contractual bargain, the rule is "unconscionabl[e]," ante at 495 U. S. 623 , according to contemporary conceptions of fairness. But the opinion simultaneously insists that, because of its historical "pedigree," the rule is "the very baseline of reasonableness." Ante at 495 U. S. 627 . Thus is revealed Justice SCALIA's belief that tradition alone is completely dispositive, and that no showing of unfairness can ever serve to invalidate a traditional jurisdictional practice. I disagree both with this belief and with Justice SCALIA's assessment of the fairness of the transient jurisdiction bargain. I note, moreover, that the dual conclusions of Justice SCALIA's opinion create a singularly unattractive result. Justice SCALIA suggests that, when and if a jurisdictional rule becomes substantively unfair or even "unconscionable," this Court is powerless to alter it. Instead, he is willing to rely on individual States to limit or abandon bases of jurisdiction that have become obsolete. See ante at 495 U. S. 627 , and n. 5. This reliance is misplaced, for States have little incentive to limit rules such as transient jurisdiction that make it easier for their own citizens to sue out-of-state defendants. That States are more likely to expand their jurisdiction is illustrated by the adoption by many States of long-arm statutes extending the reach of personal jurisdiction to the limits established by the Federal Constitution. See 2 J. Moore, J. Lucas, H. Fink, & C. Thompson, Moore's Federal Practice � 4.41-1[4], p. 4-336 (2d ed. 1989); 4 C. Wright & A. Miller, Federal Practice and Procedure § 1068, pp. 336-339 (1987). Out-of-staters do not vote in state elections or have a voice in state government. We should not assume therefore, that States will be motivated by "notions of fairness" to curb jurisdictional rules like the one at issue here. The reasoning of Justice SCALlA's opinion today is strikingly oblivious to the raison d'etre of various constitutional doctrines designed to protect out-of-staters, such as the Art. IV Privileges and Immunities Clause and the Commerce Clause. Justice STEVENS, concurring in the judgment. As I explained in my separate writing, I did not join the Court's opinion in Shaffer v. Heitner, 433 U. S. 186 (1977), because I was concerned by its unnecessarily broad reach. Id. at 433 U. S. 217 -219 (opinion concurring in judgment). The same concern prevents me from joining either Justice SCALIA's or Justice BRENNAN's opinion in this case. For me, it is sufficient to note that the historical evidence and consensus identified by Justice SCALIA, the considerations of fairness identified by Justice BRENNAN, and the common sense displayed by Justice WHITE, all combine to demonstrate that this is, indeed, a very easy case. * Accordingly, I agree that the judgment should be affirmed. * Perhaps the adage about hard cases making bad law should be revised to cover easy cases.

Here is a summary of the case: The Supreme Court ruled that a non-resident defendant who is physically served with legal process while temporarily in a state can be subject to the jurisdiction of that state's courts, even if the case is unrelated to their activities in the state. This decision affirmed the "transient jurisdiction" rule, where personal service of process is sufficient for a state court to assert jurisdiction over a nonresident defendant. The Court's opinion, written by Justice Scalia, relied on historical precedent and traditional notions of fairness, concluding that this rule did not violate the Due Process Clause of the Fourteenth Amendment. Justice Brennan's opinion highlighted the fairness of the rule, while Justice Stevens concurred in the judgment, noting the consensus between historical evidence and fairness considerations.

Lawsuits & Legal Procedures

Edmonson v. Leesville Concrete Co., Inc.

https://supreme.justia.com/cases/federal/us/500/614/

U.S. Supreme Court Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991) cg: 500 U.S. 614 *jury selection*parties*racial discrimination*standing*state action* ct:Edmonson v. Leesville Concrete Co., Inc., 500 U. S. 614 (1991) �Edmonson v. Leesville Concrete Co., Inc., �No. 89-7743 �Argued Jan. 15, 1991 �Decided June 3, 1991 � 500 U.S. 614 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioner Edmonson sued respondent Leesville Concrete Co. in the District Court, alleging that Leesville's negligence had caused him personal injury. During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing Batson v. Kentucky, 476 U. S. 79 , Edmonson, who is black, requested that the court require Leesville to articulate a race-neutral explanation for the peremptory strikes. The court refused on the ground that Batson does not apply in civil proceedings, and the impaneled jury, which consisted of 11 white persons and 1 black, rendered a verdict unfavorable to Edmonson. The Court of Appeals affirmed, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications. Held: A private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race. Pp. 500 U. S. 618 -631. (a) Race-based exclusion of potential jurors in a civil case violates the excluded persons' equal protection rights. Cf., e.g., Powers v. Ohio, 499 U. S. 400 , 499 U. S. 402 . Although the conduct of private parties lies beyond the Constitution's scope in most instances, Leesville's exercise of peremptory challenges was pursuant to a course of state action, and is therefore subject to constitutional requirements under the analytical framework set forth in Lugar v. Edmondson Oil Co., 457 U. S. 922 , 457 U. S. 939 -942. First, the claimed constitutional deprivation results from the exercise of a right or privilege having its source in state authority, since Leesville would not have been able to engage in the alleged discriminatory acts without 28 U.S.C. § 1870, which authorizes the use of peremptory challenges in civil cases. Second, Leesville must in all fairness be deemed a government actor in its use of peremptory challenges. Leesville has made extensive use of government procedures with the overt, significant assistance of the government, see, e.g., Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 , 485 U. S. 486 , in that peremptory challenges have no utility outside the jury trial system, which is created and governed by an elaborate set of statutory provisions and administered solely by government officials, including the trial judge, himself a state actor, who exercises substantial control over voir dire and effects Page 500 U. S. 615 the final and practical denial of the excluded individual's opportunity to serve on the petit jury by discharging him or her. Moreover, the action in question involves the performance of a traditional governmental function, see, e.g., Terry v. Adams, 345 U. S. 461 , since the peremptory challenge is used in selecting the jury, an entity that is a quintessential governmental body having no attributes of a private actor. Furthermore, the injury allegedly caused by Leesville's use of peremptory challenges is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kramer, 334 U. S. 1 , since the courtroom is a real expression of the government's constitutional authority, and racial exclusion within its confines compounds the racial insult inherent in judging a citizen by the color of his or her skin. Pp. 500 U. S. 618 -628. (b) A private civil litigant may raise the equal protection claim of a person whom the opposing party has excluded from jury service on account of race. Just as in the criminal context, see Powers, supra, all three of the requirements for third-party standing are satisfied in the civil context. First, there is no reason to believe that the daunting barriers to suit by an excluded criminal juror, see id. at 499 U. S. 414 , would be any less imposing simply because the person was excluded from civil jury service. Second, the relation between the excluded venireperson and the litigant challenging the exclusion is just as close in the civil as it is in the criminal context. See id. at 499 U. S. 413 . Third, a civil litigant can demonstrate that he or she has suffered a concrete, redressable injury from the exclusion of jurors on account of race, in that racial discrimination in jury selection casts doubt on the integrity of the judicial process and places the fairness of the proceeding in doubt. See id. at 499 U. S. 411 . Pp. 500 U. S. 628 -631. (c) The case is remanded for a determination whether Edmonson has established a prima facie case of racial discrimination under the approach set forth in Batson, supra, 476 U.S. at 476 U. S. 96 -97, such that Leesville would be required to offer race-neutral explanations for its peremptory challenges. P. 500 U. S. 631 . 895 F.2d 218 (CA5 1990), reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and SOUTER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 500 U. S. 631 . SCALIA, J., filed a dissenting opinion, post, 500 U. S. 644. Page 500 U. S. 616 JUSTICE KENNEDY delivered the opinion of the Court. We must decide in the case before us whether a private litigant in a civil case may use peremptory challenges to exclude jurors on account of their race. Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion violates the equal protection rights of the challenged jurors. This civil case originated in a United States District Court, and we apply the equal protection component of the Fifth Amendment's Due Process Clause. See Bolling v. Sharpe, 347 U. S. 497 (1954). I Thaddeus Donald Edmonson, a construction worker, was injured in a job-site accident at Fort Polk, Louisiana, a federal enclave. Edmonson sued Leesville Concrete Company for negligence in the United States District Court for the Western District of Louisiana, claiming that a Leesville employee permitted one of the company's trucks to roll backward and pin him against some construction equipment. Edmonson invoked his Seventh Amendment right to a trial by jury. During voir dire, Leesville used two of its three peremptory challenges authorized by statute to remove black persons from the prospective jury. Citing our decision in Batson v. Kentucky, 476 U. S. 79 (1986), Edmonson, who is Page 500 U. S. 617 himself black, requested that the District Court require Leesville to articulate a race-neutral explanation for striking the two jurors. The District Court denied the request on the ground that Batson does not apply in civil proceedings. As impaneled, the jury included 11 white persons and 1 black person. The jury rendered a verdict for Edmonson, assessing his total damages at $90,000. It also attributed 80 of the fault to Edmonson's contributory negligence, however, and awarded him the sum of $18,000. Edmonson appealed, and a divided panel of the Court of Appeals for the Fifth Circuit reversed, holding that our opinion in Batson applies to a private attorney representing a private litigant, and that peremptory challenges may not be used in a civil trial for the purpose of excluding jurors on the basis of race. 860 F.2d 1308 (1989). The Court of Appeals panel held that private parties become state actors when they exercise peremptory challenges, and that to limit Batson to criminal cases "would betray Batson's fundamental principle [that] the state's use, toleration, and approval of peremptory challenges based on race violates the equal protection clause." Id. at 1314. The panel remanded to the trial court to consider whether Edmonson had established a prima facie case of racial discrimination under Batson. The full court then ordered rehearing en banc. A divided en banc panel affirmed the judgment of the District Court, holding that a private litigant in a civil case can exercise peremptory challenges without accountability for alleged racial classifications. 895 F.2d 218 (CA5 1990). The court concluded that the use of peremptories by private litigants does not constitute state action and, as a result, does not implicate constitutional guarantees. The dissent reiterated the arguments of the vacated panel opinion. The courts of appeals have divided on the issue. See Dunham v. Frank's Nursery & Crafts, Inc., 919 F.2d 1281 (CA7 1990) (private litigant may not use peremptory challenges to exclude venirepersons on account of race); Fludd v. Dykes, 863 Page 500 U. S. 618 F.2d 822 (CA11 1989) (same). Cf. Dias v. Sky Chefs, Inc., 919 F.2d 1870 (CA9 1990) (corporation may not raise a Batson -type objection in a civil trial); United States v. De Gross, 913 F.2d 1417 (CA9 1990) (government may raise a Batson -type objection in a criminal case), reh'g en banc ordered, 930 F.2d 695 (1991); Reynolds v. Little Rock, 893 F.2d 1004 (CA8 1990) (when government is involved in civil litigation, it may not use its peremptory challenges in a racially discriminatory manner). We granted certiorari, 498 U. S. 497 (1990), and now reverse the Court of Appeals. II A In Powers v. Ohio, 499 U. S. 400 (1991), we held that a criminal defendant, regardless of his or her race, may object to a prosecutor's race-based exclusion of persons from the petit jury. Our conclusion rested on a two-part analysis. First, following our opinions in Batson and in Carter v. Jury Commission of Greene County, 396 U. S. 320 (1970), we made clear that a prosecutor's race-based peremptory challenge violates the equal protection rights of those excluded from jury service. 499 U.S. at 499 U. S. 407 -409. Second, we relied on well-established rules of third-party standing to hold that a defendant may raise the excluded jurors' equal protection rights. Id. at 499 U. S. 410 U.S. 415. Powers relied upon over a century of jurisprudence dedicated to the elimination of race prejudice within the jury selection process. See, e.g., Batson, supra, 476 U.S. at 476 U. S. 84 ; Swain v. Alabama, 380 U. S. 202 , 203-204 (1965); Carter, supra, 396 U.S. at 396 U. S. 329 -330; Neal v. Delaware, 103 U. S. 370 , 386 (1881); Strauder v. West Virginia, 100 U. S. 303 (1880). While these decisions were, for the most part, directed at discrimination by a prosecutor or other government officials in the context of criminal proceedings, we have not intimated that race discrimination is permissible in civil proceedings. See Thiel v. Southern Pacific Co., 328 U. S. 217 , 328 U. S. 220 -221 (1946). Indeed, Page 500 U. S. 619 discrimination on the basis of race in selecting a jury in a civil proceeding harms the excluded juror no less than discrimination in a criminal trial. See id. at 328 U. S. 220 . In either case, race is the sole reason for denying the excluded venireperson the honor and privilege of participating in our system of justice. That an act violates the Constitution when committed by a government official, however, does not answer the question whether the same act offends constitutional guarantees if committed by a private litigant or his attorney. The Constitution's protections of individual liberty and equal protection apply in general only to action by the government. National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179 , 488 U. S. 191 (1988). Racial discrimination, though invidious in all contexts, violates the Constitution only when it may be attributed to state action. Moose Lodge No. 107 v. Irvis, 407 U. S. 163 , 407 U. S. 172 (1972). Thus, the legality of the exclusion at issue here turns on the extent to which a litigant in a civil case may be subject to the Constitution's restrictions. The Constitution structures the National Government, confines its actions, and, in regard to certain individual liberties and other specified matters, confines the actions of the States. With a few exceptions, such as the provisions of the Thirteenth Amendment, constitutional guarantees of individual liberty and equal protection do not apply to the actions of private entities. Tarkanian, supra, 488 U.S. at 488 U. S. 191 ; Flagg Bros, Inc. v. Brooks, 436 U. S. 149 , 436 U. S. 156 (1978). This fundamental limitation on the scope of constitutional guarantees "preserves an area of individual freedom by limiting the reach of federal law" and "avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed." Lugar v. Edmondson Oil Co., 457 U. S. 922 , 457 U. S. 936 -937 (1982). One great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law. Page 500 U. S. 620 To implement these principles, courts must consider from time to time where the governmental sphere ends and the private sphere begins. Although the conduct of private parties lies beyond the Constitution's scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints. This is the jurisprudence of state action, which explores the "essential dichotomy" between the private sphere and the public sphere, with all its attendant constitutional obligations. Moose Lodge, supra, 407 U.S. at 407 U. S. 172 . We begin our discussion within the framework for state action analysis set forth in Lugar, supra, 457 U.S. at 457 U. S. 937 . There we considered the state action question in the context of a due process challenge to a State's procedure allowing private parties to obtain prejudgment attachments. We asked first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority, 457 U.S. at 457 U. S. 939 -941; and second, whether the private party charged with the deprivation could be described in all fairness as a state actor, id. at 457 U. S. 941 -942. There can be no question that the first part of the Lugar inquiry is satisfied here. By their very nature, peremptory challenges have no significance outside a court of law. Their sole purpose is to permit litigants to assist the government in the selection of an impartial trier of fact. While we have recognized the value of peremptory challenges in this regard, particularly in the criminal context, see Batson, 476 U.S. at 476 U. S. 98 -99, there is no constitutional obligation to allow them. Ross v. Oklahoma, 487 U. S. 81 , 487 U. S. 88 (1988); Stilson v. United States, 250 U. S. 583 , 250 U. S. 586 (1919). Peremptory challenges are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury. Page 500 U. S. 621 Legislative authorizations, as well as limitations, for the use of peremptory challenges date as far back as the founding of the Republic; and the common law origins of peremptories predate that. See Holland v. Illinois, 493 U. S. 474 , 493 U. S. 481 (1990); Swain, 380 U.S. at 380 U. S. 212 -217. Today, in most jurisdictions, statutes or rules make a limited number of peremptory challenges available to parties in both civil and criminal proceedings. In the case before us, the challenges were exercised under a federal statute that provides, inter alia: "In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly." 28 U.S.C. § 1870. Without this authorization, granted by an Act of Congress itself, Leesville would not have been able to engage in the alleged discriminatory acts. Given that the statutory authorization for the challenges exercised in this case is clear, the remainder of our state action analysis centers around the second part of the Lugar test, whether a private litigant, in all fairness, must be deemed a government actor in the use of peremptory challenges. Although we have recognized that this aspect of the analysis is often a fact-bound inquiry, see Lugar, supra, 457 U.S. at 457 U. S. 939 , our cases disclose certain principles of general application. Our precedents establish that, in determining whether a particular action or course of conduct is governmental in character, it is relevant to examine the following: the extent to which the actor relies on governmental assistance and benefits, see Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 (1988); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961); whether the the actor is performing a traditional governmental function, see Terry v. Adams, 345 U. S. 461 (1953); Marsh v. Alabama, 326 U. S. 501 (1946); cf. 483 U. S. Inc. v. United States Olympic Page 500 U. S. 622 Committee, 483 U. S. 522 , 483 U. S. 544 -545 (1987); and whether the injury caused is aggravated in a unique way by the incidents of governmental authority, see Shelley v. Kraemer, 334 U. S. 1 (1948). Based on our application of these three principles to the circumstances here, we hold that the exercise of peremptory challenges by the defendant in the District Court was pursuant to a course of state action. Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the level of state action, Tulsa Professional, supra, 485 U.S. at 485 U. S. 485 , our cases have found state action when private parties make extensive use of state procedures with "the overt, significant assistance of state officials." 485 U.S. at 485 U. S. 486 ; see Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982); Sniadach v. Family Finance Corp., 395 U. S. 337 (1969). It cannot be disputed that, without the overt, significant participation of the government, the peremptory challenge system, as well as the jury trial system of which it is a part, simply could not exist. As discussed above, peremptory challenges have no utility outside the jury system, a system which the government alone administers. In the federal system, Congress has established the qualifications for jury service, see 28 U.S.C. § 1865, and has outlined the procedures by which jurors are selected. To this end, each district court in the federal system must adopt a plan for locating and summoning to the court eligible prospective jurors. 28 U.S.C. § 1863; see, e.g., Jury Plan for the United States District Court for the Western District of Louisiana (on file with Administrative Office of United States Courts). This plan, as with all other trial court procedures, must implement statutory policies of random juror selection from a fair cross-section of the community, 28 U.S.C. § 1861, and nonexclusion on account of race, color, religion, sex, national origin, or economic status, 18 U.S.C. § 243; 28 U.S.C. § 1862. Statutes prescribe many of the details of the jury plan, 28 U.S.C. § 1863, defining the jury wheel, § 1863(b)(4), voter lists, §§ 1863(b)(2), Page 500 U. S. 623 1869(c), and jury commissions, § 1863(b)(1). A statute also authorizes the establishment of procedures for assignment to grand and petit juries, § 1863(b)(8), and for lawful excuse from jury service, §§ 1863(b)(5), (6). At the outset of the selection process, prospective jurors must complete jury qualification forms as prescribed by the Administrative Office of the United States Courts. See 28 U.S.C. § 1864. Failure to do so may result in fines and imprisonment, as might a willful misrepresentation of a material fact in answering a question on the form. Ibid. In a typical case, counsel receive these forms and rely on them when exercising their peremptory strikes. See G. Bermant, Jury Selection Procedures in United States District Courts 7-8, (Federal Judicial Center 1982). The Clerk of the United States District Court, a federal official, summons potential jurors from their employment or other pursuits. They are required to travel to a United States courthouse, where they must report to juror lounges, assembly rooms, and courtrooms at the direction of the court and its officers. Whether or not they are selected for a jury panel, summoned jurors receive a per diem fixed by statute for their service. 28 U.S.C. § 1871. The trial judge exercises substantial control over voir dire in the federal system. See Fed.Rule Civ.Proc. 47. The judge determines the range of information that may be discovered about a prospective juror, and so affects the exercise of both challenges for cause and peremptory challenges. In some cases, judges may even conduct the entire voir dire by themselves, a common practice in the District Court where the instant case was tried. See Louisiana Rules of Court, Local Rule W.D.La. 13.02 (1990). The judge oversees the exclusion of jurors for cause, in this way determining which jurors remain eligible for the exercise of peremptory strikes. In cases involving multiple parties, the trial judge decides how peremptory challenges shall be allocated among them. 28 U.S.C. § 1870. When a lawyer exercises a peremptory Page 500 U. S. 624 challenge, the judge advises the juror he or she has been excused. As we have outlined here, a private party could not exercise its peremptory challenges absent the overt, significant assistance of the court. The government summons jurors, constrains their freedom of movement, and subjects them to public scrutiny and examination. The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting the "final and practical denial" of the excluded individual's opportunity to serve on the petit jury. Virginia v. Rives, 100 U. S. 313 , 100 U. S. 322 (1880). Without the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose. By enforcing a discriminatory peremptory challenge, the court "has not only made itself a party to the [biased act], but has elected to place its power, property and prestige behind the [alleged] discrimination." Burton v. Wilmington Parking Authority, 365 U.S. at 365 U. S. 725 . In so doing, the government has "create[d] the legal framework governing the [challenged] conduct," National Collegiate Athletic Assn., 488 U.S. at 488 U. S. 192 , and in a significant way has involved itself with invidious discrimination. In determining Leesville's state actor status, we next consider whether the action in question involves the performance of a traditional function of the government. A traditional function of government is evident here. The peremptory challenge is used in selecting an entity that is a quintessential governmental body, having no attributes of a private actor. The jury exercises the power of the court and of the government that confers the court's jurisdiction. As we noted in Powers, the jury system performs the critical governmental functions of guarding the rights of litigants and "insur[ing] continued acceptance of the laws by all of the people." 499 U.S. at 499 U. S. 407 . In the federal system, the Constitution itself commits the trial of facts in a civil cause to the Page 500 U. S. 625 jury. Should either party to a cause invoke its Seventh Amendment right, the jury becomes the principal factfinder, charged with weighing the evidence, judging the credibility of witnesses, and reaching a verdict. The jury's factual determinations as a general rule are final. Basham v. Pennsylvania R. Co., 372 U. S. 699 (1963). In some civil cases, as we noted earlier this Term, the jury can weigh the gravity of a wrong and determine the degree of the government's interest in punishing and deterring willful misconduct. See Pacific Mutual Life Ins. Co. v. Haslip, 499 U. S. 1 (1991). A judgment based upon a civil verdict may be preclusive of issues in a later case, even where some of the parties differ. See Allen v. McCurry, 449 U. S. 90 (1980). And in all jurisdictions, a true verdict will be incorporated in a judgment enforceable by the court. These are traditional functions of government, not of a select, private group beyond the reach of the Constitution. If a government confers on a private body the power to choose the government's employees or officials, the private body will be bound by the constitutional mandate of race-neutrality. Cf. Tarkanian, 488 U.S. at 488 U. S. 192 -193; Rendell-Baker v. Kohn, 457 U. S. 830 (1982). At least a plurality of the Court recognized this principle in Terry v. Adams, 345 U. S. 461 (1953). There we found state action in a scheme in which a private organization known as the Jaybird Democratic Association conducted whites-only elections to select candidates to run in the Democratic primary elections in Ford Bend County, Texas. The Jaybird candidate was certain to win the Democratic primary, and the Democratic candidate was certain to win the general election. Justice Clark's concurring opinion drew from Smith v. Allwright, 321 U. S. 649 , 321 U. S. 664 (1944), the principle that "any part of the machinery for choosing officials' becomes subject to the Constitution's constraints." Terry, supra, 345 U.S. at 345 U. S. 481 . The concurring opinion concluded: Page 500 U. S. 626 "[W]hen a state structures its electoral apparatus in a form which devolves upon a political organization the uncontested choice of public officials, that organization itself, in whatever disguise, takes on those attributes of government which draw the Constitution's safeguards into play." 345 U.S. at 345 U. S. 484 . The principle that the selection of state officials, other than through election by all qualified voters, may constitute state action applies with even greater force in the context of jury selection through the use of peremptory challenges. Though the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body. Were it not for peremptory challenges, there would be no question that the entire process of determining who will serve on the jury constitutes state action. The fact that the government delegates some portion of this power to private litigants does not change the governmental character of the power exercised. The delegation of authority that in Terry occurred without the aid of legislation occurs here through explicit statutory authorization. We find respondent's reliance on Polk County v. Dodson, 454 U. S. 312 (1981), unavailing. In that case, we held that a public defender is not a state actor in his general representation of a criminal defendant, even though he may be in his performance of other official duties. See id. at 454 U. S. 325 ; Branti v. Finkel, 445 U. S. 507 , 445 U. S. 519 (1980). While recognizing the employment relation between the public defender and the government, we noted that the relation is otherwise adversarial in nature. 454 U.S. at 454 U. S. 323 , n. 13. "[A] defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, . . . a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client." Id. at 454 U. S. 321 . Page 500 U. S. 627 In the ordinary context of civil litigation in which the government is not a party, an adversarial relation does not exist between the government and a private litigant. In the jury selection process, the government and private litigants work for the same end. Just as a government employee was deemed a private actor because of his purpose and functions in Dodson, so here a private entity becomes a government actor for the limited purpose of using peremptories during jury selection. The selection of jurors represents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination by reason of race. Our decision in West v. Atkins, 487 U. S. 42 (1988), provides a further illustration. We held there that a private physician who contracted with a state prison to attend to the inmates' medical needs was a state actor. He was not on a regular state payroll, but we held his "function[s] within the state system, not the precise terms of his employment, [determined] whether his actions can fairly be attributed to the State." Id. at 487 U. S. 55 -56. We noted that: "Under state law, the only medical care West could receive for his injury was that provided by the State. If Doctor Atkins misused his power by demonstrating deliberate indifference to West's serious medical needs, the resultant deprivation was caused, in a sense relevant for state action inquiry, by the State's exercise of its right to punish West by incarceration and to deny him a venue independent of the State to obtain needed medical care." Id. at 487 U. S. 55 . In the case before us, the parties do not act pursuant to any contractual relation with the government. Here, as in most civil cases, the initial decision whether to sue at all, the selection of counsel, and any number of ensuing tactical choices in the course of discovery and trial may be without the requisite governmental character to be deemed state Page 500 U. S. 628 action. That cannot be said of the exercise of peremptory challenges, however; when private litigants participate in the selection of jurors, they serve an important function within the government, and act with its substantial assistance. If peremptory challenges based on race were permitted, persons could be required by summons to be put at risk of open and public discrimination as a condition of their participation in the justice system. The injury to excluded jurors would be the direct result of governmental delegation and participation. Finally, we note that the injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds. Within the courtroom, the government invokes its laws to determine the rights of those who stand before it. In full view of the public, litigants press their cases, witnesses give testimony, juries render verdicts, and judges act with the utmost care to ensure that justice is done. Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system, and prevents the idea of democratic government from becoming a reality. Rose v. Mitchell, 443 U. S. 545 , 443 U. S. 556 (1979); Smith v. Texas, 311 U. S. 128 , 311 U. S. 130 (1940). In the many times we have addressed the problem of racial bias in our system of justice, we have not "questioned the premise that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts." Powers, 499 U.S. at 499 U. S. 402 . To permit racial exclusion in this official forum compounds the racial insult inherent in judging a citizen by the color of his or her skin. B Having held that in a civil trial exclusion on account of race violates a prospective juror's equal protection rights, we consider Page 500 U. S. 629 whether an opposing litigant may raise the excluded person's rights on his or her behalf. As we noted in Powers: "[I]n the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties." Id. at 499 U. S. 410 . We also noted, however, that this fundamental restriction on judicial authority admits of "certain, limited exceptions," ibid., and that a litigant may raise a claim on behalf of a third party if the litigant can demonstrate that he or she has suffered a concrete, redressable injury, that he or she has a close relation with the third party, and that there exists some hindrance to the third party's ability to protect his or her own interests. All three of these requirements for third-party standing were held satisfied in the criminal context, and they are satisfied in the civil context as well. Our conclusion in Powers that persons excluded from jury service will be unable to protect their own rights applies with equal force in a civil trial. While individual jurors subjected to peremptory racial exclusion have the right to bring suit on their own behalf, "[t]he barriers to a suit by an excluded juror are daunting." Id. at 499 U. S. 414 . We have no reason to believe these barriers would be any less imposing simply because a person was excluded from jury service in a civil proceeding. Likewise, we find the relation between the excluded venireperson and the litigant challenging the exclusion to be just as close in the civil context as in a criminal trial. Whether in a civil or criminal proceeding, " voir dire permits a party to establish a relation, if not a bond of trust, with the jurors," a relation that "continues throughout the entire trial." Id. at 499 U. S. 413 . Exclusion of a juror on the basis of race severs that relation in an invidious way. We believe the only issue that warrants further consideration in this case is whether a civil litigant can demonstrate a sufficient interest in challenging the exclusion of jurors on account of race. In Powers, we held: "The discriminatory use of peremptory challenges by the prosecution causes a criminal defendant cognizable Page 500 U. S. 630 injury, and the defendant has a concrete interest in challenging the practice. See Allen v. Hardy , 478 U.S. [255], at 478 U. S. 259 (1986) (recognizing a defendant's interest in 'neutral jury selection procedures'). This is not because the individual jurors dismissed by the prosecution may have been predisposed to favor the defendant; if that were true, the jurors might have been excused for cause. Rather, it is because racial discrimination in the selection of jurors 'casts doubt on the integrity of the judicial process,' Rose v. Mitchell, [ supra at 443 U. S. 556 ], and places the fairness of a criminal proceeding in doubt." Id. at 499 U. S. 411 . The harms we recognized in Powers are not limited to the criminal sphere. A civil proceeding often implicates significant rights and interests. Civil juries, no less than their criminal counterparts, must follow the law and act as impartial factfinders. And, as we have observed, their verdicts, no less than those of their criminal counterparts, become binding judgments of the court. Racial discrimination has no place in the courtroom, whether the proceeding is civil or criminal. See Thiel v. Southern Pacific Co., 328 U.S. at 328 U. S. 220 . Congress has so mandated by prohibiting various discriminatory acts in the context of both civil and criminal trials. See 18 U.S.C. § 243; 28 U.S.C. §§ 1861, 1862. The Constitution demands nothing less. We conclude that courts must entertain a challenge to a private litigant's racially discriminatory use of peremptory challenges in a civil trial. It may be true that the role of litigants in determining the jury's composition provides one reason for wide acceptance of the jury system and of its verdicts. But if race stereotypes are the price for acceptance of a jury panel as fair, the price is too high to meet the standard of the Constitution. Other means exist for litigants to satisfy themselves of a jury's impartiality without using skin color as a test. If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes Page 500 U. S. 631 retards that progress, and causes continued hurt and injury. By the dispassionate analysis which is its special distinction, the law dispels fears and preconceptions respecting racial attitudes. The quiet rationality of the courtroom makes it an appropriate place to confront race-based fears or hostility by means other than the use of offensive stereotypes. Whether the race generality employed by litigants to challenge a potential juror derives from open hostility or from some hidden and unarticulated fear, neither motive entitles the litigant to cause injury to the excused juror. And if a litigant believes that the prospective juror harbors the same biases or instincts, the issue can be explored in a rational way that consists with respect for the dignity of persons, without the use of classifications based on ancestry or skin color. III It remains to consider whether a prima facie case of racial discrimination has been established in the case before us, requiring Leesville to offer race-neutral explanations for its peremptory challenges. In Batson, we held that determining whether a prima facie case has been established requires consideration of all relevant circumstances, including whether there has been a pattern of strikes against members of a particular race. 476 U.S. at 476 U. S. 96 -97. The same approach applies in the civil context, and we leave it to the trial courts in the first instance to develop evidentiary rules for implementing our decision. The judgment is reversed, and the case is remanded for further proceedings consistent with our opinion. It is so ordered. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. The Court concludes that the action of a private attorney exercising a peremptory challenge is attributable to the government, and therefore may compose a constitutional violation. Page 500 U. S. 632 This conclusion is based on little more than that the challenge occurs in the course of a trial. Not everything that happens in a courtroom is state action. A trial, particularly a civil trial, is, by design, largely a stage on which private parties may act; it is a forum through which they can resolve their disputes in a peaceful and ordered manner. The government erects the platform; it does not thereby become responsible for all that occurs upon it. As much as we would like to eliminate completely from the courtroom the specter of racial discrimination, the Constitution does not sweep that broadly. Because I believe that a peremptory strike by a private litigant is fundamentally a matter of private choice, and not state action, I dissent. I In order to establish a constitutional violation, Edmonson must first demonstrate that Leesville's use of a peremptory challenge can fairly be attributed to the government. Unfortunately, our cases deciding when private action might be deemed that of the state have not been a model of consistency. Perhaps this is because the state action determination is so closely tied to the "framework of the peculiar facts or circumstances present." See Burton v. Wilmington Parking Authority, 365 U. S. 715 , 365 U. S. 726 (1961). Whatever the reason, and despite the confusion, a coherent principle has emerged. We have stated the rule in various ways, but at base, "constitutional standards are invoked only when it can be said that the [government] is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U. S. 991 , 457 U. S. 1004 (1982). Constitutional "liability attaches only to those wrongdoers who carry a badge of authority of [the government] and represent it in some capacity.'" National Collegiate Athletic Assn. v. Tarkanian, 488 U. S. 179 , 488 U. S. 191 (1988), quoting Monroe v. Pape, 365 U. S. 167 , 365 U. S. 172 (1961). Page 500 U. S. 633 The Court concludes that this standard is met in the present case. It rests this conclusion primarily on two empirical assertions. First, that private parties use peremptory challenges with the "overt, significant participation of the government." Ante at 500 U. S. 620 . Second, that the use of a peremptory challenge by a private party "involves the performance of a traditional function of the government." Ante at 500 U. S. . Neither of these assertions is correct. A The Court begins with a perfectly accurate definition of the peremptory challenge. Peremptory challenges "allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury." Ante at 500 U. S. . This description is worth more careful analysis, for it belies the Court's later conclusions about the peremptory. The peremptory challenge "allow[s] parties," in this case private parties, to exclude potential jurors. It is the nature of a peremptory that its exercise is left wholly within the discretion of the litigant. The purpose of this longstanding practice is to establish for each party an " arbitrary and capricious species of challenge'" whereby the "`sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another'" may be acted upon. Lewis v. United States, 146 U. S. 370 , 146 U. S. 376 (1892), quoting 4 W. Blackstone, Commentaries *353. By allowing the litigant to strike jurors for even the most subtle of discerned biases, the peremptory challenge fosters both the perception and reality of an impartial jury. Ibid.; Hayes v. Missouri, 120 U. S. 68 , 120 U. S. 70 (1887); Swain v. Alabama, 380 U. S. 202 , 380 U. S. 219 (1965); Holland v. Illinois, 493 U. S. 474 , 493 U. S. 481 -482 (1990). In both criminal and civil trials, the peremptory challenge is a mechanism for the exercise of private choice in the pursuit of fairness. The peremptory is, by design, Page 500 U. S. 634 an enclave of private action in a government-managed proceeding. The Court amasses much ostensible evidence of the Federal Government's "overt, significant participation" in the peremptory process. See ante at 500 U. S. 624 . Most of this evidence is irrelevant to the issue at hand. The bulk of the practices the Court describes -- the establishment of qualifications for jury service, the location and summoning of perspective jurors, the jury wheel, the voter lists, the jury qualification forms, the per diem for jury service -- are independent of the statutory entitlement to peremptory strikes, or of their use. All of this government action is in furtherance of the Government's distinct obligation to provide a qualified jury; the Government would do these things even if there were no peremptory challenges. All of this activity, as well as the trial judge's control over voir dire, see ante at 500 U. S. 623 -624, are merely prerequisites to the use of a peremptory challenge; they do not constitute participation in the challenge. That these actions may be necessary to a peremptory challenge -- in the sense that there could be no such challenge without a venire from which to select -- no more makes the challenge state action than the building of roads and provision of public transportation makes state action of riding on a bus. The entirety of the Government's actual participation in the peremptory process boils down to a single fact: "When a lawyer exercises a peremptory challenge, the judge advises the juror he or she has been excused." Ibid. This is not significant participation. The judge's action in "advising" a juror that he or she has been excused is state action, to be sure. It is, however, if not de minimis, far from what our cases have required in order to hold the government "responsible" for private action or to find that private actors "represent" the government. See Blum, supra, 457 U.S. at 457 U. S. 1004 ; Tarkanian, supra, 488 U.S. at 488 U. S. 191 . The government "normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, Page 500 U. S. 635 either overt or covert, that the choice must in law be deemed to be that of the State." Blum, supra, 457 U.S. at 457 U. S. 1004 . As an initial matter, the judge does not "encourage" the use of a peremptory challenge at all. The decision to strike a juror is entirely up to the litigant, and the reasons for doing so are of no consequence to the judge. It is the attorney who strikes. The judge does little more than acquiesce in this decision by excusing the juror. In point of fact, the government has virtually no role in the use of peremptory challenges. Indeed, there are jurisdictions in which, with the consent of the parties, voir dire and jury selection may take place in the absence of any court personnel. See Haith v. United States, 231 F. Supp. 495 (ED Pa.1964), aff'd, 342 F.2d 158 (CA3 1965) (per curiam); State v. Eberhardt, 32 Ohio Misc. 39, 282 N.E.2d 62 (1972). The alleged state action here is a far cry from that the Court found, for example, in Shelley v. Kraemer, 334 U. S. 1 (1948). In that case, state courts were called upon to enforce racially restrictive covenants against sellers of real property who did not wish to discriminate. The coercive power of the State was necessary in order to enforce the private choice of those who had created the covenants: [B]ut for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. Id. at 334 U. S. 19 . Moreover, the courts in Shelley were asked to enforce a facially discriminatory contract. In contrast, peremptory challenges are "exercised without a reason stated [and] without inquiry." Swain, supra, 380 U.S. at 380 U. S. 220 . A judge does not "significantly encourage" discrimination by the mere act of excusing a juror in response to an unexplained request. There is another important distinction between Shelley and this case. The state courts in Shelley used coercive force to impose conformance on parties who did not wish to discriminate. "Enforcement" of peremptory challenges, on Page 500 U. S. 636 the other hand, does not compel anyone to discriminate; the discrimination is wholly a matter of private choice. See Goldwasser, Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial, 102 Harv.L.Rev. 808, 819 (1989). Judicial acquiescence does not convert private choice into that of the state. See Blum, 457 U.S. at 457 U. S. 1004 -1005. Nor is this the kind of significant involvement found in Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 (1988). There, we concluded that the actions of the executrix of an estate in providing notice to creditors that they might file claims could fairly be attributed to the State. The State's involvement in the notice process, we said, was "pervasive and substantial." Id. at 485 U. S. 487 . In particular, a state statute directed the executrix to publish notice. In addition, the District Court in that case had "reinforced the statutory command with an order expressly requiring [the executrix] to immediately give notice to creditors.'" Ibid. Notice was not only encouraged by the State, but positively required. There is no comparable state involvement here. No one is compelled by government action to use a peremptory challenge, let alone to use it in a racially discriminatory way. The Court relies also on Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). See ante at 500 U. S. 621 , 500 U. S. 624 . But the decision in that case depended on the perceived symbiotic relationship between a restaurant and the state parking authority from whom it leased space in a public building. The State had "so far insinuated itself into a position of interdependence with" the restaurant that it had to be "recognized as a joint participant in the challenged activity." Burton, supra, at 365 U. S. 725 . Among the "peculiar facts [and] circumstances" leading to that conclusion was that the State stood to profit from the restaurant's discrimination. 365 U.S. at 365 U. S. 726 , 365 U. S. 724 . As I have shown, the government's involvement in the use of peremptory challenges falls far short of "interdependence" Page 500 U. S. 637 or "joint participation." Whatever the continuing vitality of Burton beyond its facts, see Jackson v. Metropolitan Edison Co., 419 U. S. 345 , 419 U. S. 358 (1974), it does not support the Court's conclusion here. Jackson is a more appropriate analogy to this case. Metropolitan Edison terminated Jackson's electrical service under authority granted it by the State, pursuant to a procedure approved by the state utility commission. Nonetheless, we held that Jackson could not challenge the termination procedure on due process grounds. The termination was not state action, because the State had done nothing to encourage the particular termination practice: "Approval by a state utility commission of such a request from a regulated utility, where the commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the commission into 'state action.' . . . Respondent's exercise of the choice allowed by state law where the initiative comes from it, and not from the State, does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment. " Id. at 419 U. S. 357 (emphasis added; footnote omitted). The similarity to this case is obvious. The Court's "overt, significant" government participation amounts to the fact that the government provides the mechanism whereby a litigant can choose to exercise a peremptory challenge. That the government allows this choice and that the judge approves it does not turn this private decision into state action. To the same effect is Flagg Bros., Inc. v. Brooks, 436 U. S. 149 (1978). In that case, a warehouseman's proposed sale of goods entrusted to it for storage pursuant to the New York Uniform Commercial Code was not fairly attributable to the State. We held that "the State of New York is in no way responsible for Flagg Brothers' decision, a decision which the State in § 7-210 permits but does not compel, to threaten to sell these respondents' belongings." Id. at 436 U. S. 165 . Page 500 U. S. 638 Similarly, in the absence of compulsion, or at least encouragement, from the government in the use of peremptory challenges, the government is not responsible. "The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control." Swain, 380 U.S. at 380 U. S. 220 . The government neither encourages nor approves such challenges. Accordingly, there is no "overt, significant participation" by the government. B The Court errs also when it concludes that the exercise of a peremptory challenge is a traditional government function. In its definition of the peremptory challenge, the Court asserts, correctly, that jurors struck via peremptories "otherwise . . . satisfy the requirements for service on the petit jury." Ante at 500 U. S. 620 . Whatever reason a private litigant may have for using a peremptory challenge, it is not the government's reason. The government otherwise establishes its requirements for jury service, leaving to the private litigant the unfettered discretion to use the strike for any reason. This is not part of the government's function in establishing the requirements for jury service. Peremptory challenges are exercised by a party, not in selection of jurors, but in rejection. It is not aimed at disqualification, but is exercised upon qualified jurors as matter of favor to the challenger. C. Lincoln, Abbott's Civil Jury Trials 92 (3d ed.1912), quoting O'Neil v. Lake Superior Iron Co., 67 Mich. 560, 35 N.W. 162 (1887). For this reason, the Court is incorrect, and inconsistent with its own definition of the peremptory challenge, when it says that "[i]n the jury selection process [in a civil trial], the government and private litigants work for the same end." See ante at 500 U. S. 627 . The Court is also incorrect when it says that a litigant exercising a peremptory challenge is performing "a traditional function of the government." See ante at 500 U. S. 624 . Page 500 U. S. 639 The peremptory challenge is a practice of ancient origin, part of our common law heritage in criminal trials. See Swain, supra, at 380 U. S. 212 -218 (tracing history); Holland, 493 U.S. at 493 U. S. 481 (same). Congress imported this tradition into federal civil trials in 1872. See ch. 333, 17 Stat. 282; Swain, 380 U.S. at 380 U. S. 215 , n. 14. The practice of unrestrained private choice in the selection of civil juries is even older than that, however. While there were no peremptory challenges in civil trials at common law, the struck jury system allowed each side in both criminal and civil trials to strike alternately, and without explanation, a fixed number of jurors. See id. at 380 U. S. 217 -218, and n. 21, citing J. Proffatt, Trial by Jury § 72 (1877), and F. Busch, Law and Tactics in Jury Trials § 62 (1949). Peremptory challenges are not a traditional government function; the "tradition" is one of unguided private choice. The Court may be correct that, "[w]ere it not for peremptory challenges, . . . the entire process of determining who will serve on the jury [would] constitut[e] state action." Ante at 500 U. S. 626 . But there are peremptory challenges, and always have been. The peremptory challenge forms no part of the government's responsibility in selecting a jury. A peremptory challenge by a private litigant does not meet the Court's standard; it is not a traditional government function. Beyond this, the Court has misstated the law. The Court cites Terry v. Adams, 345 U. S. 461 (1953), and Marsh v. Alabama, 326 U. S. 501 (1946), for the proposition that state action may be imputed to one who carries out a "traditional governmental function." Ante at 500 U. S. 621 . In those cases, the Court held that private control over certain core government activities rendered the private action attributable to the State. In Terry, the activity was a private primary election that effectively determined the outcome of county general elections. In Marsh, a company that owned a town had attempted to prohibit on its sidewalks certain protected speech Page 500 U. S. 640 In Flagg Bros., supra, the Court reviewed these and other cases that found state action in the exercise of certain public functions by private parties. See 436 U.S. at 436 U. S. 157 -160, reviewing Terry, Marsh, Smith v. Allwright, 321 U. S. 649 (1944), and Nixon v. Condon, 286 U. S. 73 (1932). We explained that the government functions in these cases had one thing in common: exclusivity. The public function doctrine requires that the private actor exercise "a power traditionally exclusively reserved to the State.'" 436 U.S. at 436 U. S. 157 , quoting Jackson, 419 U.S. at 419 U. S. 352 . In order to constitute state action under this doctrine, private conduct must not only comprise something that the government traditionally does, but something that only the government traditionally does. Even if one could fairly characterize the use of a peremptory strike as the performance of the traditional government function of jury selection, it has never been exclusively the function of the government to select juries; peremptory strikes are older than the Republic. West v. Atkins, 487 U. S. 42 (1988), is not to the contrary. The Court seeks to derive from that case a rule that one who "serve[s] an important function within the government," even if not a government employee, is thereby a state actor. See ante at 500 U. S. 628 . Even if this were the law, it would not help the Court's position. The exercise of a peremptory challenge is not an important government function; it is not a government function at all. In any event, West does not stand for such a broad proposition. The doctor in that case was under contract with the State to provide services for the State. More important, the State hired the doctor in order to fulfill the State's constitutional obligation to attend to the necessary medical care of prison inmates. 487 U.S. at 487 U. S. 53 , n. 10. The doctor's relation to the State, and the State's responsibility, went beyond mere performance of an important job. The present case is closer to Jackson, supra, and Rendell-Baker v. Kohn, 457 U. S. 830 (1982), than to Terry, Marsh, Page 500 U. S. 641 or West. In the former cases, the alleged state activities were those of state-regulated private actors performing what might be considered traditional public functions. See Jackson (electrical utility); Rendell-Baker (school). In each case, the Court held that the performance of such a function, even if state regulated or state funded, was not state action unless the function had been one exclusively the prerogative of the State, or the State had provided such significant encouragement to the challenged action that the State could be held responsible for it. See Jackson, 419 U.S. at 419 U. S. 352 -353, 419 U. S. 357 ; Rendell-Baker, supra, 457 U.S. at 457 U. S. 842 , 457 U. S. 840 . The use of a peremptory challenge by a private litigant meets neither criterion. C None of this should be news, as this case is fairly well controlled by Polk County v. Dodson, 454 U. S. 312 (1981). We there held that a public defender, employed by the State, does not act under color of state law when representing a defendant in a criminal trial. * In such a circumstance, government employment is not sufficient to create state action. More important for present purposes, neither is the performance of a lawyer's duties in a courtroom. This is because a lawyer, when representing a private client, cannot at the same time represent the government. Trials in this country are adversarial proceedings. Attorneys for private litigants do not act on behalf of the government, or even the public as a whole; attorneys represent their clients. An attorney's job is to "advanc[e] the 'undivided interests of his client.' This is essentially a private function . . . for which state office and authority are not Page 500 U. S. 642 needed." Id. at 454 U. S. 318 -319 (footnotes omitted). When performing adversarial functions during trial, an attorney for a private litigant acts independently of the government: "[I]t is the function of the public defender to enter 'not guilty' pleas, move to suppress State's evidence, object to evidence at trial, cross-examine State's witnesses, and make closing arguments in behalf of defendants. All of these are adversarial functions. We find it peculiarly difficult to detect any color of state law in such activities." 454 U.S. at 454 U. S. 320 . Our conclusion in Dodson was that "a public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal proceeding." Id. at 454 U. S. 325 . It cannot be gainsaid that a peremptory strike is a traditional adversarial act; parties use these strikes to further their own perceived interests, not as an aid to the government's process of jury selection. The Court does not challenge the rule of Dodson, yet concludes that private attorneys performing this adversarial function are state actors. Where is the distinction? The Court wishes to limit the scope of Dodson to the actions of public defenders in an adversarial relationship with the government. Ante at 500 U. S. 626 -627. At a minimum then, the Court must concede that Dodson stands for the proposition that a criminal defense attorney is not a state actor when using peremptory strikes on behalf of a client, nor is an attorney representing a private litigant in a civil suit against the government. Both of these propositions are true, but the Court's distinction between this case and Dodson turns state action doctrine on its head. Attorneys in an adversarial relation to the state are not state actors, but that does not mean that attorneys who are not in such a relation are state actors. The Court is plainly wrong when it asserts that, "[i]n the jury-selection process, the government and private litigants work for the same end." See ante at 500 U. S. 627 . In a civil trial, Page 500 U. S. 643 the attorneys for each side are in "an adversarial relation," ibid.; they use their peremptory strikes in direct opposition to one another, and for precisely contrary ends. The government cannot "work for the same end" as both parties. In fact, the government is neutral as to private litigants' use of peremptory strikes. That's the point. The government does not encourage or approve these strikes, or direct that they be used in any particular way, or even that they be used at all. The government is simply not "responsible" for the use of peremptory strikes by private litigants. Constitutional "liability attaches only to those wrongdoers who carry a badge of authority of [the government] and represent it in some capacity.'" Tarkanian, 488 U.S. at 488 U. S. 191 . A government attorney who uses a peremptory challenge on behalf of the client is, by definition, representing the government. The challenge thereby becomes state action. It is antithetical to the nature of our adversarial process, however, to say that a private attorney acting on behalf of a private client represents the government for constitutional purposes. II Beyond "significant participation" and "traditional function," the Court's final argument is that the exercise of a peremptory challenge by a private litigant is state action because it takes place in a courtroom. Ante at 500 U. S. 628 . In the end, this is all the Court is left with; peremptories do not involve the "overt, significant participation of the government," nor do they constitute a "traditional function of the government." The Court is also wrong in its ultimate claim. If Dodson stands for anything, it is that the actions of a lawyer in a courtroom do not become those of the government by virtue of their location. This is true even if those actions are based on race. Racism is a terrible thing. It is irrational, destructive, and mean. Arbitrary discrimination based on race is particularly abhorrent when manifest in a courtroom, a forum Page 500 U. S. 644 established by the government for the resolution of disputes through "quiet rationality." See ante at 500 U. S. 631 . But not every opprobrious and inequitable act is a constitutional violation. The Fifth Amendment's Due Process Clause prohibits only actions for which the Government can be held responsible. The Government is not responsible for everything that occurs in a courtroom. The Government is not responsible for a peremptory challenge by a private litigant. I respectfully dissent. * Dodson was a case brought under 42 U.S.C. § 1983, the statutory mechanism for many constitutional claims. The issue in that case, therefore, was whether the public defender had acted "under color of state law." 454 U.S. at 314. In Lugar v. Edmondson Oil Co., 457 U. S. 922 , 929 (1982), the Court held that the statutory requirement of action "under color of state law" is identical to the "state action" requirement for other constitutional claims. JUSTICE SCALIA, dissenting. I join JUSTICE O'CONNOR's dissent, which demonstrates that today's opinion is wrong in principle. I write to observe that it is also unfortunate in its consequences. The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help, rather than hindrance, to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky, 476 U. S. 79 (1986), already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so -- so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases, that is probably not true -- but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure, rather than to prevent, a racially diverse jury. The concrete costs of today's decision, on the other hand, are not at all doubtful; and they are enormous. We have now added to the duties of already-submerged state and federal trial courts the obligation to assure that race is not included among the other factors (sex, age, religion, political Page 500 U. S. 645 views, economic status) used by private parties in exercising their peremptory challenges. That responsibility would be burden enough if it were not to be discharged through the adversary process; but of course it is. When combined with our decision this Term in Powers v. Ohio, 499 U. S. 400 (1991), which held that the party objecting to an allegedly race-based peremptory challenge need not be of the same race as the challenged juror, today's decision means that both sides, in all civil jury cases, no matter what their race (and indeed, even if they are artificial entities such as corporations), may lodge racial-challenge objections and, after those objections have been considered and denied, appeal the denials -- with the consequence, if they are successful, of having the judgments against them overturned. Thus, yet another complexity is added to an increasingly Byzantine system of justice that devotes more and more of its energy to sideshows, and less and less to the merits of the case. Judging by the number of Batson claims that have made their way even as far as this Court under the pre- Powers regime, it is a certainty that the amount of judges' and lawyers' time devoted to implementing today's newly discovered Law of the Land will be enormous. That time will be diverted from other matters, and the overall system of justice will certainly suffer. Alternatively, of course, the States and Congress may simply abolish peremptory challenges, which would cause justice to suffer in a different fashion. See Holland v. Illinois, 493 U. S. 474 , 493 U. S. 484 (1990). Although today's decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion -- what a magnificent demonstration of this institution's uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. I dissent.

In *Edmonson v. Leesville Concrete Co., Inc.* (1991), the U.S. Supreme Court ruled that private litigants in civil cases may not use peremptory challenges to exclude jurors based on race, extending the constitutional guarantee of equal protection to potential jurors. The Court held that peremptory challenges, authorized by statute, constitute state action and are thus subject to constitutional requirements. This decision added complexity to jury selection, requiring courts to ensure race neutrality in the exercise of peremptory challenges and allowing both sides in civil cases to lodge racial-challenge objections, with potential for appeal. The dissent criticized the decision for its practical burden on trial courts and potential negative impact on minority litigants, while acknowledging its symbolic value in demonstrating the judiciary's opposition to race-based judgments.

Lawsuits & Legal Procedures

J.E.B. v. Alabama ex rel. T.B.

https://supreme.justia.com/cases/federal/us/511/127/

OCTOBER TERM, 1993 Syllabus J. E. B. v. ALABAMA EX REL. T. B. CERTIORARI TO THE COURT OF CIVIL APPEALS OF ALABAMA No. 92-1239. Argued November 2, 1993-Decided April 19, 1994 At petitioner's paternity and child support trial, respondent State used 9 of its 10 peremptory challenges to remove male jurors. The court empaneled an all-female jury after rejecting petitioner's claim that the logic and reasoning of Batson v. Kentucky, 476 U. S. 79 -in which this Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits peremptory strikes based solely on race-extend to forbid gender-based peremptory challenges. The jury found petitioner to be the father of the child in question and the trial court ordered him to pay child support. The Alabama Court of Civil Appeals affirmed. Held: The Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case solely because that person happens to be a woman or a man. Respondent's gender-based peremptory challenges cannot survive the heightened equal protection scrutiny that this Court affords distinctions based on gender. Respondent's rationale-that its decision to strike virtually all males in this case may reasonably have been based on the perception, supported by history, that men otherwise totally qualified to serve as jurors might be more sympathetic and receptive to the arguments of a man charged in a paternity action, while women equally qualified might be more sympathetic and receptive to the arguments of the child's mother-is virtually unsupported and is based on the very stereotypes the law condemns. The conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges. So long as gender does not serve as a proxy for bias, unacceptable jurors may still be removed, including those who are members of a group or class that is normally subject to "rational basis" review and those who exhibit characteristics that are disproportionately associated with one gender. Pp. 131-146. 606 So. 2d 156, reversed and remanded. BLACKMUN, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 146. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 151. REHNQUIST, C. J., filed a dissenting opinion, post, p. 154. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 156. 128 John F. Porter III argued the cause and filed briefs for petitioner. Michael R. Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Acting Assistant Attorneys General Keeney and Turner, and Deputy Solicitor General Bryson. Lois N. Brasfield, Assistant Attorney General of Alabama, argued the cause for respondent. With her on the briefs was William F. Prendergast, Assistant Attorney General.* JUSTICE BLACKMUN delivered the opinion of the Court. In Batson v. Kentucky, 476 U. S. 79 (1986), this Court held that the Equal Protection Clause of the Fourteenth Amend- ment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has "no right to a 'petit jury composed in whole or in part of persons of his own race,'" id., at 85, quoting Strauder v. West Virginia, 100 U. S. 303 , 305 (1880), the "defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria," 476 U. S., at 85-86. Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice. See Powers v. Ohio, 499 U. S. 400 (1991); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991); Georgia v. McCollum, 505 U. S. 42 (1992). Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases *David H. Coburn, Stephanie A. Philips, and Marcia Greenberger filed a brief for the National Women's Law Center et al. as amici curiae urging reversal. 129 defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality. I On behalf of relator T. B., the mother of a minor child, respondent State of Alabama filed a complaint for paternity and child support against petitioner J. E. B. in the District Court of Jackson County, Alabama. On October 21, 1991, the matter was called for trial and jury selection began. The trial court assembled a panel of 36 potential jurors, 12 males and 24 females. After the court excused three jurors for cause, only 10 of the remaining 33 jurors were male. The State then used 9 of its 10 peremptory strikes to remove male jurors; petitioner used all but one of his strikes to remove female jurors. As a result, all the selected jurors were female. Before the jury was empaneled, petitioner objected to the State's peremptory challenges on the ground that they were exercised against male jurors solely on the basis of gender, in violation of the Equal Protection Clause of the Fourteenth Amendment. App. 22. Petitioner argued that the logic and reasoning of Batson v. Kentucky, which prohibits peremptory strikes solely on the basis of race, similarly forbids intentional discrimination on the basis of gender. The court rejected petitioner's claim and empaneled the all-female jury. App. 23. The jury found petitioner to be the father of the child, and the court entered an order directing him to pay child support. On post judgment motion, the court reaffirmed its ruling that Batson does not extend to genderbased peremptory challenges. App. 33. The Alabama Court of Civil Appeals affirmed, 606 So. 2d 156 (1992), rely- 130 ing on Alabama precedent, see, e. g., Murphy v. State, 596 So. 2d 42 (Ala. Crim. App. 1991), cert. denied, 506 U. S. 827 (1992), and Ex parte Murphy, 596 So. 2d 45 (Ala. 1992). The Supreme Court of Alabama denied certiorari, No. 1911717 (Oct. 23, 1992). We granted certiorari, 508 U. S. 905 (1993), to resolve a question that has created a conflict of authority-whether the Equal Protection Clause forbids peremptory challenges on the basis of gender as well as on the basis of race.1 Today we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates 1 The Federal Courts of Appeals have divided on the issue. See United States v. De Gross, 913 F.2d 1417 (CA9 1990), and 960 F.2d 1433 , 14371443 (1992) (en banc) (extending Batson v. Kentucky, 476 U. S. 79 (1986), to prohibit gender-based peremptory challenges in both criminal and civil trials); cf. United States v. Nichols, 937 F.2d 1257 , 1262-1264 (CA7 1991) (declining to extend Batson to gender), cert. denied, 502 U. S. 1080 (1992); United States v. Hamilton, 850 F.2d 1038 , 1042-1043 (CA4 1988) (same), cert. dism'd, 489 U. S. 1094 (1989), and cert. denied, 493 U. S. 1069 (1990); United States v. Broussard, 987 F.2d 215 , 218-220 (CA5 1993) (same). State courts also have considered the constitutionality of gender-based peremptory challenges. See Laidler v. State, 627 So. 2d 1263 (Fla. App. 1993) (extending Batson to gender); State v. Burch, 65 Wash. App. 828, 830 P. 2d 357 (1992) (same, relying on State and Federal Constitutions); Di Donato v. Santini, 232 Cal. App. 3d 721, 283 Cal. Rptr. 751 (1991), review denied (Cal., Oct. 2, 1991); Tyler v. State, 330 Md. 261, 623 A. 2d 648 (1993) (relying on State Constitution); People v. Mitchell, 228 Ill. App. 3d 917, 593 N. E. 2d 882 (1992) (same), aff'd in part and vacated in relevant part, 155 Ill. 2d 643, 602 N. E. 2d 467 (1993); State v. Gonzales, 111 N. M. 590, 808 P. 2d 40 (App.) (same), cert. denied, 111 N. M. 590, 806 P. 2d 65 (1991); State v. Levinson, 71 Haw. 492, 498-499, 795 P. 2d 845, 849 (1990) (same); People v. Irizarry, 165 App. Div. 2d 715, 560 N. Y. S. 2d 279 (1990) (same); Commonwealth v. Hutchinson, 395 Mass. 568, 570, 481 N. E. 2d 188, 190 (1985) (same); cf. State v. Culver, 293 Neb. 228, 444 N. W. 2d 662 (1989) (refusing to extend Batson to gender); State v. Clay, 779 S. W. 2d 673, 676 (Mo. App. 1989) (same); State v. Adams, 533 So. 2d 1060, 1063 (La. App. 1988) (same), cert. denied, 540 So. 2d 338 (La. 1989); State v. Oliviera, 534 A. 2d 867, 870 (R. I. 1987) (same); Murphy v. State, 596 So. 2d 42 (Ala. Crim. App. 1991) (same), cert. denied, 596 So. 2d 45 (Ala.), cert. denied, 506 U. S. 827 (1992). 131 the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women. II Discrimination on the basis of gender in the exercise of peremptory challenges is a relatively recent phenomenon. Gender-based peremptory strikes were hardly practicable during most of our country's existence, since, until the 20th century, women were completely excluded from jury service.2 So well entrenched was this exclusion of women that in 1880 this Court, while finding that the exclusion of African-American men from juries violated the Fourteenth Amendment, expressed no doubt that a State "may confine the selection [of jurors] to males." Strauder v. West Virginia, 100 U. S., at 310; see also Fay v. New York, 332 U. S. 261 , 289-290 (1947). Many States continued to exclude women from jury service well into the present century, despite the fact that women attained suffrage upon ratification of the Nineteenth Amendment in 1920.3 States that did permit women to serve on juries often erected other barriers, such as registration requirements and automatic exemptions, designed to deter women from exercising their right to jury service. See, e. g., 2 There was one brief exception. Between 1870 and 1871, women were permitted to serve on juries in Wyoming Territory. They were no longer allowed on juries after a new chief justice who disfavored the practice was appointed in 1871. See Abrahamson, Justice and Juror, 20 Ga. L. Rev. 257, 263-264 (1986). 3 In 1947, women still had not been granted the right to serve on juries in 16 States. See Rudolph, Women on Juries-Voluntary or Compulsory?, 44 J. Am. Jud. Soc. 206 (1961). As late as 1961, three States, Alabama, Mississippi, and South Carolina, continued to exclude women from jury service. See Hoyt v. Florida, 368 U. S. 57 , 62 (1961). Indeed, Alabama did not recognize women as a "cognizable group" for jury-service purposes until after the 1966 decision in White v. Crook, 251 F. Supp. 401 (MD Ala.) (three-judge court). 132 Fay v. New York, 332 U. S., at 289 ("[I]n 15 of the 28 states which permitted women to serve [on juries in 1942], they might claim exemption because of their sex"); Hoyt v. Florida, 368 U. S. 57 (1961) (upholding affirmative registration statute that exempted women from mandatory jury service). The prohibition of women on juries was derived from the English common law which, according to Blackstone, rightfully excluded women from juries under "the doctrine of propter defectum sexus, literally, the 'defect of sex.''' United States v. De Gross, 960 F.2d 1433 , 1438 (CA9 1992) (en bane), quoting 2 W. Blackstone, Commentaries *362.4 In this country, supporters of the exclusion of women from juries tended to couch their objections in terms of the ostensible need to protect women from the ugliness and depravity of trials. Women were thought to be too fragile and virginal to withstand the polluted courtroom atmosphere. See Bailey v. State, 215 Ark. 53, 61, 219 S. W. 2d 424, 428 (1949) ("Criminal court trials often involve testimony of the foulest kind, and they sometimes require consideration of indecent conduct, the use of filthy and loathsome words, references to intimate sex relationships, and other elements that would prove humiliating, embarrassing and degrading to a lady"); In re Goodell, 39 Wis. 232, 245-246 (1875) (endorsing statutory ineligibility of women for admission to the bar because "[r]everence for all womanhood would suffer in the public 4 In England there was at least one deviation from the general rule that only males could serve as jurors. If a woman was subject to capital punishment, or if a widow sought postponement of the disposition of her husband's estate until birth of a child, a writ de ventre inspiciendo permitted the use of a jury of matrons to examine the woman to determine whether she was pregnant. But even when a jury of matrons was used, the examination took place in the presence of 12 men, who also composed part of the jury in such cases. The jury of matrons was used in the United States during the Colonial period, but apparently fell into disuse when the medical profession began to perform that function. See Note, Jury Service for Women, 12 U. Fla. L. Rev. 224, 224-225 (1959). 133 spectacle of women ... so engaged"); Bradwell v. State, 16 Wall. 130, 141 (1873) (concurring opinion) ("[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life .... The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator"). Cf. Frontiero v. Richardson, 411 U. S. 677 , 684 (1973) (plurality opinion) (This "attitude of 'romantic paternalism' ... put women, not on a pedestal, but in a cage"). This Court in Ballard v. United States, 329 U. S. 187 (1946), first questioned the fundamental fairness of denying women the right to serve on juries. Relying on its supervisory powers over the federal courts, it held that women may not be excluded from the venire in federal trials in States where women were eligible for jury service under local law. In response to the argument that women have no superior or unique perspective, such that defendants are denied a fair trial by virtue of their exclusion from jury panels, the Court explained: "It is said ... that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men-personality, background, economic status-and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act like a class .... The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on 134 the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded." Id., at 193-194 (footnotes omitted). Fifteen years later, however, the Court still was unwilling to translate its appreciation for the value of women's contribution to civic life into an enforceable right to equal treatment under state laws governing jury service. In Hoyt v. Florida, 368 U. S., at 61, the Court found it reasonable, "[d]espite the enlightened emancipation of women," to exempt women from mandatory jury service by statute, allowing women to serve on juries only if they volunteered to serve. The Court justified the differential exemption policy on the ground that women, unlike men, occupied a unique position "as the center of home and family life." Id., at 62. In 1975, the Court finally repudiated the reasoning of Hoyt and struck down, under the Sixth Amendment, an affirmative registration statute nearly identical to the one at issue in Hoyt. See Taylor v. Louisiana, 419 U. S. 522 (1975).5 We explained: "Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial." Id., at 530. The diverse and representative character of the jury must be maintained "'partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.'" Id., at 530-531, quoting Thiel v. Southern Pacific Co., 328 U. S. 217 , 227 (1946) (Frankfurter, 5 Taylor distinguished Hoyt by explaining that that case "did not involve a defendant's Sixth Amendment right to a jury drawn from a fair cross section of the community," 419 U. S., at 534. The Court now, however, has stated that Taylor "in effect" overruled Hoyt. See Payne v. Tennessee, 501 U. S. 808 , 828, n. 1 (1991). 135 J., dissenting). See also Duren v. Missouri, 439 U. S. 357 (1979). III Taylor relied on Sixth Amendment principles, but the opinion's approach is consistent with the heightened equal protection scrutiny afforded gender-based classifications. Since Reed v. Reed, 404 U. S. 71 (1971), this Court consistently has subjected gender-based classifications to heightened scrutiny in recognition of the real danger that government policies that professedly are based on reasonable considerations in fact may be reflective of "archaic and overbroad" generalizations about gender, see Schlesinger v. Ballard, 419 U. S. 498 , 506-507 (1975), or based on "outdated misconceptions concerning the role of females in the home rather than in the 'marketplace and world of ideas.'" Craig v. Boren, 429 U. S. 190 , 198-199 (1976). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 , 441 (1985) (differential treatment of the sexes "very likely reflect[s] outmoded notions of the relative capabilities of men and women"). Despite the heightened scrutiny afforded distinctions based on gender, respondent argues that gender discrimination in the selection of the petit jury should be permitted, though discrimination on the basis of race is not. Respondent suggests that "gender discrimination in this country ... has never reached the level of discrimination" against African-Americans, and therefore gender discrimination, unlike racial discrimination, is tolerable in the courtroom. Brief for Respondent 9. While the prejudicial attitudes toward women in this country have not been identical to those held toward racial minorities, the similarities between the experiences of racial minorities and women, in some contexts, "overpower those differences." Note, Beyond Batson: Eliminating GenderBased Peremptory Challenges, 105 Harv. L. Rev. 1920, 1921 136 (1992). As a plurality of this Court observed in Frontiero v. Richardson, 411 U. S., at 685: "[T]hroughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children .... And although blacks were guaranteed the right to vote in 1870, women were denied even that right-which is itself 'preservative of other basic civil and political rights'-until adoption of the Nineteenth Amendment half a century later." (Footnote omitted.) Certainly, with respect to jury service, African-Americans and women share a history of total exclusion, a history which came to an end for women many years after the embarrassing chapter in our history came to an end for African-Americans. We need not determine, however, whether women or racial minorities have suffered more at the hands of discriminatory state actors during the decades of our Nation's history. It is necessary only to acknowledge that "our Nation has had a long and unfortunate history of sex discrimination," id., at 684, a history which warrants the heightened scrutiny we afford all gender-based classifications today. Under our equal protection jurisprudence, gender-based classifications require "an exceedingly persuasive justification" in order to survive constitutional scrutiny. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 , 273 (1979). See also Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 724 (1982); Kirchberg v. Feenstra, 450 U. S. 455 , 461 (1981). Thus, the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State's legitimate interest in achieving a fair and impartial 137 tria1.6 In making this assessment, we do not weigh the value of peremptory challenges as an institution against our asserted commitment to eradicate invidious discrimination from the courtroom.7 Instead, we consider whether peremptory challenges based on gender stereotypes provide substantial aid to a litigant's effort to secure a fair and impartial jury.8 Far from proffering an exceptionally persuasive justification for its gender-based peremptory challenges, respondent maintains that its decision to strike virtually all the males from the jury in this case "may reasonably have been based upon the perception, supported by history, that men otherwise totally qualified to serve upon a jury in any case might 6 Because we conclude that gender-based peremptory challenges are not substantially related to an important government objective, we once again need not decide whether classifications based on gender are inherently suspect. See Mississippi Univ. for Women, 458 U. S., at 724, n. 9; Stanton v. Stanton, 421 U. S. 7 , 13 (1975); Harris v. Forklift Systems, Inc., 510 U. S. 17 , 26, n. (1993) (GINSBURG, J., concurring) ("[I]t remains an open question whether 'classifications based on gender are inherently suspect' ") (citations omitted). 7 Although peremptory challenges are valuable tools in jury trials, they "are not constitutionally protected fundamental rights; rather they are but one state-created means to the constitutional end of an impartial jury and a fair trial." Georgia v. McCollum, 505 U. S. 42 , 57 (1992). 8 Respondent argues that we should recognize a special state interest in this case: the State's interest in establishing the paternity of a child born out of wedlock. Respondent contends that this interest justifies the use of gender-based peremptory challenges, since illegitimate children are themselves victims of historical discrimination and entitled to heightened scrutiny under the Equal Protection Clause. What respondent fails to recognize is that the only legitimate interest it could possibly have in the exercise of its peremptory challenges is securing a fair and impartial jury. See Edmonson v. Leesville Concrete Co., 500 U. S. 614 , 620 (1991) ("[The] sole purpose [of the peremptory challenge] is to permit litigants to assist the government in the selection of an impartial trier of fact"). This interest does not change with the parties or the causes. The State's interest in every trial is to see that the proceedings are carried out in a fair, impartial, and nondiscriminatory manner. 138 be more sympathetic and receptive to the arguments of a man alleged in a paternity action to be the father of an outof-wedlock child, while women equally qualified to serve upon a jury might be more sympathetic and receptive to the arguments of the complaining witness who bore the child." Brief for Respondent 10.9 We shall not accept as a defense to gender-based peremptory challenges "the very stereotype the law condemns." Powers v. Ohio, 499 U. S., at 410. Respondent's rationale, not unlike those regularly expressed for gender-based strikes, is reminiscent of the arguments advanced to justify the total exclusion of women from juries.10 Respondent of- 9 Respondent cites one study in support of its quasi-empirical claim that women and men may have different attitudes about certain issues justifying the use of gender as a proxy for bias. See R. Hastie, S. Penrod, & N. Pennington, Inside the Jury 140 (1983). The authors conclude: "Neither student nor citizen judgments for typical criminal case materials have revealed differences between male and female verdict preferences .... The picture differs [only] for rape cases, where female jurors appear to be somewhat more conviction-prone than male jurors." The majority of studies suggest that gender plays no identifiable role in jurors' attitudes. See, e. g., V. Hans & N. Vidmar, Judging the Jury 76 (1986) ("[I]n the majority of studies there are no significant differences in the way men and women perceive and react to trials; yet a few studies find women more defense-oriented, while still others show women more favorable to the prosecutor"). Even in 1956, before women had a constitutional right to serve on juries, some commentators warned against using gender as a proxy for bias. See F. Busch, Law and Tactics in Jury Trials § 143, p. 207 (1949) ("In this age of general and specialized education, availed of generally by both men and women, it would appear unsound to base a peremptory challenge in any case upon the sole ground of sex ... "). 10 A manual formerly used to instruct prosecutors in Dallas, Texas, provided the following advice: "'I don't like women jurors because I can't trust them. They do, however, make the best jurors in cases involving crimes against children. It is possible that their "women's intuition" can help you if you can't win your case with the facts.''' Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 210 (1989). Another widely circulated trial manual speculated: "If counsel is depending upon a clearly applicable rule of law and if he wants to avoid a verdict of 'intuition' or 'sympathy,' if his verdict in 139 fers virtually no support for the conclusion that gender alone is an accurate predictor of juror's attitudes; yet it urges this Court to condone the same stereotypes that justified the wholesale exclusion of women from juries and the ballot box.ll Respondent seems to assume that gross generalizations that would be deemed impermissible if made on the amount is to be proved by clearly demonstrated blackboard figures for example, generally he would want a male juror. "[But] women ... are desired jurors when plaintiff is a man. A woman juror may see a man impeached from the beginning of the case to the end, but there is at least the chance [with] the woman juror (particularly if the man happens to be handsome or appealing) [that] the plaintiff's derelictions in and out of court will be overlooked. A woman is inclined to forgive sin in the opposite sex; but definitely not her own." 3 M. Belli, Modern Trials §§ 51.67 and 51.68, pp. 446-447 (2d ed. 1982). 11 Even if a measure of truth can be found in some of the gender stereotypes used to justify gender-based peremptory challenges, that fact alone cannot support discrimination on the basis of gender in jury selection. We have made abundantly clear in past cases that gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization. See, e. g., Weinberger v. Wiesenfeld, 420 U. S. 636 , 645 (1975) (holding unconstitutional a Social Security Act classification authorizing benefits to widows but not to widowers despite the fact that the justification for the differential treatment was "not entirely without empirical support"); Craig v. Boren, 429 U. S. 190 , 201 (1976) (invalidating an Oklahoma law that established different drinking ages for men and women, although the evidence supporting the age differential was "not trivial in a statistical sense"). The generalization advanced by Alabama in support of its asserted right to discriminate on the basis of gender is, at the least, overbroad, and serves only to perpetuate the same "outmoded notions of the relative capabilities of men and women," Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 , 441 (1985), that we have invalidated in other contexts. See Frontiero v. Richardson, 411 U. S. 677 (1973); Stanton v. Stanton, supra; Craig v. Boren, supra; Mississippi Univ.for Women v. Hogan, supra. The Equal Protection Clause, as interpreted by decisions of this Court, acknowledges that a shred of truth may be contained in some stereotypes, but requires that state actors look beyond the surface before making judgments about people that are likely to stigmatize as well as to perpetuate historical patterns of discrimination. 140 basis of race are somehow permissible when made on the basis of gender. Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice that motivated the discriminatory selection of the jury will infect the entire proceedings. See Edmonson, 500 U. S., at 628 (discrimination in the courtroom "raises serious questions as to the fairness of the proceedings conducted there"). The community is harmed by the State's participation in the perpetuation of invidious group stereotypes and the inevitable loss of confidence in our judicial system that state-sanctioned discrimination in the courtroom engenders. When state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women. Because these stereotypes have wreaked injustice in so many other spheres of our country's public life, active discrimination by litigants on the basis of gender during jury selection "invites cynicism respecting the jury's neutrality and its obligation to adhere to the law." Powers v. Ohio, 499 U. S., at 412. The potential for cynicism is particularly acute in cases where gender-related issues are prominent, such as cases involving rape, sexual harassment, or paternity. Discriminatory use of peremptory challenges may create the impression that the judicial system has acquiesced in suppressing full participation by one gender or that the "deck has been stacked" in favor of one side. See id., at 413 ("The verdict will not be accepted or understood [as fair] if the jury is chosen by unlawful means at the outset"). In recent cases we have emphasized that individual jurors themselves have a right to nondiscriminatory jury selection 141 procedures.12 See Powers, supra, Edmonson, supra, and Georgia v. McCollum, 505 U. S. 42 (1992). Contrary to respondent's suggestion, this right extends to both men and women. See Mississippi Univ. for Women v. Hogan, 458 U. S, at 723 (that a state practice "discriminates against males rather than against females does not exempt it from scrutiny or reduce the standard of review"); cf. Brief for Respondent 9 (arguing that men deserve no protection from gender discrimination in jury selection because they are not victims of historical discrimination). All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce pat- 12 Given our recent precedent, the doctrinal basis for JUSTICE SCALIA'S dissenting opinion is a mystery. JUSTICE SCALIA points out that the discrimination at issue in this case was directed at men, rather than women, but then acknowledges that the Equal Protection Clause protects both men and women from intentional discrimination on the basis of gender. See post, at 157, citing Mississippi Univ. for Women v. Hogan, 458 U. S., at 723-724. He also appears cognizant of the fact that classifications based on gender must be more than merely rational, see post, at 160-161; they must be supported by an "exceedingly persuasive justification," Hogan, 458 U. S., at 724. JUSTICE SCALIA further admits that the Equal Protection Clause, as interpreted by decisions of this Court, governs the exercise of peremptory challenges in every trial, and that potential jurors, as well as litigants, have an equal protection right to nondiscriminatory jury selection procedures. See post, at 158-160, citing Batson, Powers, Edmonson, and McCollum. JUSTICE SCALIA does not suggest that we overrule these cases, nor does he attempt to distinguish them. He intimates that discrimination on the basis of gender in jury selection may be rational, see post, at 157, but offers no "exceedingly persuasive justification" for it. Indeed, JUSTICE SCALIA fails to advance any justification for his apparent belief that the Equal Protection Clause, while prohibiting discrimination on the basis of race in the exercise of peremptory challenges, allows discrimination on the basis of gender. His dissenting opinion thus serves as a tacit admission that, short of overruling a decade of cases interpreting the Equal Protection Clause, the result we reach today is doctrinally compelled. 142 terns of historical discrimination. 13 Striking individual jurors on the assumption that they hold particular views simply because of their gender is "practically a brand upon them, affixed by the law, an assertion of their inferiority." Strauder v. West Virginia, 100 U. S., at 308. It denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation.14 The message it sends to all those in the courtroom, and all those who may later learn of the discriminatory act, is that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree.15 13 It is irrelevant that women, unlike Mrican-Americans, are not a numerical minority and therefore are likely to remain on the jury if each side uses its peremptory challenges in an equally discriminatory fashion. Cf. United States v. Broussard, 987 F. 2d, at 220 (declining to extend Batson to gender; noting that "[w]omen are not a numerical minority," and therefore are likely to be represented on juries despite the discriminatory use of peremptory challenges). Because the right to nondiscriminatory jury selection procedures belongs to the potential jurors, as well as to the litigants, the possibility that members of both genders will get on the jury despite the intentional discrimination is beside the point. The exclusion of even one juror for impermissible reasons harms that juror and undermines public confidence in the fairness of the system. 14 The popular refrain is that all peremptory challenges are based on stereotypes of some kind, expressing various intuitive and frequently erroneous biases. See post, at 161. But where peremptory challenges are made on the basis of group characteristics other than race or gender (like occupation, for example), they do not reinforce the same stereotypes about the group's competence or predispositions that have been used to prevent them from voting, participating on juries, pursuing their chosen professions, or otherwise contributing to civic life. See Babcock, A Place in the Palladium, Women's Rights and Jury Service, 61 U. Cinn. L. Rev. 1139, 1173 (1993). 15JUSTICE SCALIA argues that there is no "discrimination and dishonor" in being subject to a race- or gender-based peremptory strike. Post, at 160. JUSTICE SCALIA'S argument has been rejected many times, see, e. g., Powers v. Ohio, 499 U. S. 400 ,410 (1991), and we reject it once again. The only support JUSTICE SCALIA offers for his conclusion is the fact that raceand gender-based peremptory challenges have a long history in this coun- 143 IV Our conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges. Neither does it conflict with a State's legitimate interest in using such challenges in its effort to secure a fair and impartial jury. Parties still may remove jurors who they feel might be less acceptable than others on the panel; gender simply may not serve as a proxy for bias. Parties may also exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to "rational basis" review. See Cleburne v. Cleburne Living Center, Inc., 473 U. S., at 439442; Clark v. Jeter, 486 U. S. 456 , 461 (1988). Even strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext.16 If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the try. Post, at 159 (discriminatory peremptory challenges have "coexisted with the Equal Protection Clause for 120 years"); post, at 160 (there was a "106-year interlude between our holding that exclusion from juries on the basis of race was unconstitutional, [Strauder], and our holding that peremptory challenges on the basis of race were unconstitutional, [Bat son]"). We do not dispute that this Court long has tolerated the discriminatory use of peremptory challenges, but this is not a reason to continue to do so. Many of "our people's traditions," see post, at 163, such as de jure segregation and the total exclusion of women from juries, are now unconstitutional even though they once coexisted with the Equal Protection Clause. 16 For example, challenging all persons who have had military experience would disproportionately affect men at this time, while challenging all persons employed as nurses would disproportionately affect women. Without a showing of pretext, however, these challenges may well not be unconstitutional, since they are not gender or race based. See Hernandez v. New York, 500 U. S. 352 (1991). 144 parties may exercise their peremptory challenges intelligently. See, e. g., Nebraska Press Assn. v. Stuart, 427 U. S. 539 , 602 (1976) (Brennan, J., concurring in judgment) (voir dire "facilitate[s] intelligent exercise of peremptory challenges and [helps] uncover factors that would dictate disqualification for cause"); United States v. Witt, 718 F.2d 1494 , 1497 (CAlO 1983) ("Without an adequate foundation [laid by voir dire], counsel cannot exercise sensitive and intelligent peremptory challenges"). The experience in the many jurisdictions that have barred gender-based challenges belies the claim that litigants and trial courts are incapable of complying with a rule barring strikes based on gender. See n. 1, supra (citing state and federal jurisdictions that have extended Batson to gender)P As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of inten- 17 Respondent argues that Alabama's method of jury selection would make the extension of Batson to gender particularly burdensome. In Alabama, the "struck-jury" system is employed, a system which requires litigants to strike alternately until 12 persons remain, who then constitute the jury. See Ala. Rule Civ. Proc. 47 (1990). Respondent suggests that, in some cases at least, it is necessary under this system to continue striking persons from the venire after the litigants no longer have an articulable reason for doing so. As a result, respondent contends, some litigants may be unable to come up with gender-neutral explanations for their strikes. We find it worthy of note that Alabama has managed to maintain its struck-jury system even after the ruling in Batson, despite the fact that there are counties in Alabama that are predominately Mrican-American. In those counties, it presumably would be as difficult to come up with race-neutral explanations for peremptory strikes as it would be to advance gender-neutral explanations. No doubt the voir dire process aids litigants in their ability to articulate race-neutral explanations for their peremptory challenges. The same should be true for gender. Regardless, a State's choice of jury-selection methods cannot insulate it from the strictures of the Equal Protection Clause. Alabama is free to adopt whatever jury-selection procedures it chooses so long as they do not violate the Constitution. 145 tional discrimination before the party exercising the challenge is required to explain the basis for the strike. Batson, 476 U. S., at 97. When an explanation is required, it need not rise to the level of a "for cause" challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual. See Hernandez v. New York, 500 U. S. 352 (1991). Failing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination. 18 Allowing parties to remove racial minorities from the jury not because of their race, but because of their gender, contravenes well-established equal protection principles and could insulate effectively racial discrimination from judicial scrutiny. V Equal opportunity to participate in the fair administration of justice is fundamental to our democratic system.19 It not 18 The temptation to use gender as a pretext for racial discrimination may explain why the majority of the lower court decisions extending Batson to gender involve the use of peremptory challenges to remove minority women. All four of the gender-based peremptory cases to reach the Federal Courts of Appeals and cited in n. 1, supra, involved the striking of minority women. 19 This Court almost a half century ago stated: "The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community .... This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of 146 only furthers the goals of the jury system. It reaffirms the promise of equality under the law-that all citizens, regardless of race, ethnicity, or gender, have the chance to take part directly in our democracy. Powers v. Ohio, 499 U. S., at 407 ("Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process"). When persons are excluded from participation in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is jeopardized. In view of these concerns, the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a woman or happens to be a man. As with race, the "core guarantee of equal protection, ensuring citizens that their State will not discriminate ... , would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors' [gender]." Batson, 476 U. S., at 97-98. The judgment of the Court of Civil Appeals of Alabama is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE O'CONNOR, concurring. I agree with the Court that the Equal Protection Clause prohibits the government from excluding a person from jury service on account of that person's gender. Ante, at 135137. The State's proffered justifications for its genderbased peremptory challenges are far from the" 'exceedingly persuasive'" showing required to sustain a gender-based the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury." Thiel v. Southern Pacific Co., 328 U. S. 217 , 220 (1946). 147 classification. Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 724 (1982); ante, at 137-140. I therefore join the Court's opinion in this case. But today's important blow against gender discrimination is not costless. I write separately to discuss some of these costs, and to express my belief that today's holding should be limited to the government's use of gender-based peremptory strikes. Batson v. Kentucky, 476 U. S. 79 (1986), itself was a significant intrusion into the jury selection process. Batson minihearings are now routine in state and federal trial courts, and Batson appeals have proliferated as well. Demographics indicate that today's holding may have an even greater impact than did Batson itself. In further constitutionalizing jury selection procedures, the Court increases the number of cases in which jury selection-once a sideshowwill become part of the main event. For this same reason, today's decision further erodes the role of the peremptory challenge. The peremptory challenge is "a practice of ancient origin" and is "part of our common law heritage." Edmonson v. Leesville Concrete Co., 500 U. S. 614 , 639 (1991) (O'CONNOR, J., dissenting). The principal value of the peremptory is that it helps produce fair and impartial juries. Swain v. Alabama, 380 U. S. 202 , 218-219 (1965); Babcock, Voir Dire: Preserving "Its Wonderful Power," 27 Stan. L. Rev. 545, 549-558 (1975). "Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminat[ing] extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury." Holland v. Illinois, 493 U. S. 474 , 484 (1990) (emphasis deleted; internal quotation marks and citations omitted). The peremptory's importance is confirmed by its persistence: It was well established at the time of Blackstone and continues to endure in all the States. Id., at 481. Moreover, "[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, with- 148 out inquiry and without being subject to the court's control." Swain, 380 U. S., at 220. Indeed, often a reason for it cannot be stated, for a trial lawyer's judgments about a juror's sympathies are sometimes based on experienced hunches and educated guesses, derived from a juror's responses at voir dire or a juror's" 'bare looks and gestures.' " Ibid. That a trial lawyer's instinctive assessment of a juror's predisposition cannot meet the high standards of a challenge for cause does not mean that the lawyer's instinct is erroneous. Cf. V. Starr & M. McCormick, Jury Selection 522 (1993) (nonverbal cues can be better than verbal responses at revealing a juror's disposition). Our belief that experienced lawyers will often correctly intuit which jurors are likely to be the least sympathetic, and our understanding that the lawyer will often be unable to explain the intuition, are the very reason we cherish the peremptory challenge. But, as we add, layer by layer, additional constitutional restraints on the use of the peremptory, we force lawyers to articulate what we know is often inarticulable. In so doing we make the peremptory challenge less discretionary and more like a challenge for cause. We also increase the possibility that biased jurors will be allowed onto the jury, because sometimes a lawyer will be unable to provide an acceptable gender-neutral explanation even though the lawyer is in fact correct that the juror is unsympathetic. Similarly, in jurisdictions where lawyers exercise their strikes in open court, lawyers may be deterred from using their peremptories, out of the fear that if they are unable to justify the strike the court will seat a juror who knows that the striking party thought him unfit. Because I believe the peremptory remains an important litigator's tool and a fundamental part of the process of selecting impartial juries, our increasing limitation of it gives me pause. Nor is the value of the peremptory challenge to the litigant diminished when the peremptory is exercised in a genderbased manner. We know that like race, gender matters. A 149 plethora of studies make clear that in rape cases, for example, female jurors are somewhat more likely to vote to convict than male jurors. See R. Hastie, S. Penrod, & N. Pennington, Inside the Jury 140-141 (1983) (collecting and summarizing empirical studies). Moreover, though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. " 'Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them.'" Beck v. Alabama, 447 U. S. 625 , 642 (1980). Individuals are not expected to ignore as jurors what they know as menor women. Today's decision severely limits a litigant's ability to act on this intuition, for the import of our holding is that any correlation between a juror's gender and attitudes is irrelevant as a matter of constitutional law. But to say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said with regard to Batson: "That the Court will not tolerate prosecutors' racially discriminatory use of the peremptory challenge, in effect, is a special rule of relevance, a statement about what this Nation stands for, rather than a statement of fact." Brown v. North Carolina, 479 U. S. 940 , 941-942 (1986) (opinion concurring in denial of certiorari). Today's decision is a statement that, in an effort to eliminate the potential discriminatory use of the peremptory, see Batson, 476 U. S., at 102 (Marshall, J., concurring), gender is now governed by the special rule of relevance formerly reserved for race. Though we gain much from this statement, we cannot ignore what we lose. In extending Batson to gender we have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of liti- 150 gants to act on sometimes accurate gender-based assumptions about juror attitudes. These concerns reinforce my conviction that today's decision should be limited to a prohibition on the government's use of gender-based peremptory challenges. The Equal Protection Clause prohibits only discrimination by state actors. In Edmonson, supra, we made the mistake of concluding that private civil litigants were state actors when they exercised peremptory challenges; in Georgia v. McCollum, 505 U. S. 42 , 50-55 (1992), we compounded the mistake by holding that criminal defendants were also state actors. Our commitment to eliminating discrimination from the legal process should not allow us to forget that not all that occurs in the courtroom is state action. Private civil litigants are just that-private litigants. "The government erects the platform; it does not thereby become responsible for all that occurs upon it." Edmonson, 500 U. S., at 632 (O'CONNOR, J., dissenting). Clearly, criminal defendants are not state actors. "From arrest, to trial, to possible sentencing and punishment, the antagonistic relationship between government and the accused is clear for all to see .... [T]he unique relationship between criminal defendants and the State precludes attributing defendants' actions to the State .... " McCollum, supra, at 67 (O'CONNOR, J., dissenting). The peremptory challenge is " 'one of the most important of the rights secured to the accused.'" Swain, 380 U. S., at 219 (emphasis added); Goldwasser, Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial, 102 Harv. L. Rev. 808, 826-833 (1989). Limiting the accused's use of the peremptory is "a serious misordering of our priorities," for it means "we have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death." McCollum, supra, at 61-62 (THOMAS, J., concurring in judgment). 151 Accordingly, I adhere to my position that the Equal Protection Clause does not limit the exercise of peremptory challenges by private civil litigants and criminal defendants. This case itself presents no state action dilemma, for here the State of Alabama itself filed the paternity suit on behalf of petitioner. But what of the next case? Will we, in the name of fighting gender discrimination, hold that the battered wife-on trial for wounding her abusive husband-is a state actor? Will we preclude her from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible? I assume we will, but I hope we will not. JUSTICE KENNEDY, concurring in the judgment. I am in full agreement with the Court that the Equal Protection Clause prohibits gender discrimination in the exercise of peremptory challenges. I write to explain my understanding of why our precedents lead to that conclusion. Though in some initial drafts the Fourteenth Amendment was written to prohibit discrimination against "persons because of race, color or previous condition of servitude," the Amendment submitted for consideration and later ratified contained more comprehensive terms: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws." See Oregon v. Mitchell, 400 U. S. 112 , 172-173 (1970) (Harlan, J., concurring in part and dissenting in part); B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction, 39th Congress, 1865-1867, pp. 90-91, 97-100 (1914). In recognition of the evident historical fact that the Equal Protection Clause was adopted to prohibit government discrimination on the basis of race, the Court most often interpreted it in the decades that followed in accord with that purpose. In Strauder v. West Virginia, 100 U. S. 303 (1880), for example, the Court invalidated a West Virginia law prohibiting blacks from serving on juries. In so doing, the decision said of the Equal Protection Clause: 152 KENNEDY, J., concurring in judgment "What is this but declaring that the law in the States shall be the same for the black as for the white." Id., at 307. And while the Court held that the State could not confine jury service to whites, it further noted that the State could confine jury service "to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications." Id., at 310. See also Yick Wo v. Hopkins, 118 U. S. 356 , 373-374 (1886). As illustrated by the necessity for the Nineteenth Amendment in 1920, much time passed before the Equal Protection Clause was thought to reach beyond the purpose of prohibiting racial discrimination and to apply as well to discrimination based on sex. In over 20 cases beginning in 1971, however, we have subjected government classifications based on sex to heightened scrutiny. Neither the State nor any Member of the Court questions that principle here. And though the intermediate scrutiny test we have applied may not provide a very clear standard in all instances, see Craig v. Boren, 429 U. S. 190 , 221 (1976) (REHNQUIST, J., dissenting), our case law does reveal a strong presumption that gender classifications are invalid. See, e. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982). There is no doubt under our precedents, therefore, that the Equal Protection Clause prohibits sex discrimination in the selection of jurors. Duren v. Missouri, 439 U. S. 357 (1979); Taylor v. Louisiana, 419 U. S. 522 (1975). The only question is whether the Clause also prohibits peremptory challenges based on sex. The Court is correct to hold that it does. The Equal Protection Clause and our constitutional tradition are based on the theory that an individual possesses rights that are protected against lawless action by the government. The neutral phrasing of the Equal Protection Clause, extending its guarantee to "any person," reveals its concern with rights of individuals, not groups (though group disabilities are sometimes the mechanism by which the State violates the individual right in question). "At the heart of 153 the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial [or] sexual ... class." Metro Broadcasting, Inc. v. FCC, 497 U. S. 547 , 602 (1990) (O'CONNOR, J., dissenting) (emphasis deleted; internal quotation marks omitted). For purposes of the Equal Protection Clause, an individual denied jury service because of a peremptory challenge exercised against her on account of her sex is no less injured than the individual denied jury service because of a law banning members of her sex from serving as jurors. Cf., e. g., Powers v. Ohio, 499 U. S. 400 , 409-410 (1991); Palmore v. Sidoti, 466 U. S. 429 , 431-432 (1984); Ex parte Virginia, 100 U. S. 339 , 346-347 (1880). The injury is to personal dignity and to the individual's right to participate in the political process. Powers, supra, at 410. The neutrality of the Fourteenth Amendment's guarantee is confirmed by the fact that the Court has no difficulty in finding a constitutional wrong in this case, which involves males excluded from jury service because of their gender. The importance of individual rights to our analysis prompts a further observation concerning what I conceive to be the intended effect of today's decision. We do not prohibit racial and gender bias in jury selection only to encourage it in jury deliberations. Once seated, a juror should not give free rein to some racial or gender bias of his or her own. The jury system is a kind of compact by which power is transferred from the judge to jury, the jury in turn deciding the case in accord with the instructions defining the relevant issues for consideration. The wise limitation on the authority of courts to inquire into the reasons underlying a jury's verdict does not mean that a jury ought to disregard the court's instructions. A juror who allows racial or gender bias to influence assessment of the case breaches the compact and renounces his or her oath. In this regard, it is important to recognize that a juror sits not as a representative of a racial or sexual group but as an 154 individual citizen. Nothing would be more pernicious to the jury system than for society to presume that persons of different backgrounds go to the jury room to voice prejudice. Cf. Metro Broadcasting, supra, at 618 (O'CONNOR, J., dissenting). The jury pool must be representative of the community, but that is a structural mechanism for preventing bias, not enfranchising it. See, e. g., Ballard v. United States, 329 U. S. 187 , 193 (1946); Thiel v. Southern Pacific Co., 328 U. S. 217 (1946). "Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system." Id., at 220. Thus, the Constitution guarantees a right only to an impartial jury, not to a jury composed of members of a particular race or gender. See Holland v. Illinois, 493 U. S. 474 (1990); Strauder, 100 U. S., at 305. *** For these reasons, I concur in the judgment of the Court holding that peremptory strikes based on gender violate the Equal Protection Clause. CHIEF JUSTICE REHNQUIST, dissenting. I agree with the dissent of JUSTICE SCALIA, which I have joined. I add these words in support of its conclusion. Accepting Batson v. Kentucky, 476 U. S. 79 (1986), as correctly decided, there are sufficient differences between race and gender discrimination such that the principle of Batson should not be extended to peremptory challenges to potential jurors based on sex. That race and sex discrimination are different is acknowledged by our equal protection jurisprudence, which accords different levels of protection to the two groups. Classifications based on race are inherently suspect, triggering "strict scrutiny," while gender-based classifications are judged under a heightened, but less searching, standard of review. Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 724 (1982). Racial groups comprise numerical minorities in our 155 society, warranting in some situations a greater need for protection, whereas the population is divided almost equally between men and women. Furthermore, while substantial discrimination against both groups still lingers in our society, racial equality has proved a more challenging goal to achieve on many fronts than gender equality. See, e. g., D. Kirp, M. Yudof, & M. Franks, Gender Justice 137 (1986). Batson, which involved a black defendant challenging the removal of black jurors, announced a sea change in the jury selection process. In balancing the dictates of equal protection and the historical practice of peremptory challenges, long recognized as securing fairness in trials, the Court concluded that the command of the Equal Protection Clause was superior. But the Court was careful that its rule not "undermine the contribution the challenge generally makes to the administration of justice." 476 U. S., at 98-99. Batson is best understood as a recognition that race lies at the core of the commands of the Fourteenth Amendment. Not surprisingly, all of our post-Batson cases have dealt with the use of peremptory strikes to remove black or racially identified venirepersons, and all have described Batson as fashioning a rule aimed at preventing purposeful discrimination against a cognizable racial group. * As JUSTICE O'CONNOR once recognized, Batson does not apply "[o]utside the uniquely sensitive area of race." Brown v. North Carolina, 479 U. S. 940 , 942 (1986) (opinion concurring in denial of certiorari). Under the Equal Protection Clause, these differences mean that the balance should tilt in favor of peremptory challenges when sex, not race, is the issue. Unlike the *See Georgia v. McCollum, 505 U. S. 42 (1992) (blacks); Hernandez v. New York, 500 U. S. 352 (1991) (Latinos); Edmonson v. Leesville Concrete Co., 500 U. S. 614 (1991) (blacks); Powers v. Ohio, 499 U. S. 400 , 404-405 (1991) (blacks); Holland v. Illinois, 493 U. S. 474 , 476-477 (1990) (blacks); Griffith v. Kentucky, 479 U. S. 314 , 316 (1987) (blacks); Allen v. Hardy, 478 U. S. 255 , 259 (1986) (blacks and Hispanics). 156 Court, I think the State has shown that jury strikes on the basis of gender "substantially further" the State's legitimate interest in achieving a fair and impartial trial through the venerable practice of peremptory challenges. Swain v. Alabama, 380 U. S. 202 , 212-220 (1965) (tracing the "very old credentials" of peremptory challenges); Batson, supra, at 118-120 (Burger, C. J., dissenting); post, at 161-162 (SCALIA, J., dissenting). The two sexes differ, both biologically and, to a diminishing extent, in experience. I t is not merely "stereotyping" to say that these differences may produce a difference in outlook which is brought to the jury room. Accordingly, use of peremptory challenges on the basis of sex is generally not the sort of derogatory and invidious act which peremptory challenges directed at black jurors may be. JUSTICE O'CONNOR'S concurring opinion recognizes several of the costs associated with extending Batson to genderbased peremptory challenges-lengthier trials, an increase in the number and complexity of appeals addressing jury selection, and a "diminished ... ability of litigants to act on sometimes accurate gender-based assumptions about juror attitudes." Ante, at 149-150. These costs are, in my view, needlessly imposed by the Court's opinion, because the Constitution simply does not require the result that it reaches. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting. Today's opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display-a modest price, surely-is that most of the opinion is quite irrelevant to the case at hand. The hasty reader will be surprised to learn, for example, that this lawsuit involves a complaint about the use of peremptory challenges to exclude men from a petit jury. To be sure, 157 petitioner, a man, used all but one of his peremptory strikes to remove women from the jury (he used his last challenge to strike the sole remaining male from the pool), but the validity of his strikes is not before us. Nonetheless, the Court treats itself to an extended discussion of the historic exclusion of women not only from jury service, but also from service at the bar (which is rather like jury service, in that it involves going to the courthouse a lot). See ante, at 131136. All this, as I say, is irrelevant, since the case involves state action that allegedly discriminates against men. The parties do not contest that discrimination on the basis of sex 1 is subject to what our cases call "heightened scrutiny," and the citation of one of those cases (preferably one involving men rather than women, see, e. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 723-724 (1982)) is all that was needed. The Court also spends time establishing that the use of sex as a proxy for particular views or sympathies is unwise and perhaps irrational. The opinion stresses the lack of statistical evidence to support the widely held belief that, at least in certain types of cases, a juror's sex has some statistically significant predictive value as to how the juror will behave. See ante, at 137-139, and n. 9. This assertion seems to place the Court in opposition to its earlier Sixth Amendment "fair cross-section" cases. See, e. g., Taylor v. Louisiana, 419 U. S. 522 , 532, n. 12 (1975) ("Controlled studies ... have concluded that women bring to juries their own perspectives and values that influence both jury deliberation 1 Throughout this opinion, I shall refer to the issue as sex discrimination rather than (as the Court does) gender discrimination. The word "gender" has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes. That is to say, gender is to sex as feminine is to female and masculine to male. The present case does not involve peremptory strikes exercised on the basis of femininity or masculinity (as far as it appears, effeminate men did not survive the prosecution's peremptories). The case involves, therefore, sex discrimination plain and simple. 158 and result"). But times and trends do change, and unisex is unquestionably in fashion. Personally, I am less inclined to demand statistics, and more inclined to credit the perceptions of experienced litigators who have had money on the line. But it does not matter. The Court's fervent defense of the proposition il n'y a pas de difference entre les hommes et les femmes (it stereotypes the opposite view as hateful "stereotyping") turns out to be, like its recounting of the history of sex discrimination against women, utterly irrelevant. Even if sex was a remarkably good predictor in certain cases, the Court would find its use in peremptories unconstitutional. See ante, at 139, n. 11; cf. ante, at 148-149 (O'CONNOR, J., concurring). Of course the relationship of sex to partiality would have been relevant if the Court had demanded in this case what it ordinarily demands: that the complaining party have suffered some injury. Leaving aside for the moment the reality that the defendant himself had the opportunity to strike women from the jury, the defendant would have some cause to complain about the prosecutor's striking male jurors if male jurors tend to be more favorable toward defendants in paternity suits. But if men and women jurors are (as the Court thinks) fungible, then the only arguable injury from the prosecutor's "impermissible" use of male sex as the basis for his peremptories is injury to the stricken juror, not to the defendant. Indeed, far from having suffered harm, petitioner, a state actor under our precedents, see Georgia v. McCollum, 505 U. S. 42 , 50-51 (1992); cf. Edmonson v. Leesville Concrete Co., 500 U. S. 614 , 626-627 (1991), has himself actually inflicted harm on female jurors.2 The Court today 2 I continue to agree with JUSTICE O'CONNOR that McCollum and Edmondson erred in making civil litigants and criminal defendants state actors for purposes of the Equal Protection Clause. I do not, however, share her belief that correcting that error while continuing to consider the exercise of peremptories by prosecutors a denial of equal protection will make things right. If, in accordance with common perception but con- 159 presumably supplies petitioner with a cause of action by applying the uniquely expansive third-party standing analysis of Powers v. Ohio, 499 U. S. 400 , 415 (1991), according petitioner a remedy because of the wrong done to male jurors. This case illustrates why making restitution to Paul when it is Peter who has been robbed is such a bad idea. Not only has petitioner, by implication of the Court's own reasoning, suffered no harm, but the scientific evidence presented at trial established petitioner's paternity with 99.92% accuracy. Insofar as petitioner is concerned, this is a case of harmless error if there ever was one; a retrial will do nothing but divert the State's judicial and prosecutorial resources, allowing either petitioner or some other malefactor to go free. The core of the Court's reasoning is that peremptory challenges on the basis of any group characteristic subject to heightened scrutiny are inconsistent with the guarantee of the Equal Protection Clause. That conclusion can be reached only by focusing unrealistically upon individual exercises of the peremptory challenge, and ignoring the totality of the practice. Since all groups are subject to the peremptory challenge (and will be made the object of it, depending upon the nature of the particular case) it is hard to see how any group is denied equal protection. See id., at 423-424 (SCALIA, J., dissenting); Batson v. Kentucky, 476 U. S. 79 , 137-138 (1986) (REHNQUIST, J., dissenting). That explains why peremptory challenges coexisted with the Equal Protection Clause for 120 years. This case is a perfect example of how the system as a whole is evenhanded. While the only claim before the Court is petitioner's complaint that the prosecutor struck male jurors, for every man trary to the Court's unisex creed, women really will decide some cases differently from men, allowing defendants alone to strike jurors on the basis of sex will produce-and will be seen to produce-juries intentionally weighted in the defendant's favor: no women jurors, for example, in a rape prosecution. That is not a desirable outcome. 160 struck by the government petitioner's own lawyer struck a woman. To say that men were singled out for discriminatory treatment in this process is preposterous. The situation would be different if both sides systematically struck individuals of one group, so that the strikes evinced groupbased animus and served as a proxy for segregated venire lists. See Swain v. Alabama, 380 U. S. 202 , 223-224 (1965). The pattern here, however, displays not a systemic sex-based animus but each side's desire to get a jury favorably disposed to its case. That is why the Court's characterization of respondent's argument as "reminiscent of the arguments advanced to justify the total exclusion of women from juries," ante, at 138, is patently false. Women were categorically excluded from juries because of doubt that they were competent; women are stricken from juries by peremptory challenge because of doubt that they are well disposed to the striking party's case. See Powers, supra, at 424 (SCALIA, J., dissenting). There is discrimination and dishonor in the former, and not in the latter-which explains the 106-year interlude between our holding that exclusion from juries on the basis of race was unconstitutional, Strauder v. West Virginia, 100 U. S. 303 (1880), and our holding that peremptory challenges on the basis of race were unconstitutional, Batson Although the Court's legal reasoning in this case is largely obscured by anti-male-chauvinist oratory, to the extent such reasoning is discernible it invalidates much more than sexbased strikes. After identifying unequal treatment (by separating individual exercises of peremptory challenge from the process as a whole), the Court applies the "heightened scrutiny" mode of equal protection analysis used for sexbased discrimination, and concludes that the strikes fail heightened scrutiny because they do not substantially further an important government interest. The Court says that the only important government interest that could be served by peremptory strikes is "securing a fair and impar- 161 tial jury," ante, at 137, and n. 8.3 It refuses to accept respondent's argument that these strikes further that interest by eliminating a group (men) which may be partial to male defendants, because it will not accept any argument based on "'the very stereotype the law condemns.'" Ante, at 138 (quoting Powers, 499 U. S., at 410). This analysis, entirely eliminating the only allowable argument, implies that sexbased strikes do not even rationally further a legitimate government interest, let alone pass heightened scrutiny. That places all peremptory strikes based on any group characteristic at risk, since they can all be denominated "stereotypes." Perhaps, however (though I do not see why it should be so), only the stereotyping of groups entitled to heightened or strict scrutiny constitutes "the very stereotype the law condemns"-so that other stereotyping (e. g., wide-eyed blondes and football players are dumb) remains OK. Or perhaps when the Court refers to "impermissible stereotypes," ante, at 139, n. 11, it means the adjective to be limiting rather than descriptive-so that we can expect to learn from the Court's peremptory/stereotyping jurisprudence in the future which stereotypes the Constitution frowns upon and which it does not. Even if the line of our later cases guaranteed by today's decision limits the theoretically boundless Batson principle to race, sex, and perhaps other classifications subject to heightened scrutiny (which presumably would include religious belief, see Larson v. Valente, 456 U. S. 228 , 244-246 (1982)), much damage has been done. It has been done, first and foremost, to the peremptory challenge system, which 3 It does not seem to me that even this premise is correct. Wise observers have long understood that the appearance of justice is as important as its reality. If the system of peremptory strikes affects the actual impartiality of the jury not a bit, but gives litigants a greater belief in that impartiality, it serves a most important function. See, e. g., 4 W. Blackstone, Commentaries *353. In point of fact, that may well be its greater value. 162 loses its whole character when (in order to defend against "impermissible stereotyping" claims) "reasons" for strikes must be given. The right of peremptory challenge" 'is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.'" Lewis v. United States, 146 U. S. 370 , 378 (1892), quoting Lamb v. State, 36 Wis. 424, 427 (1874). See also Lewis, supra, at 376; United States v. Marchant, 12 Wheat. 480, 482 (1827) (Story, J.); 4 W. Blackstone, Commentaries *353. The loss of the real peremptory will be felt most keenly by the criminal defendant, see Georgia v. McCollum, 505 U. S. 42 (1992), whom we have until recently thought "should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason." Lamb, supra, at 426. And make no mistake about it: there really is no substitute for the peremptory. Voir dire (though it can be expected to expand as a consequence of today's decision) cannot fill the gap. The biases that go along with group characteristics tend to be biases that the juror himself does not perceive, so that it is no use asking about them. It is fruitless to inquire of a male juror whether he harbors any subliminal prejudice in favor of unwed fathers. And damage has been done, secondarily, to the entire justice system, which will bear the burden of the expanded quest for "reasoned peremptories" that the Court demands. The extension of Batson to sex, and almost certainly beyond, cf. Batson, 476 U. S., at 124 (Burger, C. J., dissenting), will provide the basis for extensive collateral litigation, which especially the criminal defendant (who litigates full time and cost free) can be expected to pursue. While demographic reality places some limit on the number of cases in which race-based challenges will be an issue, every case contains a potential sex-based claim. Another consequence, as I have mentioned, is a lengthening of the voir dire process that already burdens trial courts. 163 The irrationality of today's strike-by-strike approach to equal protection is evident from the consequences of extending it to its logical conclusion. If a fair and impartial trial is a prosecutor's only legitimate goal; if adversarial trial stratagems must be tested against that goal in abstraction from their role within the system as a whole; and if, so tested, sex-based stratagems do not survive heightened scrutiny-then the prosecutor presumably violates the Constitution when he selects a male or female police officer to testify because he believes one or the other sex might be more convincing in the context of the particular case, or because he believes one or the other might be more appealing to a predominantly male or female jury. A decision to stress one line of argument or present certain witnesses before a mostly female jury-for example, to stress that the defendant victimized women-becomes, under the Court's reasoning, intentional discrimination by a state actor on the basis of gender. *** In order, it seems to me, not to eliminate any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes, the Court imperils a practice that has been considered an essential part of fair jury trial since the dawn of the common law. The Constitution of the United States neither requires nor permits this vandalizing of our people's traditions. For these reasons, I dissent.

In the case of J.E.B. v. Alabama ex rel. T.B., the Supreme Court ruled that gender-based discrimination in jury selection is prohibited by the Equal Protection Clause of the Fourteenth Amendment. The Court found that the state's rationale for using peremptory challenges to strike male jurors was based on stereotypes and unsupported assumptions about gender bias. The Court concluded that litigants may not strike potential jurors solely based on gender, but peremptory challenges based on other factors unrelated to gender are still permissible. The Court's decision prioritized ensuring fair and impartial trials while also acknowledging the importance of peremptory challenges in the jury selection process.

Lawsuits & Legal Procedures

Connecticut v. Doehr

https://supreme.justia.com/cases/federal/us/501/1/

U.S. Supreme Court Connecticut v. Doehr, 501 U.S. 1 (1991) Connecticut v. Doehr No. 90-143 Argued Jan. 7, 1991 Decided June 6, 1991 501 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus A Connecticut statute authorizes a judge to allow the prejudgment attachment of real estate without prior notice or hearing upon the plaintiff's verification that there is probable cause to sustain the validity of his or her claim. Petitioner DiGiovanni applied to the State Superior Court for such an attachment on respondent Doehr's home in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr in the same court. The application was supported by an affidavit in which DiGiovanni, in five one-sentence paragraphs, stated that the facts set forth in his previously submitted complaint were true; declared that the assault by Doehr resulted in particular injuries requiring expenditures for medical care; and stated his "opinion" that the foregoing facts were sufficient to establish probable cause. On the strength of these submissions, the judge found probable cause and ordered the attachment. Only after the sheriff attached the property did Doehr receive notice of the attachment, which informed him of his right to a post-attachment hearing. Rather than pursue this option, he filed a suit in the Federal District Court, claiming that the statute violated the Due Process Clause of the Fourteenth Amendment. That court upheld the statute, but the Court of Appeals reversed, concluding that the statute violated due process because, inter alia, it permitted ex parte attachment absent a showing of extraordinary circumstances, see, e.g., Mitchell v. W.T. Grant Co., 416 U. S. 600 , and the nature of the issues at stake in this case increased the risk that attachment was wrongfully Page 501 U. S. 2 granted, since the fact-specific event of a fistfight and the question of assault are complicated matters that do not easily lend themselves to documentary proof, see id. at 416 U. S. 609 -610. Held: The judgment is affirmed. 898 F.2d 852 (CA 2 1990), affirmed. JUSTICE WHITE delivered the opinion of the Court with respect to Parts I, II, and III, concluding that: 1. Determining what process must be afforded by a state statute enabling an individual to enlist the State's aid to deprive another of his or her property by means of prejudgment attachment or similar procedure requires (1) consideration of the private interest that will be affected by the prejudgment measure; (2) an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and (3) principal attention to the interest of the party seeking the prejudgment remedy, with due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. Cf. Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 . Pp. 501 U. S. 9 -11. 2. Application of the Mathews factors demonstrates that the Connecticut statute, as applied to this case, violates due process by authorizing prejudgment attachment without prior notice and a hearing. Pp. 501 U. S. 11 -18. (a) The interests affected are significant for a property owner like Doehr, since attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. That these effects do not amount to a complete, physical, or permanent deprivation of real property is irrelevant, since even the temporary or partial impairments to property rights that such encumbrances entail are sufficient to merit due process protection. See, e.g., Peralta v. Heights Medical Center, Inc., 485 U. S. 80 , 485 U. S. 85 . P. 501 U. S. 11 -12. (b) Without pre-attachment notice and a hearing, the risk of erroneous deprivation that the State permits here is too great to satisfy due process under any of the interpretations of the statutory "probable cause" requirement offered by the parties. If the statute merely demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff's good faith belief that the complaint is sufficient, the judge could authorize deprivation of the defendant's property when the claim would fail to convince a jury, when it rested on factual allegations that were sufficient to state a cause of action but which the defendant would dispute, or in the case of a good faith standard, even when the complaint failed to state a claim upon which relief could be granted. Even if the Page 501 U. S. 3 provision requires a finding of probable cause to believe that judgment will be rendered in the plaintiff's favor, the reviewing judge in a case like this could make no realistic assessment based on the plaintiff's one-sided, self-serving, and conclusory affidavit and complaint, particularly since the issue does not concern ordinarily uncomplicated matters like the existence of a debt or delinquent payments that lend themselves to documentary proof. See Mitchell, supra, 416 U.S. at 416 U. S. 609 . Moreover, the safeguards that the State does afford -- an "expeditious" post-attachment notice and an adversary hearing, judicial review of an adverse decision, and a double damages action if the original suit is commenced without probable cause -- do not adequately reduce the risk of erroneous deprivation under Mitchell, since none of the additional factors that diminished the need for a predeprivation hearing in that case -- that the plaintiff had a vendor's lien to protect, that the likelihood of recovery involved uncomplicated, documentable matters, and that the plaintiff was required to post a bond -- is present here. Although a later hearing might negate the presence of probable cause, this would not cure the temporary deprivation that an earlier hearing might have prevented. Pp. 501 U. S. 12 -15. (c) The interests in favor of an ex parte attachment, particularly DiGiovanni's interests, are too minimal to justify the burdening of Doehr's ownership rights without a hearing to determine the likelihood of recovery. Although DiGiovanni had no existing interest in Doehr's real estate when he sought the attachment, and his only interest was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action, there were no allegations that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the suit that would render his property unavailable to satisfy a judgment. Absent such allegations, there was no exigent circumstance permitting the postponement of notice or hearing until after the attachment was effected. Moreover, the State's substantive interest in protecting DiGiovanni's de minimis rights cannot be any more weighty than those rights themselves, and the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate post-deprivation hearing. P. 501 U. S. 16 . 3. Historical and contemporary practice support the foregoing analysis. Attachment measures in both England and this country have traditionally had several limitations that reduced the risk of erroneous deprivation, including requirements that the defendant had taken or threatened some action that would place satisfaction of the plaintiff's potential award in jeopardy, that the plaintiff be a creditor, as opposed to the victim of a tort, and that the plaintiff post a bond. Moreover, a survey of current state attachment provisions reveals that nearly every Page 501 U. S. 4 State requires either a pre-attachment hearing, a showing of some exigent circumstance, or both, before permitting an attachment to take place. Although the States, for the most part, no longer confine attachments to creditor claims, this development only increases the importance of the other limitations. Pp. 501 U. S. 16 -18. WHITE, J., delivered the opinion for a unanimous Court with respect to Parts I and III, the opinion of the Court with respect to Part II, in which REHNQUIST, C.J., and MARSHALL, BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and an opinion with respect to Parts IV and V, in which MARSHALL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, C.J., filed a concurring opinion, in which BLACKMUN, J., joined, post, p. 501 U. S. 26 . SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 501 U. S. 30 . JUSTICE WHITE delivered an opinion, Parts I, II, and III of which are the opinion of the Court. * This case requires us to determine whether a state statute that authorizes prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond, satisfies the Due Process Clause of the Fourteenth Amendment. We hold that, as applied to this case, it does not. Page 501 U. S. 5 I On March 15, 1988, Petitioner John F. DiGiovanni submitted an application to the Connecticut Superior Court for an attachment in the amount of $75,000 on respondent Brian K. Doehr's home in Meridan, Connecticut. DiGiovanni took this step in conjunction with a civil action for assault and battery that he was seeking to institute against Doehr in the same court. The suit did not involve Doehr's real estate, nor did DiGiovanni have any preexisting interest either in Doehr's home or any of his other property. Connecticut law authorizes prejudgment attachment of real estate without affording prior notice or the opportunity for a prior hearing to the individual whose property is subject to the attachment. The State's prejudgment remedy statute provides, in relevant part: "The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claims and (1) that the prejudgment remedy requested is for an attachment of real property. . . ." Conn.Gen.Stat. § 52-278e (1991). [ Footnote 1 ] Page 501 U. S. 6 The statute does not require the plaintiff to post a bond to insure the payment of damages that the defendant may suffer should the attachment prove wrongfully issued or the claim prove unsuccessful. As required, DiGiovanni submitted an affidavit in support of his application. In five one-sentence paragraphs, DiGiovanni stated that the facts set forth in his previously submitted complaint were true; that "I was willfully, wantonly and maliciously assaulted by the defendant, Brian K. Doehr"; that "[s]aid assault and battery broke my left wrist and further caused an ecchymosis to my right eye, as well as other injuries"; and that "I have further expended sums of money Page 501 U. S. 7 for medical care and treatment." The affidavit concluded with the statement, "In my opinion, the foregoing facts are sufficient to show that there is probable cause that judgment will be rendered for the plaintiff." On the strength of these submissions the Superior Court judge, by an order dated March 17, found "probable cause to sustain the validity of the plaintiff's claim" and ordered the attachment on Doehr's home "to the value of $75,000." The sheriff attached the property four days later, on March 21. Only after this did Doehr receive notice of the attachment. He also had yet to be served with the complaint, which is ordinarily necessary for an action to commence in Connecticut. Young v. Margiotta, 136 Conn.429, 433, 71 A.2d 924, 926 (1950). As the statute further required, the attachment notice informed Doehr that he had the right to a hearing: (1) to claim that no probable cause existed to sustain the claim; (2) to request that the attachment be vacated, modified, or that a bond be substituted; or (3) to claim that some portion of the property was exempt from execution. Conn.Gen.Stat. § 52-278e(b) (1991). Rather than pursue these options, Doehr filed suit against DiGiovanni in Federal District Court, claiming that § 52-278e(a)(1) was unconstitutional under the Due Process Clause of the Fourteenth Amendment. [ Footnote 2 ] The District Court upheld the statute and granted summary judgment in favor of DiGiovanni. Pinsky v. Duncan, 716 F. Supp. 58 (Conn.1989). On appeal, a divided panel of the United States Court of Appeals for the Second Circuit reversed. Pinsky v. Duncan, 898 F.2d 852 (1990). [ Footnote 3 ] Judge Pratt, who wrote the opinion Page 501 U. S. 8 for the court, concluded that the Connecticut statute violated due process in permitting ex parte attachment absent a showing of extraordinary circumstances. "The rule to be derived from Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969) and its progeny, therefore, is not that post-attachment hearings are generally acceptable provided that the plaintiff files a factual affidavit and that a judicial officer supervises the process, but that a prior hearing may be postponed where exceptional circumstances justify such a delay, and where sufficient additional safeguards are present." Id. at 855. This conclusion was deemed to be consistent with our decision in Mitchell v. W.T. Grant Co., 416 U. S. 600 (1974), because the absence of a pre-attachment hearing was approved in that case based on the presence of extraordinary circumstances. A further reason to invalidate the statute, the court ruled, was the highly factual nature of the issues in this case. In Mitchell, there were "uncomplicated matters that len[t] themselves to documentary proof" and "[t]he nature of the issues at stake minimize[d] the risk that the writ [would] be wrongfully issued by a judge." Id. at 416 U. S. 609 -610. Similarly, in Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 343 -344 (1976), where an evidentiary hearing was not required prior to the termination of disability benefits, the determination of disability was "sharply focused and easily documented." Judge Pratt observed that, in contrast, the present case involved the fact-specific event of a fistfight and the issue of assault. He doubted that the judge could reliably determine probable cause when presented with only the plaintiff's version of the altercation. "Because the risk of a wrongful attachment is considerable under these circumstances, we conclude that dispensing with notice and opportunity for a hearing until after the attachment, without a showing of extraordinary circumstances, violates the requirements of due process." 898 F.2d at 856. Judge Pratt went on to conclude that, in his view, the statute was also constitutionally infirm for its failure Page 501 U. S. 9 to require the plaintiff to post a bond for the protection of the defendant in the event the attachment was ultimately found to have been improvident. Judge Mahoney was also of the opinion that the statutory provision for attaching real property in civil actions, without a prior hearing and in the absence of extraordinary circumstances, was unconstitutional. He disagreed with Judge Pratt's opinion that a bond was constitutionally required. Judge Newman dissented from the holding that a hearing prior to attachment was constitutionally required and, like Judge Mahoney, disagreed with Judge Pratt on the necessity for a bond. The dissent's conclusion accorded with the views of Connecticut Supreme Court, which had previously upheld § 52-278e(b) in Fermont Division, Dynamics Corp. of America v. Smith, 178 Conn. 393, 423 A.2d 80 (1979). We granted certiorari to resolve the conflict of authority. 498 U.S. 809 (1990). II With this case, we return to the question of what process must be afforded by a state statute enabling an individual to enlist the aid of the State to deprive another of his or her property by means of the prejudgment attachment or similar procedure. Our cases reflect the numerous variations this type of remedy can entail. In Sniadach v. Family Finance Corp. of Bay View, 395 U. S. 337 (1969), the Court struck down a Wisconsin statute that permitted a creditor to effect prejudgment garnishment of wages without notice and prior hearing to the wage earner. In Fuentes v. Shevin, 407 U. S. 67 (1972), the Court likewise found a Due Process violation in state replevin provisions that permitted vendors to have goods seized through an ex parte application to a court clerk and the posting of a bond. Conversely, the Court upheld a Louisiana ex parte procedure allowing a lienholder to have disputed goods sequestered in Mitchell v. W. T. Grant Co., 416 U. S. 600 (1974). Mitchell, however, carefully noted that Fuentes was Page 501 U. S. 10 decided against "a factual and legal background sufficiently different . . . that it does not require the invalidation of the Louisiana sequestration statute." Id. 416 U.S. at 416 U. S. 615 . Those differences included Louisiana's provision of an immediate post-deprivation hearing along with the option of damages; the requirement that a judge, rather than a clerk, determine that there is a clear showing of entitlement to the writ; the necessity for a detailed affidavit; and an emphasis on the lienholder's interest in preventing waste or alienation of the encumbered property . Id. at 416 U. S. 615 -618. In North Georgia Finishing, Inc. v. DiChem, Inc., 419 U. S. 601 (1975), the Court again invalidated an ex parte garnishment statute that not only failed to provide for notice and prior hearing, but that also failed to require a bond, a detailed affidavit setting out the claim, the determination of a neutral magistrate, or a prompt post-deprivation hearing. Id. at 419 U. S. 606 -608. These cases "underscore the truism that '[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.'" Mathews v. Eldridge, supra, 424 U.S. at 424 U. S. 334 (quoting Cafeteria Workers v. McElroy, 367 U. S. 886 , 367 U. S. 895 (1961)). In Mathews, we drew upon our prejudgment remedy decisions to determine what process is due when the government itself seeks to effect a deprivation on its own initiative. Mathews, 424 U.S. at 424 U. S. 334 . That analysis resulted in the now familiar threefold inquiry requiring consideration of "the private interest that will be affected by the official action"; "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards"; and lastly "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id. at 335. Here the inquiry is similar, but the focus is different. Prejudgment remedy statutes ordinarily apply to disputes between private parties, rather than between an individual and Page 501 U. S. 11 the government. Such enactments are designed to enable one of the parties to "make use of state procedures with the overt, significant assistance of state officials," and they undoubtedly involve state action "substantial enough to implicate the Due Process Clause." Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478 , 485 U. S. 486 (1988). Nonetheless, any burden that increasing procedural safeguards entails primarily affects not the government, but the party seeking control of the other's property. See Fuentes v. Shevin, supra, 407 U.S. at 407 U. S. 99 -101 (WHITE, J., dissenting). For this type of case, therefore, the relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections. We now consider the Mathews factors in determining the adequacy of the procedures before us, first with regard to the safeguards of notice and a prior hearing, and then in relation to the protection of a bond. III We agree with the Court of Appeals that the property interests that attachment affects are significant. For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default where there is an insecurity clause. Nor does Connecticut deny that any of these consequences occurs. Page 501 U. S. 12 Instead, the State correctly points out that these effects do not amount to a complete, physical, or permanent deprivation of real property; their impact is less than the perhaps temporary total deprivation of household goods or wages. See Sniadach, supra, 395 U.S. at 395 U. S. 340 ; Mitchell, supra, 416 U.S. at 416 U. S. 613 . But the Court has never held that only such extreme deprivations trigger due process concern. See Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 74 (1917). To the contrary, our cases show that even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection. Without doubt, state procedures for creating and enforcing attachments, as with liens, "are subject to the strictures of due process." Peralta v. Heights Medical Center, Inc., 485 U. S. 80 , 485 U. S. 85 (1988) (citing Mitchell, supra, 416 U.S. at 416 U. S. 604 ; Hodge v. Muscatine County, 196 U. S. 276 , 196 U. S. 281 (1905)). [ Footnote 4 ] We also agree with the Court of Appeals that the risk of erroneous deprivation that the State permits here is substantial. By definition, attachment statutes premise a deprivation of property on one ultimate factual contingency -- the award of damages to the plaintiff which the defendant may not be able to satisfy. See Ownbey v. Morgan, 256 U. S. 94 , 256 U. S. 104 -105 (1921); R. Thompson & J. Sebert, Remedies: Damages, Equity and Restitution § 5.01 (1983). For attachments Page 501 U. S. 13 before judgment, Connecticut mandates that this determination be made by means of a procedural inquiry that asks whether "there is probable cause to sustain the validity of the plaintiff's claim." Conn.Gen.Stat. § 52-278e(a). The statute elsewhere defines the validity of the claim in terms of the likelihood "that judgment will be rendered in the matter in favor of the plaintiff." Conn.Gen.Stat. § 52-278c(a)(2) (1991); Ledgebrook Condominium Assn. v. Lusk Corp., 172 Conn.577, 584, 376 A.2d 60, 63-64 (1977). What probable cause means in this context, however, remains obscure. The State initially took the position, as did the dissent below, that the statute requires a plaintiff to show the objective likelihood of the suit's success. Brief for Petitioner 12; Pinsky, 898 F.2d at 861-862 (Newman, J., dissenting). DiGiovanni, citing ambiguous state cases, reads the provision as requiring no more than that a plaintiff demonstrate a subjective good faith belief that the suit will succeed. Brief for Respondent 226. Ledgebrook Condominium Assn., supra, 172 Conn., at 584, 376 A.2d at 63-64; Anderson v. Nedovich, 19 Conn. App. 85, 88, 561 A.2d 948, 949 (1989). At oral argument, the State shifted its position to argue that the statute requires something akin to the plaintiff stating a claim with sufficient facts to survive a motion to dismiss. We need not resolve this confusion, since the statute presents too great a risk of erroneous deprivation under any of these interpretations. If the statute demands inquiry into the sufficiency of the complaint, or, still less, the plaintiff's good faith belief that the complaint is sufficient, requirement of a complaint and a factual affidavit would permit a court to make these minimal determinations. But neither inquiry adequately reduces the risk of erroneous deprivation. Permitting a court to authorize attachment merely because the plaintiff believes the defendant is liable, or because the plaintiff can make out a facially valid complaint, would permit the deprivation of the defendant's property when the claim would fail to convince a jury, when it rested on factual allegations Page 501 U. S. 14 that were sufficient to state a cause of action but which the defendant would dispute, or, in the case of a mere good faith standard, even when the complaint failed to state a claim upon which relief could be granted. The potential for unwarranted attachment in these situations is self-evident, and too great to satisfy the requirements of due process absent any countervailing consideration. Even if the provision requires the plaintiff to demonstrate, and the judge to find, probable cause to believe that judgment will be rendered in favor of the plaintiff, the risk of error was substantial in this case. As the record shows, and as the State concedes, only a skeletal affidavit need be and was filed. The State urges that the reviewing judge normally reviews the complaint as well, but concedes that the complaint may also be conclusory. It is self-evident that the judge could make no realistic assessment concerning the likelihood of an action's success based upon these one-sided, self-serving, and conclusory submissions. And as the Court of Appeals said, in a case like this, involving an alleged assault, even a detailed affidavit would give only the plaintiff's version of the confrontation. Unlike determining the existence of a debt or delinquent payments, the issue does not concern "ordinarily uncomplicated matters that lend themselves to documentary proof." Mitchell, 416 U.S. at 416 U. S. 609 . The likelihood of error that results illustrates that "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . . [And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123 , 341 U. S. 170 -172 (1951) (Frankfurter, J., concurring). What safeguards the State does afford do not adequately reduce this risk. Connecticut points out that the statute also provides an "expeditiou[s]" post-attachment adversary hearing, Page 501 U. S. 15 § 52-278e(c); [ Footnote 5 ] notice for such a hearing, § 52-278e(b); judicial review of an adverse decision, § 52-2781 (a); and a double damages action if the original suit is commenced without probable cause, § 52-568(a)(1). Similar considerations were present in Mitchell, where we upheld Louisiana's sequestration statute despite the lack of predeprivation notice and hearing. But in Mitchell, the plaintiff had a vendor's lien to protect, the risk of error was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documentary proof, Mitchell, supra, 416 U.S. at 416 U. S. 609 -610, and plaintiff was required to put up a bond. None of these factors diminishing the need for a predeprivation hearing is present in this case. It is true that a later hearing might negate the presence of probable cause, but this would not cure the temporary deprivation that an earlier hearing might have prevented. "The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause." Fuentes, 407 U.S. at 407 U. S. 86 . Page 501 U. S. 16 Finally, we conclude that the interests in favor of an ex parte attachment, particularly the interests of the plaintiff, are too minimal to supply such a consideration here. Plaintiff had no existing interest in Doehr's real estate when he sought the attachment. His only interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the merits of his action. Yet there was no allegation that Doehr was about to transfer or encumber his real estate or take any other action during the pendency of the action that would render his real estate unavailable to satisfy a judgment. Our cases have recognized such a properly supported claim would be an exigent circumstance permitting postponing any notice or hearing until after the attachment is effected. See Mitchell, supra, 416 U.S. at 416 U. S. 609 ; Fuentes, supra, 407 U.S. at 407 U. S. 90 -92; Sniadach, 395 U.S. at 395 U. S. 339 . Absent such allegations, however, the plaintiff's interest in attaching the property does not justify the burdening of Doehr's ownership rights without a hearing to determine the likelihood of recovery. No interest the government may have affects the analysis. The State's substantive interest in protecting any rights of the plaintiff cannot be any more weighty than those rights themselves. Here the plaintiff's interest is de minimis. Moreover, the State cannot seriously plead additional financial or administrative burdens involving predeprivation hearings when it already claims to provide an immediate post-deprivation hearing. Conn.Gen.Stat. §§ 52-278e(b) and (c) (1991); Fermont, 178 Conn., at 397-398, 423 A.2d at 83. Historical and contemporary practice support our analysis. Prejudgment attachment is a remedy unknown at common law. Instead, "it traces its origin to the Custom of London, under which a creditor might attach money or goods of the defendant either in the plaintiff's own hands or in the custody of a third person, by proceedings in the mayor's court or in the sheriff's court." Ownbey, 256 U.S. at 256 U. S. 104 . Generally speaking, attachment measures in both England and this Page 501 U. S. 17 country had several limitations that reduced the risk of erroneous deprivation which Connecticut permits. Although attachments ordinarily did not require prior notice or a hearing, they were usually authorized only where the defendant had taken or threatened to take some action that would place the satisfaction of the plaintiff's potential award in jeopardy. See C. Drake, Law of Suits by Attachments, §§ 40-82 (1866) (hereinafter Drake); 1 R. Shinn, Attachment and Garnishment § 86 (1896) (hereinafter Shinn). Attachments, moreover, were generally confined to claims by creditors. Drake §§ 9-10; Shinn § 12. As we and the Court of Appeals have noted, disputes between debtors and creditors more readily lend themselves to accurate ex parte assessments of the merits. Tort actions, like the assault and battery claim at issue here, do not. See Mitchell, supra, 416 U.S. at 416 U. S. 609 -610. Finally, as we will discuss below, attachment statutes historically required that the plaintiff post a bond. Drake §§ 114-183; Shinn § 153. Connecticut's statute appears even more suspect in light of current practice. A survey of state attachment provisions reveals that nearly every State requires either a pre-attachment hearing, a showing of some exigent circumstance, or both, before permitting an attachment to take place. ( See 501 U.S. 1 app|>appendix.) Twenty-seven States, as well as the District of Columbia, permit attachments only when some extraordinary circumstance is present. In such cases, pre-attachment hearings are not required, but post-attachment hearings are provided. Ten States permit attachment without the presence of such factors, but require pre-writ hearings unless one of those factors is shown. Six States limit attachments to extraordinary circumstance cases, but the writ will not issue prior to a hearing unless there is a showing of some even more compelling condition. [ Footnote 6 ] Three States always require a Page 501 U. S. 18 pre-attachment hearing. Only Washington, Connecticut, and Rhode Island authorize attachments without a prior hearing in situations that do not involve any purportedly heightened threat to the plaintiff's interests. Even those States permit ex parte deprivations only in certain types of cases: Rhode Island does so only when the claim is equitable; Connecticut and Washington do so only when real estate is to be attached, and even Washington requires a bond. Conversely, the States, for the most part, no longer confine attachments to creditor claims. This development, however, only increases the importance of the other limitations. We do not mean to imply that any given exigency requirement protects an attachment from constitutional attack. Nor do we suggest that the statutory measures we have surveyed are necessarily free of due process problems or other constitutional infirmities in general. We do believe, however, that the procedures of almost all the States confirm our view that the Connecticut provision before us, by failing to provide a pre-attachment hearing without at least requiring a showing of some exigent circumstance, clearly falls short of the demands of due process. IV A Although a majority of the Court does not reach the issue, JUSTICES MARSHALL, STEVENS, O'CONNOR, and I deem it appropriate to consider whether due process also requires the plaintiff to post a bond or other security in addition to requiring a hearing or showing of some exigency. [ Footnote 7 ] Page 501 U. S. 19 As noted, the impairments to property rights that attachments affect merit due process protection. Several consequences can be severe, such as the default of a homeowner's mortgage. In the present context, it need only be added that we have repeatedly recognized the utility of a bond in protecting property rights affected by the mistaken award of prejudgment remedies. Di-Chem, 419 U.S. at 419 U. S. 610 , 419 U. S. 611 (Powell, J., concurring in judgment); id. at 419 U. S. 619 (BLACKMUN, J., dissenting); Mitchell, 416 U.S. at 416 U. S. 606 , n. 8. Without a bond, at the time of attachment, the danger that these property rights may be wrongfully deprived remains unacceptably high, even with such safeguards as a hearing or exigency requirement. The need for a bond is especially apparent where extraordinary circumstances justify an attachment with no more than the plaintiff's ex parte assertion of a claim. We have already discussed how due process tolerates, and the States generally permit, the otherwise impermissible chance of erroneously depriving the defendant in such situations in light of the heightened interest of the plaintiff. Until a post-attachment hearing, however, a defendant has no protection against damages sustained where no extraordinary circumstance in fact existed or the plaintiff's likelihood of recovery was nil. Such protection is what a bond can supply. Both the Court and its individual members have repeatedly found the requirement of a bond to play an essential role in reducing what would have been too great a degree of risk in precisely this type of circumstance. Mitchell, Page 501 U. S. 20 supra, at 416 U. S. 610 , 416 U. S. 619 ; Di-Chem, supra, 419 U.S. at 419 U. S. 613 (Powell, J., concurring in judgment); id. at 419 U. S. 619 (BLACKMUN, J., dissenting); Fuentes, 407 U.S. at 407 U. S. 101 (WHITE, J., dissenting). But the need for a bond does not end here. A defendant's property rights remain at undue risk even when there has been an adversarial hearing to determine the plaintiff's likelihood of recovery. At best, a court's initial assessment of each party's case cannot produce more than an educated prediction as to who will win. This is especially true when, as here, the nature of the claim makes any accurate prediction elusive. See Mitchell, supra, 416 U.S. at 416 U. S. 609 -610. In consequence, even a full hearing under a proper probable cause standard would not prevent many defendants from having title to their homes impaired during the pendency of suits that never result in the contingency that ultimately justifies such impairment, namely, an award to the plaintiff. Attachment measures currently on the books reflect this concern. All but a handful of States require a plaintiff's bond despite also affording a hearing either before, or (for the vast majority, only under extraordinary circumstances) soon after, an attachment takes place. ( See 501 U.S. 1 app|>appendix.) Bonds have been a similarly common feature of other prejudgment remedy procedures that we have considered, whether or not these procedures also included a hearing. See Ownbey, 256 U.S. at 256 U. S. 101 -102 n. 1; Fuentes, supra, 407 U.S. at 407 U. S. 73 , n. 6, 407 U. S. 75 -76, n. 7, 407 U. S. 81 -82; Mitchell, supra, 416 U.S. at 416 U. S. 606 , and n. 6; Di-Chem, supra, 419 U.S. at 419 U. S. 602 -603, n. 1, 419 U. S. 608 . The State stresses its double damages remedy for suits that are commenced without probable cause. Conn.Gen.Stat. § 52-568(a)(1). [ Footnote 8 ] This remedy, however, fails to make Page 501 U. S. 21 up for the lack of a bond. As an initial matter, the meaning of "probable cause" in this provision is no more clear here than it was in the attachment provision itself. Should the term mean the plaintiff's good faith or the facial adequacy of the complaint, the remedy is clearly insufficient. A defendant who was deprived where there was little or no likelihood that the plaintiff would obtain a judgment could nonetheless recover only by proving some type of fraud or malice or by showing that the plaintiff had failed to state a claim. Problems persist even if the plaintiff's ultimate failure permits recovery. At best, a defendant must await a decision on the merits of the plaintiff's complaint, even assuming that a § 52-568(a)(1) action may be brought as a counterclaim. Hydro Air of Connecticut, Inc. v. Versa Technologies, Inc., 99 F.R.D. 111, 113 (Conn.1983). Settlement, under Connecticut law, precludes seeking the damages remedy, a fact that encourages the use of attachments as a tactical device to pressure an opponent to capitulate. Blake v. Levy, 191 Conn.257, 464 A.2d 52 (1983). An attorney's advice that there is probable cause to commence an action constitutes a complete defense, even if the advice was unsound or erroneous. Vandersluis v. Weil, 176 Conn.353, 361, 407 A.2d 982, 987 (1978). Finally, there is no guarantee that the original plaintiff will have adequate assets to satisfy an award that the defendant may win. Nor is there any appreciable interest against a bond requirement. Section 52278e(a)(1) does not require a plaintiff to show exigent circumstances nor any preexisting interest in the property facing attachment. A party must show more than the mere existence of a claim before subjecting an opponent to prejudgment proceedings that carry a significant risk of erroneous deprivation. See Mitchell, 416 U.S. at 416 U. S. 604 -609; Fuentes, supra, 407 U.S. at 407 U. S. 90 -92; Sniadach, 395 U.S. at 395 U. S. 339 . Page 501 U. S. 22 Our foregoing discussion compels the four of us to consider whether a bond excuses the need for a hearing or other safeguards altogether. If a bond is needed to augment the protections afforded by pre-attachment and post-attachment hearings, it arguably follows that a bond renders these safeguards unnecessary. That conclusion is unconvincing, however, for it ignores certain harms that bonds could not undo but that hearings would prevent. The law concerning attachments has rarely, if ever, required defendants to suffer an encumbered title until the case is concluded without any prior opportunity to show that the attachment was unwarranted. Our cases have repeatedly emphasized the importance of providing a prompt post-deprivation hearing at the very least. Mitchell, supra, 416 U.S. at 416 U. S. 606 ; Di-Chem, 419 U.S. at 419 U. S. 606 -607. Every State but one, moreover, expressly requires a pre-attachment or post-attachment hearing to determine the propriety of an attachment. The necessity for at least a prompt post-attachment hearing is self-evident, because the right to be compensated at the end of the case, if the plaintiff loses, for all provable injuries caused by the attachment is inadequate to redress the harm inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a property can neither do so nor otherwise satisfy that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a child's education, an entrepreneur seeking to start a business on the strength of an otherwise strong credit rating, or simply a homeowner who might face the disruption of having a mortgage placed in technical default. The extent of these harms, moreover, grows with the length of the suit. Here, oral argument indicated that civil suits in Connecticut commonly take up to four to seven years for completion. (Tr. of Oral Arg. 44.) Many state attachment statutes require Page 501 U. S. 23 that the amount of a bond be anywhere from the equivalent to twice the amount the plaintiff seeks. See, e.g., Utah Rule of Civ.Proc. 64C(b). These amounts bear no relation to the harm the defendant might suffer, even assuming that money damages can make up for the foregoing disruptions. It should be clear, however, that such an assumption is fundamentally flawed. Reliance on a bond does not sufficiently account for the harms that flow from an erroneous attachment to excuse a State from reducing that risk by means of a timely hearing. If a bond cannot serve to dispense with a hearing immediately after attachment, neither is it sufficient basis for not providing a pre-attachment hearing in the absence of exigent circumstances, even if in any event a hearing would be provided a few days later. The reasons are the same: a wrongful attachment can inflict injury that will not fully be redressed by recovery on the bond after a prompt post-attachment hearing determines that the attachment was invalid. Once more, history and contemporary practice support our conclusion. Historically, attachments would not issue without a showing of extraordinary circumstances, even though a plaintiff bond was almost invariably required in addition. Drake §§ 4, 114; Shinn §§ 86, 153. Likewise, all but eight States currently require the posting of a bond. Out of this 42 State majority, all but one requires a pre-attachment hearing, a showing of some exigency, or both, and all but one expressly require a post-attachment hearing when an attachment has been issue ex parte. ( See 501 U.S. 1 app|>appendix.) This testimony underscores the point that neither a hearing nor an extraordinary circumstance limitation eliminates the need for a bond, no more than a bond allows waiver of these other protections. To reconcile the interests of the defendant and the plaintiff accurately, due process generally requires all of the above. Page 501 U. S. 24 V Because Connecticut's prejudgment remedy provision, Conn.Gen.Stat. § 52-278e(a)(1), violates the requirements of due process by authorizing prejudgment attachment without prior notice or a hearing, the judgment of the Court of Appeals is affirmed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. * THE CHIEF JUSTICE, JUSTICE BLACKMUN, JUSTICE KENNEDY, and JUSTICE SOUTER join Parts I, II, and III of this opinion, and JUSTICE SCALIA joins Parts I and III. [ Footnote 1 ] The complete text of § 52-278e reads: "Allowance of prejudgment remedy without hearing. Notice to defendant. Subsequent hearing and order. Attachment of real property of municipal officers. (a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for an attachment of real property; or (2) that there is reasonable likelihood that the defendant (A) neither resides in nor maintains an office or place of business in this state and is not otherwise subject to jurisdiction over his person by the court, or (B) has hidden or will hide himself so that process cannot be served on him or (C) is about to remove himself or his property from this state or (D) is about to fraudulently dispose of or has fraudulently disposed of any of his property with intent to hinder, delay or defraud his creditors or (E) has fraudulently hidden or withheld money, property or effects which should be liable to the satisfaction of his debts or (F) has stated he is insolvent or has stated he is unable to pay his debts as they mature." "(b) If a prejudgment remedy is granted pursuant to this section, the plaintiff shall include in the process served on the defendant the following notice prepared by the plaintiff: YOU HAVE RIGHTS SPECIFIED IN THE CONNECTICUT GENERAL STATUTES, INCLUDING CHAPTER 903a, WHICH YOU MAY WISH TO EXERCISE CONCERNING THIS PREJUDGMENT REMEDY. THESE RIGHTS INCLUDE: (1) THE RIGHT TO A HEARING TO OBJECT TO THE PREJUDGMENT REMEDY FOR LACK OF PROBABLE CAUSE TO SUSTAIN THE CLAIM; (2) THE RIGHT TO A HEARING TO REQUEST THAT THE PREJUDGMENT REMEDY BE MODIFIED, VACATED OR DISMISSED OR THAT A BOND BE SUBSTITUTED; AND (3) THE RIGHT TO A HEARING AS TO ANY PORTION OF THE PROPERTY ATTACHED WHICH YOU CLAIM IS EXEMPT FROM EXECUTION." "(c) The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiff's claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken." [ Footnote 2 ] Three other plaintiffs joined Doehr, challenging § 52-278e(a)(1) out of separate instances of attachment by different defendants. These other plaintiffs and defendants did not participate in the Court of Appeals, and are no longer parties in this case. [ Footnote 3 ] The Court of Appeals invited Connecticut to intervene pursuant to 28 U.S.C. § 2403(b) after oral argument. The State elected to intervene in the appeal, and has fully participated in the proceedings before this Court. [ Footnote 4 ] Our summary affirmance in Spielman-Fond, Inc. v. Hanson's Inc., 417 U.S. 901 (1974), does not control. In Spielman-Fond, the District Court held that the filing of a mechanic's lien did not amount to the taking of a significant property interest. 379 F. Supp. 997 , 999 (Ariz.1973) (three-judge court) (per curiam). A summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion. Edelman v. Jordan, 415 U. S. 651 , 415 U. S. 671 (1974). The facts of Spielman-Fond presented an alternative basis for affirmance, in any event. Unlike the case before us, the mechanic's lien statute in Spielman-Fond required the creditor to have a preexisting interest in the property at issue. 379 F. Supp. at 997 . As we explain below, a heightened plaintiff interest in certain circumstances can provide a ground for upholding procedures that are otherwise suspect. Infra at 501 U. S. 15 . [ Footnote 5 ] The parties vigorously dispute whether a defendant can, in fact, receive a prompt hearing. Doehr contends that the State's rules of practice prevent the filing of any motion -- including a motion for the mandated post-attachment hearing -- until the return date on the complaint, which in this case was 30 days after service. Connecticut Practice Book § 114 (1988). Under state law, at least 12 days must elapse between service on the defendant and the return date. Conn.Gen.Stat. § 52-46 (1991). The State counters that the post-attachment hearing is available upon request. See Fermont Division, Dynamics Corp. of America v. Smith, 178 Conn.393, 397398, 423 A.2d 80, 83 (1979) ("Most important, the statute affords to the defendant whose property has been attached the opportunity to obtain an immediate post-seizure hearing at which the prejudgment remedy will be dissolved unless the moving party proves probable cause to sustain the validity of his claim"). We assume, without deciding, that the hearing is prompt. Even on this assumption, the State's procedures fail to provide adequate safeguards against the erroneous deprivation of the property interest at stake. [ Footnote 6 ] One State, Pennsylvania, has not had an attachment statute or rule since the decision in Jonnet v. Dollar Savings Bank of New York City, 530 F.2d 1123 (CA3 1976). [ Footnote 7 ] Ordinarily we will not address a contention advanced by a respondent that would enlarge his or her rights under a judgment, without the respondent filing a cross-petition for certiorari. E.g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 , 469 U. S. 119 , n. 14 (1985). Here the Court of Appeals rejected Doehr's argument that § 52-278e(a)(1) violates due process in failing to mandate a pre-attachment bond. Nonetheless, this case involves considerations that in the past have prompted us "to consider the question highlighted by respondent." Berkemer v. McCarty, 468 U. S. 420 , 468 U. S. 435 -436, n. 23 (1984). First, as our cases have shown, the notice and hearing question and the bond question are intertwined and can fairly be considered facets of same general issue. Thus, "[w]ithout undue strain, the position taken by respondent before this Court . . . might be characterized as an argument in support of the judgment below" insofar as a discussion of notice and a hearing cannot be divorced from consideration of a bond. Ibid. Second, this aspect of prejudgment attachment "plainly warrants our attention, and with regard to which the lower courts are in need of guidance." Ibid. Third, "and perhaps most importantly, both parties have briefed and argued the question." Ibid. [ Footnote 8 ] Section 52-568(a)(1) provides: "Any person who commences and prosecutes any civil action or complaint against another, in his own name, or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages." | 501 U.S. 1 app| APPENDIX bwm: Prejudgment Attachment Statutes ---------------------------------------------------------------------- Attachment Only in Pre-Attach Exigent Circs; Pre-Attach Hrg Required No Pre-At- Hrg Even in Unless Exigent tach Hrg Most Exigent Bond Post-Attach Circs Required Circs Req'd Hrg Req'd ---------------------------------------------------------------------- Alabama X X X Alaska Pre-attachment hrg always require X Arizona X X X Arkansas X X X California X X X Colorado X X X Connecticut X (or unless attachment of real estat X Delaware X X X DC X X X Florida X X X Georgia X X X Hawaii Pre-attachment hrg always required. X X Idaho X X X Illinois X X X Indiana X X X Iowa X X X Kansas X X X Kentucky X X Louisiana X X X Page 501 U. S. 25 Maine X X Maryland X X X Massachusetts X X/O[1] X Michigan X X Minnesota X X X Mississippi X X X Missouri X X X Montana X X X Nebraska X X X Nevada X X X New Hampshire X X New Jersey X X/O X New Mexico X X X New York X X X North Carolina X X X North Dakota X X X Ohio X X X Oklahoma X X X Oregon Pre-attachment hrg always required. X Pennsylvania Rescinded in light of 530 F.2d 1123 (CA3 1976). Rhode Island X (but not if equitable claim) X/O South Carolina X X X South Dakota X X X Tennessee X X X[2] Texas X X X Utah X X X Vermont X X Page 501 U. S. 26 Virginia X X X Washington X X[3] X (except for real estate on a contract claim) West Virginia X X X Wisconsin X X X Wyoming X X X ----------------------------------------------------------------------- 1. An "x/o" in the "Bond Required" column indicates that a bond may be required at the discretion of the court. 2. The court may, under certain circumstances, quash the attachment at the defendant's request without a hearing. 3. A bond is required except in situations in which the plaintiff seeks to attach the real property of a defendant who, after diligent efforts, cannot be served. ewm: CHIEF JUSTICE REHNQUIST with whom JUSTICE BLACKMUN joins, concurring. I agree with the Court that the Connecticut attachment statute, "as applied in this case," ante, p. 501 U. S. , fails to satisfy the Due Process Clause of the Fourteenth Amendment. I therefore join Parts I, II and III of its opinion. Unfortunately, the remainder of the Court's opinion does not confine itself to the facts of this case, but enters upon a lengthy disquisition as to what combination of safeguards are required to satisfy Due Process in hypothetical cases not before the Court . I therefore do not join 501 U. S. As the Court's opinion points out, the Connecticut statute allows attachment not merely for a creditor's claim, but for a tort claim of assault and battery; it affords no opportunity for a pre-deprivation hearing; it contains no requirement that there be "exigent circumstances," such as an effort on the part of the defendant to conceal assets; no bond is required from the plaintiff; and the property attached is one in which the plaintiff has no preexisting interest. The Court's opinion Page 501 U. S. 27 is, in my view, ultimately correct when it bases its holding of unconstitutionality of the Connecticut statute as applied here on our cases of Sniadach v. Family Finance Corp., 395 U. S. 337 (1969); Fuentes v. Shevin, 407 U. S. 67 (1972); Mitchell v. W.T. Grant Co., 416 U. S. 600 (1974), and North Georgia Finishing v. Di-Chem, Inc., 419 U. S. 601 (1975). But I do not believe that the result follows so inexorably as the Court's opinion suggests. All of the cited cases dealt with personalty -- bank deposits or chattels -- and each involved the physical seizure of the property itself, so that the defendant was deprived of its use. These cases, which represented something of a revolution in the jurisprudence of procedural due process, placed substantial limits on the methods by which creditors could obtain a lien on the assets of a debtor prior to judgment. But in all of them, the debtor was deprived of the use and possession of the property. In the present case, on the other hand, Connecticut's prejudgment attachment on real property statute, which secures an incipient lien for the plaintiff, does not deprive the defendant of the use or possession of the property. The Court's opinion therefore breaks new ground, and I would point out, more emphatically than the Court does, the limits of today's holding. In Spielman-Fond, Inc. v. Hanson's, Inc., 379 F. Supp. 997 , 999 (D.Ariz.1973), the District Court held that the filing of a mechanics' lien did not cause the deprivation of a significant property interest of the owner. We summarily affirmed that decision. 417 U.S. 901 (1974). Other courts have read this summary affirmance to mean that the mere imposition of a lien on real property, which does not disturb the owner's use or enjoyment of the property, is not a deprivation of property calling for procedural due process safeguards. I agree with the Court, however, that, upon analysis, the deprivation here is a significant one, even though the owner remains in undisturbed possession. "For a property owner like Doehr, attachment ordinarily clouds title; impairs the ability to sell or otherwise Page 501 U. S. 28 alienate the property; taints any credit rating; reduces the chance of obtaining a home equity loan or additional mortgage; and can even place an existing mortgage in technical default when there is an insecurity clause." Ante at 501 U. S. 11 . Given the elaborate system of title records relating to real property which prevails in all of our states, a lienor need not obtain possession or use of real property belonging to a debtor in order to significantly impair its value to him. But in Spielman-Fond, Inc., supra, there was, as the Court points out in fn 4, ante an alternate basis available to this Court for affirmance of that decision. Arizona recognized a preexisting lien in favor of unpaid mechanics and materialmen who had contributed labor or supplies which were incorporated in improvements to real property. The existence of such a lien upon the very property ultimately posted or noticed distinguishes those cases from the present one, where the plaintiff had no preexisting interest in the real property which he sought to attach. Materialman's and mechanic's lien statutes award an interest in real property to workers who have contributed their labor, and to suppliers who have furnished material, for the improvement of the real property. Since neither the labor nor the material can be reclaimed once it has become a part of the realty, this is the only method by which workmen or small businessmen who have contributed to the improvement of the property may be given a remedy against a property owner who has defaulted on his promise to pay for the labor and the materials. To require any sort of a contested court hearing or bond before the notice of lien takes effect would largely defeat the purpose of these statutes. Petitioner, in its brief, relies in part on our summary affirmance in Bartlett v. Williams, 464 U.S. 801 (1983). That case involved a lis pendens, in which the question presented to this Court was whether such a procedure could be valid when the only protection afforded to the owner of land affected by the lis pendens was a post-sequestration hearing. Page 501 U. S. 29 A notice of lis pendens is a well established traditional remedy whereby a plaintiff (usually a judgment creditor) who brings an action to enforce an interest in property to which the defendant has title gives notice of the pendency of such action to third parties; the notice causes the interest which he establishes, if successful, to relate back to the date of the filing of the lis pendens. The filing of such notice will have an effect upon the defendant's ability to alienate the property, or to obtain additional security on the basis of title to the property, but the effect of the lis pendens is simply to give notice to the world of the remedy being sought in the lawsuit itself. The lis pendens itself creates no additional right in the property on the part of the plaintiff, but simply allows third parties to know that a lawsuit is pending in which the plaintiff is seeking to establish such a right. Here, too, the fact that the plaintiff already claims an interest in the property which he seeks to enforce by a lawsuit distinguishes this class of cases from the Connecticut attachment employed in the present case. Today's holding is a significant development in the law; the only cases dealing with real property cited in the Court's opinion, Peralta v. Heights Medical Center, Inc., 485 U. S. 80 , 485 U. S. 85 (1988), and Hodge v. Muscatine County, 196 U. S. 276 , 196 U. S. 281 (1905), arose out of lien foreclosure sales in which the question was whether the owner was entitled to proper notice. The change is dramatically reflected when we compare today's decision with the almost casual statement of Justice Holmes, writing for a unanimous Court in Coffin Brothers v. Bennett, 277 U. S. 29 , 277 U. S. 31 (1928): "[N]othing is more common than to allow parties alleging themselves to be creditors to establish in advance by attachment a lien dependent for its effect upon the result of the suit." The only protection accorded to the debtor in that case was the right to contest his liability in a post-deprivation proceeding. Page 501 U. S. 30 It is both unwise and unnecessary, I believe, for the Court to proceed, as it does in 501 U. S. from its decision of the case before it to discuss abstract and hypothetical situations not before it. This is especially so where we are dealing with the Due Process Clause which, as the Court recognizes, "unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances," ante p. 501 U. S. 10 . And it is even more true in a case involving constitutional limits on the methods by which the states may transfer or create interests in real property; in other areas of the law, dicta may do little damage, but those who insure titles or write title opinions often do not enjoy the luxury of distinguishing between dicta and holding. The two elements of due process with which the Court concerns itself in 501 U. S. 18 Part IV -- the requirement of a bond, and of "exigent circumstances" -- prove to be upon analysis so vague that the discussion is not only unnecessary, but not particularly useful. Unless one knows what the terms and conditions of a bond are to be, the requirement of a "bond" in the abstract means little. The amount to be secured by the bond and the conditions of the bond are left unaddressed -- is there to be liability on the part of a plaintiff if he is ultimately unsuccessful in the underlying lawsuit, or is it instead to be conditioned on some sort of good faith test? The "exigent circumstances" referred to by the Court are admittedly equally vague; nonresidency appears to be enough in some states, an attempt to conceal assets is required in others, an effort to flee the jurisdiction in still others. We should await concrete cases which present questions involving bonds and exigent circumstances before we attempt to decide when and if the Due Process Clause of the Fourteenth Amendment requires them as prerequisites for a lawful attachment. JUSTICE SCALIA, concurring in part and concurring in the judgment. Since the manner of attachment here was not a recognized procedure at common law, cf. 499 U. S. Co. v. Page 501 U. S. 31 Haslip, 499 U. S. 1 , 499 U. S. 24 (1991) (SCALIA, J., concurring in judgment), I agree that its validity under the Due Process Clause should be determined by applying the test we set forth in Mathews v. Eldridge, 424 U. S. 319 (1976); and I agree that it fails that test. I join Parts I and III of the Court's opinion, and concur in the judgment of the Court.

In Connecticut v. Doehr, the Supreme Court ruled that a Connecticut statute authorizing prejudgment attachment of property without prior notice or hearing violated the Due Process Clause of the Fourteenth Amendment. The Court considered the private interest affected, the risk of erroneous deprivation, and the interest of the party seeking the remedy, concluding that the statute failed to provide adequate procedural safeguards. Justice White delivered the opinion, emphasizing the importance of due process and the need to consider specific circumstances in each case. Justice Scalia concurred, agreeing that the statute failed the Mathews v. Eldridge test for due process.

Lawsuits & Legal Procedures

Carnival Cruise Lines, Inc. v. Shute

https://supreme.justia.com/cases/federal/us/499/585/

U.S. Supreme Court Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1990) Carnival Cruise Lines, Inc. v. Shute No. 89-1647 Argued Jan. 15, 1991 Decided April 17, 1991 499 U.S. 585 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus After the respondents Shute, a Washington State couple, purchased passage on a ship owned by petitioner, a Florida-based cruise line, petitioner sent them tickets containing a clause designating courts in Florida as the agreed-upon fora for the resolution of disputes. The Shutes boarded the ship in Los Angeles, and, while in international waters off the Mexican coast, Mrs. Shute suffered injuries when she slipped on a deck mat. The Shutes filed suit in a Washington Federal District Court, which granted summary judgment for petitioner. The Court of Appeals reversed, holding, inter alia, that the forum-selection clause should not be enforced under The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 , because it was not "freely bargained for," and because its enforcement would operate to deprive the Shutes of their day in court in light of evidence indicating that they were physically and financially incapable of pursuing the litigation in Florida. Held: The Court of Appeals erred in refusing to enforce the forum-selection clause. Pp. 499 U. S. 590 -597. (a) The Bremen Court's statement that a freely negotiated forum-selection clause, such as the one there at issue, should be given full effect, 407 U.S. at 407 U. S. 12 -13, does not support the Court of Appeals' determination that a nonnegotiated forum clause in a passage contract is never enforceable simply because it is not the subject of bargaining. Whereas it was entirely reasonable for The Bremen Court to have expected the parties to have negotiated with care in selecting a forum for the resolution of disputes arising from their complicated international agreement, it would be entirely unreasonable to assume that a cruise passenger would or could negotiate the terms of a forum clause in a routine commercial cruise ticket form. Nevertheless, including a reasonable forum clause in such a form contract well may be permissible for several reasons. Because it is not unlikely that a mishap in a cruise could subject a cruise line to litigation in several different fora, the line has a special interest in limiting such fora. Moreover, a clause establishing ex ante the dispute resolution forum has the salutary effect of dispelling confusion as to where suits may be brought and defended, thereby sparing litigants time and expense and conserving judicial resources. Furthermore, it is likely that passengers purchasing tickets Page 499 U. S. 586 containing a forum clause like the one here at issue benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Pp. 499 U. S. 590 -594. (b) The Court of Appeals' conclusion that the clause here at issue should not be enforced because the Shutes are incapable of pursuing this litigation in Florida is not justified by The Bremen Court's statement that "the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause." Id. at 407 U. S. 17 . That statement was made in the context of a hypothetical "agreement between two Americans to resolve their essentially local disputes in a remote alien forum." Ibid. Here, in contrast, Florida is not such a forum, nor -- given the location of Mrs. Shute's accident -- is this dispute an essentially local one inherently more suited to resolution in Washington than in Florida. In light of these distinctions, and because the Shutes do not claim lack of notice of the forum clause, they have not satisfied the "heavy burden of proof," ibid. required to set aside the clause on grounds of inconvenience. Pp. 499 U. S. 594 -595. (c) Although forum selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness, there is no indication that petitioner selected Florida to discourage cruise passengers from pursuing legitimate claims or obtained the Shutes' accession to the forum clause by fraud or overreaching. P. 499 U. S. 595 . (d) By its plain language, the forum selection clause at issue does not violate 46 U.S.C. App. § 183c, which, inter alia, prohibits a vessel owner from inserting in any contract a provision depriving a claimant of a trial "by court of competent jurisdiction" for loss of life or personal injury resulting from negligence. Pp. 499 U. S. 595 -597. 897 F.2d 377 (CA9 1990), reversed. BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 499 U. S. 597 . Page 499 U. S. 587 JUSTICE BLACKMUN delivered the opinion of the Court. In this admiralty case we primarily consider whether the United States Court of Appeals for the Ninth Circuit correctly refused to enforce a forum selection clause contained in tickets issued by petitioner Carnival Cruise Lines, Inc., to respondents Eulala and Russel Shute. I The Shutes, through an Arlington, Wash., travel agent, purchased passage for a 7-day cruise on petitioner's ship, the TROPICALE. Respondents paid the fare to the agent, who forwarded the payment to petitioner's headquarters in Miami, Fla. Petitioner then prepared the tickets and sent them to respondents in the State of Washington. The face of each ticket, at its left-hand lower corner, contained this admonition: "SUBJECT TO CONDITIONS OF CONTRACT ON LAST PAGES [bb]IMPORTANT![eb] PLEASE READ CONTRACT -- ON LAST PAGES 1, 2, 3" App. 15. The following appeared on "contract page 1" of each ticket: " TERMS AND CONDITIONS OF PASSAGE CONTRACT TICKET" * * * * "3. (a) The acceptance of this ticket by the person or persons named hereon as passengers shall be deemed to be an acceptance and agreement by each of them of all of the terms and conditions of this Passage Contract Ticket." * * * * "8. It is agreed by and between the passenger and the Carrier that all disputes and matters whatsoever arising under, in connection with or incident to this Contract Page 499 U. S. 588 shall be litigated, if at all, in and before a Court located in the State of Florida, U.S.A. to the exclusion of the Courts of any other state or country." Id. at 16. The last quoted paragraph is the forum selection clause at issue. II Respondents boarded the TROPICALE in Los Angeles, Cal. The ship sailed to Puerto Vallarta, Mexico, and then returned to Los Angeles. While the ship was in international waters off the Mexican coast, respondent Eulala Shute was injured when she slipped on a deck mat during a guided tour of the ship's galley. Respondents filed suit against petitioner in the United States District Court for the Western District of Washington, claiming that Mrs. Shute's injuries had been caused by the negligence of Carnival Cruise Lines and its employees. Id. at 4. Petitioner moved for summary judgment, contending that the forum clause in respondents' tickets required the Shutes to bring their suit against petitioner in a court in the State of Florida. Petitioner contended, alternatively, that the District Court lacked personal jurisdiction over petitioner because petitioner's contacts with the State of Washington were insubstantial. The District Court granted the motion, holding that petitioner's contacts with Washington were constitutionally insufficient to support the exercise of personal jurisdiction. See App. to Pet. for Cert. 60a. The Court of Appeals reversed. Reasoning that, "but for" petitioner's solicitation of business in Washington, respondents would not have taken the cruise and Mrs. Shute would not have been injured, the court concluded that petitioner had sufficient contacts with Washington to justify the District Court's exercise of personal jurisdiction. 897 F.2d 377, 385-386 (CA9 1990). * Page 499 U. S. 589 Turning to the forum selection clause, the Court of Appeals acknowledged that a court concerned with the enforceability of such a clause must begin its analysis with The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), where this Court held that forum selection clauses, although not "historically . . . favored," are " prima facie valid." Id. at 407 U. S. 9 -10. See 897 F.2d at 388. The appellate court concluded that the forum clause should not be enforced because it "was not freely bargained for." Id. at 389. As an "independent justification" for refusing to enforce the clause, the Court of Appeals noted that there was evidence in the record to indicate that "the Shutes are physically and financially incapable of pursuing this litigation in Florida," and that the enforcement of the clause would operate to deprive them of their day in court, and thereby contravene this Court's holding in The Bremen. 897 F.2d at 389. We granted certiorari to address the question whether the Court of Appeals was correct in holding that the District Court should hear respondents' tort claim against petitioner. 498 U.S. 807-808 (1990). Because we find the forum selection clause to be dispositive of this question, we need not consider petitioner's constitutional argument as to personal jurisdiction. See Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring) (" I t is not the habit of the Court to decide questions of a constitutional nature unless Page 499 U. S. 590 absolutely necessary to a decision of the case,'" quoting Burton v. United States, 196 U. S. 283 , 196 U. S. 295 (1905)). III We begin by noting the boundaries of our inquiry. First, this is a case in admiralty, and federal law governs the enforceability of the forum selection clause we scrutinize. See Archawski v. Nanioti, 350 U. S. 532 , 350 U. S. 533 (1956); The Moses Taylor , 4 Wall. 411, 71 U. S. 427 (1867); Tr. of Oral Arg. 36-37, 12, 47-48. Cf. Stewart Organization, Inc. v. Ricoh Corp., 487 U. S. 22 , 487 U. S. 28 -29 (1988). Second, we do not address the question whether respondents had sufficient notice of the forum clause before entering the contract for passage. Respondents essentially have conceded that they had notice of the forum selection provision. Brief for Respondent 26 ("The respondents do not contest the incorporation of the provisions nor [sic] that the forum selection clause was reasonably communicated to the respondents, as much as three pages of fine print can be communicated."). Additionally, the Court of Appeals evaluated the enforceability of the forum clause under the assumption, although "doubtful," that respondents could be deemed to have had knowledge of the clause. See 897 F.2d at 389 and n. 11. Within this context, respondents urge that the forum clause should not be enforced because, contrary to this Court's teachings in The Bremen, the clause was not the product of negotiation, and enforcement effectively would deprive respondents of their day in court. Additionally, respondents contend that the clause violates the Limitation of Vessel Owner's Liability Act, 46 U.S.C. App. § 183c. We consider these arguments in turn. IV A Both petitioner and respondents argue vigorously that the Court's opinion in The Bremen governs this case, and each side purports to find ample support for its position in that Page 499 U. S. 591 opinion's broad-ranging language. This seeming paradox derives in large part from key factual differences between this case and The Bremen, differences that preclude an automatic and simple application of The Bremen's general principles to the facts here. In The Bremen, this Court addressed the enforceability of a forum selection clause in a contract between two business corporations. An American corporation, Zapata, made a contract with Unterweser, a German corporation, for the towage of Zapata's ocean-going drilling rig from Louisiana to a point in the Adriatic Sea off the coast of Italy. The agreement provided that any dispute arising under the contract was to be resolved in the London Court of Justice. After a storm in the Gulf of Mexico seriously damaged the rig, Zapata ordered Unterweser's ship to tow the rig to Tampa, Fla., the nearest point of refuge. Thereafter, Zapata sued Unterweser in admiralty in federal court at Tampa. Citing the forum clause, Unterweser moved to dismiss. The District Court denied Unterweser's motion, and the Court of Appeals for the Fifth Circuit, sitting en banc on rehearing, and by a sharply divided vote, affirmed. 446 F.2d 907 (1971). This Court vacated and remanded, stating that, in general, "a freely negotiated private international agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should be given full effect." 407 U.S. at 407 U. S. 12 -13 (footnote omitted). The Court further generalized that, "in the light of present-day commercial realities and expanding international trade, we conclude that the forum clause should control absent a strong showing that it should be set aside." Id. at 407 U. S. 16 . The Court did not define precisely the circumstances that would make it unreasonable for a court to enforce a forum clause. Instead, the Court discussed a number of factors that made it reasonable to enforce the clause at issue in The Bremen and Page 499 U. S. 592 that, presumably, would be pertinent in any determination whether to enforce a similar clause. In this respect, the Court noted that there was "strong evidence that the forum clause was a vital part of the agreement, and [that] it would be unrealistic to think that the parties did not conduct their negotiations, including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations." Id. at 407 U. S. 14 (footnote omitted). Further, the Court observed that it was not "dealing with an agreement between two Americans to resolve their essentially local disputes in a remote alien forum," and that, in such a case, "the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause." Id. at 407 U. S. 17 . The Court stated that, even where the forum clause establishes a remote forum for resolution of conflicts, "the party claiming [unfairness] should bear a heavy burden of proof." Ibid. In applying The Bremen, the Court of Appeals in the present litigation took note of the foregoing "reasonableness" factors and rather automatically decided that the forum selection clause was unenforceable because, unlike the parties in The Bremen, respondents are not business persons, and did not negotiate the terms of the clause with petitioner. Alternatively, the Court of Appeals ruled that the clause should not be enforced because enforcement effectively would deprive respondents of an opportunity to litigate their claim against petitioner. The Bremen concerned a "far from routine transaction between companies of two different nations contemplating the tow of an extremely costly piece of equipment from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the Mediterranean Sea to its final destination in the Adriatic Sea." 407 U.S. at 407 U. S. 13 . These facts suggest that, even apart from the evidence of negotiation regarding the forum clause, it was entirely reasonable for the Court in The Page 499 U. S. 593 Bremen to have expected Unterweser and Zapata to have negotiated with care in selecting a forum for the resolution of disputes arising from their special towing contract. In contrast, respondents' passage contract was purely routine, and doubtless nearly identical to every commercial passage contract issued by petitioner and most other cruise lines. See, e.g., Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 910 (CA3 1988), cert. dism'd, 490 U.S. 1001 (1989). In this context, it would be entirely unreasonable for us to assume that respondents -- or any other cruise passenger -- would negotiate with petitioner the terms of a forum-selection clause in an ordinary commercial cruise ticket. Common sense dictates that a ticket of this kind will be a form contract the terms of which are not subject to negotiation, and that an individual purchasing the ticket will not have bargaining parity with the cruise line. But by ignoring the crucial differences in the business contexts in which the respective contracts were executed, the Court of Appeals' analysis seems to us to have distorted somewhat this Court's holding in The Bremen. In evaluating the reasonableness of the forum clause at issue in this case, we must refine the analysis of The Bremen to account for the realities of form passage contracts. As an initial matter, we do not adopt the Court of Appeals' determination that a nonnegotiated forum selection clause in a form ticket contract is never enforceable simply because it is not the subject of bargaining. Including a reasonable forum clause in a form contract of this kind well may be permissible for several reasons: first, a cruise line has a special interest in limiting the fora in which it potentially could be subject to suit. Because a cruise ship typically carries passengers from many locales, it is not unlikely that a mishap on a cruise could subject the cruise line to litigation in several different fora. See The Bremen, 407 U.S. at 407 U. S. 13 and n. 15. Additionally, a clause establishing ex ante the forum for dispute resolution has the salutary Page 499 U. S. 594 effect of dispelling any confusion about where suits arising from the contract must be brought and defended, sparing litigants the time and expense of pretrial motions to determine the correct forum, and conserving judicial resources that otherwise would be devoted to deciding those motions. See Stewart Organization, 487 U.S. at 487 U. S. 33 (concurring opinion). Finally, it stands to reason that passengers who purchase tickets containing a forum clause like that at issue in this case benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting the fora in which it may be sued. Cf. Northwestern Nat. Ins. Co. v. Donovan, 916 F.2d 372, 378 (CA7 1990). We also do not accept the Court of Appeals' "independent justification" for its conclusion that The Bremen dictates that the clause should not be enforced because "[t]here is evidence in the record to indicate that the Shutes are physically and financially incapable of pursuing this litigation in Florida." 897 F.2d, at 389. We do not defer to the Court of Appeals' findings of fact. In dismissing the case for lack of personal jurisdiction over petitioner, the District Court made no finding regarding the physical and financial impediments to the Shutes' pursuing their case in Florida. The Court of Appeals' conclusory reference to the record provides no basis for this Court to validate the finding of inconvenience. Furthermore, the Court of Appeals did not place in proper context this Court's statement in The Bremen that "the serious inconvenience of the contractual forum to one or both of the parties might carry greater weight in determining the reasonableness of the forum clause." 407 U.S. at 407 U. S. 17 . The Court made this statement in evaluating a hypothetical "agreement between two Americans to resolve their essentially local disputes in a remote alien forum." Ibid. In the present case, Florida is not a "remote alien forum," nor -- given the fact that Mrs. Shute's accident occurred off the coast of Mexico -- is this dispute an essentially local one inherently more suited to resolution in the State of Washington than in Florida. In Page 499 U. S. 595 light of these distinctions, and because respondents do not claim lack of notice of the forum clause, we conclude that they have not satisfied the "heavy burden of proof," ibid. required to set aside the clause on grounds of inconvenience. It bears emphasis that forum selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness. In this case, there is no indication that petitioner set Florida as the forum in which disputes were to be resolved as a means of discouraging cruise passengers from pursuing legitimate claims. Any suggestion of such a bad faith motive is belied by two facts: petitioner has its principal place of business in Florida, and many of its cruises depart from and return to Florida ports. Similarly, there is no evidence that petitioner obtained respondents' accession to the forum clause by fraud or overreaching. Finally, respondents have conceded that they were given notice of the forum provision and, therefore, presumably retained the option of rejecting the contract with impunity. In the case before us, therefore, we conclude that the Court of Appeals erred in refusing to enforce the forum selection clause. B Respondents also contend that the forum selection clause at issue violates 46 U.S.C. App. § 183c. That statute, enacted in 1936, see 49 Stat. 1480, provides: "It shall be unlawful for the . . . owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner . . . from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent Page 499 U. S. 596 jurisdiction on the question of liability for such loss or injury, or the measure of damages therefor. All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect." By its plain language, the forum selection clause before us does not take away respondents' right to "a trial by [a] court of competent jurisdiction," and thereby contravene the explicit proscription of § 183c. Instead, the clause states specifically that actions arising out of the passage contract shall be brought "if at all," in a court "located in the State of Florida," which, plainly, is a "court of competent jurisdiction" within the meaning of the statute. Respondents appear to acknowledge this by asserting that, although the forum clause does not directly prevent the determination of claims against the cruise line, it causes plaintiffs unreasonable hardship in asserting their rights, and therefore violates Congress' intended goal in enacting § 183c. Significantly, however, respondents cite no authority for their contention that Congress' intent in enacting § 183c was to avoid having a plaintiff travel to a distant forum in order to litigate. The legislative history of § 183c suggests, instead, that this provision was enacted in response to passenger ticket conditions purporting to limit the shipowner's liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that "the question of liability and the measure of damages shall be determined by arbitration." See S.Rep. No. 2061, 74th Cong., 2d Sess. 6 (1936); H.R.Rep. No. 2517, 74th Cong., 2d Sess., 6 (1936). See also Safety of Life and Property at Sea: Hearings Before the Committee on Merchant Marine and Fisheries, 74th Cong., 2d Sess., pt. 4, pp. 20, 36-37, 57, 109-110, 119 (1936). There was no prohibition of a forum selection clause. Because the clause before us allows for judicial resolution of claims against petitioner and does Page 499 U. S. 597 not purport to limit petitioner's liability for negligence, it does not violate § 183c. V The judgment of the Court of Appeals is reversed. It is so ordered * The Court of Appeals had filed an earlier opinion also reversing the District Court and ruling that the District Court had personal jurisdiction over the cruise line, and that the forum selection clause in the tickets was unreasonable, and was not to be enforced. 863 F.2d 1437 (CA9 1988). That opinion, however, was withdrawn when the court certified to the Supreme Court of Washington the question whether the Washington long-arm statute, Wash.Rev.Code § 4.28.185 (1988), conferred personal jurisdiction over Carnival Cruise Lines for the claim asserted by the Shutes. See 872 F.2d 930 (CA9 1989). The Washington Supreme Court answered the certified question in the affirmative on the ground that the Shutes' claim "arose from" petitioner's advertisement in Washington and the promotion of its cruises there. 113 Wash. 2d 763 , 783 P.2d 78 (1989). The Court of Appeals then "refiled" its opinion "as modified herein." See 897 F.2d at 380, n. 1. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting. The Court prefaces its legal analysis with a factual statement that implies that a purchaser of a Carnival Cruise Lines passenger ticket is fully and fairly notified about the existence of the choice of forum clause in the fine print on the back of the ticket. See ante at 499 U. S. 587 -588. Even if this implication were accurate, I would disagree with the Court's analysis. But, given the Court's preface, I begin my dissent by noting that only the most meticulous passenger is likely to become aware of the forum selection provision. I have therefore appended to this opinion a facsimile [omitted] of the relevant text, using the type size that actually appears in the ticket itself. A careful reader will find the forum selection clause in the eighth of the twenty-five numbered paragraphs. Of course, many passengers, like the respondents in this case, see ante at 499 U. S. 587 , will not have an opportunity to read paragraph 8 until they have actually purchased their tickets. By this point, the passengers will already have accepted the condition set forth in paragraph 16(a), which provides that "[t]he Carrier shall not be liable to make any refund to passengers in respect of . . . tickets wholly or partly not used by a passenger." Not knowing whether or not that provision is legally enforceable, I assume that the average passenger would accept the risk of having to file suit in Florida in the event of an injury, rather than canceling -- without a refund -- a planned vacation at the last minute. The fact that the cruise line can reduce its litigation costs, and therefore its liability insurance premiums, by forcing this choice on its passengers does not, in my opinion, suffice to render the Page 499 U. S. 598 provision reasonable. Cf. Steven v. Fidelity Casualty Co. of New York, 58 Cal. 2d 862 , 883, 27 Cal. Rptr. 172, 186, 377 P.2d 284, 298 (1962) (refusing to enforce limitation on liability in insurance policy because insured "must purchase the policy before he even knows its provisions"). Even if passengers received prominent notice of the forum selection clause before they committed the cost of the cruise, I would remain persuaded that the clause was unenforceable under traditional principles of federal admiralty law, and is "null and void" under the terms of Limited Liability Act, 49 Stat. 1480, as amended, 46 U.S.C. App. § 183c, which was enacted in 1936 to invalidate expressly stipulations limiting shipowners' liability for negligence. Exculpatory clauses in passenger tickets have been around for a long time. These clauses are typically the product of disparate bargaining power between the carrier and the passenger, and they undermine the strong public interest in deterring negligent conduct. For these reasons, courts long before the turn of the century consistently held such clauses unenforceable under federal admiralty law. Thus, in a case involving a ticket provision purporting to limit the shipowner's liability for the negligent handling of baggage, this Court wrote: "It is settled in the courts of the United States that exemptions limiting carriers from responsibility for the negligence of themselves or their servants are both unjust and unreasonable, and will be deemed as wanting in the element of voluntary assent; and, besides, that such conditions are in conflict with public policy. This doctrine was announced so long ago, and has been so frequently reiterated, that it is elementary. We content ourselves with referring to the cases of the Baltimore & Ohio &c. Railway v. Voigt, 176 U. S. 498 , 176 U. S. 505 , 176 U. S. 507 , and Knott v. Botany Mills, 179 U. S. 69 , 179 U. S. 71 [(1900)], where the previously adjudged cases are referred to and the principles Page 499 U. S. 599 by them expounded are restated." The Kensington, 183 U. S. 263 , 183 U. S. 268 (1902). Clauses limiting a carrier's liability or weakening the passenger's right to recover for the negligence of the carrier's employees come in a variety of forms. Complete exemptions from liability for negligence or limitations on the amount of the potential damage recovery, [ Footnote 1 ] requirements that notice of claims be filed within an unreasonably short period of time, [ Footnote 2 ] provisions mandating a choice of law that is favorable to the defendant in negligence cases, [ Footnote 3 ] and forum selection clauses are all similarly designed to put a thumb on the carrier's side of the scale of justice. [ Footnote 4 ] Page 499 U. S. 600 Forum selection clauses in passenger tickets involve the intersection of two strands of traditional contract law that qualify the general rule that courts will enforce the terms of a contract as written. Pursuant to the first strand, courts traditionally have reviewed with heightened scrutiny the terms of contracts of adhesion, form contracts offered on a take-or-leave basis by a party with stronger bargaining power to a party with weaker power. Some commentators have questioned whether contracts of adhesion can justifiably be enforced at all under traditional contract theory because the adhering party generally enters into them without manifesting knowing and voluntary consent to all their terms. See, e.g., Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Harv.L.Rev. 1173, 1179-1180 (1983); Slawson, Mass Contracts: Lawful Fraud in California, 48 S.Cal.L.Rev. 1, 1213 (1974); K. Llewellyn, The Common Law Tradition 370-371 (1960). The common law, recognizing that standardized form contracts account for a significant portion of all commercial agreements, has taken a less extreme position, and instead subjects terms in contracts of adhesion to scrutiny for reasonableness. Judge J. Skelly Wright set out the state of the law succinctly in Williams v. Walker-Thomas Furniture Co., 121 U.S.App.D.C. 315, 319-320, 350 F.2d 445, 449-450 (1965) (footnotes omitted): "Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, Page 499 U. S. 601 was ever given to all of the terms. In such a case, the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld." See also Steven, 58 Cal. 2d at 879-883, 27 Cal. Rptr. at 183-185, 377 P.2d at 295-297; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). The second doctrinal principle implicated by forum selection clauses is the traditional rule that "contractual provisions, which seek to limit the place or court in which an action may . . . be brought, are invalid as contrary to public policy." See Dougherty, Validity of Contractual Provision Limiting Place or Court in Which Action May Be Brought, 31 A.L.R.4th 404, 409, § 3 (1984). See also Home Insurance Co. v. Morse , 20 Wall. 445, 87 U. S. 451 (1874). Although adherence to this general rule has declined in recent years, particularly following our decision in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 (1972), the prevailing rule is still that forum selection clauses are not enforceable if they were not freely bargained for, create additional expense for one party, or deny one party a remedy. See 31 A.L.R.4th, at 409-438 (citing cases). A forum selection clause in a standardized passenger ticket would clearly have been unenforceable under the common law before our decision in The Bremen, see 407 U.S. at 407 U. S. 9 , and n. 10, and, in my opinion, remains unenforceable under the prevailing rule today. The Bremen, which the Court effectively treats as controlling this case, had nothing to say about stipulations printed on the back of passenger tickets. That case involved the enforceability of a forum selection clause in a freely negotiated international agreement between two large corporations providing for the towage of a vessel from the Gulf of Mexico to the Adriatic Sea. The Court recognized that such towage agreements had generally been held unenforceable in American Page 499 U. S. 602 courts, [ Footnote 5 ] but held that the doctrine of those cases did not extend to commercial arrangements between parties with equal bargaining power. The federal statute that should control the disposition of the case before us today was enacted in 1936, when the general rule denying enforcement of forum selection clauses was indisputably widely accepted. The principal subject of the statute concerned the limitation of shipowner liability, but, as the following excerpt from the House Report explains, the section that is relevant to this case was added as a direct response to shipowners' ticketing practices. "During the course of the hearings on the bill (H.R. 9969) there was also brought to the attention of the committee a practice of providing on the reverse side of steamship tickets that, in the event of damage or injury caused by the negligence or fault of the owner or his servants, the liability of the owner shall be limited to a stipulated amount, in some cases $5,000, and in others substantially lower amounts, or that in such event the question of liability and the measure of damages shall be determined by arbitration. The amendment to chapter 6 of title 48 of the Revised Statutes proposed to be made by section 2 of the committee amendment is intended to, and in the opinion of the committee will, put a stop to all such practices and practices of a like character. " H.R.Rep. No. 2517, 74th Cong., 2d Sess., 6-7 (1936) (emphasis added); see also S.Rep. No. 2061, 74th Cong., 2d Sess., 6-7 (1936). Page 499 U. S. 603 The intent to "put a stop to all such practices and practices of a like character" was effectuated in the second clause of the statute. It reads: "It shall be unlawful for the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner, master, or agent from liability, or from liability beyond any stipulated amount, for such loss or injury, or (2) purporting in such event to lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for such loss or injury, or the measure of damages therefor. All such provisions or limitations contained in any such rule, regulation, contract, or agreement are declared to be against public policy and shall be null and void and of no effect." 46 U.S.C. App. § 183c (emphasis added). The stipulation in the ticket that Carnival Cruise sold to respondents certainly lessens or weakens their ability to recover for the slip and fall incident that occurred off the west coast of Mexico during the cruise that originated and terminated in Los Angeles, California. It is safe to assume that the witnesses -- whether other passengers or members of the crew -- can be assembled with less expense and inconvenience at a west coast forum than in a Florida court several thousand miles from the scene of the accident. A liberal reading of the 1936 statute is supported by both its remedial purpose and by the legislative history's general condemnation of "all such practices." Although the statute does not specifically mention forum selection clauses, its language is broad enough to encompass them. The absence of a Page 499 U. S. 604 specific reference is adequately explained by the fact that such clauses were already unenforceable under common law, and would not often have been used by carriers, which were relying on stipulations that purported to exonerate them from liability entirely. Cf. Moskal v. United States, 498 U. S. 103 , 498 U. S. 110 -113 (1990). The Courts of Appeals, construing an analogous provision of the Carriage of Goods by Sea Act, 46 U.S.C. App. § 1300 et seq., have unanimously held invalid as limitations on liability forum selection clauses requiring suit in foreign jurisdictions. See, e.g., Hughes Drilling Fluids v. M/V Luo Fu Shan, 852 F.2d 840 (CA5 1988), cert. denied, 489 U.S. 1033 (1989); Union Ins. Soc. of Canton, Ltd. v. S.S. Elikon, 642 F.2d 721, 724-25 (CA4 1981); Indussa Corp. v. S.S. Ranborg, 377 F.2d 200, 203-204 (CA2 1967). Commentators have also endorsed this view. See, e.g., G. Gilmore & C. Black, The Law of Admiralty 145, and n. 23 (2nd ed.1975); Mendelsohn, Liberalism, Choice of Forum Clauses and the Hague Rules, 2 J. of Maritime Law & Comm. 661, 663-666 (1971). The forum selection clause here does not mandate suit in a foreign jurisdiction, and therefore arguably might have less of an impact on a plaintiff's ability to recover. See Fireman's Fund American Ins. Cos. v. Puerto Rican Forwarding Co., 492 F.2d 1294 (CA1 1974). However, the plaintiffs in this case are not large corporations, but individuals, and the added burden on them of conducting a trial at the opposite end of the country is likely proportional to the additional cost to a large corporation of conducting a trial overseas. [ Footnote 6 ] Under these circumstances, the general prohibition against stipulations purporting "to lessen, weaken, or avoid" the passenger's right to a trial certainly should be construed to apply to the manifestly unreasonable stipulation in these passengers' Page 499 U. S. 605 tickets. Even without the benefit of the statute, I would continue to apply the general rule that prevailed prior to our decision in The Bremen to forum selection clauses in passenger tickets. I respectfully dissent. [ Footnote 1 ] See 46 U.S.C. App. § 183c: "It shall be unlawful for the . . . owner of any vessel transporting passengers between ports of the United States or between any such port and a foreign port to insert in any rule, regulation, contract, or agreement any provision or limitation (1) purporting, in the event of loss of life or bodily injury arising from the negligence or fault of such owner or his servants, to relieve such owner . . . from liability, or from liability beyond any stipulated amount, for such loss or injury. . . ." [ Footnote 2 ] See 46 U.S.C. App. § 183b(a): "It shall be unlawful for the manager, agent, master, or owner of any sea-going vessel (other than tugs, barges, fishing vessels and their tenders) transporting passengers or merchandise or property from or between ports of the United States and foreign ports to provide by rule, contract, regulation, or otherwise a shorter period for giving notice of, or filing claims for loss of life or bodily injury, than six months, and for the institution of suits on such claims, than one year, such period for institution of suits to be computed from the day when the death or injury occurred." See also 49 U.S.C. § 11707(e) ("A carrier or freight forwarder may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section"). [ Footnote 3 ] See, e.g., The Kensington, 183 U. S. 263 , 183 U. S. 269 (1902) (refusing to enforce clause requiring that all disputes under contract for passage be governed by Belgian law because such law would have favored the shipowner in violation of United States public policy). [ Footnote 4 ] All these clauses will provide passengers who purchase tickets containing them with a "benefit in the form of reduced fares reflecting the savings that the cruise line enjoys by limiting [its exposure to liability]." See ante at 499 U. S. 594 . Under the Court's reasoning, all these clauses, including a complete waiver of liability, would be enforceable, a result at odds with longstanding jurisprudence. [ Footnote 5 ] "In [ Carbon Black Export, Inc. v. The Monrosa, 254 F.2d 297 (CA5 1958), cert. dismissed, 359 U. S. 180 (1959),] the Court of Appeals had held a forum selection clause unenforceable, reiterating the traditional view of many American courts that 'agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy, and will not be enforced.' 254 F.2d at 300-301." The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 , 407 U. S. 6 (1972). [ Footnote 6 ] The Court does not make clear whether the result in this case would also apply if the clause required Carnival passengers to sue in Panama, the country in which Carnival is incorporated.

Here is a summary of the case: In Carnival Cruise Lines, Inc. v. Shute, the Supreme Court ruled that a forum-selection clause in a cruise ticket contract was enforceable, even if it was not specifically negotiated between the cruise line and the passengers. The Court recognized that cruise tickets are typically form contracts, and passengers do not have the opportunity to negotiate their terms. However, the Court found several valid reasons for upholding such clauses, including reducing confusion about where to file lawsuits, benefiting passengers through reduced fares, and protecting cruise lines from litigation in multiple jurisdictions. The Court also noted that the clause was reasonable and did not deprive the passengers of their day in court. Therefore, the Court held that the Court of Appeals should have enforced the forum-selection clause.

Lawsuits & Legal Procedures

Swierkiewicz v. Sorema N.A.

https://supreme.justia.com/cases/federal/us/534/506/

OCTOBER TERM, 2001 Syllabus SWIERKIEWICZ v. SOREMA N. A. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 00-1853. Argued January 15, 2002-Decided February 26, 2002 Petitioner, a 53-year-old native of Hungary, filed this suit against respondent, his former employer, alleging that he had been fired on account of his national origin in violation of Title VII of the Civil Rights Act of 1964 and on account of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). In affirming the District Court's dismissal of the complaint, the Second Circuit relied on its settled precedent requiring an employment discrimination complaint to allege facts constituting a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 802. The court held that petitioner had failed to meet his burden because his allegations were insufficient as a matter of law to raise an inference of discrimination. Held: An employment discrimination complaint need not contain specific facts establishing a prima facie case under the McDonnell Douglas framework, but instead must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. Rule Civ. Proc. 8(a)(2). The McDonnell Douglas framework-which requires the plaintiff to show (1) membership in a protected group, (2) qualification for the job in question, (3) an adverse employment action, and (4) circumstances supporting an inference of discrimination-is an evidentiary standard, not a pleading requirement. See, e. g., 411 U. S., at 800. The Court has never indicated that the requirements for establishing a prima facie case apply to pleading. Moreover, the McDonnell Douglas framework does not apply where, for example, a plaintiff is able to produce direct evidence of discrimination. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 ,121. Under the Second Circuit's heightened pleading standard, however, a plaintiff without direct evidence at the time of his complaint must plead a prima facie case of discrimination even though discovery might uncover such direct evidence. It seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered. Moreover, the precise requirements of the prima facie case can vary with the context and were "never intended to be rigid, mechanized, or ritualistic." Furnco Constr. Corp. v. Waters, 438 507 u. S. 567, 577. It may be difficult to define the precise formulation of the required prima facie case in a particular case before discovery has unearthed relevant facts and evidence. Consequently, the prima facie case should not be transposed into a rigid pleading standard for discrimination cases. Imposing the Second Circuit's heightened standard conflicts with Rule 8(a)'s express language, which requires simply that the complaint "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U. S. 41 ,47. A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U. S. 69 , 73. Petitioner's complaint easily satisfies Rule 8(a)'s requirements because it gives respondent fair notice of the basis for his claims and the grounds upon which they rest. In addition, it states claims upon which relief could be granted under Title VII and the ADEA. Thus, the complaint is sufficient to survive respondent's motion to dismiss. Pp. 510-515. 5 Fed. Appx. 63, reversed and remanded. THOMAS, J., delivered the opinion for a unanimous Court. Harold 1. Goodman argued the cause and filed briefs for petitioner. Jeffrey P. Minear argued the cause for the United States et al. as amici curiae urging reversal. On the brief were Solicitor General Olson, Assistant Attorney General Boyd, Deputy Solicitor General Clement, Patricia A. Millett, and Philip B. Sklover. Lauren Reiter Brody argued the cause for respondent. With her on the brief was Frances Kulka Browne. * *Briefs of amici curiae urging reversal were filed for the Lawyers' Committee for Civil Rights Under Law by John A. Payton, Gary T. Johnson, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, and Nancy L. Perkins; and for the National Employment Lawyers Association et al. by Paul W Mollica and Paula A. Brantner. Briefs of amici curiae urging affirmance were filed for the Center for Individual Freedom by Linda Van Winkle Deacon and Julie Arias Young; and for the Equal Employment Advisory Council by Ann Elizabeth Reesman and Katherine Y. K. Cheung. 508 JUSTICE THOMAS delivered the opinion of the Court. This case presents the question whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth by this Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). We hold that an employment discrimination complaint need not include such facts and instead must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). I Petitioner Akos Swierkiewicz is a native of Hungary, who at the time of his complaint was 53 years old.l In April 1989, petitioner began working for respondent Sorema N. A., a reinsurance company headquartered in New York and principally owned and controlled by a French parent corporation. Petitioner was initially employed in the position of senior vice president and chief underwriting officer (CUO). Nearly six years later, Franvois M. Chavel, respondent's Chief Executive Officer, demoted petitioner to a marketing and services position and transferred the bulk of his underwriting responsibilities to Nicholas Papadopoulo, a 32-yearold who, like Mr. Chavel, is a French national. About a year later, Mr. Chavel stated that he wanted to "energize" the underwriting department and appointed Mr. Papadopoulo as CUO. Petitioner claims that Mr. Papadopoulo had only one year of underwriting experience at the time he was promoted, and therefore was less experienced and less qualified to be CUO than he, since at that point he had 26 years of experience in the insurance industry. 1 Because we review here a decision granting respondent's motion to dismiss, we must accept as true all of the factual allegations contained in the complaint. See, e. g., Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 , 164 (1993). 509 Following his demotion, petitioner contends that he "was isolated by Mr. Chavel ... excluded from business decisions and meetings and denied the opportunity to reach his true potential at SOREMA." App. 26. Petitioner unsuccessfully attempted to meet with Mr. Chavel to discuss his discontent. Finally, in April 1997, petitioner sent a memo to Mr. Chavel outlining his grievances and requesting a severance package. Two weeks later, respondent's general counsel presented petitioner with two options: He could either resign without a severance package or be dismissed. Mr. Chavel fired petitioner after he refused to resign. Petitioner filed a lawsuit alleging that he had been terminated on account of his national origin in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1994 ed. and Supp. V), and on account of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. (1994 ed. and Supp. V). App. 28. The United States District Court for the Southern District of New York dismissed petitioner's complaint because it found that he "ha[d] not adequately alleged a prima facie case, in that he ha[d] not adequately alleged circumstances that support an inference of discrimination." Id., at 42. The United States Court of Appeals for the Second Circuit affirmed the dismissal, relying on its settled precedent, which requires a plaintiff in an employment discrimination complaint to allege facts constituting a prima facie case of discrimination under the framework set forth by this Court in McDonnell Douglas, supra, at 802. See, e. g., Tarshis v. Riese Organization, 211 F.3d 30 , 35-36, 38 (CA2 2000); Austin v. Ford Models, Inc., 149 F.3d 148 , 152-153 (CA2 1998). The Court of Appeals held that petitioner had failed to meet his burden because his allegations were "insufficient as a matter of law to raise an inference of discrimination." 5 Fed. Appx. 63, 65 (CA2 2001). We granted certiorari, 533 U. S. 976 (2001), to resolve a split among the Courts 510 of Appeals concerning the proper pleading standard for employment discrimination cases,2 and now reverse. II Applying Circuit precedent, the Court of Appeals required petitioner to plead a prima facie case of discrimination in order to survive respondent's motion to dismiss. See 5 Fed. Appx., at 64-65. In the Court of Appeals' view, petitioner was thus required to allege in his complaint: (1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination. Ibid.; cf. McDonnell Douglas, 411 U. S., at 802; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 253-254, n. 6 (1981). The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement. In McDonnell Douglas, this Court made clear that "[t]he critical issue before us concern[ed] the order and allocation of proof in a private, non-class action challenging employment discrimination." 411 U. S., at 800 (emphasis added). In subsequent cases, this Court has reiterated that the prima facie case relates to the employee's burden of presenting evidence that raises an inference of discrimination. See Burdine, supra, at 252-253 ("In [McDonnell Douglas,] we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of 2 The majority of Courts of Appeals have held that a plaintiff need not plead a prima facie case of discrimination under McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), in order to survive a motion to dismiss. See, e. g., Sparrow v. United Air Lines, Inc., 216 F.3d 1111 , 1114 (CADC 2000); Bennett v. Schmidt, 153 F.3d 516 , 518 (CA7 1998); Ring v. First Interstate Mortgage, Inc., 984 F.2d 924 (CA8 1993). Others, however, maintain that a complaint must contain factual allegations that support each element of a prima facie case. In addition to the case below, see Jackson v. Columbus, 194 F.3d 737 , 751 (CA6 1999). 511 discrimination" (footnotes omitted)); 450 U. S., at 255, n. 8 ("This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law"). This Court has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss. For instance, we have rejected the argument that a Title VII complaint requires greater "particularity," because this would "too narrowly constric[t] the role of the pleadings." McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 , 283, n. 11 (1976). Consequently, the ordinary rules for assessing the sufficiency of a complaint apply. See, e. g., Scheuer v. Rhodes, 416 U. S. 232 , 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims"). In addition, under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 , 121 (1985) ("[T]he McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination"). Under the Second Circuit's heightened pleading standard, a plaintiff without direct evidence of discrimination at the time of his complaint must plead a prima facie case of discrimination, even though discovery might uncover such direct evidence. It thus seems incongruous to require a plaintiff, in order to 512 survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered. Moreover, the precise requirements of a prima facie case can vary depending on the context and were "never intended to be rigid, mechanized, or ritualistic." Furnco Constr. Corp. v. Waters, 438 U. S. 567 , 577 (1978); see also McDonnell Douglas, supra, at 802, n. 13 ("[T]he specification ... of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations"); Teamsters v. United States, 431 U. S. 324 , 358 (1977) (noting that this Court "did not purport to create an inflexible formulation" for a prima facie case); Ring v. First Interstate Mortgage, Inc., 984 F.2d 924 , 927 (CA8 1993) ("[T]o measure a plaintiff's complaint against a particular formulation of the prima facie case at the pleading stage is inappropriate"). Before discovery has unearthed relevant facts and evidence, it may be difficult to define the precise formulation of the required prima facie case in a particular case. Given that the prima facie case operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading standard for discrimination cases. Furthermore, imposing the Court of Appeals' heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief." Such a statement must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U. S. 41 , 47 (1957). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. See id., at 47-48; Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 , 168-169 (1993). "The provisions for discov- 513 ery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202, p. 76 (2d ed. 1990). Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions. Rule 9(b), for example, provides for greater particularity in all averments of fraud or mistake.3 This Court, however, has declined to extend such exceptions to other contexts. In Leatherman we stated: "[T]he Federal Rules do address in Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983. Expressio unius est exclusio alterius." 507 U. S., at 168. Just as Rule 9(b) makes no mention of municipal liability under Rev. Stat. § 1979, 42 U. S. C. § 1983 (1994 ed., Supp. V), neither does it refer to employment discrimination. Thus, complaints in these cases, as in most others, must satisfy only the simple requirements of Rule 8(a).4 Other provisions of the Federal Rules of Civil Procedure are inextricably linked to Rule 8(a)'s simplified notice pleading standard. Rule 8(e)(1) states that "[n]o technical forms of pleading or motions are required," and Rule 8(f) provides 3 "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." 4 These requirements are exemplified by the Federal Rules of Civil Procedure Forms, which "are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate." Fed. Rule Civ. Proc. 84. For example, Form 9 sets forth a complaint for negligence in which plaintiff simply states in relevant part: "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway." 514 that "[a]ll pleadings shall be so construed as to do substantial justice." Given the Federal Rules' simplified standard for pleading, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U. S. 69 , 73 (1984). If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. See Conley, supra, at 48 ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits"). Applying the relevant standard, petitioner's complaint easily satisfies the requirements of Rule 8(a) because it gives respondent fair notice of the basis for petitioner's claims. Petitioner alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA. App.28. His complaint detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination. Id., at 24-28. These allegations give respondent fair notice of what petitioner's claims are and the grounds upon which they rest. See Conley, supra, at 47. In addition, they state claims upon which relief could be granted under Title VII and the ADEA. Respondent argues that allowing lawsuits based on conclusory allegations of discrimination to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits. Brief for Respondent 34-40. What- 515 ever the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits. A requirement of greater specificity for particular claims is a result that "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, supra, at 168. Furthermore, Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits. "Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer, 416 U. S., at 236. For the foregoing reasons, we hold that an employment discrimination plaintiff need not plead a prima facie case of discrimination and that petitioner's complaint is sufficient to survive respondent's motion to dismiss. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The Supreme Court ruled that an employment discrimination complaint does not need to establish a prima facie case under the McDonnell Douglas framework to survive a motion to dismiss. Instead, the complaint must contain a short and plain statement showing the pleader's entitlement to relief, providing fair notice of the claim's basis and grounds. The Court emphasized that the McDonnell Douglas framework is an evidentiary standard, not a pleading requirement, and that direct evidence of discrimination may be discovered during litigation. The Court also highlighted the flexibility of the prima facie case, which can vary with context, and the potential difficulty of defining it precisely before discovery. The Court reversed the Second Circuit's dismissal of the complaint and remanded the case for further proceedings.

Lawsuits & Legal Procedures

Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing

https://supreme.justia.com/cases/federal/us/545/308/

OPINION OF THE COURT GRABLE & SONS METAL PRODUCTS, INC. V. DARUEENGINEERING & MFG. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-603 GRABLE & SONS METAL PRODUCTS, INC., PETITIONER v. DARUE ENGINEERING & MANUFACTURING on writ of certiorari to the united states court of appeals for the sixth circuit [June 13, 2005]    Justice Souter delivered the opinion of the Court.    The question is whether want of a federal cause of action to try claims of title to land obtained at a federal tax sale precludes removal to federal court of a state action with non-diverse parties raising a disputed issue of federal title law. We answer no, and hold that the national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal question jurisdiction over the disputed issue on removal, which would not distort any division of labor between the state and federal courts, provided or assumed by Congress. I In 1994, the Internal Revenue Service seized Michigan real property belonging to petitioner Grable & Sons Metal Products, Inc., to satisfy Grable’s federal tax delinquency. Title 26 U. S. C. §6335 required the IRS to give notice of the seizure, and there is no dispute that Grable received actual notice by certified mail before the IRS sold the property to respondent Darue Engineering & Manufacturing. Although Grable also received notice of the sale itself, it did not exercise its statutory right to redeem the property within 180 days of the sale, §6337(b)(1), and after that period had passed, the Government gave Darue a quitclaim deed. §6339. Five years later, Grable brought a quiet title action in state court, claiming that Darue’s record title was invalid because the IRS had failed to notify Grable of its seizure of the property in the exact manner required by §6335(a), which provides that written notice must be “given by the Secretary to the owner of the property [or] left at his usual place of abode or business.” Grable said that the statute required personal service, not service by certified mail. Darue removed the case to Federal District Court as presenting a federal question, because the claim of title depended on the interpretation of the notice statute in the federal tax law. The District Court declined to remand the case at Grable’s behest after finding that the “claim does pose a significant question of federal law,” Tr. 17 (Apr. 2, 2001), and ruling that Grable’s lack of a federal right of action to enforce its claim against Darue did not bar the exercise of federal jurisdiction. On the merits, the court granted summary judgment to Darue, holding that although §6335 by its terms required personal service, substantial compliance with the statute was enough. 207 F. Supp. 2d 694 (WD Mich. 2002). The Court of Appeals for the Sixth Circuit affirmed. 377 F. 3d 592 (2004). On the jurisdictional question, the panel thought it sufficed that the title claim raised an issue of federal law that had to be resolved, and implicated a substantial federal interest (in construing federal tax law). The court went on to affirm the District Court’s judgment on the merits. We granted certiorari on the jurisdictional question alone,[ Footnote 1 ] 543 U. S. ___ (2005) to resolve a split within the Courts of Appeals on whether Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986), always requires a federal cause of action as a condition for exercising federal-question jurisdiction.[ Footnote 2 ] We now affirm. II Darue was entitled to remove the quiet title action if Grable could have brought it in federal district court originally, 28 U. S. C. §1441(a), as a civil action “arising under the Constitution, laws, or treaties of the United States,” §1331. This provision for federal-question jurisdiction is invoked by and large by plaintiffs pleading a cause of action created by federal law ( e.g. , claims under 42 U. S. C. §1983). There is, however, another longstanding, if less frequently encountered, variety of federal “arising under” jurisdiction, this Court having recognized for nearly 100 years that in certain cases federal question jurisdiction will lie over state-law claims that implicate significant federal issues. E.g. , Hopkins v. Walker, 244 U. S. 486 , 490–491 (1917). The doctrine captures the commonsense notion that a federal court ought to be able to hear claims recognized under state law that nonetheless turn on substantial questions of federal law, and thus justify resort to the experience, solicitude, and hope of uniformity that a federal forum offers on federal issues, see ALI, Study of the Division of Jurisdiction Between State and Federal Courts 164–166 (1968). The classic example is Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), a suit by a shareholder claiming that the defendant corporation could not lawfully buy certain bonds of the National Government because their issuance was unconstitutional. Although Missouri law provided the cause of action, the Court recognized federal-question jurisdiction because the principal issue in the case was the federal constitutionality of the bond issue. Smith thus held, in a somewhat generous statement of the scope of the doctrine, that a state-law claim could give rise to federal-question jurisdiction so long as it “appears from the [complaint] that the right to relief depends upon the construction or application of [federal law].” Id., at 199. The Smith statement has been subject to some trimming to fit earlier and later cases recognizing the vitality of the basic doctrine, but shying away from the expansive view that mere need to apply federal law in a state-law claim will suffice to open the “arising under” door. As early as 1912, this Court had confined federal-question jurisdiction over state-law claims to those that “really and substantially involv[e] a dispute or controversy respecting the validity, construction or effect of [federal] law.” Shulthis v. McDougal, 225 U. S. 561 , 569 (1912). This limitation was the ancestor of Justice Cardozo’s later explanation that a request to exercise federal-question jurisdiction over a state action calls for a “common-sense accommodation of judgment to [the] kaleidoscopic situations” that present a federal issue, in “a selective process which picks the substantial causes out of the web and lays the other ones aside.” Gully v. First Nat. Bank in Meridian, 299 U. S. 109 , 117–118 (1936). It has in fact become a constant refrain in such cases that federal jurisdiction demands not only a contested federal issue, but a substantial one, indicating a serious federal interest in claiming the advantages thought to be inherent in a federal forum. E.g. , Chicago v. International College of Surgeons, 522 U. S. 156 , 164 (1997); Merrell Dow, supra, at 814, and n. 12; Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 , 28 (1983). But even when the state action discloses a contested and substantial federal question, the exercise of federal jurisdiction is subject to a possible veto. For the federal issue will ultimately qualify for a federal forum only if federal jurisdiction is consistent with congressional judgment about the sound division of labor between state and federal courts governing the application of §1331. Thus, Franchise Tax Bd. explained that the appropriateness of a federal forum to hear an embedded issue could be evaluated only after considering the “welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.” Id., at 8. Because arising-under jurisdiction to hear a state-law claim always raises the possibility of upsetting the state-federal line drawn (or at least assumed) by Congress, the presence of a disputed federal issue and the ostensible importance of a federal forum are never necessarily dispositive; there must always be an assessment of any disruptive portent in exercising federal jurisdiction. See also Merrell Dow, supra, at 810. These considerations have kept us from stating a “single, precise, all-embracing” test for jurisdiction over federal issues embedded in state-law claims between nondiverse parties. Christianson v. Colt Industries Operating Corp., 486 U. S. 800 , 821 (1988) (Stevens, J., concurring). We have not kept them out simply because they appeared in state raiment, as Justice Holmes would have done, see Smith , supra, at 214 (dissenting opinion), but neither have we treated “federal issue” as a password opening federal courts to any state action embracing a point of federal law. Instead, the question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities. III A This case warrants federal jurisdiction. Grable’s state complaint must specify “the facts establishing the superiority of [its] claim,” Mich. Ct. Rule 3.411(B)(2)(c) (West 2005), and Grable has premised its superior title claim on a failure by the IRS to give it adequate notice, as defined by federal law. Whether Grable was given notice within the meaning of the federal statute is thus an essential element of its quiet title claim, and the meaning of the federal statute is actually in dispute; it appears to be the only legal or factual issue contested in the case. The meaning of the federal tax provision is an important issue of federal law that sensibly belongs in a federal court. The Government has a strong interest in the “prompt and certain collection of delinquent taxes,” United States v. Rodgers, 461 U. S. 677 , 709 (1983), and the ability of the IRS to satisfy its claims from the property of delinquents requires clear terms of notice to allow buyers like Darue to satisfy themselves that the Service has touched the bases necessary for good title. The Government thus has a direct interest in the availability of a federal forum to vindicate its own administrative action, and buyers (as well as tax delinquents) may find it valuable to come before judges used to federal tax matters. Finally, because it will be the rare state title case that raises a contested matter of federal law, federal jurisdiction to resolve genuine disagreement over federal tax title provisions will portend only a microscopic effect on the federal-state division of labor. See n. 3, infra . This conclusion puts us in venerable company, quiet title actions having been the subject of some of the earliest exercises of federal-question jurisdiction over state-law claims. In Hopkins, 244 U. S., 490–491, the question was federal jurisdiction over a quiet title action based on the plaintiffs’ allegation that federal mining law gave them the superior claim. Just as in this case, “the facts showing the plaintiffs’ title and the existence and invalidity of the instrument or record sought to be eliminated as a cloud upon the title are essential parts of the plaintiffs’ cause of action.”[ Footnote 3 ] Id., at 490. As in this case again, “it is plain that a controversy respecting the construction and effect of the [federal] laws is involved and is sufficiently real and substantial.” Id., at 489. This Court therefore upheld federal jurisdiction in Hopkins , as well as in the similar quiet title matters of Northern Pacific R. Co. v. Soderberg, 188 U. S. 526 , 528 (1903), and Wilson Cypress Co. v. Del Pozo y Marcos, 236 U. S. 635 , 643–644 (1915). Consistent with those cases, the recognition of federal jurisdiction is in order here. B Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986), on which Grable rests its position, is not to the contrary. Merrell Dow considered a state tort claim resting in part on the allegation that the defendant drug company had violated a federal misbranding prohibition, and was thus presumptively negligent under Ohio law. Id., at 806. The Court assumed that federal law would have to be applied to resolve the claim, but after closely examining the strength of the federal interest at stake and the implications of opening the federal forum, held federal jurisdiction unavailable. Congress had not provided a private federal cause of action for violation of the federal branding requirement, and the Court found “it would … flout, or at least undermine, congressional intent to conclude that federal courts might nevertheless exercise federal-question jurisdiction and provide remedies for violations of that federal statute solely because the violation … is said to be a … ‘proximate cause’ under state law.” Id., at 812. Because federal law provides for no quiet title action that could be brought against Darue,[ Footnote 4 ] Grable argues that there can be no federal jurisdiction here, stressing some broad language in Merrell Dow (including the passage just quoted) that on its face supports Grable’s position, see Note, Mr. Smith Goes to Federal Court: Federal Question Jurisdiction over State Law Claims Post- Merrell Dow , 115 Harv. L. Rev. 2272, 2280–2282 (2002) (discussing split in Circuit Courts over private right of action requirement after Merrell Dow ). But an opinion is to be read as a whole, and Merrell Dow cannot be read whole as overturning decades of precedent, as it would have done by effectively adopting the Holmes dissent in Smith , see supra, at 5, and converting a federal cause of action from a sufficient condition for federal-question jurisdiction[ Footnote 5 ] into a necessary one. In the first place, Merrell Dow disclaimed the adoption of any bright-line rule, as when the Court reiterated that “in exploring the outer reaches of §1331, determinations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system.” 478 U. S., at 810. The opinion included a lengthy footnote explaining that questions of jurisdiction over state-law claims require “careful judgments,” id., at 814, about the “nature of the federal interest at stake,” id., at 814, n. 12 (emphasis deleted). And as a final indication that it did not mean to make a federal right of action mandatory, it expressly approved the exercise of jurisdiction sustained in Smith , despite the want of any federal cause of action available to Smith ’s shareholder plaintiff. 478 U. S., at 814, n. 12. Merrell Dow then, did not toss out, but specifically retained the contextual enquiry that had been Smith ’s hallmark for over 60 years. At the end of Merrell Dow , Justice Holmes was still dissenting. Accordingly, Merrell Dow should be read in its entirety as treating the absence of a federal private right of action as evidence relevant to, but not dispositive of, the “sensitive judgments about congressional intent” that §1331 requires. The absence of any federal cause of action affected Merrell Dow ’s result two ways. The Court saw the fact as worth some consideration in the assessment of substantiality. But its primary importance emerged when the Court treated the combination of no federal cause of action and no preemption of state remedies for misbranding as an important clue to Congress’s conception of the scope of jurisdiction to be exercised under §1331. The Court saw the missing cause of action not as a missing federal door key, always required, but as a missing welcome mat, required in the circumstances, when exercising federal jurisdiction over a state misbranding action would have attracted a horde of original filings and removal cases raising other state claims with embedded federal issues. For if the federal labeling standard without a federal cause of action could get a state claim into federal court, so could any other federal standard without a federal cause of action. And that would have meant a tremendous number of cases. One only needed to consider the treatment of federal violations generally in garden variety state tort law. “The violation of federal statutes and regulations is commonly given negligence per se effect in state tort proceedings.”[ Footnote 6 ] Restatement (Third) of Torts (proposed final draft) §14, Comment a. See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts, §36, p. 221, n. 9 (5th ed. 1984) (“[T]he breach of a federal statute may support a negligence per se claim as a matter of state law” (collecting authority)). A general rule of exercising federal jurisdiction over state claims resting on federal mislabeling and other statutory violations would thus have heralded a potentially enormous shift of traditionally state cases into federal courts. Expressing concern over the “increased volume of federal litigation,” and noting the importance of adhering to “legislative intent,” Merrell Dow thought it improbable that the Congress, having made no provision for a federal cause of action, would have meant to welcome any state-law tort case implicating federal law “solely because the violation of the federal statute is said to [create] a rebuttable presumption [of negligence] … under state law.” 478 U. S., at 811–812 (internal quotation marks omitted). In this situation, no welcome mat meant keep out. Merrell Dow ’s analysis thus fits within the framework of examining the importance of having a federal forum for the issue, and the consistency of such a forum with Congress’s intended division of labor between state and federal courts. As already indicated, however, a comparable analysis yields a different jurisdictional conclusion in this case. Although Congress also indicated ambivalence in this case by providing no private right of action to Grable, it is the rare state quiet title action that involves contested issues of federal law, see n. 3, supra . Consequently, jurisdiction over actions like Grable’s would not materially affect, or threaten to affect, the normal currents of litigation. Given the absence of threatening structural consequences and the clear interest the Government, its buyers, and its delinquents have in the availability of a federal forum, there is no good reason to shirk from federal jurisdiction over the dispositive and contested federal issue at the heart of the state-law title claim.[ Footnote 7 ] IV The judgment of the Court of Appeals, upholding federal jurisdiction over Grable’s quiet title action, is affirmed. It is so ordered. Footnote 1 Accordingly, we have no occasion to pass upon the proper interpretation of the federal tax provision at issue here. Footnote 2 Compare Seinfeld v . Austen , 39 F. 3d 761, 764 (CA7 1994) (finding that federal-question jurisdiction over a state-law claim requires a parallel federal private right of action), with Ormet Corp. v . Ohio Power Co. , 98 F. 3d 799, 806 (CA4 1996) (finding that a federal private action is not required). Footnote 3 The quiet title cases also show the limiting effect of the requirement that the federal issue in a state-law claim must actually be in dispute to justify federal-question jurisdiction. In Shulthis v. McDougal, 225 U. S. 561 (1912), this Court found that there was no federal question jurisdiction to hear a plaintiff’s quiet title claim in part because the federal statutes on which title depended were not subject to “any controversy respecting their validity, construction, or effect.” Id., at 570. As the Court put it, the requirement of an actual dispute about federal law was “especially” important in “suit[s] involving rights to land acquired under a law of the United States,” because otherwise “every suit to establish title to land in the central and western states would so arise [under federal law], as all titles in those States are traceable back to those laws.” Id., at 569–570. Footnote 4 Federal law does provide a quiet title cause of action against the Federal Government. 28 U. S. C. §2410. That right of action is not relevant here, however, because the federal government no longer has any interest in the property, having transferred its interest to Darue through the quitclaim deed. Footnote 5 For an extremely rare exception to the sufficiency of a federal right of action, see Shoshone Mining Co. v. Rutter, 177 U. S. 505 , 507 (1900). Footnote 6 Other jurisdictions treat a violation of a federal statute as evidence of negligence or, like Ohio itself in Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986), as creating a rebuttable presumption of negligence. Restatement (Third) of Torts (proposed final draft) §14, Comment c. Either approach could still implicate issues of federal law. Footnote 7 At oral argument Grable’s counsel espoused the position that after Merrell Dow , federal-question jurisdiction over state-law claims absent a federal right of action, could be recognized only where a constitutional issue was at stake. There is, however, no reason in text or otherwise to draw such a rough line. As Merrell Dow itself suggested, constitutional questions may be the more likely ones to reach the level of substantiality that can justify federal jurisdiction. 478 U. S., at 814, n. 12. But a flat ban on statutory questions would mechanically exclude significant questions of federal law like the one this case presents. 545 U. S. ____ (2005) GRABLE & SONS METAL PRODUCTS, INC. V. DARUEENGINEERING & MFG. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-603 GRABLE & SONS METAL PRODUCTS, INC., PETITIONER v. DARUE ENGINEERING & MANUFACTURING on writ of certiorari to the united states court of appeals for the sixth circuit [June 13, 2005]    Justice Thomas, concurring.    The Court faithfully applies our precedents interpreting 28 U. S. C. §1331 to authorize federal-court jurisdiction over some cases in which state law creates the cause of action but requires determination of an issue of federal law, e.g., Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 (1986). In this case, no one has asked us to overrule those precedents and adopt the rule Justice Holmes set forth in American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257 (1916), limiting §1331 jurisdiction to cases in which federal law creates the cause of action pleaded on the face of the plaintiff’s complaint. Id. , at 260. In an appropriate case, and perhaps with the benefit of better evidence as to the original meaning of §1331’s text, I would be willing to consider that course.*    Jurisdictional rules should be clear. Whatever the virtues of the Smith standard, it is anything but clear. Ante , at 4 (the standard “calls for a ‘common-sense accommodation of judgment to [the] kaleidoscopic situations’ that present a federal issue, in ‘a selective process which picks the substantial causes out of the web and lays the other ones aside’ ” (quoting Gully v. First Nat. Bank in Meridian, 299 U. S. 109 , 117–118 (1936))); ante , at 5 (“[T]he question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”); ante , at 9 (“ ‘[D]eterminations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system’ ”; “the absence of a federal private right of action [is] evidence relevant to, but not dispositive of, the ‘sensitive judgments about congressional intent’ that §1331 requires” (quoting Merrell Dow , supra , at 810)).    Whatever the vices of the American Well Works rule, it is clear. Moreover, it accounts for the “ ‘vast majority’ ” of cases that come within §1331 under our current case law, Merrell Dow , supra , at 808 (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 , 9 (1983))—further indication that trying to sort out which cases fall within the smaller Smith category may not be worth the effort it entails. See R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 885–886 (5th ed. 2003). Accordingly, I would be willing in appropriate circumstances to reconsider our interpretation of §1331. * This Court has long construed the scope of the statutory grant of federal-question jurisdiction more narrowly than the scope of the constitutional grant of such jurisdiction. See Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804 , 807–808 (1986). I assume for present purposes that this distinction is proper—that is, that the language of 28 U. S. C. §1331, “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States” (emphasis added), is narrower than the language of Art. III, §2, cl. 1, of the Constitution, “[t]he judicial Power shall extend to all Cases , in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority … ” (emphases added).

The Supreme Court ruled that a federal court can hear a state-law claim if it necessarily raises a disputed and substantial federal issue, even if the federal law does not create a private right of action. In this case, the Court held that a state quiet title action, based on an alleged failure to provide proper notice under federal tax law, could be heard in federal court as it involved the interpretation of a federal statute.

Lawsuits & Legal Procedures

J. McIntyre Machinery, Ltd. v. Nicastro

https://supreme.justia.com/cases/federal/us/564/873/

OPINION OF KENNEDY, J. J. MCINTYRE MACHINERY, LTD. V. NICASTRO 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1343 J. McINTYRE MACHINERY, LTD., PETITIONER v. ROBERT NICASTRO, individually and as administrator of the ESTATE OF ROSEANNE NICASTRO on writ of certiorari to the supreme court of new jersey [June 27, 2011]    Justice Kennedy announced the judgment of the Court and delivered an opinion, in which the Chief Justice, Justice Scalia, and Justice Thomas join.    Whether a person or entity is subject to the jurisdiction of a state court despite not having been present in the State either at the time of suit or at the time of the alleged injury, and despite not having consented to the exercise of jurisdiction, is a question that arises with great frequency in the routine course of litigation. The rules and standards for determining when a State does or does not have jurisdiction over an absent party have been unclear because of decades-old questions left open in Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U. S. 102 (1987).     Here, the Supreme Court of New Jersey, relying in part on Asahi , held that New Jersey’s courts can exercise jurisdiction over a foreign manufacturer of a product so long as the manufacturer “knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.” Nicastro v. McIntyre Machinery America, Ltd. , 201 N. J. 48, 76, 77, 987 A. 2d 575, 591, 592 (2010). Applying that test, the court concluded that a British manufacturer of scrap metal machines was subject to jurisdiction in New Jersey, even though at no time had it advertised in, sent goods to, or in any relevant sense targeted the State.    That decision cannot be sustained. Although the New Jersey Supreme Court issued an extensive opinion with care-ful attention to this Court’s cases and to its own pre-cedent, the “stream of commerce” metaphor carried the decision far afield. Due process protects the defendant’s right not to be coerced except by lawful judicial power. As a general rule, the exercise of judicial power is not lawful unless the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla , 357 U. S. 235 , 253 (1958). There may be exceptions, say, for instance, in cases involving an intentional tort. But the general rule is applicable in this products-liability case, and the so-called “stream-of-commerce” doctrine cannot displace it. I    This case arises from a products-liability suit filed in New Jersey state court. Robert Nicastro seriously injured his hand while using a metal-shearing machine manufactured by J. McIntyre Machinery, Ltd. (J. McIntyre). The accident occurred in New Jersey, but the machine was manufactured in England, where J. McIntyre is incorporated and operates. The question here is whether the New Jersey courts have jurisdiction over J. McIntyre, notwithstanding the fact that the company at no time either marketed goods in the State or shipped them there. Nicastro was a plaintiff in the New Jersey trial court and is the respondent here; J. McIntyre was a defendant and is now the petitioner.    At oral argument in this Court, Nicastro’s counsel stressed three primary facts in defense of New Jersey’s as-sertion of jurisdiction over J. McIntyre. See Tr. of Oral Arg. 29–30.    First, an independent company agreed to sell J. McIntyre’s machines in the United States. J. McIntyre itself did not sell its machines to buyers in this country beyond the U. S. distributor, and there is no allegation that the distributor was under J. McIntyre’s control.    Second, J. McIntyre officials attended annual conventions for the scrap recycling industry to advertise J. Mc-Intyre’s machines alongside the distributor. The conventions took place in various States, but never in New Jersey.    Third, no more than four machines (the record suggests only one, see App. to Pet. for Cert. 130a), including the machine that caused the injuries that are the basis for this suit, ended up in New Jersey.    In addition to these facts emphasized by petitioner, the New Jersey Supreme Court noted that J. McIntyre held both United States and European patents on its recycling technology. 201 N. J., at 55, 987 A. 2d, at 579. It also noted that the U. S. distributor “structured [its] adver-tising and sales efforts in accordance with” J. McIntyre’s “direction and guidance whenever possible,” and that “at least some of the machines were sold on consignment to” the distributor. Id. , at 55, 56, 987 A. 2d, at 579 (internal quotation marks omitted).    In light of these facts, the New Jersey Supreme Court concluded that New Jersey courts could exercise jurisdiction over petitioner without contravention of the Due Process Clause. Jurisdiction was proper, in that court’s view, because the injury occurred in New Jersey; because petitioner knew or reasonably should have known “that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states”; and because petitioner failed to “take some reasonable step to prevent the distribution of its prod-ucts in this State.” Id. , at 77, 987 A. 2d, at 592.    Both the New Jersey Supreme Court’s holding and its account of what it called “[t]he stream-of-commerce doctrine of jurisdiction,” id. , at 80, 987 A. 2d, at 594, were incorrect, however. This Court’s Asahi decision may be responsible in part for that court’s error regarding the stream of commerce, and this case presents an opportunity to provide greater clarity. II    The Due Process Clause protects an individual’s right to be deprived of life, liberty, or property only by the exercise of lawful power. Cf. Giaccio v. Pennsylvania , 382 U. S. 399 , 403 (1966) (The Clause “protect[s] a person against having the Government impose burdens upon him except in accordance with the valid laws of the land”). This is no less true with respect to the power of a sovereign to resolve disputes through judicial process than with respect to the power of a sovereign to prescribe rules of conduct for those within its sphere. See Steel Co. v. Citizens for Bet-ter Environment , 523 U. S. 83 , 94 (1998) (“Jurisdiction is power to declare the law”). As a general rule, neither statute nor judicial decree may bind strangers to the State. Cf. Burnham v. Superior Court of Cal., County of Marin , 495 U. S. 604 , 608–609 (1990) (opinion of Scalia, J.) (invoking “the phrase coram non judice, ‘before a person not a judge’—meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment ”)    A court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington , 326 U. S. 310 , 316 (1945) (quoting Milliken v. Meyer , 311 U. S. 457 , 463 (1940)). Freeform notions of fundamental fairness divorced from traditional practice cannot transform a judgment rendered in the absence of authority into law. As a general rule, the sovereign’s exercise of power requires some act by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Hanson , 357 U. S., at 253, though in some cases, as with an intentional tort, the defendant might well fall within the State’s authority by reason of his attempt to obstruct its laws. In products-liability cases like this one, it is the defendant’s purposeful availment that makes jurisdiction consistent with “traditional notions of fair play and substantial justice.”    A person may submit to a State’s authority in a number of ways. There is, of course, explicit consent. E.g. , In-surance Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U. S. 694 , 703 (1982). Presence within a State at the time suit commences through service of process is another example. See Burnham , supra . Citizenship or domicile—or, by analogy, incorporation or principal place of business for corporations—also indicates general submission to a State’s powers. Goodyear Dunlop Tires Operations, S. A. v. Brown , post , p. __. Each of these examples reveals circumstances, or a course of conduct, from which it is proper to infer an intention to benefit from and thus an intention to submit to the laws of the forum State. Cf. Burger King Corp. v. Rudzewicz , 471 U. S. 462 , 476 (1985). These examples support exercise of the general jurisdiction of the State’s courts and allow the State to resolve both matters that originate within the State and those based on activities and events elsewhere. Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , 414, and n. 9 (1984). By contrast, those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter.    There is also a more limited form of submission to a State’s authority for disputes that “arise out of or are con-nected with the activities within the state.” International Shoe Co. , supra , at 319. Where a defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws,” Hanson , supra , at 253, it submits to the judicial power of an otherwise foreign sovereign to the extent that power is exercised in connection with the defendant’s activities touching on the State. In other words, submission through contact with and activity directed at a sovereign may justify specific jurisdiction “in a suit arising out of or related to the defendant’s contacts with the forum.” Helicopteros , supra , at 414, n. 8; see also Goodyear , post , at 2.    The imprecision arising from Asahi , for the most part, results from its statement of the relation between jurisdiction and the “stream of commerce.” The stream of commerce, like other metaphors, has its deficiencies as well as its utility. It refers to the movement of goods from manufacturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact. This Court has stated that a defendant’s placing goods into the stream of commerce “with the expectation that they will be purchased by consumers within the forum State” may indicate purposeful availment. World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 , 298 (1980) (finding that expectation lacking). But that statement does not amend the general rule of personal jurisdiction. It merely observes that a defendant may in an appropriate case be subject to jurisdiction without entering the forum—itself an unexceptional proposition—as where man-ufacturers or distributors “seek to serve” a given State’s market. Id. , at 295. The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. In other words, the defendant must “purposefully avai[l] it-self of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson , supra , at 253; Insurance Corp. , supra , at 704–705 (“[A]ctions of the defendant may amount to a legal submission to the jurisdiction of the court”). Sometimes a defendant does so by sending its goods rather than its agents. The defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.    In Asahi , an opinion by Justice Brennan for four Justices outlined a different approach. It discarded the central concept of sovereign authority in favor of considerations of fairness and foreseeability. As that concurrence contended, “jurisdiction premised on the placement of a product into the stream of commerce [without more] is consistent with the Due Process Clause,” for “[a]s long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.” 480 U. S., at 117 (opinion concurring in part and concurring in judgment). It was the premise of the concurring opinion that the defendant’s ability to anticipate suit renders the assertion of jurisdiction fair. In this way, the opinion made foreseeability the touchstone of jurisdiction.    The standard set forth in Justice Brennan’s concurrence was rejected in an opinion written by Justice O’Connor; but the relevant part of that opinion, too, commanded the assent of only four Justices, not a majority of the Court. That opinion stated: “The ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State. The placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.” Id. , at 112 (emphasis deleted; citations omitted).    Since Asahi was decided, the courts have sought to rec-oncile the competing opinions. But Justice Brennan’s con-currence, advocating a rule based on general notions of fairness and foreseeability, is inconsistent with the premises of lawful judicial power. This Court’s precedents make clear that it is the defendant’s actions, not his expectations, that empower a State’s courts to subject him to judgment.    The conclusion that jurisdiction is in the first instance a question of authority rather than fairness explains, for example, why the principal opinion in Burnham “conducted no independent inquiry into the desirability or fairness” of the rule that service of process within a State suffices to establish jurisdiction over an otherwise foreign defendant. 495 U. S., at 621. As that opinion explained, “[t]he view developed early that each State had the power to hale before its courts any individual who could be found within its borders.” Id. , at 610. Furthermore, were general fairness considerations the touchstone of jurisdiction, a lack of purposeful availment might be excused where carefully crafted judicial procedures could otherwise protect the defendant’s interests, or where the plaintiff would suffer substantial hardship if forced to litigate in a foreign forum. That such considerations have not been deemed controlling is instructive. See, e.g. , World-Wide Volkswagen , supra , at 294.    Two principles are implicit in the foregoing. First, per-sonal jurisdiction requires a forum-by-forum, or sovereign-by-sovereign, analysis. The question is whether a de-fendant has followed a course of conduct directed at the society or economy existing within the jurisdiction of a given sovereign, so that the sovereign has the power to subject the defendant to judgment concerning that conduct. Personal jurisdiction, of course, restricts “judicial power not as a matter of sovereignty, but as a matter of individual liberty,” for due process protects the individual’s right to be subject only to lawful power. Insurance Corp. , 456 U. S., at 702. But whether a judicial judgment is lawful depends on whether the sovereign has authority to render it.    The second principle is a corollary of the first. Because the United States is a distinct sovereign, a defendant may in principle be subject to the jurisdiction of the courts of the United States but not of any particular State. This is consistent with the premises and unique genius of our Constitution. Ours is “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.” U. S. Term Limits, Inc. v. Thornton , 514 U. S. 779 , 838 (1995) (Kennedy, J., concurring). For jurisdiction, a litigant may have the requisite relationship with the United States Government but not with the government of any individual State. That would be an exceptional case, however. If the defendant is a domestic domiciliary, the courts of its home State are available and can exercise general jurisdiction. And if another State were to assert jurisdiction in an inappropriate case, it would upset the federal balance, which posits that each State has a sovereignty that is not subject to unlawful intrusion by other States. Furthermore, foreign corporations will often target or concentrate on particular States, subjecting them to specific jurisdiction in those forums.    It must be remembered, however, that although this case and Asahi both involve foreign manufacturers, the undesirable consequences of Justice Brennan’s approach are no less significant for domestic producers. The owner of a small Florida farm might sell crops to a large nearby distributor, for example, who might then distribute them to grocers across the country. If foreseeability were the controlling criterion, the farmer could be sued in Alaska or any number of other States’ courts without ever leaving town. And the issue of foreseeability may itself be contested so that significant expenses are incurred just on the preliminary issue of jurisdiction. Jurisdictional rules should avoid these costs whenever possible.    The conclusion that the authority to subject a defendant to judgment depends on purposeful availment, consistent with Justice O’Connor’s opinion in Asahi , does not by itself resolve many difficult questions of jurisdiction that will arise in particular cases. The defendant’s conduct and the economic realities of the market the defendant seeks to serve will differ across cases, and judicial exposition will, in common-law fashion, clarify the contours of that principle. III    In this case, petitioner directed marketing and sales efforts at the United States. It may be that, assuming it were otherwise empowered to legislate on the subject, the Congress could authorize the exercise of jurisdiction in appropriate courts. That circumstance is not presented in this case, however, and it is neither necessary nor appropriate to address here any constitutional concerns that might be attendant to that exercise of power. See Asahi , 480 U. S., at 113, n. Nor is it necessary to determine what substantive law might apply were Congress to authorize jurisdiction in a federal court in New Jersey. See Hanson , 357 U. S., at 254 (“The issue is personal jurisdiction, not choice of law”). A sovereign’s legislative authority to regulate conduct may present considerations different from those presented by its authority to subject a defendant to judgment in its courts. Here the question concerns the authority of a New Jersey state court to exercise ju-risdiction, so it is petitioner’s purposeful contacts with New Jersey, not with the United States, that alone are relevant.    Respondent has not established that J. McIntyre engaged in conduct purposefully directed at New Jersey. Recall that respondent’s claim of jurisdiction centers on three facts: The distributor agreed to sell J. McIntyre’s machines in the United States; J. McIntyre officials attended trade shows in several States but not in New Jersey; and up to four machines ended up in New Jersey. The British manufacturer had no office in New Jersey; it neither paid taxes nor owned property there; and it neither advertised in, nor sent any employees to, the State. Indeed, after discovery the trial court found that the “defendant does not have a single contact with New Jersey short of the machine in question ending up in this state.” App. to Pet. for Cert. 130a. These facts may reveal an intent to serve the U. S. market, but they do not show that J. McIntyre purposefully availed itself of the New Jersey market.    It is notable that the New Jersey Supreme Court appears to agree, for it could “not find that J. McIntyre had a presence or minimum contacts in this State—in any jurisprudential sense—that would justify a New Jersey court to exercise jurisdiction in this case.” 201 N. J., at 61, 987 A. 2d, at 582. The court nonetheless held that petitioner could be sued in New Jersey based on a “stream-of-commerce theory of jurisdiction.” Ibid. As discussed, however, the stream-of-commerce metaphor cannot supersede either the mandate of the Due Process Clause or the limits on judicial authority that Clause ensures. The New Jersey Supreme Court also cited “significant policy reasons” to justify its holding, including the State’s “strong interest in protecting its citizens from defective products.” Id. , at 75, 987 A. 2d, at 590. That interest is doubtless strong, but the Constitution commands restraint before discarding liberty in the name of expediency. *  *  *    Due process protects petitioner’s right to be subject only to lawful authority. At no time did petitioner engage in any activities in New Jersey that reveal an intent to invoke or benefit from the protection of its laws. New Jersey is without power to adjudge the rights and liabilities of J. McIntyre, and its exercise of jurisdiction would violate due process. The contrary judgment of the New Jersey Supreme Court is Reversed. BREYER, J., CONCURRING IN JUDGMENT J. MCINTYRE MACHINERY, LTD. V. NICASTRO 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1343 J. McINTYRE MACHINERY, LTD., PETITIONER v. ROBERT NICASTRO, individually and as administrator of the ESTATE OF ROSEANNE NICASTRO on writ of certiorari to the supreme court of new jersey [June 27, 2011]    Justice Breyer, with whom Justice Alito joins, concurring in the judgment.    The Supreme Court of New Jersey adopted a broad understanding of the scope of personal jurisdiction based on its view that “[t]he increasingly fast-paced globalization of the world economy has removed national borders as barriers to trade.” Nicastro v. McIntyre Machinery America, Ltd., 201 N. J. 48, 52, 987 A. 2d 575, 577 (2010). I do not doubt that there have been many recent changes in commerce and communication, many of which are not anticipated by our precedents. But this case does not present any of those issues. So I think it unwise to announce a rule of broad applicability without full consideration of the modern-day consequences.    In my view, the outcome of this case is determined by our precedents. Based on the facts found by the New Jersey courts, respondent Robert Nicastro failed to meet his burden to demonstrate that it was constitutionally proper to exercise jurisdiction over petitioner J. McIntyre Machinery, Ltd. (British Manufacturer), a British firm that manufactures scrap-metal machines in Great Britain and sells them through an independent distributor in the United States (American Distributor). On that basis, I agree with the plurality that the contrary judgment of the Supreme Court of New Jersey should be reversed. I    In asserting jurisdiction over the British Manufacturer, the Supreme Court of New Jersey relied most heavily on three primary facts as providing constitutionally sufficient “contacts” with New Jersey, thereby making it funda- mentally fair to hale the British Manufacturer before its courts: (1) The American Distributor on one occasion sold and shipped one machine to a New Jersey customer, namely, Mr. Nicastro’s employer, Mr. Curcio; (2) the British Manufacturer permitted, indeed wanted, its independent American Distributor to sell its machines to anyone in America willing to buy them; and (3) representatives of the British Manufacturer attended trade shows in “such cities as Chicago, Las Vegas, New Orleans, Orlando, San Diego, and San Francisco.” Id., at 54–55, 987 A. 2d, at 578–579. In my view, these facts do not provide contacts between the British firm and the State of New Jersey constitutionally sufficient to support New Jersey’s assertion of jurisdiction in this case.    None of our precedents finds that a single isolated sale, even if accompanied by the kind of sales effort indicated here, is sufficient. Rather, this Court’s previous holdings suggest the contrary. The Court has held that a single sale to a customer who takes an accident-causing product to a different State (where the accident takes place) is not a sufficient basis for asserting jurisdiction. See World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 (1980). And the Court, in separate opinions, has strongly suggested that a single sale of a product in a State does not constitute an adequate basis for asserting jurisdiction over an out-of-state defendant, even if that defendant places his goods in the stream of commerce, fully aware (and hoping) that such a sale will take place. See Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U. S. 102 , 111, 112 (1987) (opinion of O’Connor, J.) (requiring “something more” than simply placing “a product into the stream of commerce,” even if defendant is “awar[e]” that the stream “may or will sweep the product into the forum State”); id., at 117 (Brennan, J., concurring in part and concurring in judgment) (jurisdiction should lie where a sale in a State is part of “the regular and anticipated flow” of commerce into the State, but not where that sale is only an “edd[y],” i.e. , an isolated occurrence); id., at 122 (Stevens, J., concurring in part and concurring in judgment) (indicating that “the volume, the value, and the hazardous character” of a good may affect the jurisdictional inquiry and emphasizing Asahi’s “regular course of dealing”).    Here, the relevant facts found by the New Jersey Supreme Court show no “regular … flow” or “regular course” of sales in New Jersey; and there is no “something more,” such as special state-related design, advertising, advice, marketing, or anything else. Mr. Nicastro, who here bears the burden of proving jurisdiction, has shown no specific effort by the British Manufacturer to sell in New Jersey. He has introduced no list of potential New Jersey customers who might, for example, have regularly attended trade shows. And he has not otherwise shown that the British Manufacturer “purposefully avail[ed] itself of the privilege of conducting activities” within New Jersey, or that it de-livered its goods in the stream of commerce “with the expectation that they will be purchased” by New Jersey users. World-Wide Volkswagen, supra , at 297–298 (internal quotation marks omitted).    There may well have been other facts that Mr. Nicastro could have demonstrated in support of jurisdiction. And the dissent considers some of those facts. See post , at 3 (opinion of Ginsburg, J.) (describing the size and scope of New Jersey’s scrap-metal business). But the plaintiff bears the burden of establishing jurisdiction, and here I would take the facts precisely as the New Jersey Supreme Court stated them. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U. S. 694 , 709 (1982); Blakey v. Continental Airlines, Inc. , 164 N. J. 38, 71, 751 A. 2d 538, 557 (2000); see 201 N. J., at 54–56, 987 A. 2d, at 578–579; App. to Pet. for Cert. 128a–137a (trial court’s “reasoning and finding(s)”).    Accordingly, on the record present here, resolving this case requires no more than adhering to our precedents. II    I would not go further. Because the incident at issue in this case does not implicate modern concerns, and because the factual record leaves many open questions, this is an unsuitable vehicle for making broad pronouncements that refashion basic jurisdictional rules. A    The plurality seems to state strict rules that limit jurisdiction where a defendant does not “inten[d] to submit to the power of a sovereign” and cannot “be said to have targeted the forum.” Ante , at 7. But what do those standards mean when a company targets the world by selling products from its Web site? And does it matter if, instead of shipping the products directly, a company consigns the products through an intermediary (say, Amazon.com) who then receives and fulfills the orders? And what if the company markets its products through popup advertisements that it knows will be viewed in a forum? Those issues have serious commercial consequences but are totally absent in this case. B    But though I do not agree with the plurality’s seemingly strict no-jurisdiction rule, I am not persuaded by the absolute approach adopted by the New Jersey Supreme Court and urged by respondent and his amici . Under that view, a producer is subject to jurisdiction for a products-liability action so long as it “knows or reasonably should know that its products are distributed through a nationwide distribution system that might lead to those products being sold in any of the fifty states.” 201 N. J., at 76–77, 987 A. 2d, at 592 (emphasis added). In the context of this case, I cannot agree.    For one thing, to adopt this view would abandon the heretofore accepted inquiry of whether, focusing upon the relationship between “the defendant, the forum, and the litigation,” it is fair, in light of the defendant’s contacts with that forum , to subject the defendant to suit there. Shaffer v. Heitner , 433 U. S. 186 , 204 (1977) (emphasis added). It would ordinarily rest jurisdiction instead upon no more than the occurrence of a product-based accident in the forum State. But this Court has rejected the notion that a defendant’s amenability to suit “travel[s] with the chattel.” World-Wide Volkswagen , 444 U. S., at 296.    For another, I cannot reconcile so automatic a rule with the constitutional demand for “minimum contacts” and “purposefu[l] avail[ment],” each of which rest upon a particular notion of defendant-focused fairness. Id., at 291, 297 (internal quotation marks omitted). A rule like the New Jersey Supreme Court’s would permit every State to assert jurisdiction in a products-liability suit against any domestic manufacturer who sells its products (made anywhere in the United States) to a national distributor, no matter how large or small the manufacturer, no matter how distant the forum, and no matter how few the number of items that end up in the particular forum at issue. What might appear fair in the case of a large manufacturer which specifically seeks, or expects, an equal-sized distributor to sell its product in a distant State might seem unfair in the case of a small manufacturer (say, an Appalachian potter) who sells his product (cups and saucers) exclusively to a large distributor, who resells a single item (a coffee mug) to a buyer from a distant State (Hawaii). I know too little about the range of these or in-between possibilities to abandon in favor of the more absolute rule what has previously been this Court’s less absolute approach.    Further, the fact that the defendant is a foreign, rather than a domestic, manufacturer makes the basic fairness of an absolute rule yet more uncertain. I am again less certain than is the New Jersey Supreme Court that the nature of international commerce has changed so sig- nificantly as to require a new approach to personal jurisdiction.    It may be that a larger firm can readily “alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are too great, severing its connection with the State.” World-Wide Volkswagen , supra , at 297. But manufacturers come in many shapes and sizes. It may be fundamentally unfair to require a small Egyptian shirt maker, a Brazilian manufacturing cooperative, or a Kenyan coffee farmer, selling its products through international distributors, to respond to products-liability tort suits in virtually every State in the United States, even those in respect to which the foreign firm has no connection at all but the sale of a single (allegedly defective) good. And a rule like the New Jersey Supreme Court suggests would require every product manufacturer, large or small, selling to American distributors to understand not only the tort law of every State, but also the wide variance in the way courts within different States apply that law. See, e.g., Dept. of Justice, Bureau of Justice Statistics Bulletin, Tort Trials and Verdicts in Large Counties, 2001, p. 11 (reporting percentage of plaintiff winners in tort trials among 46 populous counties, ranging from 17.9% (Worcester, Mass.) to 69.1% (Milwaukee, Wis.)). C    At a minimum, I would not work such a change to the law in the way either the plurality or the New Jersey Supreme Court suggests without a better understanding of the relevant contemporary commercial circumstances. Insofar as such considerations are relevant to any change in present law, they might be presented in a case (unlike the present one) in which the Solicitor General participates. Cf. Tr. of Oral Arg. in Goodyear Dunlop Tires Operations, S. A. v. Brown , O. T. 2010, No. 10–76, pp. 20–22 (Government declining invitation at oral argument to give its views with respect to issues in this case).    This case presents no such occasion, and so I again re-iterate that I would adhere strictly to our precedents and the limited facts found by the New Jersey Supreme Court. And on those grounds, I do not think we can find jurisdiction in this case. Accordingly, though I agree with the plurality as to the outcome of this case, I concur only in the judgment of that opinion and not its reasoning. GINSBURG, J., DISSENTING J. MCINTYRE MACHINERY, LTD. V. NICASTRO 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1343 J. McINTYRE MACHINERY, LTD., PETITIONER v. ROBERT NICASTRO, individually and as administrator of the ESTATE OF ROSEANNE NICASTRO on writ of certiorari to the supreme court of new jersey [June 27, 2011]    Justice Ginsburg, with whom Justice Sotomayor and Justice Kagan join, dissenting.    A foreign industrialist seeks to develop a market in the United States for machines it manufactures. It hopes to derive substantial revenue from sales it makes to United States purchasers. Where in the United States buyers reside does not matter to this manufacturer. Its goal is simply to sell as much as it can, wherever it can. It excludes no region or State from the market it wishes to reach. But, all things considered, it prefers to avoid products liability litigation in the United States. To that end, it engages a U. S. distributor to ship its machines stateside. Has it succeeded in escaping personal jurisdiction in a State where one of its products is sold and causes injury or even death to a local user?    Under this Court’s pathmarking precedent in International Shoe Co. v. Washington , 326 U. S. 310 (1945), and subsequent decisions, one would expect the answer to be unequivocally, “No.” But instead, six Justices of this Court, in divergent opinions, tell us that the manufacturer has avoided the jurisdiction of our state courts, except perhaps in States where its products are sold in sizeable quantities. Inconceivable as it may have seemed yesterday, the splintered majority today “turn[s] the clock back to the days before modern long-arm statutes when a manufacturer, to avoid being haled into court where a user is injured, need only Pilate-like wash its hands of a product by having independent distributors market it.” Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28 U. C. Davis L. Rev. 531, 555 (1995). I    On October 11, 2001, a three-ton metal shearing machine severed four fingers on Robert Nicastro’s right hand. Nicastro v. McIntyre Machinery America, Ltd. , 201 N. J. 48, 53, 987 A. 2d 575, 577 (2010); see App. 6a–8a (Complaint). Alleging that the machine was a dangerous product defectively made, Nicastro sought compensation from the machine’s manufacturer, J. McIntyre Machinery Ltd. (McIntyre UK). Established in 1872 as a United Kingdom corporation, and headquartered in Nottingham, England, McIntyre UK “designs, develops and manufactures a com-plete range of equipment for metal recycling.” Id. , at 22a, 33a. The company’s product line, as advertised on McIntyre UK’s Web site, includes “metal shears, balers, cable and can recycling equipment, furnaces, casting equip-ment and … the world’s best aluminium dross process- ing and cooling system.” Id ., at 31a. McIntyre UK holds both United States and European patents on its technology. 201 N. J., at 55, 987 A. 2d, at 579; App. 36a.     The machine that injured Nicastro, a “McIntyre Model 640 Shear,” sold in the United States for $24,900 in 1995, id. , at 43a, and features a “massive cutting capacity,” id. , at 44a. According to McIntyre UK’s product brochure, the machine is “use[d] throughout the [w]orld.” Ibid . McIntyre UK represented in the brochure that, by “incorporat[ing] off-the-shelf hydraulic parts from suppliers with international sales outlets,” the 640 Shear’s design guarantees serviceability “wherever [its customers] may be based.” Ibid. The instruction manual advises “owner[s] and operators of a 640 Shear [to] make themselves aware of [applicable health and safety regulations],” including “the American National Standards Institute Regulations (USA) for the use of Scrap Metal Processing Equipment.” Id., at 46a.    Nicastro operated the 640 Shear in the course of his employment at Curcio Scrap Metal (CSM) in Saddle Brook, New Jersey. Id. , at 7a, 43a. “New Jersey has long been a hotbed of scrap-metal businesses … .” See Drake, The Scrap-Heap Rollup Hits New Jersey, Business News New Jersey, June 1, 1998, p. 1. In 2008, New Jersey recycling facilities processed 2,013,730 tons of scrap iron, steel, aluminum, and other metals—more than any other State—outpacing Kentucky, its nearest competitor, by nearly 30 percent. Von Haaren, Themelis, & Goldstein, The State of Garbage in America, BioCycle, Oct. 2010, p. 19.    CSM’s owner, Frank Curcio, “first heard of [McIntyre UK’s] machine while attending an Institute of Scrap Metal Industries [(ISRI)] convention in Las Vegas in 1994 or 1995, where [McIntyre UK] was an exhibitor.” App. 78a. ISRI “presents the world’s largest scrap recycling industry trade show each year.” Id ., at 47a. The event attracts “owners [and] managers of scrap processing companies” and others “interested in seeing—and purchasing—new equipment.” Id. , at 48a–49a. According to ISRI, more than 3,000 potential buyers of scrap processing and recycling equipment attend its annual conventions, “primarily because th[e] exposition provides them with the most comprehensive industry-related shopping experience concentrated in a single, convenient location.” Id. , at 47a. Exhibitors who are ISRI members pay $3,000 for 10’ x 10’ booth space. Id. , at 48a–49a.[ Footnote 1 ]    McIntyre UK representatives attended every ISRI convention from 1990 through 2005. Id. , at 114a–115a. These annual expositions were held in diverse venues across the United States; in addition to Las Vegas, conventions were held 1990–2005 in New Orleans, Orlando, San Antonio, and San Francisco. Ibid. McIntyre UK’s president, Michael Pownall, regularly attended ISRI con-ventions. Ibid. He attended ISRI’s Las Vegas conven- tion the year CSM’s owner first learned of, and saw, the 640 Shear. Id. , at 78a–79a, 115a. McIntyre UK exhibited its products at ISRI trade shows, the company acknowledged, hoping to reach “anyone interested in the machine from anywhere in the United States.” Id., at 161a.    Although McIntyre UK’s U. S. sales figures are not in the record, it appears that for several years in the 1990’s, earnings from sales of McIntyre UK products in the United States “ha[d] been good” in comparison to “the rest of the world.” Id. , at 136a (Letter from Sally Johnson, McIntyre UK’s Managing Director, to Gary and Mary Gaither, officers of McIntyre UK’s exclusive distributor in the United States (Jan. 13, 1999)). In response to interrogatories, McIntyre UK stated that its commissioning engineer had installed the company’s equipment in several States—Illinois, Iowa, Kentucky, Virginia, and Washington. Id. , at 119a.    From at least 1995 until 2001, McIntyre UK retained an Ohio-based company, McIntyre Machinery America, Ltd. (McIntyre America), “as its exclusive distributor for the en-tire United States.” Nicastro v. McIntyre Machinery America, Ltd. , 399 N. J. Super. 539, 558, 945 A. 2d 92, 104 (App. 2008).[ Footnote 2 ] Though similarly named, the two companies were separate and independent entities with “no commonality of ownership or management.” Id., at 545, 945 A. 2d, at 95. In invoices and other written communications, McIntyre America described itself as McIntyre UK’s national distributor, “America’s Link” to “Quality Metal Processing Equipment” from England. App. 43a, 78a.    In a November 23, 1999 letter to McIntyre America, McIntyre UK’s president spoke plainly about the manufacturer’s objective in authorizing the exclusive distributorship: “All we wish to do is sell our products in the [United] States—and get paid!” Id. , at 134a. Notably, McIntyre America was concerned about U. S. litigation involving McIntyre UK products, in which the distributor had been named as a defendant. McIntyre UK counseled McIntyre America to respond personally to the litigation, but reassured its distributor that “the product was built and designed by McIntyre Machinery in the UK and the buck stops here—if there’s something wrong with the machine.” Id. , at 129a–130a. Answering jurisdictional interrogatories, McIntyre UK stated that it had been named as a defendant in lawsuits in Illinois, Kentucky, Massachusetts, and West Virginia. Id. , at 98a, 108a. And in correspondence with McIntyre America, McIntyre UK noted that the manufacturer had products liability insurance coverage. Id. , at 129a.    Over the years, McIntyre America distributed several McIntyre UK products to U. S. customers, including, in addition to the 640 Shear, McIntyre UK’s “Niagara” and “Tardis” systems, wire strippers, and can machines. Id. , at 123a–128a. In promoting McIntyre UK’s products at conventions and demonstration sites and in trade journal advertisements, McIntyre America looked to McIntyre UK for direction and guidance. Ibid. To achieve McIntyre UK’s objective, i.e. , “to sell [its] machines to customers throughout the United States,” 399 N. J. Super., at 548, 945 A. 2d, at 97, “the two companies [were acting] closely in concert with each other,” ibid. McIntyre UK never instructed its distributor to avoid certain States or regions of the country; rather, as just noted, the manufacturer engaged McIntyre America to attract customers “from anywhere in the United States.” App. 161a.    In sum, McIntyre UK’s regular attendance and exhibitions at ISRI conventions was surely a purposeful step to reach customers for its products “anywhere in the United States.” At least as purposeful was McIntyre UK’s engagement of McIntyre America as the conduit for sales of McIntyre UK’s machines to buyers “throughout the United States.” Given McIntyre UK’s endeavors to reach and profit from the United States market as a whole, Nicastro’s suit, I would hold, has been brought in a forum entirely appropriate for the adjudication of his claim. He alleges that McIntyre UK’s shear machine was defectively designed or manufactured and, as a result, caused injury to him at his workplace. The machine arrived in Nicastro’s New Jersey workplace not randomly or fortuitously, but as a result of the U. S. connections and distribution system that McIntyre UK deliberately arranged.[ Footnote 3 ] On what sensible view of the allocation of adjudicatory authority could the place of Nicastro’s injury within the United States be deemed off limits for his products liability claim against a foreign manufacturer who targeted the United States (including all the States that constitute the Nation) as the territory it sought to develop? II    A few points on which there should be no genuine debate bear statement at the outset. First, all agree, Mc-Intyre UK surely is not subject to general (all-purpose) jurisdiction in New Jersey courts, for that foreign-country corporation is hardly “at home” in New Jersey. See Goodyear Dunlop Tires Operations, S. A. v. Brown , post , at 2–3, 9–13. The question, rather, is one of specific jurisdiction, which turns on an “affiliatio[n] between the forum and the underlying controversy.” Goodyear Dunlop, post, at 2 (quoting von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966) (hereinafter von Mehren & Trautman); internal quotation marks omitted); see also Goodyear Dunlop, post, at 7–8.    Second, no issue of the fair and reasonable allocation of adjudicatory authority among States of the United States is present in this case. New Jersey’s exercise of personal jurisdiction over a foreign manufacturer whose dangerous product caused a workplace injury in New Jersey does not tread on the domain, or diminish the sovereignty, of any sister State. Indeed, among States of the United States, the State in which the injury occurred would seem most suitable for litigation of a products liability tort claim. See World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 , 297 (1980) (if a manufacturer or distributor endeavors to develop a market for a product in several States, it is reasonable “to subject it to suit in one of those States if its allegedly defective [product] has there been the source of injury”); 28 U. S. C. §1391(a)–(b) (in federal-court suits, whether resting on diversity or federal-question jurisdiction, venue is proper in the judicial district “in which a substantial part of the events or omissions giving rise to the claim occurred”).    Third, the constitutional limits on a state court’s adjudicatory authority derive from considerations of due process, not state sovereignty. As the Court clarified in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U. S. 694 (1982): “The restriction on state sovereign power described in World-Wide Volkswagen Corp. … must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected.” Id. , at 703, n. 10. See also Shaffer v. Heitner , 433 U. S. 186 , 204, and n. 20 (1977) (recognizing that “the mutually exclusive sovereignty of the States [is not] the central concern of the inquiry into personal jurisdiction”). But see ante , at 7 (plurality opinion) (asserting that “sovereign authority,” not “fairness,” is the “central concept” in determining personal jurisdiction).    Finally, in International Shoe itself, and decisions thereafter, the Court has made plain that legal fictions, notably “presence” and “implied consent,” should be discarded, for they conceal the actual bases on which jurisdiction rests. See 326 U. S., at 316, 318; Hutchinson v. Chase & Gilbert , 45 F. 2d 139, 141 (CA2 1930) (L. Hand, J.) (“nothing is gained by [resort to words that] concea[l] what we do”). “[T]he relationship among the defendant, the forum, and the litigation” determines whether due process permits the exercise of personal jurisdiction over a defendant, Shaf- fer , 433 U. S., at 204, and “fictions of implied consent” or “corporate presence” do not advance the proper inquiry, id. , at 202. See also Burnham v. Superior Court of Cal., County of Marin , 495 U. S. 604 , 618 (1990) (plurality opinion) ( International Shoe “cast … aside” fictions of “consent” and “presence”).    Whatever the state of academic debate over the role of consent in modern jurisdictional doctrines,[ Footnote 4 ] the plurality’s notion that consent is the animating concept draws no support from controlling decisions of this Court. Quite the contrary, the Court has explained, a forum can exercise jurisdiction when its contacts with the controversy are sufficient; invocation of a fictitious consent, the Court has repeatedly said, is unnecessary and unhelpful. See, e.g. , Burger King Corp. v. Rudzewicz , 471 U. S. 462 , 472 (1985) (Due Process Clause permits “forum … to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there”); McGee v. International Life Ins.Co. , 355 U. S. 220 , 222 (1957) (“[T]his Court [has] abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over [out-of-state] corporations.”).[ Footnote 5 ] III    This case is illustrative of marketing arrangements for sales in the United States common in today’s commercial world.[ Footnote 6 ] A foreign-country manufacturer engages a U. S. company to promote and distribute the manufacturer’s products, not in any particular State, but anywhere and everywhere in the United States the distributor can attract purchasers. The product proves defective and injures a user in the State where the user lives or works. Often, as here, the manufacturer will have liability insurance covering personal injuries caused by its products. See Cupp, Redesigning Successor Liability, 1999 U. Ill. L. Rev. 845, 870–871 (noting the ready availability of products liability insurance for manufacturers and citing a study showing, “between 1986 and 1996, [such] insurance cost manufacturers, on average, only sixteen cents for each $100 of product sales”); App. 129–130.    When industrial accidents happen, a long-arm statute in the State where the injury occurs generally permits assertion of jurisdiction, upon giving proper notice, over the foreign manufacturer. For example, the State’s statute might provide, as does New York’s long-arm statute, for the “exercise [of] personal jurisdiction over any non-domiciliary … who … “commits a tortious act without the state causing injury to person or property within the state, … if he … expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” N. Y. Civ. Prac. Law Ann. §302(a)(3)(ii) (West 2008).[ Footnote 7 ] Or, the State might simply provide, as New Jersey does, for the exercise of jurisdiction “consistent with due process of law.” N. J. Ct. Rule 4:4–4(b)(1) (2011).[ Footnote 8 ]    The modern approach to jurisdiction over corporations and other legal entities, ushered in by International Shoe , gave prime place to reason and fairness. Is it not fair and reasonable, given the mode of trading of which this case is an example, to require the international seller to defend at the place its products cause injury?[ Footnote 9 ] Do not litigational convenience[ Footnote 10 ] and choice-of-law considerations [ Footnote 11 ] point in that direction? On what measure of reason and fairness can it be considered undue to require McIntyre UK to defend in New Jersey as an incident of its efforts to develop a market for its industrial machines anywhere and everywhere in the United States? [ Footnote 12 ] Is not the burden on McIntyre UK to defend in New Jersey fair, i.e. , a reasonable cost of transacting business internationally, in comparison to the burden on Nicastro to go to Nottingham, England to gain recompense for an injury he sustained using McIntyre’s product at his workplace in Saddle Brook, New Jersey?    McIntyre UK dealt with the United States as a single market. Like most foreign manufacturers, it was concerned not with the prospect of suit in State X as opposed to State Y, but rather with its subjection to suit anywhere in the United States. See Hay, Judicial Jurisdiction Over Foreign-Country Corporate Defendants—Comments on Recent Case Law, 63 Ore. L. Rev. 431, 433 (1984) (hereinafter Hay). As a McIntyre UK officer wrote in an e-mail to McIntyre America: “American law—who needs it?!” App. 129a–130a (e-mail dated April 26, 1999 from Sally Johnson to Mary Gaither). If McIntyre UK is answerable in the United States at all, is it not “perfectly appropriate to permit the exercise of that jurisdiction … at the place of injury”? See Hay 435; Degnan & Kane, The Exercise of Jurisdiction Over and Enforcement of Judgments Against Alien Defendants, 39 Hastings L. J. 799, 813–815 (1988) (noting that “[i]n the international order,” the State that counts is the United States, not its component States,[ Footnote 13 ] and that the fair place of suit within the United States is essentially a question of venue).    In sum, McIntyre UK, by engaging McIntyre America to promote and sell its machines in the United States, “purposefully availed itself ” of the United States market nationwide, not a market in a single State or a discrete collection of States. McIntyre UK thereby availed itself of the market of all States in which its products were sold by its exclusive distributor. “Th[e] ‘purposeful availment’ requirement,” this Court has explained, simply “ensures that a defendant will not be haled into a jurisdiction solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King , 471 U. S., at 475. Adjudicatory authority is appropriately exercised where “actions by the defendant himself ” give rise to the affiliation with the forum. Ibid. How could McIntyre UK not have intended, by its actions targeting a national market, to sell products in the fourth largest destination for imports among all States of the United States and the largest scrap metal market? See supra , at 3, 10, n. 6. But see ante , at 11 (plurality opinion) (manufacturer’s purposeful efforts to sell its products nationwide are “not … relevant” to the personal jurisdiction inquiry). Courts, both state and federal, confronting facts similar to those here, have rightly rejected the conclusion that a manufacturer selling its products across the USA may evade jurisdiction in any and all States, including the State where its defective product is distributed and causes injury. They have held, instead, that it would undermine principles of fundamental fairness to insulate the foreign manufacturer from accountability in court at the place within the United States where the manufacturer’s products caused injury. See, e.g. , Tobin v. Astra Pharmaceutical Prods., Inc. , 993 F. 2d 528, 544 (CA6 1993); A. Uberti & C. v. Leonardo , 181 Ariz. 565, 573, 892 P. 2d 1354, 1362 (1995).[ Footnote 14 ] IV A While this Court has not considered in any prior case the now-prevalent pattern presented here—a foreign-country manufacturer enlisting a U. S. distributor to de-velop a market in the United States for the manufacturer’s products—none of the Court’s decisions tug against the judgment made by the New Jersey Supreme Court. McIntyre contends otherwise, citing World-Wide Volkswagen , and Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U. S. 102 (1987). World-Wide Volkswagen concerned a New York car dealership that sold solely in the New York market, and a New York distributor who supplied retailers in three States only: New York, Connecticut, and New Jersey. 444 U. S., at 289. New York residents had purchased an Audi from the New York dealer and were driving the new vehicle through Oklahoma en route to Arizona. On the road in Oklahoma, another car struck the Audi in the rear, causing a fire which severely burned the Audi’s occupants. Id. , at 288. Rejecting the Oklahoma courts’ assertion of jurisdiction over the New York dealer and distributor, this Court observed that the defendants had done nothing to serve the market for cars in Oklahoma. Id. , at 295–298. Jurisdiction, the Court held, could not be based on the customer’s unilateral act of driving the vehicle to Oklahoma. Id. , at 298; see Asahi , 480 U. S., at 109 (opinion of O’Connor, J.) ( World-Wide Volkswagen “rejected the as- sertion that a consumer’s unilateral act of bringing the defendant’s product into the forum State was a sufficient constitutional basis for personal jurisdiction over the defendant”). Notably, the foreign manufacturer of the Audi in World-Wide Volkswagen did not object to the jurisdiction of the Oklahoma courts and the U. S. importer abandoned its initially stated objection. 444 U. S., at 288, and n. 3. And most relevant here, the Court’s opinion indicates that an objection to jurisdiction by the manufacturer or national distributor would have been unavailing. To reiterate, the Court said in World-Wide Volkswagen that, when a manufacturer or distributor aims to sell its product to customers in several States, it is reasonable “to subject it to suit in [any] one of those States if its allegedly defective [product] has there been the source of injury.” Id. , at 297. Asahi arose out of a motorcycle accident in California. Plaintiff, a California resident injured in the accident, sued the Taiwanese manufacturer of the motorcycle’s tire tubes, claiming that defects in its product caused the accident. The tube manufacturer cross-claimed against Asahi, the Japanese maker of the valve assembly, and Asahi contested the California courts’ jurisdiction. By the time the case reached this Court, the injured plaintiff had settled his case and only the indemnity claim by the Taiwanese company against the Japanese valve-assembly manufacturer remained. The decision was not a close call. The Court had before it a foreign plaintiff, the Taiwanese manufacturer, and a foreign defendant, the Japanese valve-assembly maker, and the indemnification dispute concerned a transaction between those parties that occurred abroad. All agreed on the bottom line: The Japanese valve-assembly manufacturer was not reasonably brought into the California courts to litigate a dispute with another foreign party over a transaction that took place outside the United States. Given the confines of the controversy, the dueling opinions of Justice Brennan and Justice O’Connor were hardly necessary. How the Court would have “estimate[d] … the inconveniences,” see International Shoe , 326 U. S., at 317 (internal quotation marks omitted), had the injured Californian originally sued Asahi is a debatable question. Would this Court have given the same weight to the burdens on the foreign defendant had those been counterbalanced by the burdens litigating in Japan imposed on the local California plaintiff? Cf. Calder v. Jones , 465 U. S. 783 , 788 (1984) (a plaintiff’s contacts with the forum “may be so manifold as to permit jurisdiction when it would not exist in their absence”). In any event, Asahi, unlike McIntyre UK, did not itself seek out customers in the United States, it engaged no distributor to promote its wares here, it appeared at no tradeshows in the United States, and, of course, it had no Web site advertising its products to the world. Moreover, Asahi was a component-part manufacturer with “little control over the final destination of its products once they were delivered into the stream of commerce.” A. Uberti , 181 Ariz., at 572, 892 P. 2d, at 1361. It was important to the Court in Asahi that “those who use Asahi components in their final products, and sell those products in California, [would be] subject to the application of California tort law.” 480 U. S., at 115 (majority opinion). To hold that Asahi controls this case would, to put it bluntly, be dead wrong.[ Footnote 15 ] B The Court’s judgment also puts United States plaintiffs at a disadvantage in comparison to similarly situated complainants elsewhere in the world. Of particular note, within the European Union, in which the United Kingdom is a participant, the jurisdiction New Jersey would have exercised is not at all exceptional. The European Regulation on Jurisdiction and the Recognition and Enforcement of Judgments provides for the exercise of specific jurisdiction “in matters relating to tort … in the courts for the place where the harmful event occurred.” Council Reg. 44/2001, Art. 5, 2001 O. J. (L. 12) 4.[ Footnote 16 ] The European Court of Justice has interpreted this prescription to authorize jurisdiction either where the harmful act occurred or at the place of injury. See Handelskwekerij G. J. Bier B. V. v. Mines de Potasse d’Alsace S. A. , 1976 E. C. R. 1735, 1748–1749.[ Footnote 17 ] V The commentators who gave names to what we now call “general jurisdiction” and “specific jurisdiction” anticipated that when the latter achieves its full growth, considerations of litigational convenience and the respective situations of the parties would determine when it is appropriate to subject a defendant to trial in the plaintiff’s community. See von Mehren & Trautman 1166–1179. Litigational considerations include “the convenience of witnesses and the ease of ascertaining the governing law.” Id. , at 1168–1169. As to the parties, courts would differently appraise two situations: (1) cases involving a substantially local plaintiff, like Nicastro, injured by the activity of a defendant engaged in interstate or international trade; and (2) cases in which the defendant is a natural or legal person whose economic activities and legal involvements are largely home-based, i.e. , entities without designs to gain substantial revenue from sales in distant markets. See id. , at 1167–1169 .[ Footnote 18 ] As the attached appendix of illustrative cases indicates, courts presented with von Mehren and Trautman’s first scenario—a local plaintiff injured by the activity of a manufacturer seeking to exploit a multistate or global market—have repeatedly confirmed that jurisdiction is appropriately exercised by courts of the place where the product was sold and caused injury. *  *  * For the reasons stated, I would hold McIntyre UK answerable in New Jersey for the harm Nicastro suffered at his workplace in that State using McIntyre UK’s shearing machine. While I dissent from the Court’s judgment, I take heart that the plurality opinion does not speak for the Court, for that opinion would take a giant step away from the “notions of fair play and substantial justice” underlying International Shoe . 326 U. S., at 316 (internal quotation marks omitted). APPENDIX Illustrative cases upholding exercise of personal jurisdiction over an alien or out-of-state corporation that, through a distributor, targeted a national market, including any and all States:[ Footnote 19 ] Clune v. Alimak AB , 233 F. 3d 538, 544 (CA8 2000) (wrongful-death action against the Swedish manufacturer of a construction hoist that allegedly caused a workplace death in Missouri; holding the manufacturer amenable to suit in Missouri, the Eighth Circuit stated: “Although we can imagine a case where a foreign manufacturer selects discrete regional distributors for the purpose of penetrating the markets in some states to the exclusion of others, that situation is not before us.” In this case, the for- eign manufacturer had “successfully employ[ed] one or two distributors to cover the [entire] United States[,] intend[ing] to reap the benefit of sales in every state where those distributors market.” Were the court to conclude that the manufacturer “did not intend its products to flow into Missouri,” the court “would be bound to the conclusion that the [manufacturer] did not intend its products to flow into any of the United States.”). Kernan v. Kurz-Hastings, Inc. , 175 F. 3d 236, 242–244 (CA2 1999) (products liability action against the Japanese manufacturer of an allegedly defective stamping press that caused a workplace injury in New York; holding the manufacturer amenable to suit in New York, the Second Circuit stated that an “exclusive sales rights agreement” between the Japanese manufacturer and a Pennsylvania distributor “contemplates that [the distributor] will sell [the manufacturer’s] machines in North America and throughout the world, serv[ing] as evidence of [the manufacturer’s] attempt to serve the New York market, albeit indirectly”). Barone v. Rich Bros. Interstate Display Fireworks Co. , 25 F. 3d 610, 613–615 (CA8 1994) (products liability suit against a Japanese fireworks manufacturer for injuries sustained in Nebraska; Eighth Circuit held the manufacturer amenable to suit in Nebraska, although the manufacturer had no distributor or sales agents in that State, did not advertise in Nebraska, and claimed it was unaware that its distributors sold products there; Court of Appeals stated: “In this age of NAFTA and GATT, one can expect further globalization of commerce, and it is only reasonable for companies that distribute allegedly defective products through regional distributors in this country to anticipate being haled into court by plaintiffs in their home states.”). Tobin v. Astra Pharmaceutical Prods., Inc. , 993 F. 2d 528, 544 (CA6 1993) (products liability action against the Dutch pharmaceutical manufacturer of a drug alleged to have caused Kentucky resident’s heart disease; holding the manufacturer amenable to suit in Kentucky, the Sixth Circuit reasoned: “[Defendant] argues that it has done nothing in particular to purposefully avail itself of the Kentucky market as distinguished from any other state in the union. If we were to accept defendant’s argument on this point, a foreign manufacturer could insulate itself from liability in each of the fifty states simply by using an independent national distributor to market its products.”). Hedrick v. Daiko Shoji Co. , 715 F. 2d 1355, 1358 (CA9 1983) (products liability suit arising from injuries plaintiff sustained in Oregon caused by an allegedly defective wire-rope splice manufactured in Japan; holding the Japanese manufacturer amenable to suit in Oregon, the Ninth Cir-cuit noted that the manufacturer “performed a forum-related act when it produced a splice that it knew was destined for ocean-going vessels serving United States ports, including those of Oregon”). Oswalt v. Scripto, Inc. , 616 F. 2d 191, 200 (CA5 1980) (products liability action stemming from an injury plaintiff sustained in Texas when using a cigarette lighter made in Japan; holding the manufacturer amenable to suit in Texas, the Fifth Circuit noted that the manufacturer “had every reason to believe its product would be sold to a nation-wide market, that is, in any or all states”). Stokes v. L. Geismar, S.A. , 815 F. Supp. 904, 907 (ED Va. 1993), aff ’d on other grounds, 16 F. 3d 411 (CA4 1994) (action by worker injured in Virginia while using a rail-cutting saw manufactured by a French corporation; holding the manufacturer amenable to suit in Virginia, the District Court noted that there was “no evidence of any attempt … to limit th[e] U. S. marketing strategy to avoid Virginia or any other particular state”). Felty v. Conaway Processing Equipment Co. , 738 F. Supp. 917, 919–920 (ED Pa. 1990) (personal injury suit against the Dutch manufacturer of a poultry processing machine that allegedly caused injury in Pennsylvania; holding the manufacturer amenable to suit in Pennsylvania, the District Court observed that the manufacturer “clearly and purposefully used [distributors] to deal in the international market for poultry processing equipment” and was “well aware that its equipment was being sold for use in the United States, including Pennsylvania”). Scanlan v. Norma Projektil Fabrik , 345 F. Supp. 292, 293 (Mont. 1972) (products liability action occasioned by defect in ammunition used while hunting in Montana; plaintiff sued the Swedish ammunition manufacturer; holding the manufacturer amenable to suit in Montana, the District Court noted that the distributor intended “a nationwide product distribution”). Ex parte DBI, Inc. , 23 So. 3d 635, 654–655 (Ala. 2009) (wrongful-death action arising out of an automobile accident in Alabama; plaintiff sued the Korean manufacturer of an allegedly defective seatbelt; Supreme Court of Alabama held the manufacturer amenable to suit in Alabama, although the manufacturer had supplied its seatbelts to the car maker in Korea and “maintain[ed] there [was] no evidence … showing that it knew its products were being marketed in Alabama”). A. Uberti & C. v. Leonardo , 181 Ariz. 565, 573, 892 P. 2d 1354, 1362 (1995) (wrongful-death action against the Italian manufacturer of an allegedly defective handgun that caused child’s death in Arizona; Arizona Supreme Court stated: “[F]or all this record shows, Defendant never heard of Arizona. This raises the following question: Having shown that the gun was knowingly designed for and exported to exploit the market of the United States or western United States, must Plaintiffs additionally show that Defendant had the specific intent to market the gun in Arizona, or is it enough to show that Defendant intended to market it in any state, group of states, or all states? We conclude that only the latter is necessary.”). Hill by Hill v. Showa Denko, K. K. , 188 W. Va. 654, 661, 425 S. E. 2d 609, 616 (1992) (products liability suit against the Japanese manufacturer of a sleep aid alleged to have caused West Virginia plaintiff’s blood disorder; holding the manufacturer amenable to suit in West Virginia, that State’s Supreme Court noted that the manufacturer had profited from sales in the United States and considered it unfair to “requir[e] the plaintiff to travel to Japan to litigate th[e] case”). Footnote 1 New Jersey is home to nearly 100 ISRI members. See Institute of Scrap Recycling Industries, Inc., Member Directory, http://www.isri.org/ imis15_prod/core/directory.aspx (as visited June 24, 2011, and available in Clerk of Court’s case file). Footnote 2 McIntyre America filed for bankruptcy in 2001, is no longer operating, and has not participated in this lawsuit. Brief for Petitioner 3. After “the demise of … McIntyre America,” McIntyre UK authorized a Texas-based company to serve as exclusive United States distributor of McIntyre UK shears. App. 52a–53a. Footnote 3 McIntyre UK resisted Nicastro’s efforts to determine whether other McIntyre machines had been sold to New Jersey customers. See id., at 100a–101a. McIntyre did allow that McIntyre America “may have resold products it purchased from [McIntyre UK] to a buyer in New Jersey,” id. , at 117a, but said it kept no record of the ultimate destination of machines it shipped to its distributor, ibid. A private investigator engaged by Nicastro found at least one McIntyre UK machine, of unspecified type, in use in New Jersey. Id. , at 140a–144a. But McIntyre UK objected that the investigator’s report was “unsworn and based upon hearsay.” Reply Brief 10. Moreover, McIntyre UK maintained, no evidence showed that the machine the investigator found in New Jersey had been “sold into [that State].” Ibid. Footnote 4 Compare Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale L. J. 1277, 1304–1306 (1989) (hereinafter Brilmayer) (criticizing as circular jurisdictional theories founded on “consent” or “[s]ubmission to state authority”), Perdue, Personal Jurisdiction and the Beetle in the Box, 32 Boston College L. Rev. 529, 536–544 (1991) (same), with Trangsrud, The Federal Common Law of Personal Jurisdiction, 57 Geo. Wash. L. Rev. 849, 884–885 (1989) (endorsing a consent-based doctrine of personal jurisdiction), Epstein, Consent, Not Power, as the Basis of Jurisdiction, 2001 U. Chi. Legal Forum 1, 2, 30–32 (urging that “the consent principle neatly explains the dynamics of many of our jurisdictional doctrines,” but recognizing that in tort cases, the victim ordinarily should be able to sue in the place where the harm occurred). Footnote 5 But see ante , at 4–8 (plurality opinion) (maintaining that a forum may be fair and reasonable, based on its links to the episode in suit, yet off limits because the defendant has not submitted to the State’s authority). The plurality’s notion that jurisdiction over foreign corporations depends upon the defendant’s “submission,” ante , at 6, seems scarcely different from the long-discredited fiction of implied consent. It bears emphasis that a majority of this Court’s members do not share the plurality’s view. Footnote 6 Last year, the United States imported nearly 2 trillion dollars in foreign goods. Census Bureau, U. S. International Trade in Goods and Services (Apr. 2011), p. 1, http://www.census.gov/foreign-trade/Press-Release/current_press_release/ft900.pdf (as visited June 24, 2011, and in Clerk of Court’s case file). Capital goods, such as the metal shear machine that injured Nicastro, accounted for almost 450 billion dollars in imports for 2010. Id. , at 6. New Jersey is the fourth-largest destination for manufactured commodities imported into the United States, after California, Texas, and New York. Id. , FT–900 Supplement, p. 3. Footnote 7 This provision was modeled in part on the Uniform Interstate and International Procedure Act. See N. Y. Legislative Doc. 90, Judicial Conference of the State of New York, 11th Annual Report 132–147 (1966). Connecticut’s long-arm statute also uses the “derives substantial revenue from interstate or international commerce” formulation. See Conn. Gen. Stat. §52–59b(a) (2011). Footnote 8 State long-arm provisions allow the exercise of jurisdiction subject only to a due process limitation in Alabama, Arkansas, California, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Missouri, Nevada, North Dakota, Oregon, Pennsylvania, Puerto Rico, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, and West Virginia. 4 C. Wright & A. Miller, Federal Practice & Procedure §1068, pp. 577–578, n. 12 (3d ed. 2002). Footnote 9 The plurality objects to a jurisdictional approach “divorced from traditional practice.” Ante , at 5. But “the fundamental transformation of our national economy,” this Court has recognized, warrants enlargement of “the permissible scope of state jurisdiction over foreign corporations and other nonresidents.” McGee v. International Life Ins. Co. , 355 U. S. 220 , 222–223 (1957). Footnote 10 See von Mehren & Trautman 1167 (“[C]onsiderations of litigational convenience, particularly with respect to the taking of evidence, tend in accident cases to point insistently to the community in which the accident occurred.”). Footnote 11 Historically, “tort cases were governed by the place where the last act giving rise to a claim occurred—that is, the place of injury.” Brilmayer 1291–1292. Even as many jurisdictions have modified the traditional rule of lex loci delicti , the location of injury continues to hold sway in choice-of-law analysis in tort cases. See generally Whytock, Myth of Mess? International Choice of Law in Action, 84 N. Y. U. L. Rev. 719 (2009). Footnote 12 The plurality suggests that the Due Process Clause might permit a federal district court in New Jersey, sitting in diversity and applying New Jersey law, to adjudicate McIntyre UK’s liability to Nicastro. See ante , at 10–11. In other words, McIntyre UK might be compelled to bear the burden of traveling to New Jersey and defending itself there under New Jersey’s products liability law, but would be entitled to federal adjudication of Nicastro’s state-law claim. I see no basis in the Due Process Clause for such a curious limitation. Footnote 13 “For purposes of international law and foreign relations, the separate identities of individual states of the Union are generally irrelevant.” Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 36 (1987). See also Hines v. Davidowitz , 312 U. S. 52 , 63 (1941) (“For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.”) (internal quotation marks omitted); Restatement (Third) of Foreign Relations Law of the United States §421, Comment f, p. 307 (1986) (“International law … does not concern itself with the allocation of jurisdiction among domestic courts within a [nation,] for example, between national and local courts in a federal system.”). Footnote 14 For a more complete set of examples, see Appendix, infra , at 20–24. Footnote 15 The plurality notes the low volume of sales in New Jersey, ante , at 3, 11. A $24,900 shearing machine, however, is unlikely to sell in bulk worldwide, much less in any given State. By dollar value, the price of a single machine represents a significant sale. Had a manufacturer sold in New Jersey $24,900 worth of flannel shirts, see Nelson v. Park Industries, Inc. , 717 F. 2d 1120 (CA7 1983), cigarette lighters, see Oswalt v. Scripto, Inc. , 616 F. 2d 191 (CA5 1980), or wire-rope splices, see Hedrick v. Daiko Shoji Co. , 715 F. 2d 1355 (CA9 1983), the Court would presumably find the defendant amenable to suit in that State. Footnote 16 The Regulation replaced the “European” or “Brussels” Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, entered into in 1968 by the original Common Market member states. In the interim, the Lugano Convention “extended the Brussels Convention scheme to [European Free Trade Association] countries.” Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474, 491, n. 82 (2006). Footnote 17 For a concise comparison of the European regime and this Court’s decisions, see Weintraub, A Map Out of the Personal Jurisdiction Labyrinth, 28 U. C. Davis L. Rev. 531, 550–554 (1995). Footnote 18 Assigning weight to the local or international stage on which the parties operate would, to a considerable extent, answer the concerns expressed by Justice Breyer. See ante , at 5–7 (opinion concurring in judgment). Footnote 19 The listed cases are by no means exhaustive of decisions fitting this pattern. For additional citations, see Brief for Public Citizen, Inc., as Amicus Curiae 16, n. 5.

The Supreme Court of the United States ruled that a foreign manufacturer cannot be subjected to the jurisdiction of a state court in a product liability case unless the manufacturer has purposefully availed itself of the privilege of conducting activities within the forum state. In this case, the British manufacturer of a scrap metal machine was not subject to jurisdiction in New Jersey, as it had not advertised in, sent goods to, or targeted the state in any relevant sense. This ruling clarifies the "stream of commerce" doctrine and emphasizes the defendant's right to due process and lawful judicial power.

Lawsuits & Legal Procedures

Taylor v. Sturgell

https://supreme.justia.com/cases/federal/us/553/880/

OPINION OF THE COURT TAYLOR V. STURGELL 553 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 07-371 BRENT TAYLOR, PETITIONER v. ROBERT A. STURGELL, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINIS- TRATION, et al. on writ of certiorari to the united states court of appeals for the district of columbia circuit [June 12, 2008]    Justice Ginsburg delivered the opinion of the Court.    “It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry v. Lee , 311 U. S. 32 , 40 (1940). Several exceptions, recognized in this Court’s decisions, temper this basic rule. In a class action, for example, a person not named as a party may be bound by a judgment on the merits of the action, if she was adequately represented by a party who actively participated in the litigation. See id. , at 41. In this case, we consider for the first time whether there is a “virtual representation” exception to the general rule against precluding nonparties. Adopted by a number of courts, including the courts below in the case now before us, the exception so styled is broader than any we have so far approved.    The virtual representation question we examine in this opinion arises in the following context. Petitioner Brent Taylor filed a lawsuit under the Freedom of Information Act seeking certain documents from the Federal Aviation Administration. Greg Herrick, Taylor’s friend, had previously brought an unsuccessful suit seeking the same records. The two men have no legal relationship, and there is no evidence that Taylor controlled, financed, participated in, or even had notice of Herrick’s earlier suit. Nevertheless, the D. C. Circuit held Taylor’s suit precluded by the judgment against Herrick because, in that court’s assessment, Herrick qualified as Taylor’s “virtual representative.”    We disapprove the doctrine of preclusion by “virtual representation,” and hold, based on the record as it now stands, that the judgment against Herrick does not bar Taylor from maintaining this suit. I    The Freedom of Information Act (FOIA) accords “any person” a right to request any records held by a federal agency. 5 U. S. C. §552(a)(3)(A) (2006 ed.). No reason need be given for a FOIA request, and unless the requested materials fall within one of the Act’s enumerated exemptions, see §552(a)(3)(E), (b), the agency must “make the records promptly available” to the requester, §552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction “order[ing] the production of any agency records improperly withheld.” §552(a)(4)(B).    The courts below held the instant FOIA suit barred by the judgment in earlier litigation seeking the same records. Because the lower courts’ decisions turned on the connection between the two lawsuits, we begin with a full account of each action. A    The first suit was filed by Greg Herrick, an antique aircraft enthusiast and the owner of an F–45 airplane, a vintage model manufactured by the Fairchild Engine and Airplane Corporation (FEAC) in the 1930’s. In 1997, seeking information that would help him restore his plane to its original condition, Herrick filed a FOIA request asking the Federal Aviation Administration (FAA) for copies of any technical documents about the F–45 contained in the agency’s records.    To gain a certificate authorizing the manufacture and sale of the F–45, FEAC had submitted to the FAA’s predecessor, the Civil Aeronautics Authority, detailed specifications and other technical data about the plane. Hundreds of pages of documents produced by FEAC in the certification process remain in the FAA’s records. The FAA denied Herrick’s request, however, upon finding that the documents he sought are subject to FOIA’s exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” 5 U. S. C. §552(b)(4) (2006 ed.). In an administrative appeal, Herrick urged that FEAC and its successors had waived any trade-secret protection. The FAA thereupon contacted FEAC’s corporate successor, respondent Fairchild Corporation (Fairchild). Because Fairchild objected to release of the documents, the agency adhered to its original decision.    Herrick then filed suit in the U. S. District Court for the District of Wyoming. Challenging the FAA’s invocation of the trade-secret exemption, Herrick placed heavy weight on a 1955 letter from FEAC to the Civil Aeronautics Authority. The letter authorized the agency to lend any documents in its files to the public “for use in making repairs or replacement parts for aircraft produced by Fairchild.” Herrick v. Garvey , 298 F. 3d 1184, 1193 (CA10 2002) (internal quotation marks omitted). This broad authorization, Herrick maintained, showed that the F–45 certification records held by the FAA could not be regarded as “secre[t]” or “confidential” within the meaning of §552(b)(4).    Rejecting Herrick’s argument, the District Court granted summary judgment to the FAA. Herrick v. Garvey , 200 F. Supp. 2d 1321, 1328–1329 (Wyo. 2000). The 1955 letter, the court reasoned, did not deprive the F–45 certification documents of trade-secret status, for those documents were never in fact released pursuant to the letter’s blanket authorization. See id. , at 1329. The court also stated that even if the 1955 letter had waived trade-secret protection, Fairchild had successfully “reversed” the waiver by objecting to the FAA’s release of the records to Herrick. Ibid. On appeal, the Tenth Circuit agreed with Herrick that the 1955 letter had stripped the requested documents of trade-secret protection. See Herrick , 298 F. 3d, at 1194. But the Court of Appeals upheld the District Court’s alternative determination— i.e. , that Fairchild had restored trade-secret status by objecting to Herrick’s FOIA request. Id. , at 1195. On that ground, the appeals court affirmed the entry of summary judgment for the FAA.    In so ruling, the Tenth Circuit noted that Herrick had failed to challenge two suppositions underlying the District Court’s decision. First, the District Court assumed trade-secret status could be “restored” to documents that had lost protection. Id. , at 1194, n. 10. Second, the District Court also assumed that Fairchild had regained trade-secret status for the documents even though the company claimed that status only “ after Herrick had initiated his request” for the F–45 records. Ibid. The Court of Appeals expressed no opinion on the validity of these suppositions. See id. , at 1194–1195, n. 10. B    The Tenth Circuit’s decision issued on July 24, 2002. Less than a month later, on August 22, petitioner Brent Taylor—a friend of Herrick’s and an antique aircraft enthusiast in his own right—submitted a FOIA request seeking the same documents Herrick had unsuccessfully sued to obtain. When the FAA failed to respond, Taylor filed a complaint in the U. S. District Court for the District of Columbia. Like Herrick, Taylor argued that FEAC’s 1955 letter had stripped the records of their trade-secret status. But Taylor also sought to litigate the two issues concerning recapture of protected status that Herrick had failed to raise in his appeal to the Tenth Circuit.    After Fairchild intervened as a defendant,[ Footnote 1 ] the District Court in D. C. concluded that Taylor’s suit was barred by claim preclusion; accordingly, it granted summary judgment to Fairchild and the FAA. The court acknowledged that Taylor was not a party to Herrick’s suit. Relying on the Eighth Circuit’s decision in Tyus v. Schoemehl , 93 F. 3d 449 (1996), however, it held that a nonparty may be bound by a judgment if she was “virtually represented” by a party. App. to Pet. for Cert. 30a–31a.    The Eighth Circuit’s seven-factor test for virtual representation, adopted by the District Court in Taylor’s case, requires an “identity of interests” between the person to be bound and a party to the judgment. See id. , at 31a. See also Tyus , 93 F. 3d, at 455. Six additional factors counsel in favor of virtual representation under the Eighth Circuit’s test, but are not prerequisites: (1) a “close relationship” between the present party and a party to the judgment alleged to be preclusive; (2) “participation in the prior litigation” by the present party; (3) the present party’s “apparent acquiescence” to the preclusive effect of the judgment; (4) “deliberat[e] maneuver[ing]” to avoid the effect of the judgment; (5) adequate representation of the present party by a party to the prior adjudication; and (6) a suit raising a “public law” rather than a “private law” issue. App. to Pet. for Cert. 31a (citing Tyus , 93 F. 3d, at 454–456). These factors, the D. C. District Court observed, “constitute a fluid test with imprecise boundaries” and call for “a broad, case-by-case inquiry.” App. to Pet. for Cert. 32a.    The record before the District Court in Taylor’s suit revealed the following facts about the relationship between Taylor and Herrick: Taylor is the president of the Antique Aircraft Association, an organization to which Herrick belongs; the two men are “close associate[s],” App. 54; Herrick asked Taylor to help restore Herrick’s F–45, though they had no contract or agreement for Taylor’s participation in the restoration; Taylor was represented by the lawyer who represented Herrick in the earlier litigation; and Herrick apparently gave Taylor documents that Herrick had obtained from the FAA during discovery in his suit.    Fairchild and the FAA conceded that Taylor had not participated in Herrick’s suit. App. to Pet. for Cert. 32a. The D. C. District Court determined, however, that Herrick ranked as Taylor’s virtual representative because the facts fit each of the other six indicators on the Eighth Circuit’s list. See id. , at 32a–35a. Accordingly, the District Court held Taylor’s suit, seeking the same documents Herrick had requested, barred by the judgment against Herrick. See id. , at 35a.    The D. C. Circuit affirmed. It observed, first, that other Circuits “vary widely” in their approaches to virtual representation. Taylor v. Blakey , 490 F. 3d 965, 971 (2007). In this regard, the D. C. Circuit contrasted the multifactor balancing test applied by the Eighth Circuit and the D. C. District Court with the Fourth Circuit’s narrower approach, which “treats a party as a virtual representative only if the party is ‘accountable to the nonparties who file a subsequent suit’ and has ‘the tacit approval of the court’ to act on the nonpart[ies’] behalf.” Ibid. (quoting Klugh v. United States , 818 F. 2d 294, 300 (CA4 1987)).    Rejecting both of these approaches, the D. C. Circuit announced its own five-factor test. The first two factors—“identity of interests” and “adequate representation”—are necessary but not sufficient for virtual representation. 490 F. 3d, at 971–972. In addition, at least one of three other factors must be established: “a close relationship between the present party and his putative representative,” “substantial participation by the present party in the first case,” or “tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment.” Id. , at 972.    Applying this test to the record in Taylor’s case, the D. C. Circuit found both of the necessary conditions for virtual representation well met. As to identity of interests, the court emphasized that Taylor and Herrick sought the same result—release of the F–45 documents. Moreover, the D. C. Circuit observed, Herrick owned an F–45 airplane, and therefore had “if anything, a stronger incentive to litigate” than Taylor, who had only a “general interest in public disclosure and the preservation of antique aircraft heritage.” Id. , at 973 (internal quotation marks omitted).    Turning to adequacy of representation, the D. C. Circuit acknowledged that some other Circuits regard notice of a prior suit as essential to a determination that a nonparty was adequately represented in that suit. See id. , at 973–974 (citing Perez v. Volvo Car Corp. , 247 F. 3d 303, 312 (CA1 2001), and Tice v. American Airlines, Inc. , 162 F. 3d 966, 973 (CA7 1998)). Disagreeing with these courts, the D. C. Circuit deemed notice an “important” but not an indispensable element in the adequacy inquiry. The court then concluded that Herrick had adequately represented Taylor even though Taylor had received no notice of Herrick’s suit. For this conclusion, the appeals court relied on Herrick’s “strong incentive to litigate” and Taylor’s later engagement of the same attorney, which indicated to the court Taylor’s satisfaction with that attorney’s performance in Herrick’s case. See 490 F. 3d, at 974–975.    The D. C. Circuit also found its “close relationship” criterion met, for Herrick had “asked Taylor to assist him in restoring his F–45” and “provided information to Taylor that Herrick had obtained through discovery”; furthermore, Taylor “did not oppose Fairchild’s characterization of Herrick as his ‘close associate.’ ” Id. , at 975. Because the three above-described factors sufficed to establish virtual representation under the D. C. Circuit’s five-factor test, the appeals court left open the question whether Taylor had engaged in “tactical maneuvering.” See id. , at 976 (calling the facts bearing on tactical maneuvering “ambigu[ous]”).[ Footnote 2 ]    We granted certiorari, 552 U. S. ___ (2008), to resolve the disagreement among the Circuits over the permis- sibility and scope of preclusion based on “virtual representation.”[ Footnote 3 ] II    The preclusive effect of a federal-court judgment is determined by federal common law. See Semtek Int’l Inc. v. Lockheed Martin Corp. , 531 U. S. 497 , 507–508 (2001). For judgments in federal-question cases—for example, Herrick’s FOIA suit—federal courts participate in developing “uniform federal rule[s]” of res judicata, which this Court has ultimate authority to determine and declare. Id. , at 508.[ Footnote 4 ] The federal common law of preclusion is, of course, subject to due process limitations. See Richards v. Jefferson County , 517 U. S. 793 , 797 (1996).    Taylor’s case presents an issue of first impression in this sense: Until now, we have never addressed the doctrine of “virtual representation” adopted (in varying forms) by several Circuits and relied upon by the courts below. Our inquiry, however, is guided by well-established precedent regarding the propriety of nonparty preclusion. We review that precedent before taking up directly the issue of virtual representation. A    The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as “res judicata.”[ Footnote 5 ] Under the doctrine of claim preclusion, a final judgment forecloses “successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.” New Hampshire v. Maine , 532 U. S. 742 , 748 (2001). Issue preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in the context of a different claim. Id. , at 748–749. By “preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,” these two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States , 440 U. S. 147 , 153–154 (1979).    A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the “deep-rooted historic tradition that everyone should have his own day in court.” Richards , 517 U. S., at 798 (internal quotation marks omitted). Indicating the strength of that tradition, we have often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” Hansberry , 311 U. S., at 40. See also, e.g., Richards , 517 U. S., at 798; Martin v. Wilks , 490 U. S. 755 , 761 (1989); Zenith Radio Corp. v. Hazeltine Research, Inc. , 395 U. S. 100 , 110 (1969). B    Though hardly in doubt, the rule against nonparty preclusion is subject to exceptions. For present pur- poses, the recognized exceptions can be grouped into six categories.[ Footnote 6 ]    First, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.” 1 Restatement (Second) of Judgments §40, p. 390 (1980) (hereinafter Restatement). For example, “if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all the parties to all the actions may agree that the question of the defendant’s liability will be definitely determined, one way or the other, in a ‘test case.’ ” D. Shapiro, Civil Procedure: Preclusion in Civil Actions 77–78 (2001) (hereinafter Shapiro). See also California v. Texas , 459 U. S. 1096 , 1097 (1983) (dismissing certain defendants from a suit based on a stipulation “that each of said defendants … will be bound by a final judgment of this Court” on a specified issue).[ Footnote 7 ]    Second, nonparty preclusion may be justified based on a variety of pre-existing “substantive legal relationship[s]” between the person to be bound and a party to the judgment. Shapiro 78. See also Richards , 517 U. S., at 798. Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor. See 2 Restatement §§43–44, 52, 55. These exceptions originated “as much from the needs of property law as from the values of preclusion by judgment.” 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, p. 329 (2d ed. 2002) (hereinafter Wright & Miller).[ Footnote 8 ]    Third, we have confirmed that, “in certain limited circumstances,” a nonparty may be bound by a judgment because she was “adequately represented by someone with the same interests who [wa]s a party” to the suit. Richards , 517 U. S., at 798 (internal quotation marks omitted). Representative suits with preclusive effect on nonparties include properly conducted class actions, see Martin , 490 U. S., at 762, n. 2 (citing Fed. Rule Civ. Proc. 23), and suits brought by trustees, guardians, and other fiduciaries, see Sea-Land Services, Inc. v. Gaudet , 414 U. S. 573 , 593 (1974). See also 1 Restatement §41.    Fourth, a nonparty is bound by a judgment if she “assume[d] control” over the litigation in which that judgment was rendered. Montana , 440 U. S., at 154. See also Schnell v. Peter Eckrich & Sons, Inc. , 365 U. S. 260 , 262, n. 4 (1961); 1 Restatement §39. Because such a person has had “the opportunity to present proofs and argument,” he has already “had his day in court” even though he was not a formal party to the litigation. Id. , Comment a , p. 382.    Fifth, a party bound by a judgment may not avoid its preclusive force by relitigating through a proxy. Preclusion is thus in order when a person who did not participate in a litigation later brings suit as the designated representative of a person who was a party to the prior adjudication. See Chicago, R. I. & P. R. Co. v. Schendel , 270 U. S. 611 , 620, 623 (1926); 18A Wright & Miller §4454, pp. 433–434. And although our decisions have not addressed the issue directly, it also seems clear that preclusion is appropriate when a nonparty later brings suit as an agent for a party who is bound by a judgment. See id. , §4449, p. 335.    Sixth, in certain circumstances a special statutory scheme may “expressly foreclos[e] successive litigation by nonlitigants … if the scheme is otherwise consistent with due process.” Martin , 490 U. S., at 762, n. 2. Examples of such schemes include bankruptcy and probate proceedings, see ibid. , and quo warranto actions or other suits that, “under [the governing] law, [may] be brought only on behalf of the public at large,” Richards , 517 U. S., at 804. III    Reaching beyond these six established categories, some lower courts have recognized a “virtual representation” exception to the rule against nonparty preclusion. Decisions of these courts, however, have been far from consistent. See 18A Wright & Miller §4457, p. 513 (virtual representation lacks a “clear or coherent theory”; decisions applying it have “an episodic quality”). Some Circuits use the label, but define “virtual representation” so that it is no broader than the recognized exception for adequate representation. See, e.g., Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 193 F. 3d 415, 423, 427 (CA6 1999). But other courts, including the Eighth, Ninth, and D. C. Circuits, apply multifactor tests for virtual representation that permit nonparty preclusion in cases that do not fit within any of the established exceptions. See supra , at 5–8, and n. 3.    The D. C. Circuit, the FAA, and Fairchild have presented three arguments in support of an expansive doctrine of virtual representation. We find none of them persuasive. A    The D. C. Circuit purported to ground its virtual representation doctrine in this Court’s decisions stating that, in some circumstances, a person may be bound by a judgment if she was adequately represented by a party to the proceeding yielding that judgment. See 490 F. 3d, at 970–971. But the D. C. Circuit’s definition of “adequate representation” strayed from the meaning our decisions have attributed to that term.    In Richards , we reviewed a decision by the Alabama Supreme Court holding that a challenge to a tax was barred by a judgment upholding the same tax in a suit filed by different taxpayers. 517 U. S., at 795–797. The plaintiffs in the first suit “did not sue on behalf of a class,” their complaint “did not purport to assert any claim against or on behalf of any nonparties,” and the judgment “did not purport to bind” nonparties. Id. , at 801. There was no indication, we emphasized, that the court in the first suit “took care to protect the interests” of absent parties, or that the parties to that litigation “understood their suit to be on behalf of absent [parties].” Id. , at 802. In these circumstances, we held, the application of claim preclusion was inconsistent with “the due process of law guaranteed by the Fourteenth Amendment.” Id. , at 797.    The D. C. Circuit stated, without elaboration, that it did not “read Richards to hold a nonparty … adequately represented only if special procedures were followed [to protect the nonparty] or the party to the prior suit understood it was representing the nonparty.” 490 F. 3d, at 971. As the D. C. Circuit saw this case, Herrick adequately represented Taylor for two principal reasons: Herrick had a strong incentive to litigate; and Taylor later hired Herrick’s lawyer, suggesting Taylor’s “satisfaction with the attorney’s performance in the prior case.” Id. , at 975.    The D. C. Circuit misapprehended Richards . As just recounted, our holding that the Alabama Supreme Court’s application of res judicata to nonparties violated due process turned on the lack of either special procedures to protect the nonparties’ interests or an understanding by the concerned parties that the first suit was brought in a representative capacity. See Richards , 517 U. S., at 801–802. Richards thus established that representation is “adequate” for purposes of nonparty preclusion only if (at a minimum) one of these two circumstances is present.    We restated Richards’ core holding in South Central Bell Telephone Co. v. Alabama , 526 U. S. 160 (1999). In that case, as in Richards , the Alabama courts had held that a judgment rejecting a challenge to a tax by one group of taxpayers barred a subsequent suit by a different taxpayer. See 526 U. S., at 164–165. In South Central Bell , however, the nonparty had notice of the original suit and engaged one of the lawyers earlier employed by the original plaintiffs. See id. , at 167–168. Under the D. C. Circuit’s decision in Taylor’s case, these factors apparently would have sufficed to establish adequate representation. See 490 F. 3d, at 973–975. Yet South Central Bell held that the application of res judicata in that case violated due process. Our inquiry came to an end when we determined that the original plaintiffs had not understood themselves to be acting in a representative capacity and that there had been no special procedures to safeguard the interests of absentees. See 526 U. S., at 168.    Our decisions recognizing that a nonparty may be bound by a judgment if she was adequately represented by a party to the earlier suit thus provide no support for the D. C. Circuit’s broad theory of virtual representation. B    Fairchild and the FAA do not argue that the D. C. Circuit’s virtual representation doctrine fits within any of the recognized grounds for nonparty preclusion. Rather, they ask us to abandon the attempt to delineate discrete grounds and clear rules altogether. Preclusion is in order, they contend, whenever “the relationship between a party and a non-party is ‘close enough’ to bring the second litigant within the judgment.” Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22–24. Courts should make the “close enough” determination, they urge, through a “heavily fact-driven” and “equitable” inquiry. Brief for Respondent Fairchild 20. See also Brief for Respondent FAA 22 (“there is no clear test” for nonparty preclusion; rather, an “equitable and fact-intensive” inquiry is demanded (internal quotation marks omitted)). Only this sort of diffuse balancing, Fairchild and the FAA argue, can account for all of the situations in which nonparty preclusion is appropriate.    We reject this argument for three reasons. First, our decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a judgment to which she was not a party. See, e.g., Richards , 517 U. S., at 798–799; Martin , 490 U. S., at 761–762. Accordingly, we have endeavored to delineate discrete exceptions that apply in “limited circumstances.” Id. , at 762, n. 2. Respondents’ amorphous balancing test is at odds with the constrained approach to nonparty preclusion our decisions advance.    Resisting this reading of our precedents, respondents call up three decisions they view as supportive of the approach they espouse. Fairchild quotes our statement in Coryell v. Phipps , 317 U. S. 406 , 411 (1943), that privity “turns on the facts of particular cases.” See Brief for Respondent Fairchild 20. That observation, however, scarcely implies that privity is governed by a diffuse balancing test.[ Footnote 9 ] Fairchild also cites Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation , 402 U. S. 313 , 334 (1971), which stated that estoppel questions turn on “the trial courts’ sense of justice and equity.” See Brief for Respondent Fairchild 20. This passing statement, however, was not made with nonparty preclusion in mind; it appeared in a discussion recognizing district courts’ discretion to limit the use of issue preclusion against persons who were parties to a judgment. See Blonder-Tongue , 402 U. S., at 334.    The FAA relies on United States v. Des Moines Valley R. Co. , 84 F. 40 (CA8 1897), an opinion we quoted with approval in Schendel , 270 U. S., at 619–620. Des Moines Valley was a quiet title action in which the named plaintiff was the United States. The Government, however, had “no interest in the land” and had “simply permitted [the landowner] to use its name as the nominal plaintiff.” 84 F., at 42. The suit was therefore barred, the appeals court held, by an earlier judgment against the landowner. As the court explained: “[W]here the government lends its name as a plaintiff … to enable one private person to maintain a suit against another,” the government is “subject to the same defenses which exist … against the real party in interest.” Id. , at 43. Des Moines Valley , the FAA contended at oral argument, demonstrates that it is sometimes appropriate to bind a nonparty in circumstances that do not fit within any of the established grounds for nonparty preclusion. See Tr. of Oral Arg. 31–33. Properly understood, however, Des Moines Valley is simply an application of the fifth basis for nonparty preclusion described above: A party may not use a representative or agent to relitigate an adverse judgment. See supra , at 12–13.[ Footnote 10 ] We thus find no support in our precedents for the lax approach to nonparty preclusion advocated by respondents.    Our second reason for rejecting a broad doctrine of virtual representation rests on the limitations attending nonparty preclusion based on adequate representation. A party’s representation of a nonparty is “adequate” for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her representative are aligned, see Hansberry , 311 U. S., at 43; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty, see Richards , 517 U. S., at 801–802; supra , at 14–15. In addition, adequate representation sometimes requires (3) notice of the original suit to the persons alleged to have been represented, see Richards , 517 U. S., at 801.[ Footnote 11 ] In the class-action context, these limitations are implemented by the procedural safeguards contained in Federal Rule of Civil Procedure 23.    An expansive doctrine of virtual representation, however, would “recogniz[e], in effect, a common-law kind of class action.” Tice , 162 F. 3d, at 972 (internal quotation marks omitted). That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in Hansberry , Richards , and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to “create de facto class actions at will.” Tice , 162 F. 3d, at 973.    Third, a diffuse balancing approach to nonparty preclusion would likely create more headaches than it relieves. Most obviously, it could significantly complicate the task of district courts faced in the first instance with preclusion questions. An all-things-considered balancing approach might spark wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant under seven- or five-prong tests. And after the relevant facts are established, district judges would be called upon to evaluate them under a standard that provides no firm guidance. See Tyus , 93 F. 3d, at 455 (conceding that “there is no clear test for determining the applicability of” the virtual representation doctrine announced in that case). Preclusion doctrine, it should be recalled, is intended to reduce the burden of litigation on courts and parties. Cf. Montana , 440 U. S., at 153–154. “In this area of the law,” we agree, “ ‘crisp rules with sharp corners’ are preferable to a round-about doctrine of opaque standards.” Bittinger v. Tecumseh Products Co. , 123 F. 3d 877, 881 (CA6 1997). C    Finally, relying on the Eighth Circuit’s decision in Tyus , 93 F. 3d, at 456, the FAA maintains that nonparty preclusion should apply more broadly in “public-law” litigation than in “private-law” controversies. To support this position, the FAA offers two arguments. First, the FAA urges, our decision in Richards acknowledges that, in certain cases, the plaintiff has a reduced interest in controlling the litigation “because of the public nature of the right at issue.” Brief for Respondent FAA 28. When a taxpayer challenges “an alleged misuse of public funds” or “other public action,” we observed in Richards , the suit “has only an indirect impact on [the plaintiff’s] interests.” 517 U. S., at 803. In actions of this character, the Court said, “we may assume that the States have wide latitude to establish procedures … to limit the number of judicial proceedings that may be entertained.” Ibid. Taylor’s FOIA action falls within the category described in Richards , the FAA contends, because “the duty to disclose under FOIA is owed to the public generally.” See Brief for Respondent FAA 34. The opening sentence of FOIA, it is true, states that agencies “shall make [information] available to the public.” 5 U. S. C. §552(a) (2006 ed.). Equally true, we have several times said that FOIA vindicates a “public” interest. E.g. , National Archives and Records Admin. v. Favish , 541 U. S. 157 , 172 (2004). The Act, however, instructs agencies receiving FOIA requests to make the information available not to the public at large, but rather to the “person” making the request. §552(a)(3)(A). See also §552(a)(3)(B) (“In making any record available to a person under this paragraph, an agency shall provide the record in any [readily reproducible] form or format requested by the person … .” (emphasis added)); Brief for National Security Archive et al. as Amici Curiae 10 (“Government agencies do not systematically make released records available to the general public.”). Thus, in contrast to the public-law litigation contemplated in Richards , a successful FOIA action results in a grant of relief to the individual plaintiff, not a decree benefiting the public at large.    Furthermore, we said in Richards only that, for the type of public-law claims there envisioned, States are free to adopt procedures limiting repetitive litigation. See 517 U. S., at 803. In this regard, we referred to instances in which the first judgment foreclosed successive litigation by other plaintiffs because, “under state law, [the suit] could be brought only on behalf of the public at large.” Id ., at 804.[ Footnote 12 ] Richards spoke of state legislation, but it appears equally evident that Congress , in providing for actions vindicating a public interest, may “limit the number of judicial proceedings that may be entertained.” Id. , at 803. It hardly follows, however, that this Court should proscribe or confine successive FOIA suits by different requesters. Indeed, Congress’ provision for FOIA suits with no statutory constraint on successive actions counsels against judicial imposition of constraints through extraordinary application of the common law of preclusion.    The FAA next argues that “the threat of vexatious litigation is heightened” in public-law cases because “the number of plaintiffs with standing is potentially limitless.” Brief for Respondent FAA 28 (internal quotation marks omitted). FOIA does allow “any person” whose request is denied to resort to federal court for review of the agency’s determination. 5 U. S. C. §552(a)(3)(A), (4)(B) (2006 ed.). Thus it is theoretically possible that several persons could coordinate to mount a series of repetitive lawsuits.    But we are not convinced that this risk justifies departure from the usual rules governing nonparty preclusion. First, stare decisis will allow courts swiftly to dispose of repetitive suits brought in the same circuit. Second, even when stare decisis is not dispositive, “the human tendency not to waste money will deter the bringing of suits based on claims or issues that have already been adversely determined against others.” Shapiro 97. This intuition seems to be borne out by experience: The FAA has not called our attention to any instances of abusive FOIA suits in the Circuits that reject the virtual-representation theory respondents advocate here. IV    For the foregoing reasons, we disapprove the theory of virtual representation on which the decision below rested. The preclusive effects of a judgment in a federal-question case decided by a federal court should instead be determined according to the established grounds for nonparty preclusion described in this opinion. See Part II–B, supra .    Although references to “virtual representation” have proliferated in the lower courts, our decision is unlikely to occasion any great shift in actual practice. Many opinions use the term “virtual representation” in reaching results at least arguably defensible on established grounds. See 18A Wright & Miller §4457, pp. 535–539, and n. 38 (collecting cases). In these cases, dropping the “virtual representation” label would lead to clearer analysis with little, if any, change in outcomes. See Tice , 162 F. 3d, at 971. (“[T]he term ‘virtual representation’ has cast more shadows than light on the problem [of nonparty preclusion].”).    In some cases, however, lower courts have relied on virtual representation to extend nonparty preclusion beyond the latter doctrine’s proper bounds. We now turn back to Taylor’s action to determine whether his suit is such a case, or whether the result reached by the courts below can be justified on one of the recognized grounds for nonparty preclusion. A    It is uncontested that four of the six grounds for nonparty preclusion have no application here: There is no indication that Taylor agreed to be bound by Herrick’s litigation, that Taylor and Herrick have any legal relationship, that Taylor exercised any control over Herrick’s suit, or that this suit implicates any special statutory scheme limiting relitigation. Neither the FAA nor Fairchild contends otherwise.    It is equally clear that preclusion cannot be justified on the theory that Taylor was adequately represented in Herrick’s suit. Nothing in the record indicates that Herrick understood himself to be suing on Taylor’s behalf, that Taylor even knew of Herrick’s suit, or that the Wyoming District Court took special care to protect Taylor’s interests. Under our pathmarking precedent, therefore, Herrick’s representation was not “adequate.” See Richards , 517 U. S., at 801–802.    That leaves only the fifth category: preclusion because a nonparty to an earlier litigation has brought suit as a representative or agent of a party who is bound by the prior adjudication. Taylor is not Herrick’s legal representative and he has not purported to sue in a representative capacity. He concedes, however, that preclusion would be appropriate if respondents could demonstrate that he is acting as Herrick’s “undisclosed agen[t].” Brief for Petitioner 23, n. 4. See also id. , at 24, n. 5.    Respondents argue here, as they did below, that Taylor’s suit is a collusive attempt to relitigate Herrick’s action. See Brief for Respondent Fairchild 32, and n. 18; Brief for Respondent FAA 18–19, 33, 39. The D. C. Circuit considered a similar question in addressing the “tactical maneuvering” prong of its virtual representation test. See 490 F. 3d, at 976. The Court of Appeals did not, however, treat the issue as one of agency, and it expressly declined to reach any definitive conclusions due to “the ambiguity of the facts.” Ibid. We therefore remand to give the courts below an opportunity to determine whether Taylor, in pursuing the instant FOIA suit, is acting as Herrick’s agent. Taylor concedes that such a remand is appropriate. See Tr. of Oral Arg. 56–57.    We have never defined the showing required to establish that a nonparty to a prior adjudication has become a litigating agent for a party to the earlier case. Because the issue has not been briefed in any detail, we do not discuss the matter elaboratively here. We note, however, that courts should be cautious about finding preclusion on this basis. A mere whiff of “tactical maneuvering” will not suffice; instead, principles of agency law are suggestive. They indicate that preclusion is appropriate only if the putative agent’s conduct of the suit is subject to the control of the party who is bound by the prior adjudication. See 1 Restatement (Second) of Agency §14, p. 60 (1957) (“A principal has the right to control the conduct of the agent with respect to matters entrusted to him.”).[ Footnote 13 ] B    On remand, Fairchild suggests, Taylor should bear the burden of proving he is not acting as Herrick’s agent. When a defendant points to evidence establishing a close relationship between successive litigants, Fairchild maintains, “the burden [should] shif[t] to the second litigant to submit evidence refuting the charge” of agency. Brief for Respondent Fairchild 27–28. Fairchild justifies this proposed burden-shift on the ground that “it is unlikely an opposing party will have access to direct evidence of collusion.” Id. , at 28, n. 14.    We reject Fairchild’s suggestion. Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c); Blonder-Tongue , 402 U. S., at 350. Ordinarily, it is incumbent on the defendant to plead and prove such a defense, see Jones v. Bock , 549 U. S. 199 , 204 (2007), and we have never recognized claim preclusion as an exception to that general rule, see 18 Wright & Miller §4405, p. 83 (“[A] party asserting preclusion must carry the burden of establishing all necessary elements.”). We acknowledge that direct evidence justifying nonparty preclusion is often in the hands of plaintiffs rather than defendants. See, e.g., Montana , 440 U. S., at 155 (listing evidence of control over a prior suit). But “[v]ery often one must plead and prove matters as to which his adversary has superior access to the proof.” 2 K. Broun, McCormick on Evidence §337, p. 475 (6th ed. 2006). In these situations, targeted interrogatories or deposition questions can reduce the information disparity. We see no greater cause here than in other matters of affirmative defense to disturb the traditional allocation of the proof burden. *  *  *    For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Although Fairchild provided documents to the Wyoming District Court and filed an amicus brief in the Tenth Circuit, it was not a party to Herrick’s suit. See Herrick v. Garvey , 298 F. 3d 1184, 1188 (CA10 2002); Herrick v. Garvey , 200 F. Supp. 2d 1321, 1327 (Wyo. 2000). Footnote 2 The D. C. Circuit did not discuss the District Court’s distinction between public-law and private-law claims. Footnote 3 The Ninth Circuit applies a five-factor test similar to the D. C. Circuit’s. See Kourtis v. Cameron , 419 F. 3d 989, 996 (2005). The Fifth, Sixth, and Eleventh Circuits, like the Fourth Circuit, have constrained the reach of virtual representation by requiring, inter alia , the existence of a legal relationship between the nonparty to be bound and the putative representative. See Pollard v. Cockrell , 578 F. 2d 1002, 1008 (CA5 1978); Becherer v. Merrill Lynch, Pierce, Fenner, & Smith, Inc. , 193 F. 3d 415, 424 (CA6 1999); EEOC v. Pemco Aeroplex, Inc. , 383 F. 3d 1280, 1289 (CA11 2004). The Seventh Circuit, in contrast, has rejected the doctrine of virtual representation altogether. See Perry v. Globe Auto Recycling, Inc. , 227 F. 3d 950, 953 (2000). Footnote 4 For judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits. See Semtek Int’l Inc. v. Lockheed Martin Corp. , 531 U. S. 497 , 508 (2001). Footnote 5 These terms have replaced a more confusing lexicon. Claim preclusion describes the rules formerly known as “merger” and “bar,” while issue preclusion encompasses the doctrines once known as “collateral estoppel” and “direct estoppel.” See Migra v. Warren City School Dist. Bd. of Ed. , 465 U. S. 75 , 77, n. 1 (1984). Footnote 6 The established grounds for nonparty preclusion could be organized differently. See, e.g., 1 & 2 Restatement (Second) of Judgments §§39–62 (1980) (hereinafter Restatement); D. Shapiro, Civil Procedure: Preclusion in Civil Actions 75–92 (2001); 18A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4448, pp. 327–329 (2d ed. 2002) (hereinafter Wright & Miller). The list that follows is meant only to provide a framework for our consideration of virtual representation, not to establish a definitive taxonomy. Footnote 7 The Restatement observes that a nonparty may be bound not only by express or implied agreement, but also through conduct inducing reliance by others. See 2 Restatement §62. See also 18A Wright & Miller §4453, pp. 425–429. We have never had occasion to consider this ground for nonparty preclusion, and we express no view on it here. Footnote 8 The substantive legal relationships justifying preclusion are sometimes collectively referred to as “privity.” See, e.g., Richards v. Jefferson County , 517 U. S. 793 , 798 (1996); 2 Restatement §62, Comment a . The term “privity,” however, has also come to be used more broadly, as a way to express the conclusion that nonparty preclusion is appropriate on any ground. See 18A Wright & Miller §4449, pp. 351–353, and n. 33 (collecting cases). To ward off confusion, we avoid using the term “privity” in this opinion. Footnote 9 Moreover, Coryell interpreted the term “privity” not in the context of res judicata, but as used in a statute governing shipowner liability. See Coryell v. Phipps , 317 U. S. 406 , 407–408, and n. 1 (1943). And we made the statement Fairchild quotes in explaining why it was appropriate to defer to the findings of the lower courts, not as a comment on the substantive rules of privity. See id. , at 411. Footnote 10 The FAA urges that there was no agency relationship between the landowner and the United States because the landowner did not control the U. S. Attorney’s conduct of the suit. See Tr. of Oral Arg. 33. That point is debatable. See United States v. Des Moines Valley R. Co. , 84 F. 40, 42–43 (CA8 1897) (the United States was only a “nominal plaintiff”; it merely “len[t]” its name to the landowner). But even if the FAA is correct about agency, the United States plainly litigated as the landowner’s designated representative. See id. , at 42 (“The bill does not attempt to conceal the fact that … its real purpose is to champion the cause of [the landowner] … .”). See also Chicago, R. I. & P. R. Co. v. Schendel , 270 U. S. 611 , 618–620 (1926) (classifying Des Moines Valley with other cases of preclusion based on representation). Footnote 11 Richards suggested that notice is required in some representative suits, e.g. , class actions seeking monetary relief. See 517 U. S., at 801 (citing Hansberry v. Lee , 311 U. S. 32 , 40 (1940), Eisen v. Carlisle & Jacquelin , 417 U. S. 156 , 177 (1974), and Mullane v. Central Hanover Bank & Trust Co. , 339 U. S. 306 , 319 (1950)). But we assumed without deciding that a lack of notice might be overcome in some circumstances. See Richards , 517 U. S., at 801 . Footnote 12 Nonparty preclusion in such cases ranks under the sixth exception described above: special statutory schemes that expressly limit subsequent suits. See supra , at 13. Footnote 13 Our decision in Montana v. United States , 440 U. S. 147 (1979), also suggests a “control” test for agency. In that case, we held that the United States was barred from bringing a suit because it had controlled a prior unsuccessful action filed by a federal contractor. See id. , at 155. We see no reason why preclusion based on a lesser showing would have been appropriate if the order of the two actions had been switched—that is, if the United States had brought the first suit itself, and then sought to relitigate the same claim through the contractor. See Schendel , 270 U. S., at 618 (“[I]f, in legal contemplation, there is identity of parties” when two suits are brought in one order, “there must be like identity” when the order is reversed.).

In Taylor v. Sturgell, the Supreme Court ruled that nonparties cannot be bound by a judgment in a litigation where they were not designated as parties or served with process, rejecting the "virtual representation" exception that had been adopted by some lower courts. The case involved a Freedom of Information Act (FOIA) request by Brent Taylor, which was denied due to a previous unsuccessful FOIA request by his friend, Greg Herrick, for the same records. The Court held that Taylor's suit was not precluded by the judgment against Herrick, as there was no legal relationship or evidence of control, financing, or participation between the two men. The Court emphasized the importance of ensuring that individuals have their day in court and that preclusion of nonparties should be limited to specific exceptions, such as class actions or special statutory schemes.

Lawsuits & Legal Procedures

Exxon Mobil Corp. v. Allapattah Services, Inc.

https://supreme.justia.com/cases/federal/us/545/546/

OPINION OF THE COURT EXXON MOBIL CORP. V. ALLAPATTAH SERVICES, INC. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-70 AND 04-79 EXXON MOBIL CORPORATION, PETITIONER 04–70 v. ALLAPATTAH SERVICES, INC., et al. on writ of certiorari to the united states court of appeals for the eleventh circuit MARIA del ROSARIO ORTEGA, et al., PETITIONERS 04–79 v. STAR-KIST FOODS, INC. on writ of certiorari to the united states court of appeals for the first circuit [June 23, 2005] Justice Kennedy delivered the opinion of the Court.    These consolidated cases present the question whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirement, provided the claims are part of the same case or controversy as the claims of plaintiffs who do allege a sufficient amount in controversy. Our decision turns on the correct interpretation of 28 U. S. C. §1367. The question has divided the Courts of Appeals, and we granted certiorari to resolve the conflict. 543 U. S. ___ (2004).    We hold that, where the other elements of jurisdiction are present and at least one named plaintiff in the action satisfies the amount-in-controversy requirement, §1367 does authorize supplemental jurisdiction over the claims of other plaintiffs in the same Article III case or controversy, even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity jurisdiction. We affirm the judgment of the Court of Appeals for the Eleventh Circuit in No. 04–70, and we reverse the judgment of the Court of Appeals for the First Circuit in No. 04–79. I    In 1991, about 10,000 Exxon dealers filed a class-action suit against the Exxon Corporation in the United States District Court for the Northern District of Florida. The dealers alleged an intentional and systematic scheme by Exxon under which they were overcharged for fuel purchased from Exxon. The plaintiffs invoked the District Court’s §1332(a) diversity jurisdiction. After a unanimous jury verdict in favor of the plaintiffs, the District Court certified the case for interlocutory review, asking whether it had properly exercised §1367 supplemental jurisdiction over the claims of class members who did not meet the jurisdictional minimum amount in controversy.    The Court of Appeals for the Eleventh Circuit upheld the District Court’s extension of supplemental jurisdiction to these class members. Allapattah Services, Inc. v. Exxon Corp. , 333 F. 3d 1248 (2003). “[W]e find,” the court held, “that §1367 clearly and unambiguously provides district courts with the authority in diversity class actions to exercise supplemental jurisdiction over the claims of class members who do not meet the minimum amount in controversy as long as the district court has original jurisdiction over the claims of at least one of the class representatives.” Id ., at 1256. This decision accords with the views of the Courts of Appeals for the Fourth, Sixth, and Seventh Circuits. See Rosmer v. Pfizer, Inc. , 263 F. 3d 110 (CA4 2001); Olden v. LaFarge Corp. , 383 F. 3d 495 (CA6 2004); Stromberg Metal Works, Inc. v. Press Mechanical, Inc. , 77 F. 3d 928 (CA7 1996); In re Brand Name Prescription Drugs Antitrust Litigation , 123 F. 3d 599 (CA7 1997). The Courts of Appeals for the Fifth and Ninth Circuits, adopting a similar analysis of the statute, have held that in a diversity class action the unnamed class members need not meet the amount-in-controversy requirement, provided the named class members do. These decisions, however, are unclear on whether all the named plaintiffs must satisfy this requirement. In re Abbott Labs. , 51 F. 3d 524 (CA5 1995); Gibson v. Chrysler Corp. , 261 F. 3d 927 (CA9 2001).    In the other case now before us the Court of Appeals for the First Circuit took a different position on the meaning of §1367(a). 370 F. 3d 124 (2004). In that case, a 9-year-old girl sued Star-Kist in a diversity action in the United States District Court for the District of Puerto Rico, seeking damages for unusually severe injuries she received when she sliced her finger on a tuna can. Her family joined in the suit, seeking damages for emotional distress and certain medical expenses. The District Court granted summary judgment to Star-Kist, finding that none of the plaintiffs met the minimum amount-in-controversy requirement. The Court of Appeals for the First Circuit, however, ruled that the injured girl, but not her family members, had made allegations of damages in the requisite amount.    The Court of Appeals then addressed whether, in light of the fact that one plaintiff met the requirements for original jurisdiction, supplemental jurisdiction over the remaining plaintiffs’ claims was proper under §1367. The court held that §1367 authorizes supplemental jurisdiction only when the district court has original jurisdiction over the action, and that in a diversity case original jurisdiction is lacking if one plaintiff fails to satisfy the amount-in-controversy requirement. Although the Court of Appeals claimed to “express no view” on whether the result would be the same in a class action, id ., at 143, n. 19, its analysis is inconsistent with that of the Court of Appeals for the Eleventh Circuit. The Court of Appeals for the First Circuit’s view of §1367 is, however, shared by the Courts of Appeal for the Third, Eighth, and Tenth Circuits, and the latter two Courts of Appeals have expressly applied this rule to class actions. See Meritcare, Inc. v. St. Paul Mercury Ins. Co. , 166 F. 3d 214 (CA3 1999); Trimble v. Asarco, Inc. , 232 F. 3d 946 (CA8 2000); Leonhardt v. Western Sugar Co. , 160 F. 3d 631 (CA10 1998). II A    The district courts of the United States, as we have said many times, are “courts of limited jurisdiction. They possess only that power authorized by Constitution and statute,” Kokkonen v. Guardian Life Ins. Co. of America, 511 U. S. 375 , 377 (1994). In order to provide a federal forum for plaintiffs who seek to vindicate federal rights, Congress has conferred on the district courts original jurisdiction in federal-question cases—civil actions that arise under the Constitution, laws, or treaties of the United States. 28 U. S. C. §1331. In order to provide a neutral forum for what have come to be known as diversity cases, Congress also has granted district courts original jurisdiction in civil actions between citizens of different States, between U. S. citizens and foreign citizens, or by foreign states against U. S. citizens. §1332. To ensure that diversity jurisdiction does not flood the federal courts with minor disputes, §1332(a) requires that the matter in controversy in a diversity case exceed a specified amount, currently $75,000. §1332(a).    Although the district courts may not exercise jurisdiction absent a statutory basis, it is well established—in certain classes of cases—that, once a court has original jurisdiction over some claims in the action, it may exercise supplemental jurisdiction over additional claims that are part of the same case or controversy. The leading modern case for this principle is Mine Workers v. Gibbs, 383 U. S. 715 (1966). In Gibbs , the plaintiff alleged the defendant’s conduct violated both federal and state law. The District Court, Gibbs held, had original jurisdiction over the action based on the federal claims. Gibbs confirmed that the District Court had the additional power (though not the obligation) to exercise supplemental jurisdiction over related state claims that arose from the same Article III case or controversy. Id ., at 725 (“The federal claim must have substance sufficient to confer subject matter jurisdiction on the court… . [A]ssuming substantiality of the federal issues, there is power in federal courts to hear the whole”).    As we later noted, the decision allowing jurisdiction over pendent state claims in Gibbs did not mention, let alone come to grips with, the text of the jurisdictional statutes and the bedrock principle that federal courts have no jurisdiction without statutory authorization. Finley v. United States, 490 U. S. 545 , 548 (1989). In Finley , we nonetheless reaffirmed and rationalized Gibbs and its progeny by inferring from it the interpretive principle that, in cases involving supplemental jurisdiction over additional claims between parties properly in federal court, the jurisdictional statutes should be read broadly, on the assumption that in this context Congress intended to authorize courts to exercise their full Article III power to dispose of an “ ‘entire action before the court [which] comprises but one constitutional “case.”’ ” 490 U. S., at 549 (quoting Gibbs , supra , at 725).    We have not, however, applied Gibbs ’ expansive interpretive approach to other aspects of the jurisdictional statutes. For instance, we have consistently interpreted §1332 as requiring complete diversity: In a case with multiple plaintiffs and multiple defendants, the presence in the action of a single plaintiff from the same State as a single defendant deprives the district court of original diversity jurisdiction over the entire action. Strawbridge v. Curtiss, 3 Cranch 267 (1806); Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 , 375 (1978). The complete diversity requirement is not mandated by the Constitution, State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523 , 530–531 (1967), or by the plain text of §1332(a). The Court, nonetheless, has adhered to the complete diversity rule in light of the purpose of the diversity requirement, which is to provide a federal forum for important disputes where state courts might favor, or be perceived as favoring, home-state litigants. The presence of parties from the same State on both sides of a case dispels this concern, eliminating a principal reason for conferring §1332 jurisdiction over any of the claims in the action. See Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381 , 389 (1998); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 , 829 (1989). The specific purpose of the complete diversity rule explains both why we have not adopted Gibbs ’ expansive interpretive approach to this aspect of the jurisdictional statute and why Gibbs does not undermine the complete diversity rule. In order for a federal court to invoke supplemental jurisdiction under Gibbs , it must first have original jurisdiction over at least one claim in the action. Incomplete diversity destroys original jurisdiction with respect to all claims, so there is nothing to which supplemental jurisdiction can adhere.    In contrast to the diversity requirement, most of the other statutory prerequisites for federal jurisdiction, including the federal-question and amount-in-controversy requirements, can be analyzed claim by claim. True, it does not follow by necessity from this that a district court has authority to exercise supplemental jurisdiction over all claims provided there is original jurisdiction over just one. Before the enactment of §1367, the Court declined in contexts other than the pendent-claim instance to follow Gibbs ’ expansive approach to interpretation of the jurisdictional statutes. The Court took a more restrictive view of the proper interpretation of these statutes in so-called pendent-party cases involving supplemental jurisdiction over claims involving additional parties—plaintiffs or defendants—where the district courts would lack original jurisdiction over claims by each of the parties standing alone.    Thus, with respect to plaintiff-specific jurisdictional requirements, the Court held in Clark v. Paul Gray, Inc., 306 U. S. 583 (1939), that every plaintiff must separately satisfy the amount-in-controversy requirement. Though Clark was a federal-question case, at that time federal-question jurisdiction had an amount-in-controversy requirement analogous to the amount-in-controversy requirement for diversity cases. “Proper practice,” Clark held, “requires that where each of several plaintiffs is bound to establish the jurisdictional amount with respect to his own claim, the suit should be dismissed as to those who fail to show that the requisite amount is involved.” Id ., at 590. The Court reaffirmed this rule, in the context of a class action brought invoking §1332(a) diversity jurisdiction, in Zahn v. International Paper Co., 414 U. S. 291 (1973). It follows “inescapably” from Clark , the Court held in Zahn , that “any plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdictionally sufficient claims.” 414 U. S., at 300.    The Court took a similar approach with respect to supplemental jurisdiction over claims against additional defendants that fall outside the district courts’ original jurisdiction. In Aldinger v. Howard, 427 U. S. 1 (1976), the plaintiff brought a 42 U. S. C. §1983 action against county officials in district court pursuant to the statutory grant of jurisdiction in 28 U. S. C. §1343(3) (1976 ed.). The plaintiff further alleged the court had supplemental jurisdiction over her related state-law claims against the county, even though the county was not suable under §1983 and so was not subject to §1343(3)’s original jurisdiction. The Court held that supplemental jurisdiction could not be exercised because Congress, in enacting §1343(3), had declined (albeit implicitly) to extend federal jurisdiction over any party who could not be sued under the federal civil rights statutes. 427 U. S., at 16–19. “Before it can be concluded that [supplemental] jurisdiction [over additional parties] exists,” Aldinger held, “a federal court must satisfy itself not only that Art[icle] III permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.” Id ., at 18.    In Finley v. United States, 490 U. S. 545 (1989), we confronted a similar issue in a different statutory context. The plaintiff in Finley brought a Federal Tort Claims Act negligence suit against the Federal Aviation Administration in District Court, which had original jurisdiction under §1346(b). The plaintiff tried to add related claims against other defendants, invoking the District Court’s supplemental jurisdiction over so-called pendent parties. We held that the District Court lacked a sufficient statutory basis for exercising supplemental jurisdiction over these claims. Relying primarily on Zahn , Aldinger , and Kroger , we held in Finley that “a grant of jurisdiction over claims involving particular parties does not itself confer jurisdiction over additional claims by or against different parties.” 490 U. S., at 556. While Finley did not “limit or impair” Gibbs ’ liberal approach to interpreting the jurisdictional statutes in the context of supplemental jurisdiction over additional claims involving the same parties, 490 U. S., at 556, Finley nevertheless declined to extend that interpretive assumption to claims involving additional parties. Finley held that in the context of parties, in contrast to claims, “we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly.” Id ., at 549.    As the jurisdictional statutes existed in 1989, then, here is how matters stood: First, the diversity requirement in §1332(a) required complete diversity; absent complete diversity, the district court lacked original jurisdiction over all of the claims in the action. Strawbridge , 3 Cranch, at 267–268; Kroger , 437 U. S., at 373–374. Second, if the district court had original jurisdiction over at least one claim, the jurisdictional statutes implicitly authorized supplemental jurisdiction over all other claims between the same parties arising out of the same Article III case or controversy. Gibbs , 383 U. S., at 725. Third, even when the district court had original jurisdiction over one or more claims between particular parties, the jurisdictional statutes did not authorize supplemental jurisdiction over additional claims involving other parties. Clark , supra , at 590; Zahn , supra , at 300–301; Finley , supra , at 556. B    In Finley we emphasized that “[w]hatever we say regarding the scope of jurisdiction conferred by a particular statute can of course be changed by Congress.” 490 U. S., at 556. In 1990, Congress accepted the invitation. It passed the Judicial Improvements Act, 104 Stat. 5089, which enacted §1367, the provision which controls these cases.    Section 1367 provides, in relevant part: “(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. “(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.”    All parties to this litigation and all courts to consider the question agree that §1367 overturned the result in Finley . There is no warrant, however, for assuming that §1367 did no more than to overrule Finley and otherwise to codify the existing state of the law of supplemental jurisdiction. We must not give jurisdictional statutes a more expansive interpretation than their text warrants, 490 U. S., at 549, 556; but it is just as important not to adopt an artificial construction that is narrower than what the text provides. No sound canon of interpretation requires Congress to speak with extraordinary clarity in order to modify the rules of federal jurisdiction within appropriate constitutional bounds. Ordinary principles of statutory construction apply. In order to determine the scope of supplemental jurisdiction authorized by §1367, then, we must examine the statute’s text in light of context, structure, and related statutory provisions. Section 1367(a) is a broad grant of supplemental jurisdiction over other claims within the same case or controversy, as long as the action is one in which the district courts would have original jurisdiction. The last sentence of §1367(a) makes it clear that the grant of supplemental jurisdiction extends to claims involving joinder or intervention of additional parties. The single question before us, therefore, is whether a diversity case in which the claims of some plaintiffs satisfy the amount-in-controversy requirement, but the claims of others plaintiffs do not, presents a “civil action of which the district courts have original jurisdiction.” If the answer is yes, §1367(a) confers supplemental jurisdiction over all claims, including those that do not independently satisfy the amount-in-controversy requirement, if the claims are part of the same Article III case or controversy. If the answer is no, §1367(a) is inapplicable and, in light of our holdings in Clark and Zahn , the district court has no statutory basis for exercising supplemental jurisdiction over the additional claims. We now conclude the answer must be yes. When the well-pleaded complaint contains at least one claim that satisfies the amount-in-controversy requirement, and there are no other relevant jurisdictional defects, the district court, beyond all question, has original jurisdiction over that claim. The presence of other claims in the complaint, over which the district court may lack original jurisdiction, is of no moment. If the court has original jurisdiction over a single claim in the complaint, it has original jurisdiction over a “civil action” within the meaning of §1367(a), even if the civil action over which it has jurisdiction comprises fewer claims than were included in the complaint. Once the court determines it has original jurisdiction over the civil action, it can turn to the question whether it has a constitutional and statutory basis for exercising supplemental jurisdiction over the other claims in the action. Section 1367(a) commences with the direction that §§1367(b) and (c), or other relevant statutes, may provide specific exceptions, but otherwise §1367(a) is a broad jurisdictional grant, with no distinction drawn between pendent-claim and pendent-party cases. In fact, the last sentence of §1367(a) makes clear that the provision grants supplemental jurisdiction over claims involving joinder or intervention of additional parties. The terms of §1367 do not acknowledge any distinction between pendent jurisdiction and the doctrine of so-called ancillary jurisdiction. Though the doctrines of pendent and ancillary jurisdiction developed separately as a historical matter, the Court has recognized that the doctrines are “two species of the same generic problem,” Kroger , 437 U. S., at 370. Nothing in §1367 indicates a congressional intent to recognize, preserve, or create some meaningful, substantive distinction between the jurisdictional categories we have historically labeled pendent and ancillary. If §1367(a) were the sum total of the relevant statutory language, our holding would rest on that language alone. The statute, of course, instructs us to examine §1367(b) to determine if any of its exceptions apply, so we proceed to that section. While §1367(b) qualifies the broad rule of §1367(a), it does not withdraw supplemental jurisdiction over the claims of the additional parties at issue here. The specific exceptions to §1367(a) contained in §1367(b), moreover, provide additional support for our conclusion that §1367(a) confers supplemental jurisdiction over these claims. Section 1367(b), which applies only to diversity cases, withholds supplemental jurisdiction over the claims of plaintiffs proposed to be joined as indispensable parties under Federal Rule of Civil Procedure 19, or who seek to intervene pursuant to Rule 24. Nothing in the text of §1367(b), however, withholds supplemental jurisdiction over the claims of plaintiffs permissively joined under Rule 20 (like the additional plaintiffs in No. 04–79) or certified as class-action members pursuant to Rule 23 (like the additional plaintiffs in No. 04–70). The natural, indeed the necessary, inference is that §1367 confers supplemental jurisdiction over claims by Rule 20 and Rule 23 plaintiffs. This inference, at least with respect to Rule 20 plaintiffs, is strengthened by the fact that §1367(b) explicitly excludes supplemental jurisdiction over claims against defendants joined under Rule 20. We cannot accept the view, urged by some of the parties, commentators, and Courts of Appeals, that a district court lacks original jurisdiction over a civil action unless the court has original jurisdiction over every claim in the complaint. As we understand this position, it requires assuming either that all claims in the complaint must stand or fall as a single, indivisible “civil action” as a matter of definitional necessity—what we will refer to as the “indivisibility theory”—or else that the inclusion of a claim or party falling outside the district court’s original jurisdiction somehow contaminates every other claim in the complaint, depriving the court of original jurisdiction over any of these claims—what we will refer to as the “contamination theory.” The indivisibility theory is easily dismissed, as it is inconsistent with the whole notion of supplemental jurisdiction. If a district court must have original jurisdiction over every claim in the complaint in order to have “original jurisdiction” over a “civil action,” then in Gibbs there was no civil action of which the district court could assume original jurisdiction under §1331, and so no basis for exercising supplemental jurisdiction over any of the claims. The indivisibility theory is further belied by our practice—in both federal-question and diversity cases—of allowing federal courts to cure jurisdictional defects by dismissing the offending parties rather than dismissing the entire action. Clark , for example, makes clear that claims that are jurisdictionally defective as to amount in controversy do not destroy original jurisdiction over other claims. 306 U. S., at 590 (dismissing parties who failed to meet the amount-in-controversy requirement but retaining jurisdiction over the remaining party). If the presence of jurisdictionally problematic claims in the complaint meant the district court was without original jurisdiction over the single, indivisible civil action before it, then the district court would have to dismiss the whole action rather than particular parties. We also find it unconvincing to say that the definitional indivisibility theory applies in the context of diversity cases but not in the context of federal-question cases. The broad and general language of the statute does not permit this result. The contention is premised on the notion that the phrase “original jurisdiction of all civil actions” means different things in §1331 and §1332. It is implausible, however, to say that the identical phrase means one thing (original jurisdiction in all actions where at least one claim in the complaint meets the following requirements) in §1331 and something else (original jurisdiction in all actions where every claim in the complaint meets the following requirements) in §1332. The contamination theory, as we have noted, can make some sense in the special context of the complete diversity requirement because the presence of nondiverse parties on both sides of a lawsuit eliminates the justification for providing a federal forum. The theory, however, makes little sense with respect to the amount-in-controversy requirement, which is meant to ensure that a dispute is sufficiently important to warrant federal-court attention. The presence of a single nondiverse party may eliminate the fear of bias with respect to all claims, but the presence of a claim that falls short of the minimum amount in controversy does nothing to reduce the importance of the claims that do meet this requirement. It is fallacious to suppose, simply from the proposition that §1332 imposes both the diversity requirement and the amount-in-controversy requirement, that the contamination theory germane to the former is also relevant to the latter. There is no inherent logical connection between the amount-in-controversy requirement and §1332 diversity jurisdiction. After all, federal-question jurisdiction once had an amount-in-controversy requirement as well. If such a requirement were revived under §1331, it is clear beyond peradventure that §1367(a) provides supplemental jurisdiction over federal-question cases where some, but not all, of the federal-law claims involve a sufficient amount in controversy. In other words, §1367(a) unambiguously overrules the holding and the result in Clark . If that is so, however, it would be quite extraordinary to say that §1367 did not also overrule Zahn , a case that was premised in substantial part on the holding in Clark . In addition to the theoretical difficulties with the argument that a district court has original jurisdiction over a civil action only if it has original jurisdiction over each individual claim in the complaint, we have already considered and rejected a virtually identical argument in the closely analogous context of removal jurisdiction. In Chicago v. International College of Surgeons, 522 U. S. 156 (1997), the plaintiff brought federal- and state-law claims in state court. The defendant removed to federal court. The plaintiff objected to removal, citing the text of the removal statute, §1441(a). That statutory provision, which bears a striking similarity to the relevant portion of §1367, authorizes removal of “any civil action … of which the district courts of the United States have original jurisdiction … .” The College of Surgeons plaintiff urged that, because its state-law claims were not within the District Court’s original jurisdiction, §1441(a) did not authorize removal. We disagreed. The federal law claims, we held, “suffice to make the actions ‘civil actions’ within the ‘original jurisdiction’ of the district courts … . Nothing in the jurisdictional statutes suggests that the presence of related state law claims somehow alters the fact that [the plaintiff’s] complaints, by virtue of their federal claims, were ‘civil actions’ within the federal courts’ ‘original jurisdiction.’ ” Id ., at 166. Once the case was removed, the District Court had original jurisdiction over the federal law claims and supplemental jurisdiction under §1367(a) over the state-law claims. Id ., at 165. The dissent in College of Surgeons argued that because the plaintiff sought on-the-record review of a local administrative agency decision, the review it sought was outside the scope of the District Court’s jurisdiction. Id ., at 177 (opinion of Ginsburg, J.). We rejected both the suggestion that state-law claims involving administrative appeals are beyond the scope of §1367 supplemental jurisdiction, id ., at 168–172 (opinion of the Court), and the claim that the administrative review posture of the case deprived the District Court of original jurisdiction over the federal-law claims in the case, id ., at 163–168. More importantly for present purposes, College of Surgeons stressed that a district court has original jurisdiction of a civil action for purposes of §1441(a) as long as it has original jurisdiction over a subset of the claims constituting the action. Even the College of Surgeons dissent, which took issue with the Court’s interpretation of §1367, did not appear to contest this view of §1441(a). Although College of Surgeons involved additional claims between the same parties, its interpretation of §1441(a) applies equally to cases involving additional parties whose claims fall short of the jurisdictional amount. If we were to adopt the contrary view that the presence of additional parties means there is no “civil action … of which the district courts … have original jurisdiction,” those cases simply would not be removable. To our knowledge, no court has issued a reasoned opinion adopting this view of the removal statute. It is settled, of course, that absent complete diversity a case is not removable because the district court would lack original jurisdiction. Caterpillar Inc. v. Lewis, 519 U. S. 61 , 73 (1996). This, however, is altogether consistent with our view of §1441(a). A failure of complete diversity, unlike the failure of some claims to meet the requisite amount in controversy, contaminates every claim in the action. We also reject the argument, similar to the attempted distinction of College of Surgeons discussed above, that while the presence of additional claims over which the district court lacks jurisdiction does not mean the civil action is outside the purview of §1367(a), the presence of additional parties does. The basis for this distinction is not altogether clear, and it is in considerable tension with statutory text. Section 1367(a) applies by its terms to any civil action of which the district courts have original jurisdiction, and the last sentence of §1367(a) expressly contemplates that the court may have supplemental jurisdiction over additional parties. So it cannot be the case that the presence of those parties destroys the court’s original jurisdiction, within the meaning of §1367(a), over a civil action otherwise properly before it. Also, §1367(b) expressly withholds supplemental jurisdiction in diversity cases over claims by plaintiffs joined as indispensable parties under Rule 19. If joinder of such parties were sufficient to deprive the district court of original jurisdiction over the civil action within the meaning of §1367(a), this specific limitation on supplemental jurisdiction in §1367(b) would be superfluous. The argument that the presence of additional parties removes the civil action from the scope of §1367(a) also would mean that §1367 left the Finley result undisturbed. Finley , after all, involved a Federal Tort Claims Act suit against a federal defendant and state-law claims against additional defendants not otherwise subject to federal jurisdiction. Yet all concede that one purpose of §1367 was to change the result reached in Finley . Finally, it is suggested that our interpretation of §1367(a) creates an anomaly regarding the exceptions listed in §1367(b): It is not immediately obvious why Congress would withhold supplemental jurisdiction over plaintiffs joined as parties “needed for just adjudication” under Rule 19 but would allow supplemental jurisdiction over plaintiffs permissively joined under Rule 20. The omission of Rule 20 plaintiffs from the list of exceptions in §1367(b) may have been an “unintentional drafting gap,” Meritcare , 166 F. 3d, at 221 and n. 6. If that is the case, it is up to Congress rather than the courts to fix it. The omission may seem odd, but it is not absurd. An alternative explanation for the different treatment of Rule 19 and Rule 20 is that Congress was concerned that extending supplemental jurisdiction to Rule 19 plaintiffs would allow circumvention of the complete diversity rule: A nondiverse plaintiff might be omitted intentionally from the original action, but joined later under Rule 19 as a necessary party. See Stromberg Metal Works , 77 F. 3d, at 932. The contamination theory described above, if applicable, means this ruse would fail, but Congress may have wanted to make assurance double sure. More generally, Congress may have concluded that federal jurisdiction is only appropriate if the district court would have original jurisdiction over the claims of all those plaintiffs who are so essential to the action that they could be joined under Rule 19. To the extent that the omission of Rule 20 plaintiffs from the list of §1367(b) exceptions is anomalous, moreover, it is no more anomalous than the inclusion of Rule 19 plaintiffs in that list would be if the alternative view of §1367(a) were to prevail. If the district court lacks original jurisdiction over a civil diversity action where any plaintiff’s claims fail to comply with all the requirements of §1332, there is no need for a special §1367(b) exception for Rule 19 plaintiffs who do not meet these requirements. Though the omission of Rule 20 plaintiffs from §1367(b) presents something of a puzzle on our view of the statute, the inclusion of Rule 19 plaintiffs in this section is at least as difficult to explain under the alternative view. And so we circle back to the original question. When the well-pleaded complaint in district court includes multiple claims, all part of the same case or controversy, and some, but not all, of the claims are within the court’s original jurisdiction, does the court have before it “any civil action of which the district courts have original jurisdiction”? It does. Under §1367, the court has original jurisdiction over the civil action comprising the claims for which there is no jurisdictional defect. No other reading of §1367 is plausible in light of the text and structure of the jurisdictional statute. Though the special nature and purpose of the diversity requirement mean that a single nondiverse party can contaminate every other claim in the lawsuit, the contamination does not occur with respect to jurisdictional defects that go only to the substantive importance of individual claims. It follows from this conclusion that the threshold requirement of §1367(a) is satisfied in cases, like those now before us, where some, but not all, of the plaintiffs in a diversity action allege a sufficient amount in controversy. We hold that §1367 by its plain text overruled Clark and Zahn and authorized supplemental jurisdiction over all claims by diverse parties arising out of the same Article III case or controversy, subject only to enumerated exceptions not applicable in the cases now before us. C The proponents of the alternative view of §1367 insist that the statute is at least ambiguous and that we should look to other interpretive tools, including the legislative history of §1367, which supposedly demonstrate Congress did not intend §1367 to overrule Zahn . We can reject this argument at the very outset simply because §1367 is not ambiguous. For the reasons elaborated above, interpreting §1367 to foreclose supplemental jurisdiction over plaintiffs in diversity cases who do not meet the minimum amount in controversy is inconsistent with the text, read in light of other statutory provisions and our established jurisprudence. Even if we were to stipulate, however, that the reading these proponents urge upon us is textually plausible, the legislative history cited to support it would not alter our view as to the best interpretation of §1367. Those who urge that the legislative history refutes our interpretation rely primarily on the House Judiciary Committee Report on the Judicial Improvements Act. H. R. Rep. No. 101–734 (1990) (House Report or Report). This Report explained that §1367 would “authorize jurisdiction in a case like Finley , as well as essentially restore the pre- Finley understandings of the authorization for and limits on other forms of supplemental jurisdiction.” House Report, at 28. The Report stated that §1367(a) “generally authorizes the district court to exercise jurisdiction over a supplemental claim whenever it forms part of the same constitutional case or controversy as the claim or claims that provide the basis of the district court’s original jurisdiction,” and in so doing codifies Gibbs and fills the statutory gap recognized in Finley . House Report, at 28–29, and n. 15. The Report then remarked that §1367(b) “is not intended to affect the jurisdictional requirements of [§1332] in diversity-only class actions, as those requirements were interpreted prior to Finley ,” citing, without further elaboration, Zahn and Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 (1921). House Report, at 29, and n. 17. The Report noted that the “net effect” of §1367(b) was to implement the “principal rationale” of Kroger , House Report, at 29, and n. 16, effecting only “one small change” in pre- Finley practice with respect to diversity actions: §1367(b) would exclude “Rule 23(a) plaintiff-intervenors to the same extent as those sought to be joined as plaintiffs under Rule 19.” House Report, at 29. (It is evident that the report here meant to refer to Rule 24, not Rule 23.) As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature’s understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of insight into legislative understandings, however, and legislative history in particular is vulnerable to two serious criticisms. First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal’s memorable phrase, an exercise in “ ‘looking over a crowd and picking out your friends.’ ” See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983). Second, judicial reliance on legislative materials like committee reports, which are not themselves subject to the requirements of Article I, may give unrepresentative committee members—or, worse yet, unelected staffers and lobbyists—both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text. We need not comment here on whether these problems are sufficiently prevalent to render legislative history inherently unreliable in all circumstances, a point on which Members of this Court have disagreed. It is clear, however, that in this instance both criticisms are right on the mark. First of all, the legislative history of §1367 is far murkier than selective quotation from the House Report would suggest. The text of §1367 is based substantially on a draft proposal contained in a Federal Court Study Committee working paper, which was drafted by a Subcommittee chaired by Judge Posner. Report of the Subcommittee on the Role of the Federal Courts and Their Relationship to the States 567–568 (Mar. 12, 1990), reprinted in Judicial Conference of the United States, 1 Federal Courts Study Committee, Working Papers and Subcommittee Reports (July 1, 1990). See also Judicial Conference of the United States, Report of the Federal Courts Study Committee 47–48 (Apr. 2, 1990) (Study Committee Report) (echoing, in brief summary form, the Subcommittee Working Paper proposal and noting that the Subcommittee Working Paper “contains additional material on this subject”); House Report, at 27 (“[Section 1367] implements a recommendation of the Federal Courts Study Committee found on pages 47 and 48 of its report”). While the Subcommittee explained, in language echoed by the House Report, that its proposal “basically restores the law as it existed prior to Finley ,” Subcommittee Working Paper, at 561, it observed in a footnote that its proposal would overrule Zahn and that this would be a good idea, Subcommittee Working Paper, at 561, n. 33. Although the Federal Courts Study Committee did not expressly adopt the Subcommittee’s specific reference to Zahn , it neither explicitly disagreed with the Subcommittee’s conclusion that this was the best reading of the proposed text nor substantially modified the proposal to avoid this result. Study Committee Report, at 47–48. Therefore, even if the House Report could fairly be read to reflect an understanding that the text of §1367 did not overrule Zahn , the Subcommittee Working Paper on which §1367 was based reflected the opposite understanding. The House Report is no more authoritative than the Subcommittee Working Paper. The utility of either can extend no further than the light it sheds on how the enacting Legislature understood the statutory text. Trying to figure out how to square the Subcommittee Working Paper’s understanding with the House Report’s understanding, or which is more reflective of the understanding of the enacting legislators, is a hopeless task. Second, the worst fears of critics who argue legislative history will be used to circumvent the Article I process were realized in this case. The telltale evidence is the statement, by three law professors who participated in drafting §1367, see House Report, at 27, n. 13, that §1367 “on its face” permits “supplemental jurisdiction over claims of class members that do not satisfy section 1332’s jurisdictional amount requirement, which would overrule [Zahn] . [There is] a disclaimer of intent to accomplish this result in the legislative history… . It would have been better had the statute dealt explicitly with this problem, and the legislative history was an attempt to correct the oversight.” Rowe, Burbank, & Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L. J. 943, 960, n. 90 (1991). The professors were frank to concede that if one refuses to consider the legislative history, one has no choice but to “conclude that section 1367 has wiped Zahn off the books.” Ibid . So there exists an acknowledgment, by parties who have detailed, specific knowledge of the statute and the drafting process, both that the plain text of §1367 overruled Zahn and that language to the contrary in the House Report was a post hoc attempt to alter that result. One need not subscribe to the wholesale condemnation of legislative history to refuse to give any effect to such a deliberate effort to amend a statute through a committee report. In sum, even if we believed resort to legislative history were appropriate in these cases—a point we do not concede—we would not give significant weight to the House Report. The distinguished jurists who drafted the Subcommittee Working Paper, along with three of the participants in the drafting of §1367, agree that this provision, on its face, overrules Zahn . This accords with the best reading of the statute’s text, and nothing in the legislative history indicates directly and explicitly that Congress understood the phrase “civil action of which the district courts have original jurisdiction” to exclude cases in which some but not all of the diversity plaintiffs meet the amount in controversy requirement. No credence, moreover, can be given to the claim that, if Congress understood §1367 to overrule Zahn , the proposal would have been more controversial. We have little sense whether any Member of Congress would have been particularly upset by this result. This is not a case where one can plausibly say that concerned legislators might not have realized the possible effect of the text they were adopting. Certainly, any competent legislative aide who studied the matter would have flagged this issue if it were a matter of importance to his or her boss, especially in light of the Subcommittee Working Paper. There are any number of reasons why legislators did not spend more time arguing over §1367, none of which are relevant to our interpretation of what the words of the statute mean. D Finally, we note that the Class Action Fairness Act (CAFA), Pub. L. 109–2, 119 Stat. 4, enacted this year, has no bearing on our analysis of these cases. Subject to certain limitations, the CAFA confers federal diversity jurisdiction over class actions where the aggregate amount in controversy exceeds $5 million. It abrogates the rule against aggregating claims, a rule this Court recognized in Ben-Hur and reaffirmed in Zahn . The CAFA, however, is not retroactive, and the views of the 2005 Congress are not relevant to our interpretation of a text enacted by Congress in 1990. The CAFA, moreover, does not moot the significance of our interpretation of §1367, as many proposed exercises of supplemental jurisdiction, even in the class-action context, might not fall within the CAFA’s ambit. The CAFA, then, has no impact, one way or the other, on our interpretation of §1367. *** The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. The judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. STEVENS, J., DISSENTING EXXON MOBIL CORP. V. ALLAPATTAH SERVICES, INC. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-70 AND 04-79 EXXON MOBIL CORPORATION, PETITIONER 04–70 v. ALLAPATTAH SERVICES, INC., et al. on writ of certiorari to the united states court of appeals for the eleventh circuit MARIA del ROSARIO ORTEGA, et al., PETITIONERS 04–79 v. STAR-KIST FOODS, INC. on writ of certiorari to the united states court of appeals for the first circuit [June 23, 2005] Justice Stevens , with whom Justice Breyer joins, dissenting.    Justice Ginsburg’s carefully reasoned opinion, post , at 1 (dissenting opinion), demonstrates the error in the Court’s rather ambitious reading of this opaque jurisdictional statute. She also has demonstrated that “ambiguity” is a term that may have different meanings for different judges, for the Court has made the remarkable declaration that its reading of the statute is so obviously correct—and Justice Ginsburg’s so obviously wrong—that the text does not even qualify as “ambiguous.” See ante , at 20. Because ambiguity is apparently in the eye of the beholder, I remain convinced that it is unwise to treat the ambiguity vel non of a statute as determinative of whether legislative history is consulted. Indeed, I believe that we as judges are more, rather than less, constrained when we make ourselves accountable to all reliable evidence of legislative intent. See Koons Buick Pontiac GMC, Inc. v. Nigh , 543 U. S. __ (2004) (slip op., at 2, and n. 1) (Stevens, J., concurring).    The legislative history of 28 U. S. C. §1367 provides powerful confirmation of Justice Ginsburg’s interpretation of that statute. It is helpful to consider in full the relevant portion of the House Report, which was also adopted by the Senate: “This section would authorize jurisdiction in a case like Finley [v. United States , 490 U. S. 545 (1989)], as well as essentially restore the pre- Finley understandings of the authorization for and limits on other forms of supplemental jurisdiction. In federal question cases, it broadly authorizes the district courts to exercise supplemental jurisdiction over additional claims, including claims involving the joinder of additional parties. In diversity cases, the district courts may exercise supplemental jurisdiction, except when doing so would be inconsistent with the jurisdictional requirements of the diversity statute. .....    “Subsection 114(b) [§1367(b)] prohibits a district court in a case over which it has jurisdiction founded solely on the general diversity provision, 28 U. S. C. §1332, from exercising supplemental jurisdiction in specified circumstances. [Footnote 16: ‘The net effect of subsection (b) is to implement the principal rationale of Owen Equipment & Erection Co. v. Kroger , 437 U. S. 365 (1978)’.] In diversity-only actions the district courts may not hear plaintiffs’ supplemental claims when exercising supplemental jurisdiction would encourage plaintiffs to evade the jurisdictional requirement of 28 U. S. C. §1332 by the simple expedient of naming initially only those defendants whose joinder satisfies section 1332’s requirements and later adding claims not within original federal jurisdiction against other defendants who have intervened or been joined on a supplemental basis. In accord with case law, the subsection also prohibits the joinder or intervention of persons a plaintiffs if adding them is inconsistent with section 1332’s requirements. The section is not intended to affect the jurisdictional requirements of 28 U. S. C. §1332 in diversity-only class actions, as those requirements were interpreted prior to Finley. [Footnote 17: ‘See Supreme Tribe of Ben-Hur v. Cauble , 255 U. S. 356 (1921); Zahn v. International Paper Co. , 414 U. S. 291 (1973)’.]    “Subsection (b) makes one small change in pre- Finley practice. Anomalously, under current practice, the same party might intervene as of right under Federal Rule of Civil Procedure 23(a) and take advantage of supplemental jurisdiction, but not come within supplemental jurisdiction if parties already in the action sought to effect the joinder under Rule 19. Subsection (b) would eliminate this anomaly, excluding Rule 23(a) plaintiff-intervenors to the same extent as those sought to be joined as plaintiffs under Rule 19.” H. R. Rep. No. 101–734, pp. 28–29 (1990) (footnote omitted) (hereinafter House Report or Report).[ Footnote 1 ] Not only does the House Report specifically say that §1367 was not intended to upset Zahn v. International Paper Co. , 414 U. S. 291 (1973), but its entire explanation of the statute demonstrates that Congress had in mind a very specific and relatively modest task—undoing this Court’s 5-to-4 decision in Finley v. United States , 490 U. S. 545 (1989). In addition to overturning that unfortunate and much-criticized decision,[ Footnote 2 ] the statute, according to the Report, codifies and preserves the “the pre- Finley understandings of the authorization for and limits on other forms of supplemental jurisdiction,” House Report, at 28, with the exception of making “one small change in pre- Finley practice,” id. , at 29, which is not relevant here.    The sweeping purpose that the Court’s decision imputes to Congress bears no resemblance to the House Report’s description of the statute. But this does not seem to trouble the Court, for its decision today treats statutory interpretation as a pedantic exercise, divorced from any serious attempt at ascertaining congressional intent. Of course, there are situations in which we do not honor Congress’ apparent intent unless that intent is made “clear” in the text of a statute—in this way, we can be certain that Congress considered the issue and intended a disfavored outcome, see, e.g., Landgraf v. USI Film Products, 511 U. S. 244 (1994) (requiring clear statement for retroactive civil legislation). But that principle provides no basis for discounting the House Report, given that our cases have never recognized a presumption in favor of expansive diversity jurisdiction.    The Court’s reasons for ignoring this virtual billboard of congressional intent are unpersuasive. That a subcommittee of the Federal Courts Study Committee believed that an earlier, substantially similar version of the statute overruled Zahn, see ante , at 22, only highlights the fact that the statute is ambiguous. What is determinative is that the House Report explicitly rejected that broad reading of the statutory text. Such a report has special significance as an indicator of legislative intent. In Congress, committee reports are normally considered the authoritative explication of a statute’s text and purposes, and busy legislators and their assistants rely on that explication in casting their votes. Cf. Garcia v. United States , 469 U. S. 70 , 76 (1984) (“In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation’ ” (quoting Zuber v. Allen , 396 U. S. 168 , 186 (1969)) (brackets in original)).    The Court’s second reason—its comment on the three law professors who participated in drafting §1367, see ante , at 23—is similarly off the mark. In the law review article that the Court refers to, the professors were merely saying that the text of the statute was susceptible to an overly broad (and simplistic) reading, and that clarification in the House Report was therefore appropriate. See Rowe, Burbank, & Mengler, Compounding or Creating Confusion About Supplemental Jurisdiction? A Reply to Professor Freer, 40 Emory L. J. 943, 960, n. 90 (1991).[ Footnote 3 ] Significantly, the reference to Zahn in the House Report does not at all appear to be tacked-on or out of place; indeed, it is wholly consistent with the Report’s broader explanation of Congress’ goal of overruling Finley and preserving pre- Finley law. To suggest that these professors participated in a “deliberate effort to amend a statute through a committee report,” ante , at 23, reveals an unrealistic view of the legislative process, not to mention disrespect for three law professors who acted in the role of public servants. To be sure, legislative history can be manipulated. But, in the situation before us, there is little reason to fear that an unholy conspiracy of “unrepresentative committee members,” ante , at 21, law professors, and “unelected staffers and lobbyists,” ibid ., endeavored to torpedo Congress’ attempt to overrule (without discussion) two longstanding features of this Court’s diversity jurisprudence.    After nearly 20 pages of complicated analysis, which explores subtle doctrinal nuances and coins various neologisms, the Court announces that §1367 could not reasonably be read another way. See ante , at 20. That conclusion is difficult to accept. Given Justice Ginsburg’s persuasive account of the statutory text and its jurisprudential backdrop, and given the uncommonly clear legislative history, I am confident that the majority’s interpretation of §1367 is mistaken. I respectfully dissent. Footnote 1 The last quoted paragraph was intended to refer to Rule 24, not Rule 23. See ante , at 21. Footnote 2 As I pointed out in my dissent in Finley , the majority's decision was “not faithful to our precedents,” 490 U. S., at 558, and casually dismissed the accumulated wisdom of judges such as Henry Friendly, who had “special learning and expertise in matters of federal jurisdiction," id. , at 565. Footnote 3 The professors’ account of the challenges they faced in drafting §1367 gives some sense, I think, of why that statute has proved difficult to interpret: “More broadly, codifying a complex area like supplemental jurisdiction—as Professor Freer’s discussion illustrates—is itself complex business. A danger is that that result of the effort to deal with all the foreseeables will be a statute too prolix and baroque for everyday use and application by practitioners and judges. Section 1367 reflects an effort to provide sufficient detail without overdoing it. The statute is concededly not perfect. What it accomplishes, however, is to change the direction taken by the Supreme Court in Finley , to provide basic guidance (in particular the legislative history’s general approval of pre- Finley case law, which has treated some specific issues Professor Freer raises), and then to trust the federal courts under the changed direction to interpret the statute sensibly. . . .” 40 Emory L. J., at 961. GINSBURG, J., DISSENTING EXXON MOBIL CORP. V. ALLAPATTAH SERVICES, INC. 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 04-70 AND 04-79 EXXON MOBIL CORPORATION, PETITIONER 04–70 v. ALLAPATTAH SERVICES, INC., et al. on writ of certiorari to the united states court of appeals for the eleventh circuit MARIA del ROSARIO ORTEGA, et al., PETITIONERS 04–79 v. STAR-KIST FOODS, INC. on writ of certiorari to the united states court of appeals for the first circuit [June 23, 2005] Justice Ginsburg , with whom Justice Stevens, Justice O’Connor, and Justice Breyer join, dissenting.    These cases present the question whether Congress, by enacting 28 U. S. C. §1367, overruled this Court’s decisions in Clark v. Paul Gray, Inc., 306 U. S. 583 , 589 (1939) (reaffirming the holding of Troy Bank v. G. A. Whitehead & Co., 222 U. S. 39 , 40 (1911)), and Zahn v. International Paper Co., 414 U. S. 291 (1973). Clark held that, when federal-court jurisdiction is predicated on a specified amount in controversy, each plaintiff joined in the litigation must independently meet the jurisdictional amount requirement. Zahn confirmed that in class actions governed by Federal Rule of Civil Procedure 23(b)(3), “[e]ach [class member] … must satisfy the jurisdictional amount, and any [class member] who does not must be dismissed from the case.” 414 U. S., at 301.    Section 1367, all agree, was designed to overturn this Court’s decision in Finley v. United States, 490 U. S. 545 (1989). Finley concerned not diversity-of-citizenship jurisdiction (28 U. S. C. §1332), but original federal-court jurisdiction in cases arising under federal law (28 U. S. C. §1331). The plaintiff in Finley sued the United States under the Federal Tort Claims Act (FTCA), 28 U. S. C. §1346(b), to recover for the death of her husband and children in an airplane crash. She alleged that the Federal Aviation Administration’s negligence contributed to the fatal accident. She later amended her complaint to add state-law tort claims against two other defendants, a municipality and a utility company. 490 U. S., at 546–547. No independent basis for federal subject-matter jurisdiction existed over the state-law claims. The plaintiff could not have brought her entire action in state court, because federal jurisdiction in FTCA actions is exclusive. §1346(b). Hence, absent federal jurisdiction embracing the state-law claims, she would be obliged to pursue two discrete actions, one in federal court, the other in state court. This Court held, nevertheless, that the District Court lacked jurisdiction over the “pendent-party” state-law claims. Id., at 555–556. In so holding, the Court stressed that Congress held the control rein. Id. , at 547–549. Congress could reverse the result in Finley , and permit pendent jurisdiction over state-law claims against additional defendants, if it so chose. Id ., at 556. Congress did so in §1367.    What more §1367 wrought is an issue on which courts of appeals have sharply divided. Compare Stromberg Metal Works, Inc . v. Press Mechanical, Inc. , 77 F. 3d 928, 930 (CA7 1996) (§1367 “supersedes Clark and allows pendent-party jurisdiction when the additional parties have claims worth less than [the jurisdictional minimum]”), and In re Abbott Labs., 51 F. 3d 524, 529 (CA5 1995) (“[U]nder §1367 a district court can exercise supplemental jurisdiction over members of a class, although they did not meet the amount-in-controversy requirement, as did the class representatives.”), with Meritcare Inc. v. St. Paul Mercury Ins. Co. , 166 F. 3d 214, 222 (CA3 1999) (§1367 “preserves the prohibition against aggregation outlined in [Zahn and Clark] ”), and Leonhardt v. Western Sugar Co. , 160 F. 3d 631, 641 (CA10 1998) (§1367 does not alter “the historical rules prohibiting aggregation of claims, including Zahn ’s prohibition of such aggregation in diversity class actions”). The Court today holds that §1367, although prompted by Finley , a case in which original access to federal court was predicated on a federal question, notably enlarges federal diversity jurisdiction. The Court reads §1367 to overrule Clark and Zahn , thereby allowing access to federal court by co-plaintiffs or class members who do not meet the now in excess of $75,000 amount-in-controversy requirement, so long as at least one co-plaintiff, or the named class representative, has a jurisdictionally sufficient claim. Ante , at 1–2.    The Court adopts a plausibly broad reading of §1367, a measure that is hardly a model of the careful drafter’s art. There is another plausible reading, however, one less disruptive of our jurisprudence regarding supplemental jurisdiction. If one reads §1367(a) to instruct, as the statute’s text suggests, that the district court must first have “original jurisdiction” over a “civil action” before supplemental jurisdiction can attach, then Clark and Zahn are preserved, and supplemental jurisdiction does not open the way for joinder of plaintiffs, or inclusion of class members, who do not independently meet the amount-in-controversy requirement. For the reasons that follow, I conclude that this narrower construction is the better reading of §1367. I A    Section 1367, captioned “Supplemental jurisdiction,” codifies court-recognized doctrines formerly labeled “pendent” and “ancillary” jurisdiction. Pendent jurisdiction involved the enlargement of federal-question litigation to include related state-law claims. Ancillary jurisdiction evolved primarily to protect defending parties, or others whose rights might be adversely affected if they could not air their claims in an ongoing federal-court action. Given jurisdiction over the principal action, federal courts entertained certain matters deemed ancillary regardless of the citizenship of the parties or the amount in controversy. Mine Workers v. Gibbs, 383 U. S. 715 (1966), the leading pendent jurisdiction case, involved a claim against a union for wrongfully inducing the plaintiff’s discharge. The plaintiff stated a federal claim under the Taft-Hartley Act, and an allied state-law claim of unlawful conspiracy to interfere with his employment contract. This Court upheld the joinder of federal and state claims. “[T]here is power in federal courts to hear the whole,” the Court said, when the state and federal claims “derive from a common nucleus of operative fact” and are so linked that the plaintiff “would ordinarily be expected to try them all in one judicial proceeding.” Id. , at 725. Gibbs involved the linkage of federal and state claims against the same defendant. In Finley v. United States, 490 U. S. 545 , the Court contained Gibbs . Without congressional authorization, the Court admonished, the pendent jurisdiction umbrella could not be stretched to cover the joinder of additional parties. Gibbs had departed from earlier decisions recognizing that “jurisdiction [must] be explicitly conferred,” the Court said. 490 U. S., at 556. Aldinger v. Howard, 427 U. S. 1 (1976), the Court observed, although resting “on a much narrower basis,” R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 925 (5th ed. 2003) (hereinafter Hart & Wechsler), had already signaled that “the Gibbs approach would not be extended to the pendent-party field,” Finley , 490 U. S., at 556 . While the Finley Court did not “limit or impair” Gibbs itself, 490 U. S., at 556 , for further development of pendent jurisdiction, the Court made it plain, the initiative would lie in Congress’ domain. Id. , at 555–556.[ Footnote 1 ]    Ancillary jurisdiction, which evolved as a more sprawling doctrine than pendent jurisdiction, was originally rooted in “the notion that [when] federal jurisdiction in [a] principal suit effectively controls the property or fund under dispute, other claimants thereto should be allowed to intervene in order to protect their interests, without regard to jurisdiction.” Aldinger, 427 U. S., at 11; see, e.g., Freeman v. Howe, 24 How. 450 (1861). In Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 (1978), the Court addressed the permissible scope of the doctrine in relation to the liberal provisions of the Federal Rules of Civil Procedure for joinder of parties and claims. Kroger commenced as a suit between a citizen of Iowa and a Nebraska corporation. When the Nebraska defendant impleaded an Iowa corporation as a third-party defendant under Rule 14(a), the plaintiff asserted state-law claims against the impleaded party. No independent basis of federal jurisdiction existed over the newly asserted claims, for both plaintiff and impleaded defendant were citizens of Iowa. 470 U. S., at 370. The Court held that the plaintiff could not draw in a co-citizen defendant in this manner. Id., at 377. Federal courts, by the time of Kroger , were routinely exercising ancillary jurisdiction over compulsory counterclaims, impleader claims, cross-claims among defendants, and claims of parties who intervened “of right.” See id. , at 375, n. 18 (collecting cases). In Kroger , however, “the nonfederal claim … was asserted by the plaintiff, who voluntarily chose to bring suit upon a state-law claim in a federal court. By contrast, ancillary jurisdiction typically involve[d] claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court.” Id. , at 376. Having “chosen the federal rather than the state forum,” the Court said, the plaintiff had to “accept its limitations.” Ibid. In sum, in federal-question cases before §1367’s enactment, the Court recognized pendent-claim jurisdiction, Gibbs , 383 U. S., at 725, but not pendent-party jurisdiction, Finley , 490 U. S., at 555–556. As to ancillary jurisdiction, the Court adhered to the limitation that in diversity cases, throughout the litigation, all plaintiffs must remain diverse from all defendants. See Kroger , 437 U. S., at 374.    Although pendent jurisdiction and ancillary jurisdiction evolved discretely,[ Footnote 2 ] the Court has recognized that they are “two species of the same generic problem: Under what circumstances may a federal court hear and decide a state-law claim arising between citizens of the same State?” Id., at 370. Finley regarded that question as one properly addressed to Congress. See 490 U. S., at 549, 556; 13 Wright & Miller §3523, p. 127 (2d ed. Supp. 2005); Hart & Wechsler 924–926. B    Shortly before the Court decided Finley, Congress had established the Federal Courts Study Committee to take up issues relating to “the federal courts’ congestion, delay, expense, and expansion.” Judicial Conference of the United States, Report of the Federal Courts Study Committee 3 (Apr. 2, 1990) (hereinafter Committee Report). The Committee’s charge was to conduct a study addressing the “crisis” in federal courts caused by the “rapidly growing” caseload. Id. , at 6 (internal quotation marks omitted).    Among recommendations, the Committee urged Congress to “authorize federal courts to assert pendent jurisdiction over parties without an independent federal jurisdictional base.” Id. , at 47. If adopted, this recommendation would overrule Finley . Earlier, a subcommittee had recommended that Congress overrule both Finley and Zahn . Report of the Subcommittee on the Role of the Federal Courts and Their Relationship to the States 547, 561, n. 33 (Mar. 12, 1990), reprinted in 1 Judicial Conference of the United States, Federal Courts Study Committee, Working Papers and Subcommittee Reports (July 1, 1990) (hereinafter Subcommittee Report). In the subcommittee’s view, “[f]rom a policy standpoint,” Zahn “ma[de] little sense.” Subcommittee Report 561, n. 33.[ Footnote 3 ] The full Committee, however, urged only the overruling of Finley and did not adopt the recommendation to overrule Zahn . Committee Report 47–48.    As a separate matter, a substantial majority of the Committee “strongly recommend[ed]” the elimination of diversity jurisdiction, save for “complex multi-state litigation, interpleader, and suits involving aliens.” Id. , at 38–39; accord Subcommittee Report 454–458. “[N]o other step,” the Committee’s Report maintained, “will do anywhere nearly as much to reduce federal caseload pressures and contain the growth of the federal judiciary.” Committee Report 39.    Congress responded by adopting, as part of the Judicial Improvements Act of 1990, 104 Stat. 5089,[ Footnote 4 ] recommendations of the Federal Courts Study Committee ranked by the House Committee on the Judiciary as “modest” and “noncontroversial”. H. R. Rep. No. 101–734, pp. 15–16 (1990) (hereinafter H. R. Rep.); see also 136 Cong. Rec. 36288 (1990). Congress did not take up the Study Committee’s immodest proposal to curtail diversity jurisdiction. It did, however, enact a supplemental jurisdiction statute, codified as 28 U. S. C. §1367. II A    Section 1367, by its terms, operates only in civil actions “of which the district courts have original jurisdiction.” The “original jurisdiction” relevant here is diversity-of-citizenship jurisdiction, conferred by §1332. The character of that jurisdiction is the essential backdrop for comprehension of §1367.    The Constitution broadly provides for federal-court jurisdiction in controversies “between Citizens of different States.” Art. III, § 2, cl. 1. This Court has read that provision to demand no more than “minimal diversity,” i.e. , so long as one party on the plaintiffs’ side and one party on the defendants’ side are of diverse citizenship, Congress may authorize federal courts to exercise diversity jurisdiction. See State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523 , 530–531 (1967). Further, the Constitution includes no amount-in-controversy limitation on the exercise of federal jurisdiction. But from the start, Congress, as its measures have been construed by this Court, has limited federal court exercise of diversity jurisdiction in two principal ways. First, unless Congress specifies otherwise, diversity must be “complete,” i.e. , all parties on plaintiffs’ side must be diverse from all parties on defendants’ side. Strawbridge v. Curtiss , 3 Cranch 267 (1806); see 13B Wright & Miller §3605 (2d ed. 1984). Second, each plaintiff’s stake must independently meet the amount-in-controversy specification: “When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount.” Troy Bank, 222 U. S., at 40.    The statute today governing federal court exercise of diversity jurisdiction in the generality of cases, §1332, like all its predecessors, incorporates both a diverse-citizenship requirement and an amount-in-controversy specification.[ Footnote 5 ] As to the latter, the statute reads: “The district courts shall have original jurisdiction [in diversity-of-citizenship cases] where the matter in controversy exceeds the sum … of $75,000.” §1332(a). This Court has long held that, in determining whether the amount-in-controversy requirement has been satisfied, a single plaintiff may aggregate two or more claims against a single defendant, even if the claims are unrelated. See, e.g., Edwards v. Bates County, 163 U. S. 269 , 273 (1896). But in multiparty cases, including class actions, we have unyieldingly adhered to the nonaggregation rule stated in Troy Bank . See Clark , 306 U. S., at 589 (reaffirming the “familiar rule that when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional requirements”); Snyder v. Harris, 394 U. S. 332 , 339–340 (1969) (abandonment of the nonaggregation rule in class actions would undercut the congressional “purpose . . . to check, to some degree, the rising caseload of the federal courts”).    This Court most recently addressed “[t]he meaning of [§1332’s] ‘matter in controversy’ language” in Zahn , 414 U. S., at 298. Zahn , like Snyder decided four years earlier, was a class action. In Snyder , no class member had a claim large enough to satisfy the jurisdictional amount. But in Zahn , the named plaintiffs had such claims. 414 U. S., at 292. Nevertheless, the Court declined to depart from its “longstanding construction of the ‘matter in controversy’ requirement of §1332.” Id. , at 301. The Zahn Court stated: “ Snyder invoked the well-established rule that each of several plaintiffs asserting separate and distinct claims must satisfy the jurisdictional-amount requirement if his claim is to survive a motion to dismiss. This rule plainly mandates not only that there may be no aggregation and that the entire case must be dismissed where none of the plaintiffs claims [meets the amount-in-controversy requirement] but also requires that any plaintiff without the jurisdictional amount must be dismissed from the case, even though others allege jurisdictionally sufficient claims.” Id. , at 300. The rule that each plaintiff must independently satisfy the amount-in-controversy requirement, unless Congress ex-pressly orders otherwise, was thus the solidly established reading of §1332 when Congress enacted the Judicial Improvements Act of 1990, which added §1367 to Title 28. B    These cases present the question whether Congress abrogated the nonaggregation rule long tied to §1332 when it enacted §1367. In answering that question, “context [should provide] a crucial guide.” Rosario Ortega v. Star-Kist Foods, Inc., 370 F. 3d 124, 135 (2004). The Court should assume, as it ordinarily does, that Congress legislated against a background of law already in place and the historical development of that law. See National Archives and Records Admin. v. Favish, 541 U. S. 157 , 169 (2004). Here, that background is the statutory grant of diversity jurisdiction, the amount-in-controversy condition that Congress, from the start, has tied to the grant, and the nonaggregation rule this Court has long applied to the determination of the “matter in controversy.”    Section 1367(a) provides: “Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.” The Court is unanimous in reading §1367(a) to permit pendent-party jurisdiction in federal-question cases, and thus, to overrule Finley . The basic jurisdictional grant, §1331, provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Since 1980, §1331 has contained no amount-in-controversy requirement. See 94 Stat. 2369 (eliminating §1331’s amount-in-controversy requirement). Once there is a civil action presenting a qualifying claim arising under federal law, §1331’s sole requirement is met. District courts, we have held, may then adjudicate, additionally, state-law claims “deriv[ing] from a common nucleus of operative fact.” Gibbs, 383 U. S., at 725. Section 1367(a) enlarges that category to include not only state-law claims against the defendant named in the federal claim, but also “[state-law] claims that involve the joinder or intervention of additional parties.”[ Footnote 6 ]    The Court divides, however, on the impact of §1367(a) on diversity cases controlled by §1332. Under the majority’s reading, §1367(a) permits the joinder of related claims cut loose from the nonaggregation rule that has long attended actions under §1332. Only the claims specified in §1367(b)[ Footnote 7 ] would be excluded from §1367(a)’s expansion of §1332’s grant of diversity jurisdiction. And because §1367(b) contains no exception for joinder of plaintiffs under Rule 20 or class actions under Rule 23, the Court concludes, Clark and Zahn have been overruled.[ Footnote 8 ]    The Court’s reading is surely plausible, especially if one detaches §1367(a) from its context and attempts no reconciliation with prior interpretations of §1332’s amount-in-controversy requirement. But §1367(a)’s text, as the First Circuit held, can be read another way, one that would involve no rejection of Clark and Zahn .    As explained by the First Circuit in Ortega , and applied to class actions by the Tenth Circuit in Leonhardt , see supra , at 3, §1367(a) addresses “civil action[s] of which the district courts have original jurisdiction,” a formulation that, in diversity cases, is sensibly read to incorporate the rules on joinder and aggregation tightly tied to §1332 at the time of §1367’s enactment. On this reading, a complaint must first meet that “original jurisdiction” measurement. If it does not, no supplemental jurisdiction is authorized. If it does, §1367(a) authorizes “supplemental jurisdiction” over related claims. In other words, §1367(a) would preserve undiminished, as part and parcel of §1332 “original jurisdiction” determinations, both the “complete diversity” rule and the decisions restricting aggregation to arrive at the amount in controversy.[ Footnote 9 ] Section 1367(b)’s office, then, would be “to prevent the erosion of the complete diversity [and amount-in-controversy] requirement[s] that might otherwise result from an expansive application of what was once termed the doctrine of ancillary jurisdiction.” See Pfander, Supplemental Jurisdiction and Section 1367: The Case for a Sympathetic Textualism, 148 U. Pa. L. Rev. 109, 114 (1999); infra , at 17–18. In contrast to the Court’s construction of §1367, which draws a sharp line between the diversity and amount-in-controversy components of §1332, see ante , at 6; supra , at 9, n. 5, the interpretation presented here does not sever the two jurisdictional requirements.    The more restrained reading of §1367 just outlined would yield affirmance of the First Circuit’s judgment in Ortega , and reversal of the Eleventh Circuit’s judgment in Exxon . It would not discard entirely, as the Court does, the judicially developed doctrines of pendent and ancillary jurisdiction as they existed when Finley was decided.[ Footnote 10 ] Instead, it would recognize §1367 essentially as a codification of those doctrines, placing them under a single heading, but largely retaining their substance, with overriding Finley the only basic change: Supplemental jurisdiction, once the district court has original jurisdiction, would now include “claims that involve the joinder or intervention of additional parties.” §1367(a).    Pendent jurisdiction, as earlier explained, see supra , at 4–5, applied only in federal-question cases and allowed plaintiffs to attach nonfederal claims to their jurisdiction-qualifying claims. Ancillary jurisdiction applied primarily, although not exclusively, in diversity cases and “typically involve[d] claims by a defending party haled into court against his will.” Kroger, 437 U. S., at 376 (emphasis added); see also id. , at 375, n. 18; supra , at 5–6. As the First Circuit observed, neither doctrine permitted a plaintiff to circumvent the dual requirements of §1332 (diversity of citizenship and amount in controversy) “simply by joining her [jurisdictionally inadequate] claim in an action brought by [a] jurisdictionally competent diversity plaintiff.” Ortega , 370 F. 3d, at 138.    Not only would the reading I find persuasive “alig[n] statutory supplemental jurisdiction with the judicially developed doctrines of pendent and ancillary jurisdiction,” ibid. , it would also synchronize §1367 with the removal statute, 28 U. S. C. §1441. As the First Circuit carefully explained: “Section 1441, like §1367, applies only if the ‘civil action’ in question is one ‘of which the district courts … have original jurisdiction.’ §1441(a). Relying on that language, the Supreme Court has interpreted §1441 to prohibit removal unless the entire action, as it stands at the time of removal, could have been filed in federal court in the first instance. See, e.g. , Syngenta Crop Protection, Inc. v. Henson , 537 U. S. 28 , 33 (2002); Okla. Tax Comm’n v. Graham , 489 U. S. 838 , 840 (1989) (per curiam). Section 1441 has thus been held to incorporate the well-pleaded complaint rule, see City of Chicago [v. International College of Surgeons , 522 U. S. 156 , 163 (1997)];[ Footnote 11 ] the complete diversity rule, see Caterpillar, Inc. v. Lewis , 519 U. S. 61 , 73 (1996); and rules for calculating the amount in controversy, see St. Paul Mercury Indem. Co. v. Red Cab Co. , 303 U. S. 283 , 291–292 (1938).” Ortega , 370 F. 3d, at 138 (citations omitted and footnote added).    The less disruptive view I take of §1367 also accounts for the omission of Rule 20 plaintiffs and Rule 23 class actions in §1367(b)’s text. If one reads §1367(a) as a plenary grant of supplemental jurisdiction to federal courts sitting in diversity, one would indeed look for exceptions in §1367(b). Finding none for permissive joinder of parties or class actions, one would conclude that Congress effectively, even if unintentionally, overruled Clark and Zahn . But if one recognizes that the nonaggregation rule delineated in Clark and Zahn forms part of the determination whether “original jurisdiction” exists in a diversity case, see supra , at 14, then plaintiffs who do not meet the amount-in-controversy requirement would fail at the §1367(a) threshold. Congress would have no reason to resort to a §1367(b) exception to turn such plaintiffs away from federal court, given that their claims, from the start, would fall outside the court’s §1332 jurisdiction. See Pfander, 148 U. Pa. L. Rev., at 148.    Nor does the more moderate reading assign different meanings to “original jurisdiction” in diversity and federal-question cases. See ante , at 14. As the First Circuit stated: “ ‘[O]riginal jurisdiction’ in §1367(a) has the same meaning in every case: [An] underlying statutory grant of original jurisdiction must be satisfied. What differs between federal question and diversity cases is not the meaning of ‘original jurisdiction’ but rather the [discrete] requirements of sections 1331 and 1332. Under §1331, the sole issue is whether a federal question appears on the face of the plaintiff’s well-pleaded complaint; the [citizenship] of the parties and the amounts they stand to recover [do not bear on that determination]. Section 1332, by contrast, predicates original jurisdiction on the identity of the parties ( i.e. , [their] complete diversity) and their [satisfaction of the amount-in-controversy specification]. [In short,] the ‘original jurisdiction’ language in §1367 operates differently in federal-question and diversity cases not because the meaning of that term varies, but because the [jurisdiction-granting] statutes are different.” Ortega , 370 F. 3d, at 139–140.    What is the utility of §1367(b) under my reading of §1367(a)? Section 1367(a) allows parties other than the plaintiff to assert reactive claims once entertained under the heading ancillary jurisdiction. See supra , at 5 (listing claims, including compulsory counterclaims and impleader claims, over which federal courts routinely exercised ancillary jurisdiction). As earlier observed, see supra , at 14, §1367(b) stops plaintiffs from circumventing §1332’s jurisdictional requirements by using another’s claim as a hook to add a claim that the plaintiff could not have brought in the first instance. Kroger is the paradigm case. See supra , at 5–6. There, the Court held that ancillary jurisdiction did not extend to a plaintiff’s claim against a nondiverse party who had been impleaded by the defendant under Rule 14. Section 1367(b), then, is corroborative of §1367(a)’s coverage of claims formerly called ancillary, but provides exceptions to assure that accommo-dation of added claims would not fundamentally alter “the jurisdictional requirements of section 1332.” See Pfander, supra, at 135–137.    While §1367’s enigmatic text[ Footnote 12 ] defies flawless interpretation, see supra , at 13, n. 8,[ Footnote 13 ] the precedent-preservative reading, I am persuaded, better accords with the historical and legal context of Congress’ enactment of the supplemental jurisdiction statute, see supra , at 6–8, 11, and the established limits on pendent and ancillary jurisdiction, see supra , at 4–6. It does not attribute to Congress a jurisdictional enlargement broader than the one to which the legislators adverted, cf. Finley , 490 U. S., at 549, and it follows the sound counsel that “close questions of [statutory] construction should be resolved in favor of continuity and against change.” Shapiro, Continuity and Change in Statutory Interpretation, 67 N. Y. U. L. Rev. 921, 925 (1992).[ Footnote 14 ] ***    For the reasons stated, I would hold that §1367 does not overrule Clark and Zahn . I would therefore affirm the judgment of the Court of Appeals for the First Circuit and reverse the judgment of the Court of Appeals for the Eleventh Circuit. Footnote 1 “[B]oth the Finley result and its implications” sparked “considerable criticism.” Hart & Wechsler 926; see also 13B C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Practice and Procedure §3567.2, p. 91 (2d ed. Supp. 2005) (hereinafter Wright & Miller) (characterizing the Finley decision as “surprising”). Footnote 2 See generally 13B Wright & Miller §§3567, 3567.1, 3567.2 (2d ed. 1984) (discussing pendent jurisdiction); 13 id. , §3523 (discussing ancillary jurisdiction); Hart & Wechsler 922–926 (discussing pendent jurisdiction); id. , at 1488–1490 (discussing ancillary jurisdiction). Footnote 3 Anomalously, in holding that each class member “must satisfy the jurisdictional amount,” Zahn v. International Paper Co., 414 U. S. 291 , 301 (1973), the Zahn Court did not refer to Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356 , 366 (1921), which established that in a class action, the citizenship of the named plaintiff is controlling. But see Zahn , 414 U. S., at 309–310 (Brennan, J., dissenting) (urging Zahn ’s inconsistency with Ben-Hur ). Footnote 4 The omnibus Act encompassed the Civil Justice Reform Act of 1990 (Title I), the creation of new judgeships (Title II), the Federal Courts Study Committee Implementation Act of 1990 (Title III), and the establishment of the National Commission on Judicial Discipline and Removal (Title IV). Footnote 5 Endeavoring to preserve the “complete diversity” rule first stated in Strawbridge v. Curtiss , 3 Cranch 267 (1806), the Court’s opinion drives a wedge between the two components of 28 U. S. C. §1332, treating the diversity-of-citizenship requirement as essential, the amount-in-controversy requirement as more readily disposable. See ante , at 6, 14–15. Section 1332 itself, however, does not rank order the two requirements. What “[o]rdinary principl[e] of statutory construction” or “sound canon of interpretation,” ante , at 10, allows the Court to slice up §1332 this way? In partial explanation, the Court asserts that amount in controversy can be analyzed claim-by-claim, but the diversity requirement cannot. See ante , at 6. It is not altogether clear why that should be so. The cure for improper joinder of a nondiverse party is the same as the cure for improper joinder of a plaintiff who does not satisfy the jurisdictional amount. In both cases, original jurisdiction can be preserved by dismissing the nonqualifying party. See Caterpillar Inc. v. Lewis, 519 U. S. 61 , 64 (1996) (diversity); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826 , 836–838 (1989) (same); Zahn , 414 U. S., at 295, 300 (amount in controversy); Clark v. Paul Gray, Inc., 306 U. S. 583 , 590 (1939) (same). Footnote 6 The Court noted in Zahn, 414 U. S., at 302, n. 11, that when the exercise of §1331 federal-question jurisdiction and §1332 diversity jurisdiction were conditioned on the same jurisdictional-amount limitation, the same nonaggregation rule applied under both heads of federal jurisdiction. But cf. ante , at 14–15. The Court added, however, that “Congress ha[d] exempted major areas of federal-question jurisdiction from any jurisdictional-amount requirements,” thus diminishing the impact of §1331’s “matter in controversy” specification in cases arising under federal law. Zahn, 414 U. S., at 302, n. 11. Footnote 7 Title 28 §1367(b) provides: “In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.” Footnote 8 Under the Court’s construction of §1367, see ante , at 13, 19, Beatriz Ortega’s family members can remain in the action because their joinder is merely permissive, see Fed. Rule Civ. Proc. 20. If, however, their presence was “needed for just adjudication,” Rule 19, their dismissal would be required. The inclusion of those who may join, and exclusion of those who should or must join, defies rational explanation, but cf. ante , at 18, and others adopting the interpretation the Court embraces have so acknowledged, see Stromberg Metal Works, Inc. v. Press Mechanical, Inc. , 77 F. 3d 928, 932 (CA7 1996) (recognizing the anomaly and inquiring: “What sense can this make?”); cf. 14B Wright & Miller §3704, p. 168 (3d ed. 1998) (distinction between Rule 19 and Rule 20 “seems incongruous, and serves no apparent public policy purpose”). Footnote 9 On this reading of §1367(a), it is immaterial that §1367(b) “does not withdraw supplemental jurisdiction over the claims of the additional parties at issue here.” Ante , at 12. Because those claims would not come within §1367(a) in the first place, Congress would have had no reason to list them in §1367(b). See infra , at 16–17. Footnote 10 The Court’s opinion blends the two doctrines, according no significance to their discrete development. See ante , at 5–9. Footnote 11 The point of the Court’s extended discussion of Chicago v. International College of Surgeons, 522 U. S. 156 (1997), in the instant cases, see ante , at 15–17, slips from my grasp. There was no disagreement in that case, and there is none now, that 28 U. S. C. §1367(a) is properly read to authorize the exercise of supplemental jurisdiction in removed cases. International College of Surgeons was unusual in that the federal court there was asked to review a decision of a local administrative agency. Such review, it was unsuccessfully argued, was “appellate” in character, and therefore outside the ken of a court empowered to exercise “original” jurisdiction. Compare 522 U. S., at 166–168, with id ., at 176–177 (Ginsburg, J., dissenting). Footnote 12 The Court notes the passage this year of the Class Action Fairness Act (CAFA), Pub. L. 109–2, 119 Stat. 4, ante , at 24–25, only to dismiss that legislation as irrelevant. Subject to several exceptions and qualifications, CAFA provides for federal-court adjudication of state-law-based class actions in which diversity is “minimal” (one plaintiff’s diversity from one defendant suffices), and the “matter in controversy” is an aggregate amount in excess of $5,000,000. Significant here, CAFA’s enlargement of federal-court diversity jurisdiction was accomplished, “clearly and conspicuously,” by amending §1332. Cf. Rosario Ortega , 370 F. 3d 124, 142 (CA1 2004). Footnote 13 If §1367(a) itself renders unnecessary the listing of Rule 20 plaintiffs and Rule 23 class actions in §1367(b), see supra , at 16–17, then it is similarly unnecessary to refer, as §1367(b) does, to “persons proposed to be joined as plaintiffs under Rule 19.” On one account, Congress bracketed such persons with persons “seeking to intervene as plaintiffs under Rule 24” to modify pre-§1367 practice. Before enactment of §1367, courts entertained, under the heading ancillary jurisdiction, claims of Rule 24(a) intervenors “of right,” see Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365 , 375, n. 18 (1978), but denied ancillary jurisdiction over claims of “necessary” Rule 19 plaintiffs, see 13 Wright & Miller §3523, p. 127 (2d ed. Supp. 2005). Congress may have sought simply to underscore that those seeking to join as plaintiffs, whether under Rule 19 or Rule 24, should be treated alike, i.e. , denied joinder when “inconsistent with the jurisdictional requirements of section 1332.” See Ortega , 370 F. 3d, at 140, and n. 15 (internal quotation marks omitted); H. R. Rep., at 29 (“Subsection (b) makes one small change in pre- Finley practice,” i.e. , it eliminates the Rule 19/Rule 24 anomaly.). Footnote 14 While the interpretation of §1367 described in this opinion does not rely on the measure’s legislative history, that history, as Justice Stevens has shown, see ante , at 1 (dissenting opinion), is corroborative of the statutory reading set out above.

The Supreme Court held that in a diversity action, a federal court can exercise supplemental jurisdiction over additional plaintiffs' claims that don't meet the minimum amount-in-controversy requirement, as long as they are part of the same case or controversy and at least one named plaintiff satisfies the amount. This decision interprets 28 U.S.C. §1367, resolving a conflict between Courts of Appeals.

Lawsuits & Legal Procedures

Bristol-Myers Squibb Co. v. Superior Court of California

https://supreme.justia.com/cases/federal/us/582/16-466/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–466 _________________ BRISTOL-MYERS SQUIBB COMPANY, PETITIONER v. SUPERIOR COURT OF CALIFORNIA, SAN FRANCISCO COUNTY, et al. on writ of certiorari to the supreme court of california [June 19, 2017] Justice Alito delivered the opinion of the Court. More than 600 plaintiffs, most of whom are not California residents, filed this civil action in a California state court against Bristol-Myers Squibb Company (BMS), asserting a variety of state-law claims based on injuries allegedly caused by a BMS drug called Plavix. The California Supreme Court held that the California courts have specific jurisdiction to entertain the nonresidents’ claims. We now reverse. I A BMS, a large pharmaceutical company, is incorporated in Delaware and headquartered in New York, and it maintains substantial operations in both New York and New Jersey. 1 Cal. 5th 783, 790, 377 P. 3d 874, 879 (2016). Over 50 percent of BMS’s work force in the United States is employed in those two States. Ibid. BMS also engages in business activities in other jurisdictions, including California. Five of the company’s research and laboratory facilities, which employ a total of around 160 employees, are located there. Ibid. BMS also employs about 250 sales representatives in California and maintains a small state-government advocacy office in Sacramento. Ibid. One of the pharmaceuticals that BMS manufactures and sells is Plavix, a prescription drug that thins the blood and inhibits blood clotting. BMS did not develop Plavix in California, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California. Ibid. BMS instead engaged in all of these activities in either New York or New Jersey. Ibid. But BMS does sell Plavix in California. Between 2006 and 2012, it sold almost 187 million Plavix pills in the State and took in more than $900 million from those sales. 1 Cal. 5th, at 790–791, 377 P. 3d, at 879. This amounts to a little over one percent of the company’s nationwide sales revenue. Id. , at 790, 377 P. 3d, at 879. B A group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States—filed eight separate complaints in California Superior Court, alleging that Plavix had damaged their health. Id. , at 789, 377 P. 3d, at 878. All the complaints asserted 13 claims under California law, including products liability, negligent misrepresentation, and misleading advertising claims. Ibid. The nonresident plaintiffs did not allege that they obtained Plavix through California physicians or from any other California source; nor did they claim that they were injured by Plavix or were treated for their injuries in California. Asserting lack of personal jurisdiction, BMS moved to quash service of summons on the nonresidents’ claims, but the California Superior Court denied this motion, finding that the California courts had general jurisdiction over BMS “[b]ecause [it] engages in extensive activities in California.” App. to Pet. for Cert. 150. BMS unsuccess-fully petitioned the State Court of Appeal for a writ of mandate, but after our decision on general jurisdiction in Daimler AG v. Bauman , 571 U. S. ___ (2014), the California Supreme Court instructed the Court of Appeal “to vacate its order denying mandate and to issue an order to show cause why relief sought in the petition should not be granted.” App. 9–10. The Court of Appeal then changed its decision on the question of general jurisdiction. 228 Cal. App. 4th 605, 175 Cal. Rptr. 3d 412 (2014). Under Daimler , it held, general jurisdiction was clearly lacking, but it went on to find that the California courts had specific jurisdiction over the nonresidents’ claims against BMS. 228 Cal. App. 4th 605, 175 Cal. Rptr. 3d, at 425–439. The California Supreme Court affirmed. The court unanimously agreed with the Court of Appeal on the issue of general jurisdiction, but the court was divided on the question of specific jurisdiction. The majority applied a “sliding scale approach to specific jurisdiction.” 1 Cal. 5th, at 806, 377 P. 3d, at 889. Under this approach, “the more wide ranging the defendant’s forum contacts, the more readily is shown a connection between the forum contacts and the claim.” Ibid. (internal quotation marks omitted). Applying this test, the majority concluded that “BMS’s extensive contacts with California” permitted the exercise of specific jurisdiction “based on a less direct connection between BMS’s forum activities and plaintiffs’ claims than might otherwise be required.” Ibid . This attenuated requirement was met, the majority found, because the claims of the nonresidents were similar in several ways to the claims of the California residents (as to which specific jurisdiction was uncontested). Id. , at 803–806, 377 P. 3d, at 887–889. The court noted that “[b]oth the resident and nonresident plaintiffs’ claims are based on the same allegedly defective product and the assertedly misleading marketing and promotion of that product.” Id. , at 804, 377 P. 3d, at 888. And while acknowledging that “there is no claim that Plavix itself was designed and developed in [BMS’s California research facilities],” the court thought it significant that other research was done in the State. Ibid . Three justices dissented. “The claims of . . . nonresidents injured by their use of Plavix they purchased and used in other states,” they wrote, “in no sense arise from BMS’s marketing and sales of Plavix in California,” and they found that the “mere similarity” of the residents’ and nonresidents’ claims was not enough. Id. , at 819, 377 P. 3d, at 898 (opinion of Werdegar, J.). The dissent accused the majority of “expand[ing] specific jurisdiction to the point that, for a large category of defendants, it becomes indistinguishable from general jurisdiction.” Id. , at 816, 377 P. 3d, at 896. We granted certiorari to decide whether the California courts’ exercise of jurisdiction in this case violates the Due Process Clause of the Fourteenth Amendment. 580 U. S. ___ (2017).[ 1 ] II A It has long been established that the Fourteenth Amendment limits the personal jurisdiction of state courts. See, e.g. , Daimler , supra , at ___–___ (slip op., at 6–13); World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286, 291 (1980) ; International Shoe Co. v. Washington , 326 U. S. 310 –317 (1945); Pennoyer v. Neff , 95 U. S. 714, 733 (1878). Because “[a] state court’s assertion of jurisdiction exposes defendants to the State’s coercive power,” it is “subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause,” Goodyear Dunlop Tires Operations, S. A. v. Brown , 564 U. S. 915, 918 (2011) , which “limits the power of a state court to render a valid personal judgment against a nonresident defendant,” World-Wide Volkswagen , supra , at 291. The primary focus of our personal jurisdiction inquiry is the defendant’s relationship to the forum State. See Walden v. Fiore , 571 U. S. ___, ___–___ (2014) (slip op., at 5–8); Phillips Petroleum Co. v. Shutts , 472 U. S. 797 –807 (1985). Since our seminal decision in International Shoe, our decisions have recognized two types of personal jurisdiction: “general” (sometimes called “all-purpose”) jurisdiction and “specific” (sometimes called “case-linked”) jurisdiction. Goodyear , 564 U. S., at 919. “For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home.” Id ., at 924. A court with general jurisdiction may hear any claim against that defendant, even if all the incidents underlying the claim occurred in a different State. Id. , at 919. But “only a limited set of affiliations with a forum will render a defendant amenable to” general jurisdiction in that State. Daimler , 571 U. S., at ___ (slip op., at 18). Specific jurisdiction is very different. In order for a state court to exercise specific jurisdiction, “the suit ” must “aris[e] out of or relat[e] to the defendant’s contacts with the forum .” Id. , at ___ (slip op., at 8) (internal quotation marks omitted; emphasis added); see Burger King Corp. v. Rudzewicz , 471 U. S. 462 –473 (1985); Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408, 414 (1984) . In other words, there must be “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.” Goodyear , 564 U. S., at 919 (internal quotation marks and brackets omitted). For this reason, “specific jurisdiction is confined to adjudication of issues deriv-ing from, or connected with, the very controversy that establishes jurisdiction.” Ibid. (internal quotation marks omitted). B In determining whether personal jurisdiction is present, a court must consider a variety of interests. These include “the interests of the forum State and of the plaintiff in proceeding with the cause in the plaintiff’s forum of choice.” Kulko v. Superior Court of Cal., City and County of San Francisco , 436 U. S. 84, 92 (1978) ; see Daimler , supra , at ___–___, n. 20 (slip op., at 21–22, n. 20); Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U. S. 102, 113 (1987) ; World-Wide Volkswagen , 444 U. S., at 292. But the “primary concern” is “the burden on the defendant.” Id. , at 292. Assessing this burden obviously requires a court to consider the practical problems resulting from litigating in the forum, but it also encompasses the more abstract matter of submitting to the coercive power of a State that may have little legitimate interest in the claims in question. As we have put it, restrictions on personal jurisdiction “are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States.” Hanson v. Denckla , 357 U. S. 235, 251 (1958) . “[T]he States retain many essential attributes of sovereignty, including, in particular, the sovereign power to try causes in their courts. The sovereignty of each State . . . implie[s] a limitation on the sovereignty of all its sister States.” World-Wide Volkswagen , 444 U. S., at 293. And at times, this federalism interest may be decisive. As we explained in World-Wide Volkswagen , “[e]ven if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment.” Id. , at 294. III A Our settled principles regarding specific jurisdiction control this case. In order for a court to exercise specific jurisdiction over a claim, there must be an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.” Goodyear , 564 U. S., at 919 (internal quotation marks and brackets in original omitted). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State. See id. , at 931, n. 6 (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales”). For this reason, the California Supreme Court’s “sliding scale approach” is difficult to square with our precedents. Under the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction. For spe-cific jurisdiction, a defendant’s general connections with the forum are not enough. As we have said, “[a] corporation’s ‘continuous activity of some sorts within a state . . . is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.’ ” Id. , at 927 (quoting International Shoe , 326 U. S., at 318). The present case illustrates the danger of the California approach. The State Supreme Court found that specific jurisdiction was present without identifying any adequate link between the State and the nonresidents’ claims. As noted, the nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California. The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims. As we have explained, “a defendant’s relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction.” Walden , 571 U. S., at ___ (slip op., at 8). This remains true even when third parties (here, the plaintiffs who reside in California) can bring claims similar to those brought by the nonresidents. Nor is it sufficient—or even relevant—that BMS conducted research in California on matters unrelated to Plavix. What is needed—and what is missing here—is a connection between the forum and the specific claims at issue. Our decision in Walden , supra , illustrates this requirement. In that case, Nevada plaintiffs sued an out-of-state defendant for conducting an allegedly unlawful search of the plaintiffs while they were in Georgia preparing to board a plane bound for Nevada. We held that the Nevada courts lacked specific jurisdiction even though the plaintiffs were Nevada residents and “suffered foreseeable harm in Nevada.” Id. , at ___ (slip op., at 11). Because the “ relevant conduct occurred entirely in Georgi[a] . . . the mere fact that [this] conduct affected plaintiffs with connections to the forum State d[id] not suffice to authorize jurisdiction.” Id. , at ___ (slip op., at 14) (emphasis added). In today’s case, the connection between the nonresidents’ claims and the forum is even weaker. The relevant plaintiffs are not California residents and do not claim to have suffered harm in that State. In addition, as in Walden , all the conduct giving rise to the nonresidents’ claims occurred elsewhere. It follows that the California courts cannot claim specific jurisdiction. See World-Wide Volkswagen , supra , at 295 (finding no personal jurisdiction in Oklahoma because the defendant “carr[ied] on no activ-ity whatsoever in Oklahoma” and dismissing “the fortuitous circumstance that a single Audi automobile, sold [by defendants] in New York to New York residents, happened to suffer an accident while passing through Oklahoma” as an “isolated occurrence”). B The nonresidents maintain that two of our cases sup-port the decision below, but they misinterpret those precedents. In Keeton v. Hustler Magazine, Inc. , 465 U. S. 770 (1984) , a New York resident sued Hustler in New Hampshire, claiming that she had been libeled in five issues of the magazine, which was distributed throughout the country, including in New Hampshire, where it sold 10,000 to 15,000 copies per month. Concluding that specific jurisdiction was present, we relied principally on the connection between the circulation of the magazine in New Hampshire and damage allegedly caused within the State. We noted that “[f]alse statements of fact harm both the subject of the falsehood and the readers of the statement.” Id ., at 776 (emphasis deleted). This factor amply distinguishes Keeton from the present case, for here the nonresidents’ claims involve no harm in California and no harm to California residents. The nonresident plaintiffs in this case point to our holding in Keeton that there was jurisdiction in New Hampshire to entertain the plaintiff’s request for damages suffered outside the State, id. , at 774, but that holding concerned jurisdiction to determine the scope of a claim involving in-state injury and injury to residents of the State, not, as in this case, jurisdiction to entertain claims involving no in-state injury and no injury to residents of the forum State. Keeton held that there was jurisdiction in New Hampshire to consider the full measure of the plaintiff’s claim, but whether she could actually recover out-of-state damages was a merits question governed by New Hampshire libel law. Id ., at 778, n. 9. The Court’s decision in Phillips Petroleum Co. v. Shutts , 472 U. S. 797 (1985) , which involved a class action filed in Kansas, is even less relevant. The Kansas court exercised personal jurisdiction over the claims of nonresident class members, and the defendant, Phillips Petroleum, argued that this violated the due process rights of these class members because they lacked minimum contacts with the State.[ 2 ] According to the defendant, the out-of-state class members should not have been kept in the case unless they affirmatively opted in, instead of merely failing to opt out after receiving notice. Id. , at 812. Holding that there had been no due process violation, the Court explained that the authority of a State to entertain the claims of nonresident class members is entirely different from its authority to exercise jurisdiction over an out-of-state defendant. Id. , at 808–812. Since Shutts concerned the due process rights of plaintiffs , it has no bearing on the question presented here. Respondents nevertheless contend that Shutts supports their position because, in their words, it would be “absurd to believe that [this Court] would have reached the exact opposite result if the petitioner [Phillips] had only invoked its own due-process rights, rather than those of the non-resident plaintiffs.” Brief for Respondents 28–29, n. 6 (emphasis deleted). But the fact remains that Phillips did not assert that Kansas improperly exercised personal jurisdiction over it, and the Court did not address that issue.[ 3 ] Indeed, the Court stated specifically that its “discussion of personal jurisdiction [did not] address class actions where the jurisdiction is asserted against a defendant class. ” Shutts , supra , at 812, n. 3. C In a last ditch contention, respondents contend that BMS’s “decision to contract with a California company [McKesson] to distribute [Plavix] nationally” provides a sufficient basis for personal jurisdiction. Tr. of Oral Arg. 32. But as we have explained, “[t]he requirements of International Shoe . . . must be met as to each defendant over whom a state court exercises jurisdiction.” Rush v. Savchuk , 444 U. S. 320, 332 (1980) ; see Walden , 571 U. S., at ___ (slip op, at 8) (“[A] defendant’s relationship with a . . . third party, standing alone, is an insufficient basis for jurisdiction”). In this case, it is not alleged that BMS engaged in relevant acts together with McKesson in California. Nor is it alleged that BMS is derivatively liable for McKesson’s conduct in California. And the nonresidents “have adduced no evidence to show how or by whom the Plavix they took was distributed to the pharmacies that dispensed it to them.” 1 Cal. 5th, at 815, 377 P. 3d, at 895 (Werdegar, J., dissenting) (emphasis deleted). See Tr. of Oral Arg. 33 (“It is impossible to trace a particular pill to a particular person . . . . It’s not possible for us to track particularly to McKesson”). The bare fact that BMS contracted with a California distributor is not enough to establish personal jurisdiction in the State. IV Our straightforward application in this case of settled principles of personal jurisdiction will not result in the parade of horribles that respondents conjure up. See Brief for Respondents 38–47. Our decision does not prevent the California and out-of-state plaintiffs from joining together in a consolidated action in the States that have general jurisdiction over BMS. BMS concedes that such suits could be brought in either New York or Delaware. See Brief for Petitioner 13. Alternatively, the plaintiffs who are residents of a particular State—for example, the 92 plaintiffs from Texas and the 71 from Ohio—could probably sue together in their home States. In addition, since our decision concerns the due process limits on the exercise of specific jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co. , 484 U. S. 97 , n. 5 (1987). *  *  * The judgment of the California Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 California law provides that its courts may exercise jurisdiction “on any basis not inconsistent with the Constitution . . . of the United States,” Cal. Civ. Proc. Code Ann. §410.10 (West 2004); see Daimler AG v. Bauman , 571 U. S. ___, ___ (2014) (slip op., at 6). 2 The Court held that the defendant had standing to argue that the Kansas court had improperly exercised personal jurisdiction over the claims of the out-of-state class members because that holding materially affected the defendant’s own interests, specifically, the res judicata effect of an adverse judgment. 472 U. S., at 803–806. 3 Petitioner speculates that Phillips did not invoke its own due process rights because it was believed at the time that the Kansas court had general jurisdiction. See Reply Brief 7, n. 1. SUPREME COURT OF THE UNITED STATES _________________ No. 16–466 _________________ BRISTOL-MYERS SQUIBB COMPANY, PETITIONER v. SUPERIOR COURT OF CALIFORNIA, SAN FRANCISCO COUNTY, et al. on writ of certiorari to the supreme court of california [June 19, 2017] Justice Sotomayor, dissenting. Three years ago, the Court imposed substantial curbs on the exercise of general jurisdiction in its decision in Daimler AG v. Bauman , 571 U. S. ___ (2014). Today, the Court takes its first step toward a similar contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State. I fear the consequences of the Court’s decision today will be substantial. The majority’s rule will make it difficult to aggregate the claims of plaintiffs across the country whose claims may be worth little alone. It will make it impossible to bring a nationwide mass action in state court against defendants who are “at home” in different States. And it will result in piecemeal litigation and the bifurcation of claims. None of this is necessary. A core concern in this Court’s personal jurisdiction cases is fairness. And there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike. I Bristol-Myers Squibb is a Fortune 500 pharmaceutical company incorporated in Delaware and headquartered in New York. It employs approximately 25,000 people worldwide and earns annual revenues of over $15 billion. In the late 1990’s, Bristol-Myers began to market and sell a prescription blood thinner called Plavix. Plavix was advertised as an effective tool for reducing the risk of blood clotting for those vulnerable to heart attacks and to strokes. The ads worked: At the height of its popularity, Plavix was a blockbuster, earning Bristol-Myers billions of dollars in annual revenues. Bristol-Myers’ advertising and distribution efforts were national in scope. It conducted a single nationwide advertising campaign for Plavix, using television, magazine, and Internet ads to broadcast its message. A consumer in California heard the same advertisement as a consumer in Maine about the benefits of Plavix. Bristol-Myers’ distribution of Plavix also proceeded through nationwide channels: Consistent with its usual practice, it relied on a small number of wholesalers to distribute Plavix throughout the country. One of those distributors, McKesson Corporation, was named as a defendant below; during the relevant time period, McKesson was responsible for almost a quarter of Bristol-Myers’ revenue worldwide. The 2005 publication of an article in the New England Journal of Medicine questioning the efficacy and safety of Plavix put Bristol-Myers on the defensive, as consumers around the country began to claim that they were injured by the drug. The plaintiffs in these consolidated cases are 86 people who allege they were injured by Plavix in California and several hundred others who say they were injured by the drug in other States.[ 1 ] They filed their suits in California Superior Court, raising product-liability claims against Bristol-Myers and McKesson. Their claims are “materially identical,” as Bristol-Myers concedes. See Brief for Petitioner 4, n. 1. Bristol-Myers acknowledged it was subject to suit in California state court by the residents of that State. But it moved to dismiss the claims brought by the nonresident plaintiffs—respondents here—for lack of jurisdiction. The question here, accordingly, is not whether Bristol-Myers is subject to suit in California on claims that arise out of the design, development, manufacture, marketing, and distribution of Plavix—it is. The question is whether Bristol-Myers is subject to suit in California only on the residents’ claims, or whether a state court may also hear the nonresidents’ “identical” claims. II A As the majority explains, since our pathmarking opinion in International Shoe Co. v. Washington , 326 U. S. 310 (1945) , the touchstone of the personal-jurisdiction analysis has been the question whether a defendant has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id., at 316 (quoting Milliken v. Meyer , 311 U. S. 457, 463 (1940) ). For decades this Court has considered that question through two different jurisdictional frames: “general” and “specific” jurisdiction. See Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , nn. 8–9 (1984). Under our current case law, a state court may exercise general, or all-purpose, jurisdiction over a defendant corporation only if its “affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S. A. v. Brown , 564 U. S. 915, 919 (2011) .[ 2 ] If general jurisdiction is not appropriate, however, a state court can exercise only specific, or case-linked, jurisdiction over a dispute. Id., at 923–924. Our cases have set out three conditions for the exercise of specific jurisdiction over a nonresident defendant. 4A C. Wright, A. Miller, & A. Steinman, Federal Practice and Procedure §1069, pp. 22–78 (4th ed. 2015) (Wright); see also id., at 22–27, n. 10 (collecting authority). First, the defendant must have “ ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State’ ” or have purposefully directed its conduct into the forum State. J. McIntyre Machinery, Ltd. v. Nicastro , 564 U. S. 873, 877 (2011) (plurality opinion) (quoting Hanson v. Denckla , 357 U. S. 235, 253 (1958) ). Second, the plaintiff’s claim must “arise out of or relate to” the defendant’s forum conduct. Helicopteros , 466 U. S., at 414. Finally, the exercise of jurisdiction must be reasonable under the circumstances. Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U. S. 102 –114 (1987); Burger King Corp. v. Rudzewicz , 471 U. S. 462 –478 (1985). The factors relevant to such an analysis include “the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.” Id. , at 477 (internal quotation marks omitted). B Viewed through this framework, the California courts appropriately exercised specific jurisdiction over respondents’ claims. First, there is no dispute that Bristol-Myers “purposefully avail[ed] itself,” Nicastro , 564 U. S., at 877, of California and its substantial pharmaceutical market. Bristol-Myers employs over 400 people in California and maintains half a dozen facilities in the State engaged in research, development, and policymaking. Ante, at 1–2. It contracts with a California-based distributor, McKesson, whose sales account for a significant portion of its revenue. Supra, at 2. And it markets and sells its drugs, including Plavix, in California, resulting in total Plavix sales in that State of nearly $1 billion during the period relevant to this suit. Second, respondents’ claims “relate to” Bristol-Myers’ in-state conduct. A claim “relates to” a defendant’s forum conduct if it has a “connect[ion] with” that conduct. International Shoe , 326 U. S., at 319. So respondents could not, for instance, hale Bristol-Myers into court in California for negligently maintaining the sidewalk outside its New York headquarters—a claim that has no connection to acts Bristol-Myers took in California. But respondents’ claims against Bristol-Myers look nothing like such a claim. Respondents’ claims against Bristol-Myers concern conduct materially identical to acts the company took in California: its marketing and distribution of Plavix, which it undertook on a nationwide basis in all 50 States. That respondents were allegedly injured by this nationwide course of conduct in Indiana, Oklahoma, and Texas, and not California, does not mean that their claims do not “relate to” the advertising and distribution efforts that Bristol-Myers undertook in that State. All of the plaintiffs—residents and nonresidents alike—allege that they were injured by the same essential acts. Our cases require no connection more direct than that. Finally, and importantly, there is no serious doubt that the exercise of jurisdiction over the nonresidents’ claims is reasonable. Because Bristol-Myers already faces claims that are identical to the nonresidents’ claims in this suit, it will not be harmed by having to defend against respondents’ claims: Indeed, the alternative approach—litigating those claims in separate suits in as many as 34 different States—would prove far more burdensome. By contrast, the plaintiffs’ “interest in obtaining convenient and effective relief,” Burger King , 471 U. S., at 477 (internal quotation marks omitted), is obviously furthered by participating in a consolidated proceeding in one State under shared counsel, which allows them to minimize costs, share discovery, and maximize recoveries on claims that may be too small to bring on their own. Cf. American Express Co. v. Italian Colors Restaurant , 570 U. S. ___, ___ (2013) (Kagan., J., dissenting) (slip op., at 7) (“No rational actor would bring a claim worth tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands”). California, too, has an interest in providing a forum for mass actions like this one: Permitting the nonresidents to bring suit in California alongside the residents facilitates the efficient adjudication of the residents’ claims and allows it to regulate more effectively the conduct of both nonresident corporations like Bristol-Myers and resident ones like McKesson. Nothing in the Due Process Clause prohibits a California court from hearing respondents’ claims—at least not in a case where they are joined to identical claims brought by California residents. III Bristol-Myers does not dispute that it has purposefully availed itself of California’s markets, nor—remarkably—did it argue below that it would be “unreasonable” for a California court to hear respondents’ claims. See 1 Cal. 5th 783, 799, n. 2, 377 P. 3d 874, 885, n. 2 (2016). Instead, Bristol-Myers contends that respondents’ claims do not “arise out of or relate to” its California conduct. The majority agrees, explaining that no “adequate link” exists “between the State and the nonresidents’ claims,” ante, at 8—a result that it says follows from “settled principles [of] specific jurisdiction,” ante, at 7. But our precedents do not require this result, and common sense says that it cannot be correct. A The majority casts its decision today as compelled by precedent. Ibid. But our cases point in the other direction. The majority argues at length that the exercise of spe-cific jurisdiction in this case would conflict with our decision in Walden v. Fiore , 571 U. S. ___ (2014). That is plainly not true. Walden concerned the requirement that a defendant “purposefully avail” himself of a forum State or “purposefully direc[t]” his conduct toward that State, Nicastro , 564 U. S., at 877, not the separate requirement that a plaintiff’s claim “arise out of or relate to” a defendant’s forum contacts. The lower court understood the case that way. See Fiore v. Walden , 688 F. 3d 558, 576–582 (CA9 2012). The parties understood the case that way. See Brief for Petitioner 17–31, Brief for Respondent 20–44, Brief for United States as Amicus Curiae 12–18, in Walden v. Fiore , O. T. 2013, No. 12–574. And courts and commentators have understood the case that way. See, e.g., 4 Wright §1067.1, at 388–389. Walden teaches only that a defendant must have purposefully availed itself of the forum, and that a plaintiff cannot rely solely on a defendant’s contacts with a forum resident to establish the necessary relationship. See 571 U. S., at ___ (slip op., at 8) (“[T]he plaintiff cannot be the only link between the defendant and the forum”). But that holding has nothing to do with the dispute between the parties: Bristol-Myers has purposefully availed itself of California—to the tune of millions of dollars in annual revenue. Only if its language is taken out of context, ante, at 8–9, can Walden be made to seem relevant to the case at hand. By contrast, our decision in Keeton v. Hustler Magazine, Inc. , 465 U. S. 770 (1984) , suggests that there should be no such barrier to the exercise of jurisdiction here. In Keeton , a New York resident brought suit against an Ohio corporation, a magazine, in New Hampshire for libel. She alleged that the magazine’s nationwide course of conduct—its publication of defamatory statements—had injured her in every State, including New Hampshire. This Court unanimously rejected the defendant’s argument that it should not be subject to “nationwide dam-ages” when only a small portion of those damages arose in the forum State, id., at 781; exposure to such liability, the Court explained, was the consequence of having “continuously and deliberately exploited the New Hampshire market,” ibid. The majority today dismisses Keeton on the ground that the defendant there faced one plaintiff’s claim arising out of its nationwide course of conduct, whereas Bristol-Myers faces many more plaintiffs’ claims. See ante, at 10. But this is a distinction without a difference: In either case, a defendant will face liability in a single State for a single course of conduct that has impact in many States. Keeton informs us that there is no unfairness in such a result. The majority’s animating concern, in the end, appears to be federalism: “[T]erritorial limitations on the power of the respective States,” we are informed, may—and today do—trump even concerns about fairness to the parties. Ante, at 6. Indeed, the majority appears to concede that this is not, at bottom, a case about fairness but instead a case about power: one in which “ ‘the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; . . . the forum State has a strong interest in applying its law to the contro-versy; [and] the forum State is the most convenient location for litigation’ ” but personal jurisdiction still will not lie. Ante, at 7 (quoting World-Wide Volkswagen Corp. v . Woodson, 444 U. S. 286, 294 (1980) ). But I see little reason to apply such a principle in a case brought against a large corporate defendant arising out of its nationwide conduct. What interest could any single State have in adjudicating respondents’ claims that the other States do not share? I would measure jurisdiction first and foremost by the yardstick set out in International Shoe —“fair play and substantial justice,” 326 U. S., at 316 (internal quotation marks omitted). The majority’s opinion casts that settled principle aside. B I fear the consequences of the majority’s decision today will be substantial. Even absent a rigid requirement that a defendant’s in-state conduct must actually cause a plaintiff’s claim,[ 3 ] the upshot of today’s opinion is that plaintiffs cannot join their claims together and sue a defendant in a State in which only some of them have been injured. That rule is likely to have consequences far beyond this case. First, and most prominently, the Court’s opinion in this case will make it profoundly difficult for plaintiffs who are injured in different States by a defendant’s nationwide course of conduct to sue that defendant in a single, consolidated action. The holding of today’s opinion is that such an action cannot be brought in a State in which only some plaintiffs were injured. Not to worry, says the majority: The plaintiffs here could have sued Bristol-Myers in New York or Delaware; could “probably” have subdivided their separate claims into 34 lawsuits in the States in which they were injured; and might have been able to bring a single suit in federal court (an “open . . . question”). Ante, at 12. Even setting aside the majority’s caveats, what is the purpose of such limitations? What interests are served by preventing the consolidation of claims and limiting the forums in which they can be consolidated? The effect of the Court’s opinion today is to eliminate nationwide mass actions in any State other than those in which a defendant is “ ‘essentially at home.’ ”[ 4 ] See Daimler , 571 U. S., at ___ (slip op., at 8). Such a rule hands one more tool to corporate defendants determined to prevent the aggregation of individual claims, and forces injured plaintiffs to bear the burden of bringing suit in what will often be far flung jurisdictions. Second, the Court’s opinion today may make it impossible to bring certain mass actions at all. After this case, it is difficult to imagine where it might be possible to bring a nationwide mass action against two or more defendants headquartered and incorporated in different States. There will be no State where both defendants are “at home,” and so no State in which the suit can proceed. What abouta nationwide mass action brought against a defendantnot headquartered or incorporated in the United States? Such a defendant is not “at home” in any State. Cf. id., at ___–___ (Sotomayor, J., concurring in judgment) (slip op., at 18–19). Especially in a world in which defendants are subject to general jurisdiction in only a handful of States, see ibid. , the effect of today’s opinion will be to curtail—and in some cases eliminate—plaintiffs’ ability to hold corporations fully accountable for their nationwide conduct. The majority chides respondents for conjuring a “parade of horribles,” ante, at 12, but says nothing about how suits like those described here will survive its opinion in this case. The answer is simple: They will not. *  *  * It “does not offend ‘traditional notions of fair play and substantial justice,’ ” International Shoe , 326 U. S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured. But that is exactly what the Court holds today is barred by the Due Process Clause. This is not a rule the Constitution has required before. I respectfully dissent. Notes 1 Like the parties and the majority, I refer to these people as “residents” and “nonresidents” of California as a convenient shorthand. See ante, at 2; Brief for Petitioner 4–5, n. 1; Brief for Respondents 2, n. 1. For jurisdictional purposes, the important question is generally (as it is here) where a plaintiff was injured, not where he or she resides. 2 Respondents do not contend that the California courts would be able to exercise general jurisdiction over Bristol-Myers—a concession that follows directly from this Court’s opinion in Daimler AG v. Bauman , 571 U. S. ___ (2014). As I have explained, I believe the restrictions the Court imposed on general jurisdiction in Daimler were ill advised. See BNSF R. Co. v. Tyrrell , 581 U. S. ___, ___ (2017) (Sotomayor, J., concurring in part and dissenting in part); Daimler , 571 U. S., at ___ (Sotomayor, J., concurring in judgment). But I accept respondents’ concession, for the purpose of this case, that Bristol-Myers is not subject to general jurisdiction in California. 3 Bristol-Myers urges such a rule upon us, Brief for Petitioner 14–37, but its adoption would have consequences far beyond those that follow from today’s factbound opinion. Among other things, it might call into question whether even a plaintiff injured in a State by an item identical to those sold by a defendant in that State could avail himself of that State’s courts to redress his injuries—a result specifically contemplated by World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286, 297 (1980) . See Brief for Civil Procedure Professors as Amici Curiae 14–18; see also J. McIntyre Machinery, Ltd. v. Nicastro , 564 U. S. 873 –907 (2011) (Ginsburg, J., dissenting). That question, and others like it, appears to await another case. 4 The Court today does not confront the question whether its opinion here would also apply to a class action in which a plaintiff injured in the forum State seeks to represent a nationwide class of plaintiffs, not all of whom were injured there. Cf. Devlin v. Scardelletti , 536 U. S. 1 –10 (2002) (“Nonnamed class members . . . may be parties for some purposes and not for others”); see also Wood, Adjudicatory Jurisdiction and Class Actions, 62 Ind. L. J. 597, 616–617 (1987).

The Supreme Court ruled that California courts do not have specific jurisdiction to hear claims against Bristol-Myers Squibb Company (BMS) by plaintiffs who are not California residents, reversing the California Supreme Court's decision. While BMS conducts business in California and sells Plavix (the drug in question) in the state, the company's relevant activities related to the development, marketing, and regulation of Plavix occurred in New York and New Jersey. The Court held that the Due Process Clause bars state courts from exercising specific jurisdiction over claims by nonresident plaintiffs when the company's activities in the state are not connected to the alleged injuries.

Lawsuits & Legal Procedures

Hertz Corp. v. Friend

https://supreme.justia.com/cases/federal/us/559/77/

OPINION OF THE COURT HERTZ CORP. V. FRIEND 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1107 THE HERTZ CORPORATION, PETITIONER v. MELINDA FRIEND et al. on writ of certiorari to the united states court of appeals for the ninth circuit [February 23, 2010]    Justice Breyer delivered the opinion of the Court.    The federal diversity jurisdiction statute provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business. ” 28 U. S. C. §1332(c)(1) (emphasis added) . We seek here to resolve different interpretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judicial administration of a jurisdictional statute to remain as simple as possible. And we conclude that the phrase “principal place of business” refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. Lower federal courts have often metaphorically called that place the corporation’s “nerve center.” See, e.g., Wisconsin Knife Works v. National Metal Crafters , 781 F. 2d 1280, 1282 (CA7 1986); Scot Typewriter Co. v. Underwood Corp. , 170 F. Supp. 862, 865 (SDNY 1959) (Weinfeld, J.). We believe that the “nerve center” will typically be found at a corporation’s headquarters. I    In September 2007, respondents Melinda Friend and John Nhieu, two California citizens, sued petitioner, the Hertz Corporation, in a California state court. They sought damages for what they claimed were violations of California’s wage and hour laws. App. to Pet. for Cert. 20a. And they requested relief on behalf of a potential class composed of California citizens who had allegedly suffered similar harms.    Hertz filed a notice seeking removal to a federal court. 28 U. S. C. §§1332(d)(2), 1441(a). Hertz claimed that the plaintiffs and the defendant were citizens of different States. §§1332(a)(1), (c)(1). Hence, the federal court possessed diversity-of-citizenship jurisdiction. Friend and Nhieu, however, claimed that the Hertz Corporation was a California citizen, like themselves, and that, hence, diversity jurisdiction was lacking.    To support its position, Hertz submitted a declaration by an employee relations manager that sought to show that Hertz’s “principal place of business” was in New Jersey, not in California. The declaration stated, among other things, that Hertz operated facilities in 44 States; and that California—which had about 12% of the Nation’s population, Pet. for Cert. 8—accounted for 273 of Hertz’s 1,606 car rental locations; about 2,300 of its 11,230 full-time employees; about $811 million of its $4.371 billion in annual revenue; and about 3.8 million of its approximately 21 million annual transactions, i.e. , rentals. The declaration also stated that the “leadership of Hertz and its domestic subsidiaries” is located at Hertz’s “corporate headquarters” in Park Ridge, New Jersey; that its “core executive and administrative functions . . . are carried out” there and “to a lesser extent” in Oklahoma City, Oklahoma; and that its “major administrative operations . . . are found” at those two locations. App. to Pet. for Cert. 26a–30a.    The District Court of the Northern District of California accepted Hertz’s statement of the facts as undisputed. But it concluded that, given those facts, Hertz was a citizen of California. In reaching this conclusion, the court applied Ninth Circuit precedent, which instructs courts to identify a corporation’s “principal place of business” by first determining the amount of a corporation’s business activity State by State. If the amount of activity is “significantly larger” or “substantially predominates” in one State, then that State is the corporation’s “principal place of business.” If there is no such State, then the “principal place of business” is the corporation’s “ ‘nerve center,’ ” i.e. , the place where “ ‘the majority of its executive and administrative functions are performed.’ ” Friend v. Hertz , No. C–07–5222 MMC (ND Cal., Jan. 15, 2008), p. 3 (hereinafter Order); Tosco Corp. v. Communities for a Better Environment , 236 F. 3d 495, 500–502 (CA9 2001) (per curiam) .    Applying this test, the District Court found that the “plurality of each of the relevant business activities” was in California, and that “the differential between the amount of those activities” in California and the amount in “the next closest state” was “significant.” Order 4. Hence, Hertz’s “principal place of business” was California, and diversity jurisdiction was thus lacking. The District Court consequently remanded the case to the state courts.    Hertz appealed the District Court’s remand order. 28 U. S. C. §1453(c). The Ninth Circuit affirmed in a brief memorandum opinion. 297 Fed. Appx. 690 (2008). Hertz filed a petition for certiorari. And, in light of differences among the Circuits in the application of the test for corporate citizenship, we granted the writ. Compare Tosco Corp. , supra , at 500–502, and Capitol Indemnity Corp. v. Russellville Steel Co. , 367 F. 3d 831, 836 (CA8 2004) (applying “total activity” test and looking at “all corporate activities”), with Wisconsin Knife Works , supra , at 1282 (applying “nerve center” test). II    At the outset, we consider a jurisdictional objection. Respondents point out that the statute permitting Hertz to appeal the District Court’s remand order to the Court of Appeals, 28 U. S. C. §1453(c), constitutes an exception to a more general jurisdictional rule that remand orders are “not reviewable on appeal.” §1447(d). They add that the language of §1453(c) refers only to “court[s] of appeals,” not to the Supreme Court. The statute also says that if “a final judgment on the appeal” in a court of appeals “is not issued before the end” of 60 days (with a possible 10-day extension), “the appeal shall be denied.” And respondents draw from these statutory circumstances the conclusion that Congress intended to permit review of a remand order only by a court of appeals, not by the Supreme Court (at least not if, as here, this Court’s grant of certiorari comes after §1453(c)’s time period has elapsed).    This argument, however, makes far too much of too little. We normally do not read statutory silence as implicitly modifying or limiting Supreme Court jurisdiction that another statute specifically grants. Felker v. Turpin , 518 U. S. 651 , 660–661 (1996); Ex parte Yerger , 8 Wall. 85, 104–105 (1869). Here, another, pre-existing federal statute gives this Court jurisdiction to “revie[w] . . . [b]y writ of certiorari” cases that, like this case, are “in the courts of appeals” when we grant the writ. 28 U. S. C. §1254. This statutory jurisdictional grant replicates similar grants that yet older statutes provided. See, e.g., §1254, 62 Stat. 928; §1, 43 Stat. 938–939 (amending §240, 36 Stat. 1157); §240, 36 Stat. 1157; Evarts Act, §6, 26 Stat. 828. This history provides particularly strong reasons not to read §1453(c)’s silence or ambiguous language as modifying or limiting our pre-existing jurisdiction.     We thus interpret §1453(c)’s “60-day” requirement as simply requiring a court of appeals to reach a decision within a specified time—not to deprive this Court of subsequent jurisdiction to review the case. See Aetna Casualty & Surety Co. v. Flowers , 330 U. S. 464 , 466–467 (1947); Gay v. Ruff , 292 U. S. 25 , 28–31 (1934). III    We begin our “principal place of business” discussion with a brief review of relevant history. The Constitution provides that the “judicial Power shall extend” to “Controversies . . . between Citizens of different States.” Art. III, §2. This language, however, does not automatically confer diversity jurisdiction upon the federal courts. Rather, it authorizes Congress to do so and, in doing so, to determine the scope of the federal courts’ jurisdiction within constitutional limits. Kline v. Burke Constr. Co. , 260 U. S. 226 , 233–234 (1922); Mayor v. Cooper , 6 Wall. 247, 252 (1868).    Congress first authorized federal courts to exercise diversity jurisdiction in 1789 when, in the First Judiciary Act, Congress granted federal courts authority to hear suits “between a citizen of the State where the suit is brought, and a citizen of another State.” §11, 1 Stat. 78. The statute said nothing about corporations. In 1809, Chief Justice Marshall, writing for a unanimous Court, described a corporation as an “invisible, intangible, and artificial being” which was “certainly not a citizen.” Bank of United States v . Deveaux, 5 Cranch 61, 86 (1809). But the Court held that a corporation could invoke the federal courts’ diversity jurisdiction based on a pleading that the corporation’s shareholders were all citizens of a different State from the defendants, as “the term citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name.” Id. , at 91–92.    In Louisville, C. & C. R. Co. v. Letson , 2 How. 497 (1844), the Court modified this initial approach. It held that a corporation was to be deemed an artificial person of the State by which it had been created, and its citizenship for jurisdictional purposes determined accordingly. Id., at 558–559. Ten years later, the Court in Marshall v. Baltimore & Ohio R. Co. , 16 How. 314 (1854), held that the reason a corporation was a citizen of its State of incorporation was that, for the limited purpose of determining corporate citizenship, courts could conclusively (and artificially) presume that a corporation’s shareholders were citizens of the State of incorporation. Id. , at 327–328. And it reaffirmed Letson. 16 How., at 325–326. Whatever the rationale, the practical upshot was that, for diversity purposes, the federal courts considered a corporation to be a citizen of the State of its incorporation. 13F C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3623, pp. 1–7 (3d ed. 2009) (hereinafter Wright & Miller).    In 1928 this Court made clear that the “state of incorporation” rule was virtually absolute. It held that a corporation closely identified with State A could proceed in a federal court located in that State as long as the corporation had filed its incorporation papers in State B, perhaps a State where the corporation did no business at all. See Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co. , 276 U. S. 518 , 522–525 (refusing to question corporation’s reincorporation motives and finding diversity jurisdiction). Subsequently, many in Congress and those who testified before it pointed out that this interpretation was at odds with diversity jurisdiction’s basic rationale, namely, opening the federal courts’ doors to those who might otherwise suffer from local prejudice against out-of-state parties. See, e.g., S. Rep. No. 530, 72d Cong., 1st Sess., 2, 4–7 (1932). Through its choice of the State of incorporation, a corporation could manipulate federal-court jurisdiction, for example, opening the federal courts’ doors in a State where it conducted nearly all its business by filing incorporation papers elsewhere. Id. , at 4 (“Since the Supreme Court has decided that a corporation is a citizen . . . it has become a common practice for corporations to be incorporated in one State while they do business in another. And there is no doubt but that it often occurs simply for the purpose of being able to have the advantage of choosing between two tribunals in case of litigation”). See also Hearings on S. 937 et al. before a Subcommittee of the Senate Committee on the Judiciary, 72d Cong., 1st Sess., 4–5 (1932) (Letter from Sen. George W. Norris to Attorney General William D. Mitchell (May 24, 1930)) (citing a “common practice for individuals to incorporate in a foreign State simply for the purpose of taking litigation which may arise into the Federal courts”). Although various legislative proposals to curtail the corporate use of diversity jurisdiction were made, see, e.g., S. 937, S. 939, H. R. 11508, 72d Cong., 1st Sess. (1932), none of these proposals were enacted into law.    At the same time as federal dockets increased in size, many judges began to believe those dockets contained too many diversity cases. A committee of the Judicial Conference of the United States studied the matter. See Reports of the Proceedings of the Regular Annual Meeting and Special Meeting (Sept. 24–26 & Mar. 19–20, 1951), in H. R. Doc. No. 365, 82d Cong., 2d Sess., pp. 26–27 (1952). And on March 12, 1951, that committee, the Committee on Jurisdiction and Venue, issued a report (hereinafter Mar. Committee Rept.).    Among its observations, the committee found a general need “to prevent frauds and abuses” with respect to jurisdiction. Id. , at 14. The committee recommended against eliminating diversity cases altogether. Id. , at 28. Instead it recommended, along with other proposals, a statutory amendment that would make a corporation a citizen both of the State of its incorporation and any State from which it received more than half of its gross income. Id. , at 14–15 (requiring corporation to show that “less than fifty per cent of its gross income was derived from business transacted within the state where the Federal court is held”). If, for example, a citizen of California sued (under state law in state court) a corporation that received half or more of its gross income from California, that corporation would not be able to remove the case to federal court, even if Delaware was its State of incorporation.    During the spring and summer of 1951 committee members circulated their report and attended circuit conferences at which federal judges discussed the report’s recommendations. Reflecting those criticisms, the committee filed a new report in September, in which it revised its corporate citizenship recommendation. It now proposed that “ ‘a corporation shall be deemed a citizen of the state of its original creation … [and] shall also be deemed a citizen of a state where it has its principal place of business.’ ” Judicial Conference of the United States, Report of the Committee on Jurisdiction and Venue 4 (Sept. 24, 1951) (hereinafter Sept. Committee Rept.)—the source of the present-day statutory language. See Hearings on H. R. 2516 et al. before Subcommittee No. 3 of the House Committee on the Judiciary, 85th Cong., 1st Sess., 9 (1957) (hereinafter House Hearings). The committee wrote that this new language would provide a “simpler and more practical formula” than the “gross income” test. Sept. Committee Rept. 2. It added that the language “ha[d] a precedent in the jurisdictional provisions of the Bankruptcy Act.” Id ., at 2–3.    In mid-1957 the committee presented its reports to the House of Representatives Committee on the Judiciary. House Hearings 9–27; see also H. Rep. No. 1706, 85th Cong., 2d Sess., 27–28 (1958) (hereinafter H. R. Rep. 1706) (reprinting Mar. and Sept. Committee Repts.); S. Rep. No. 1830, 85th Cong., 2d Sess., 15–31 (1958) (hereinafter S. Rep. 1830) (same). Judge Albert Maris, representing Judge John Parker (who had chaired the Judicial Conference Committee), discussed various proposals that the Judicial Conference had made to restrict the scope of diversity jurisdiction. In respect to the “principal place of business” proposal, he said that the relevant language “ha[d] been defined in the Bankruptcy Act.” House Hearings 37. He added: “All of those problems have arisen in bankruptcy cases, and as I recall the cases—and I wouldn’t want to be bound by this statement because I haven’t them before me—I think the courts have generally taken the view that where a corporation’s interests are rather widespread, the principal place of business is an actual rather than a theoretical or legal one. It is the actual place where its business operations are coordinated, directed, and carried out, which would ordinarily be the place where its officers carry on its day-to-day business, where its accounts are kept, where its payments are made, and not necessarily a State in which it may have a plant, if it is a big corporation, or something of that sort.    “But that has been pretty well worked out in the bankruptcy cases, and that law would all be available, you see, to be applied here without having to go over it again from the beginning.” Ibid. The House Committee reprinted the Judicial Conference Committee Reports along with other reports and relevant testimony and circulated it to the general public “for the purpose of inviting further suggestions and comments.” Id. , at III. Subsequently, in 1958, Congress both codified the courts’ traditional place of incorporation test and also enacted into law a slightly modified version of the Conference Committee’s proposed “principal place of business” language. A corporation was to “be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” §2, 72 Stat. 415. IV    The phrase “principal place of business” has proved more difficult to apply than its originators likely expected. Decisions under the Bankruptcy Act did not provide the firm guidance for which Judge Maris had hoped because courts interpreting bankruptcy law did not agree about how to determine a corporation’s “principal place of business.” Compare Burdick v. Dillon , 144 F. 737, 738 (CA1 1906) (holding that a corporation’s “principal office, rather than a factory, mill, or mine . . . constitutes the ‘principal place of business’ ”), with Continental Coal Corp. v. Roszelle Bros. , 242 F. 243, 247 (CA6 1917) (identifying the “principal place of business” as the location of mining activities, rather than the “principal office”); see also Friedenthal, New Limitations on Federal Jurisdiction, 11 Stan. L. Rev. 213, 223 (1959) (“The cases under the Bankruptcy Act provide no rigid legal formula for the determination of the principal place of business”).     After Congress’ amendment, courts were similarly uncertain as to where to look to determine a corporation’s “principal place of business” for diversity purposes. If a corporation’s headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The “principal place of business” was located in that State. See, e.g., Long v. Silver , 248 F. 3d 309, 314–315 (CA4 2001); Pinnacle Consultants, Ltd. v. Leucadia Nat. Corp. , 101 F. 3d 900, 906–907 (CA2 1996).    But suppose those corporate headquarters, including executive offices, are in one State, while the corporation’s plants or other centers of business activity are located in other States? In 1959 a distinguished federal district judge, Edward Weinfeld, relied on the Second Circuit’s interpretation of the Bankruptcy Act to answer this question in part: “Where a corporation is engaged in far-flung and varied activities which are carried on in different states, its principal place of business is the nerve center from which it radiates out to its constituent parts and from which its officers direct, control and coordinate all activities without regard to locale, in the furtherance of the corporate objective. The test applied by our Court of Appeals, is that place where the corporation has an ‘office from which its business was directed and controlled’—the place where ‘all of its business was under the supreme direction and control of its officers.’ ” Scot Typewriter Co., 170 F. Supp., at 865. Numerous Circuits have since followed this rule, applying the “nerve center” test for corporations with “far-flung” business activities. See, e.g., Topp v. Compair Inc. , 814 F. 2d 830, 834 (CA1 1987); see also 15 J. Moore et al., Moore’s Federal Practice §102.54[2], p. 102–112.1 (3d ed. 2009) (hereinafter Moore’s). Scot ’s analysis, however, did not go far enough. For it did not answer what courts should do when the operations of the corporation are not “far-flung” but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation’s actual business activities are located. See, e.g., Diaz-Rodriguez v. Pep Boys Corp ., 410 F. 3d 56, 60–61 (CA1 2005); R. G. Barry Corp. v. Mushroom Makers, Inc. , 612 F. 2d 651, 656–657 (CA2 1979); see also 15 Moore’s §102.54, at 102–112.1.    Perhaps because corporations come in many different forms, involve many different kinds of business activities, and locate offices and plants for different reasons in different ways in different regions, a general “business activities” approach has proved unusually difficult to apply. Courts must decide which factors are more important than others: for example, plant location, sales or servicing centers; transactions, payrolls, or revenue generation. See, e.g., R. G. Barry Corp., supra , at 656–657 (place of sales and advertisement, office, and full-time employees); Diaz-Rodriguez , supra , at 61–62 (place of stores and inventory, employees, income, and sales).    The number of factors grew as courts explicitly combined aspects of the “nerve center” and “business activity” tests to look to a corporation’s “total activities,” sometimes to try to determine what treatises have described as the corporation’s “center of gravity.” See, e.g. , Gafford v. General Elec. Co. , 997 F. 2d 150, 162–163 (CA6 1993); Amoco Rocmount Co. v. Anschutz Corp. , 7 F. 3d 909, 915 (CA10 1993); 13F Wright & Miller §3625, at 100. A major treatise confirms this growing complexity, listing Circuit by Circuit, cases that highlight different factors or emphasize similar factors differently, and reporting that the “federal courts of appeals have employed various tests”—tests which “tend to overlap” and which are sometimes described in “language” that “is imprecise.” 15 Moore’s §102.54[2], at 102–112. See also id., §§102.54[2], [13], at 102–112 to 102–122 (describing, in 14 pages, major tests as looking to the “nerve center,” “locus of operations,” or “center of corporate activities”). Not surprisingly, different circuits (and sometimes different courts within a single circuit) have applied these highly general multifactor tests in different ways. Id. , §§102.54[3]–[7], [11]–[13] (noting that the First Circuit “has never explained a basis for choosing between ‘the center of corporate activity’ test and the ‘locus of operations’ test”; the Second Circuit uses a “two-part test” similar to that of the Fifth, Ninth, and Eleventh Circuits involving an initial determination as to whether “a corporation’s activities are centralized or decentralized” followed by an application of either the “place of operations” or “nerve center” test; the Third Circuit applies the “center of corporate activities” test searching for the “headquarters of a corporation’s day-to-day activity”; the Fourth Circuit has “endorsed neither [the ‘nerve center’ or ‘place of operations’] test to the exclusion of the other”; the Tenth Circuit directs consideration of the “total activity of the company considered as a whole”). See also 13F Wright & Miller §3625 (describing, in 73 pages, the “nerve center,” “corporate activities,” and “total activity” tests as part of an effort to locate the corporation’s “center of gravity,” while specifying different ways in which different circuits apply these or other factors).     This complexity may reflect an unmediated judicial effort to apply the statutory phrase “principal place of business” in light of the general purpose of diversity jurisdiction, i.e. , an effort to find the State where a corporation is least likely to suffer out-of-state prejudice when it is sued in a local court, Pease v. Peck, 18 How. 595, 599 (1856). But, if so, that task seems doomed to failure. After all, the relevant purposive concern—prejudice against an out-of-state party—will often depend upon factors that courts cannot easily measure, for example, a corporation’s image, its history, and its advertising, while the factors that courts can more easily measure, for example, its office or plant location, its sales, its employment, or the nature of the goods or services it supplies, will sometimes bear no more than a distant relation to the likelihood of prejudice. At the same time, this approach is at war with administrative simplicity. And it has failed to achieve a nationally uniform interpretation of federal law, an unfortunate consequence in a federal legal system. V A    In an effort to find a single, more uniform interpretation of the statutory phrase, we have reviewed the Courts of Appeals’ divergent and increasingly complex interpretations. Having done so, we now return to, and expand, Judge Weinfeld’s approach, as applied in the Seventh Circuit. See, e.g., Scot Typewriter Co. , 170 F. Supp., at 865; Wisconsin Knife Works , 781 F. 2d, at 1282. We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e. , the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).    Three sets of considerations, taken together, convince us that this approach, while imperfect, is superior to other possibilities. First, the statute’s language supports the approach. The statute’s text deems a corporation a citizen of the “State where it has its principal place of business. ” 28 U. S. C. §1332(c)(1). The word “place” is in the singular, not the plural. The word “principal” re-quires us to pick out the “main, prominent” or “leading” place. 12 Oxford English Dictionary 495 (2d ed. 1989) (def. (A)(I)(2)). Cf. Commissioner v. Soliman , 506 U. S. 168 , 174 (1993) (interpreting “principal place of business” for tax purposes to require an assessment of “whether any one business location is the ‘most important, consequential, or influential’ one”). And the fact that the word “place” follows the words “State where” means that the “place” is a place within a State. It is not the State itself.    A corporation’s “nerve center,” usually its main headquarters, is a single place. The public often (though not always) considers it the corporation’s main place of business. And it is a place within a State. By contrast, the application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activities that the corporation conducts there and determining whether they are “significantly larger” than in the next-ranking State. 297 Fed. Appx. 690.    This approach invites greater litigation and can lead to strange results, as the Ninth Circuit has since recognized. Namely, if a “corporation may be deemed a citizen of California on th[e] basis” of “activities [that] roughly reflect California’s larger population . . . nearly every national retailer—no matter how far flung its operations—will be deemed a citizen of California for diversity purposes.” Davis v. HSBC Bank Nev., N. A. , 557 F. 3d 1026, 1029–1030 (2009). But why award or decline diversity jurisdiction on the basis of a State’s population, whether measured directly, indirectly (say proportionately), or with modifications?    Second, administrative simplicity is a major virtue in a jurisdictional statute. Sisson v. Ruby , 497 U. S. 358 , 375 (1990) (Scalia, J., concurring in judgment) (eschewing “the sort of vague boundary that is to be avoided in the area of subject-matter jurisdiction wherever possible”). Complex jurisdictional tests complicate a case, eating up time and money as the parties litigate, not the merits of their claims, but which court is the right court to decide those claims. Cf. Navarro Savings Assn. v. Lee , 446 U. S. 458 , 464, n. 13 (1980). Complex tests produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim’s legal and factual merits. Judicial resources too are at stake. Courts have an independent obligation to determine whether subject-matter jurisdiction exists, even when no party challenges it. Arbaugh v. Y & H Corp ., 546 U. S. 500 , 514 (2006) (citing Ruhrgas AG v. Marathon Oil Co. , 526 U. S. 574 , 583 (1999)). So courts benefit from straightforward rules under which they can readily assure themselves of their power to hear a case. Arbaugh , supra , at 514.    Simple jurisdictional rules also promote greater predictability. Predictability is valuable to corporations making business and investment decisions. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba , 462 U. S. 611 , 621 (1983) (recognizing the “need for certainty and predictability of result while generally protecting the justified expectations of parties with interests in the corporation”). Predictability also benefits plaintiffs deciding whether to file suit in a state or federal court.    A “nerve center” approach, which ordinarily equates that “center” with a corporation’s headquarters, is simple to apply comparatively speaking . The metaphor of a corporate “brain,” while not precise, suggests a single location. By contrast, a corporation’s general business activities more often lack a single principal place where they take place. That is to say, the corporation may have several plants, many sales locations, and employees located in many different places. If so, it will not be as easy to determine which of these different business locales is the “principal” or most important “place.”    Third, the statute’s legislative history, for those who accept it, offers a simplicity-related interpretive benchmark. The Judicial Conference provided an initial version of its proposal that suggested a numerical test. A corporation would be deemed a citizen of the State that accounted for more than half of its gross income. Mar. Committee Rept. 14–15; see supra , at 8. The Conference changed its mind in light of criticism that such a test would prove too complex and impractical to apply. Sept. Committee Rept. 2; see also H. Rep. 1706, at 28; S. Rep. 1830, at 31. That history suggests that the words “principal place of business” should be interpreted to be no more complex than the initial “half of gross income” test. A “nerve center” test offers such a possibility. A general business activities test does not. B    We recognize that there may be no perfect test that satisfies all administrative and purposive criteria. We recognize as well that, under the “nerve center” test we adopt today, there will be hard cases. For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet. That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination. Courts do not have to try to weigh corporate functions, assets, or revenues different in kind, one from the other. Our approach provides a sensible test that is relatively easier to apply, not a test that will, in all instances, automatically generate a result.    We also recognize that the use of a “nerve center” test may in some cases produce results that seem to cut against the basic rationale for 28 U. S. C. §1332, see supra , at 6. For example, if the bulk of a company’s business activities visible to the public take place in New Jersey, while its top officers direct those activities just across the river in New York, the “principal place of business” is New York. One could argue that members of the public in New Jersey would be less likely to be prejudiced against the corporation than persons in New York—yet the corporation will still be entitled to remove a New Jersey state case to federal court. And note too that the same corporation would be unable to remove a New York state case to federal court, despite the New York public’s presumed prejudice against the corporation.    We understand that such seeming anomalies will arise. However, in view of the necessity of having a clearer rule, we must accept them. Accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system.    The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it. Kokkonen v. Guardian Life Ins. Co. of America , 511 U. S. 375 , 377 (1994); McNutt v. General Motors Acceptance Corp. , 298 U. S. 178 , 189 (1936); see also 13E Wright & Miller §3602.1, at 119. When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof. McNutt , supra , at 189; 15 Moore’s §102.14, at 102–32 to 102–32.1. And when faced with such a challenge, we reject suggestions such as, for example, the one made by petitioner that the mere filing of a form like the Securities and Exchange Commission’s Form 10–K listing a corporation’s “principal executive offices” would, without more, be sufficient proof to establish a corporation’s “nerve center.” See, e.g., SEC Form 10–K, online at http://www.sec.gov/about/forms/ form10-k.pdf. (as visited Feb. 19, 2010, and available in Clerk of Court’s case file). Cf. Dimmitt & Owens Financial, Inc. v . United States , 787 F. 2d 1186, 1190–1192 (CA7 1986) (distinguishing “principle executive office” in the tax lien context, see 26 U. S. C. §6323(f)(2), from “principal place of business” under 28 U. S. C. §1332(c)). Such possibilities would readily permit jurisdictional manipulation, thereby subverting a major reason for the insertion of the “principal place of business” language in the diversity statute. Indeed, if the record reveals attempts at manipulation—for example, that the alleged “nerve center” is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat—the courts should instead take as the “nerve center” the place of actual direction, control, and coordination, in the absence of such manipulation. VI    Petitioner’s unchallenged declaration suggests that Hertz’s center of direction, control, and coordination, its “nerve center,” and its corporate headquarters are one and the same, and they are located in New Jersey, not in California. Because respondents should have a fair op- portunity to litigate their case in light of our holding, however, we vacate the Ninth Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered.

The Supreme Court ruled that a corporation's "principal place of business" for the purposes of determining diversity jurisdiction is its "nerve center," or the place where its high-level officers direct, control, and coordinate its activities. This is typically the corporation's headquarters.

Lawsuits & Legal Procedures

BNSF Railroad Co. v. Tyrrell

https://supreme.justia.com/cases/federal/us/581/16-405/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–405 _________________ BNSF RAILWAY CO., PETITIONER v. KELLI TYRRELL, special administrator for the ESTATE OF BRENT T. TYRRELL, DECEASED, et al. on writ of certiorari to the supreme court of montana [May 30, 2017] Justice Ginsburg delivered the opinion of the Court. The two cases we decide today arise under the Federal Employers’ Liability Act (FELA), 35Stat. 65, as amended, 45 U. S. C. §51 et seq. , which makes railroads liable in money damages to their employees for on-the-job injuries. Both suits were pursued in Montana state courts although the injured workers did not reside in Montana, nor were they injured there. The defendant railroad, BNSF Railway Company (BNSF), although “doing business” in Montana when the litigation commenced, was not incorporated in Montana, nor did it maintain its principal place of business in that State. To justify the exercise of personal jurisdiction over BNSF, the Montana Supreme Court relied on §56, which provides in relevant part: “Under this chapter an action may be brought in a district court of the United States, in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action. The jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” We hold that §56 does not address personal jurisdiction over railroads. Its first relevant sentence is a venue prescription governing proper locations for FELA suits filed in federal court. The provision’s second relevant sentence, using the term “concurrent” jurisdiction, refers to subject-matter jurisdiction, not personal jurisdiction. It simply clarifies that the federal courts do not have exclusive subject-matter jurisdiction over FELA suits; state courts can hear them, too. Montana’s Supreme Court, in the alternative, relied on state law, under which personal jurisdiction could be asserted over “persons found within . . . Montana.” Mont. Rule Civ. Proc. 4(b)(1) (2015). BNSF fit that bill, the court stated, because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana. Our precedent, however, explains that the Fourteenth Amendment’s Due Process Clause does not permit a State to hale an out-of-state corporation before its courts when the corporation is not “at home” in the State and theepisode-in-suit occurred elsewhere. Daimler AG v. Bauman , 571 U. S. ___, ___ (2014) (slip op., at 8) (internal quotation marks omitted). We therefore reverse the judgment of the Montana Supreme Court. I In March 2011, respondent Robert Nelson, a North Dakota resident, brought a FELA suit against BNSF in a Montana state court to recover damages for knee injuries Nelson allegedly sustained while working for BNSF as a fuel-truck driver. 383 Mont. 417, 419, 373 P. 3d 1, 3 (2016). In May 2014, respondent Kelli Tyrrell, appointed in South Dakota as the administrator of her husband Brent Tyrrell’s estate, similarly sued BNSF under FELA in a Montana state court. Id. , at 419–420, 373 P. 3d, at 3 . Brent Tyrrell, his widow alleged, had developed a fatal kidney cancer from his exposure to carcinogenic chemicals while working for BNSF. Id. , at 420, 373 P. 3d, at 3. Neither plaintiff alleged injuries arising from or related to work performed in Montana; indeed, neither Nelson nor Brent Tyrrell appears ever to have worked for BNSF in Montana. Id. , at 419–420, 373 P. 3d, at 3. BNSF is incorporated in Delaware and has its principal place of business in Texas. Id. , at 419, 373 P. 3d, at 3. It operates railroad lines in 28 States. No. DV 14–699 (13th Jud. Dist., Yellowstone Cty., Mont., Oct. 7, 2014), App. to Pet. for Cert. 63a. BNSF has 2,061 miles of railroad track in Montana (about 6% of its total track mileage of 32,500), employs some 2,100 workers there (less than 5% of its total work force of 43,000), generates less than 10% of its total revenue in the State, and maintains only one of its 24 automotive facilities in Montana (4%). Ibid. Contending that it is not “at home” in Montana, as required for the exercise of general personal jurisdiction under Daimler AG v. Bauman , 571 U. S. ___, ___ (2014) (slip op., at 8) (internal quotation marks omitted), BNSF moved to dismiss both suits for lack of personal jurisdiction. Its motion was granted in Nelson’s case and denied in Tyrrell’s. 383 Mont., at 419, 373 P. 3d, at 2. After consolidating the two cases, the Montana Supreme Court held that Montana courts could exercise general personal jurisdiction over BNSF. Id. , at 429, 373 P. 3d, at 9. Section 56, the court determined, authorizes state courts to exercise personal jurisdiction over railroads “doing business” in the State. Id. , at 426, 373 P. 3d, at 7 (internal quotation marks omitted). In addition, the court observed, Montana law provides for the exercise of general jurisdiction over “[a]ll persons found within” the State. Id. , at 427, 373 P. 3d, at 8 (quoting Mont. Rule Civ. Proc. 4(b)(1) (2015)). In view of the railroad’s many employees and miles of track in Montana, the court concluded, BNSF is both “doing business” and “found within” the State, such that both FELA and Montana law authorized the exercise of personal jurisdiction. 383 Mont., at 426, 428, 373 P. 3d, at 7–8 (internal quotation marks omitted). The due process limits articulated in Daimler , the court added, did not control, because Daimler did not involve a FELA claim or a railroad defendant. 383 Mont., at 424, 373 P. 3d, at 6. Justice McKinnon dissented. Section 56, she wrote, is a federal-court venue prescription, and also confers subject-matter jurisdiction on state courts in FELA cases, concurrent with federal courts. Id. , at 435–437, 373 P. 3d, at 13. But §56, she maintained, does not touch or concern personal jurisdiction. Ibid. Furthermore, she concluded, Daimler controls, rendering the Montana courts’ exercise of personal jurisdiction impermissible because BNSF is not “at home” in Montana. 383 Mont., at 433–434, 373 P. 3d, at 11–12. We granted certiorari, 580 U. S. ___ (2017), to resolve whether §56 authorizes state courts to exercise personal jurisdiction over railroads doing business in their States but not incorporated or headquartered there, and whether the Montana courts’ exercise of personal jurisdiction in these cases comports with due process. II Nelson and Tyrrell contend that §56’s first relevant sentence confers personal jurisdiction on federal courts, and that the section’s second relevant sentence extends that grant of jurisdiction to state courts. Neither contention is tenable. Section 56’s first relevant sentence concerns venue; its next sentence speaks to subject-matter jurisdiction.[ 1 ] A The first sentence of §56 states that “an action may be brought in a district court of the United States,” in, among other places, the district “in which the defendant shall be doing business at the time of commencing such action.” In Baltimore & Ohio R. Co. v. Kepner , 314 U. S. 44 (1941) , we comprehended this clause as “establish[ing] venue” for a federal-court action. Id., at 52. Congress, we explained, designed §56 to expand venue beyond the limits of the 1888 Judiciary Act’s general venue provision, which allowed suit only “in districts of which the defendant was an inhabitant.” Id. , at 49; see Act of Aug. 13, 1888, §1, 25Stat. 434. Nowhere in Kepner or in any other decision did we intimate that §56 might affect personal jurisdiction. Congress generally uses the expression, where suit “may be brought,” to indicate the federal districts in which venue is proper. See, e.g. , 28 U. S. C. §1391(b) (general venue statute specifying where “[a] civil action may be brought”); J. Oakley, ALI, Fed. Judicial Code Rev. Project 253–290 (2004) (listing special venue statutes, many with similar language). See also Kepner , 314 U. S., at 56 (Frankfurter, J., dissenting) (“The phrasing of [§56] follows the familiar pattern generally employed by Congress in framing venue provisions.”). In contrast, Congress’ typical mode of providing for the exercise of personal jurisdiction has been to authorize service of process. See, e.g. , 15 U. S. C. §22 (Clayton Act provision stating that “all process in [cases against a corporation arising under federal antitrust laws] may be served in the district of which [the defendant] is an inhabitant, or wherever [the defendant] may be found”); §53(a) (under Federal Trade Commission Act, “process may be served on any person, partnership, or corporation wherever it may be found”). See also Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co. , 484 U. S. 97 –107 (1987) (discussing statutes that authorize (or fail to authorize) nationwide service of process). But cf. Schlanger v. Seamans , 401 U. S. 487 , n. 4 (1971) (though “Congress has provided for nationwide service of process” in 28 U. S. C. §1391(e) (1964 ed., Supp. V), that statute was meant to expand venue, not personal jurisdiction). Congress uses this terminology because, absent consent, a basis for service of a summons on the defendant is prerequisite to the exercise of personal jurisdiction. See Omni Capital , 484 U. S., at 104. Nelson and Tyrrell, however, argue that §56 relates to personal jurisdiction. In their view, the 1888 Judiciary Act provision that prompted §56’s enactment, 25Stat. 434, concerned both personal jurisdiction and venue. According to House and Senate Reports, they contend, two cases had brought to Congress’ attention the problem with the prior provision—namely, that in federal-question cases it authorized suit only in the district of the defendant’s residence. Brief for Respondents 16–18. See H. R. Rep. No. 513, 61st Cong., 2d Sess., 6 (1910) (citing Macon Grocery Co. v. Atlantic Coast Line R. Co. , 215 U. S. 501 (1910) ; Cound v. Atchison, T. & S. F. R. Co. , 173 F. 527 (WD Tex. 1909)); S. Rep. No. 432, 61st Cong., 2d Sess., 4 (1910) (same). In both cases, the courts had dismissed FELA suits for “want of jurisdiction.” Macon Grocery , 215 U. S., at 510; Cound , 173 F., at 534. To avert such jurisdictional dismissals, they urge, Congress enacted §56. Legislative history “throws little light” here. Kepner , 314 U. S., at 50.[ 2 ] Driving today’s decision, we have long read the 1888 Judiciary Act provision to concern venue only. See Green v. Chicago, B. & Q. R. Co. , 205 U. S. 530 –533 (1907) (analyzing personal jurisdiction separately, after concluding that venue was proper under 1888 Judiciary Act provision). See also Lee v. Chesapeake & Ohio R. Co. , 260 U. S. 653, 655 (1923) (noting that materially identical successor to 1888 Judiciary Act provision, Act of Mar. 3, 1911, §51, 36Stat. 1101, “relates to the venue of suits”). Indeed, reading the 1888 Judiciary Act provision to authorize the exercise of personal jurisdiction would have yielded an anomalous result: In diversity cases, the provision allowed for suit “in the district of the residence of either the plaintiff or the defendant.” 25Stat. 434. Interpreting that clause to provide for jurisdiction would have allowed a plaintiff to hale a defendant into court in the plaintiff’s home district, even if the district was one with which the defendant had no affiliation, and the episode-in-suit, no connection. B The second §56 sentence in point provides that “[t]he jurisdiction of the courts of the United States under this chapter shall be concurrent with that of the courts of the several States.” Nelson and Tyrrell argue that this sentence extends to state courts the first sentence’s alleged conferral of personal jurisdiction on federal courts. But, as just discussed, the first sentence concerns federal-court venue and confers no personal jurisdiction on any court. We have understood §56’s second sentence to provide for the concurrent subject-matter jurisdiction of state and federal courts over actions under FELA. See Second Employers’ Liability Cases , 223 U. S. 1 –56 (1912). As Nelson and Tyrrell acknowledge, Congress added the provision to confirm concurrent subject-matter jurisdiction after the Connecticut Supreme Court held that Congress intended to confine FELA litigation to federal courts, and that state courts had no obligation to entertain FELA claims. See Brief for Respondents 23 (citing Hoxie v. New York, N. H. & H. R. Co. , 82 Conn. 352, 73 A. 754 (1909)). As Justice McKinnon recognized in her dissent from the Montana Supreme Court’s decision in Nelson’s and Tyrrell’s cases, “[t]he phrase ‘concurrent jurisdiction’ is a well-known term of art long employed by Congress and courts to refer to subject-matter jurisdiction, not personal jurisdiction.” 383 Mont., at 436, 373 P. 3d, at 13. See, e.g. , Mims v. Arrow Financial Services, LLC , 565 U. S. 368, 372 (2012) (“federal and state courts have concurrent jurisdiction over private suits arising under the [Telephone Consumer Protection Act of 1991, 47 U. S. C. §227]”); Claflin v. Houseman , 93 U. S. 130 –134 (1876) (State courts retain “concurrent jurisdiction” over “suits in which a bankrupt” party is involved, notwithstanding exclusive federal jurisdiction over bankruptcy matters). C Pointing to a quartet of cases, the Montana Supreme Court observed that this Court “consistently has interpreted [§]56 to allow state courts to hear cases brought under FELA even where the only basis for jurisdiction is the railroad doing business in the forum [S]tate.” 383 Mont., at 421–423, 425–426, 373 P. 3d, at 4–7 (citing Pope v. Atlantic Coast Line R. Co. , 345 U. S. 379 (1953) ; Miles v. Illinois Central R. Co. , 315 U. S. 698 (1942) ; Kepner , 314 U. S. 44 ; Denver & Rio Grande Western R. Co. v. Terte , 284 U. S. 284 (1932) ). None of the decisions featured by the Montana Supreme Court resolved a question of personal jurisdiction. Terte held that a FELA plaintiff, injured in Colorado, could bring suit in Missouri state court against a railroad incorporated elsewhere. 284 U. S., at 286–287. The dispute, however, was over the Dormant Commerce Clause, not personal jurisdiction; the railroad defendants argued that the suit would unduly burden interstate commerce, and the decision rested on two Commerce Clause decisions, Michigan Central R. Co. v. Mix , 278 U. S. 492 (1929) , and Hoffman v. Missouri ex rel. Foraker , 274 U. S. 21 (1927) , not on an interpretation of §56. See Terte , 284 U. S., at 285, 287. In Kepner and Miles , this Court held that a state court may not, based on inconvenience to a railroad defendant, enjoin its residents from bringing a FELA suit in another State’s federal ( Kepner ) or state ( Miles ) courts. Kepner , 314 U. S., at 54; Miles , 315 U. S., at 699–700, 704. Pope held that 28 U. S. C. §1404(a)’s provision for transfer from one federal court to another did not bear on the question decided in Miles : A state court still could not enjoin a FELA action brought in another State’s courts. 345 U. S., at 383–384. Moreover, all these cases, save Pope , were decided before this Court’s transformative decision on personal jurisdiction in International Shoe Co. v. Washington , 326 U. S. 310 (1945) . See Daimler , 571 U. S., at ___, n. 18 (slip op., at 20, n. 18) (cautioning against reliance on cases “decided in the era dominated by” the “territorial thinking” of Pennoyer v. Neff , 95 U. S. 714 (1878) ). III Because FELA does not authorize state courts to exercise personal jurisdiction over a railroad solely on the ground that the railroad does some business in their States, the Montana courts’ assertion of personal jurisdiction over BNSF here must rest on Mont. Rule Civ. Proc. 4(b)(1), the State’s provision for the exercise of personal jurisdiction over “persons found” in Montana. See supra , at 2–3. BNSF does not contest that it is “found within” Montana as the State’s courts comprehend that rule. We therefore inquire whether the Montana courts’ exercise of personal jurisdiction under Montana law comports with the Due Process Clause of the Fourteenth Amendment. In International Shoe , this Court explained that a state court may exercise personal jurisdiction over an out-of-state defendant who has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U. S., at 316. Elaborating on this guide, we have distinguished between specific or case-linked jurisdiction and general or all-purpose jurisdiction. See, e.g. , Daimler , 571 U. S., at ___ (slip op., at 8); Goodyear Dunlop Tires Operations, S. A. v. Brown , 564 U. S. 915, 919 (2011) ; Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , nn. 8, 9 (1984). Because neither Nelson nor Tyrrell alleges any injury from work in or related to Montana, only the propriety of general jurisdiction is at issue here. Goodyear and Daimler clarified that “[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler , 571 U. S., at ___ (slip op., at 8) (quoting Goodyear , 564 U. S., at 919). The “paradigm” forums in which a corporate defendant is “at home,” we explained, are the corporation’s place of incorporation and its principal place of business. Daimler , 571 U. S., at ___ (slip op., at 18–19); Goodyear , 564 U. S., at 924. The exercise of general jurisdiction is not limited to these forums; in an “exceptional case,” a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler , 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). We suggested that Perkins v. Benguet Consol. Mining Co. , 342 U. S. 437 (1952) , exemplified such a case. Daimler , 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). In Perkins , war had forced the defendant corporation’s owner to temporarily relocate the enterprise from the Philippines to Ohio. 342 U. S., at 447–448. Because Ohio then became “the center of the corporation’s wartime activities,” Daimler , 571 U. S., at ___, n. 8 (slip op., at 12, n. 8), suit was proper there, Perkins , 342 U. S., at 448. The Montana Supreme Court distinguished Daimler on the ground that we did not there confront “a FELA claim or a railroad defendant.” 383 Mont., at 424, 373 P. 3d, at 6. The Fourteenth Amendment due process constraint described in Daimler , however, applies to all state-court assertions of general jurisdiction over nonresident defendants; the constraint does not vary with the type of claim asserted or business enterprise sued.[ 3 ] BNSF, we repeat, is not incorporated in Montana and does not maintain its principal place of business there. Nor is BNSF so heavily engaged in activity in Montana “as to render [it] essentially at home” in that State. See Daimler , 571 U. S., at ___ (slip op., at 8) (internal quotation marks omitted). As earlier noted, BNSF has over 2,000 miles of railroad track and more than 2,000 employees in Montana. But, as we observed in Daimler , “the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts.” Id. , at ___, n. 20 (slip op., at 21, n. 20) (internal quotation marks and alterations omitted). Rather, the inquiry “calls for an appraisal of a corporation’s activities in their entirety”; “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” Ibid . In short, the business BNSF does in Montana is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in Montana. But in-state business, we clarified in Daimler and Goodyear , does not suffice to permit the assertion of general jurisdiction over claims like Nelson’s and Tyrrell’s that are unrelated to any activity occurring in Montana.[ 4 ] IV Nelson and Tyrrell present a further argument—that BNSF has consented to personal jurisdiction in Montana. See Brief for Respondents 50–51. The Montana Supreme Court did not address this contention, see 383 Mont., at 429, n. 3, 373 P. 3d, at 9, n. 3, so we do not reach it. See Cutter v. Wilkinson , 544 U. S. 709 , n. 7 (2005) (“[W]e are a court of review, not of first view.”). *  *  * For the reasons stated, the judgment of the Montana Supreme Court is reversed, and the cases are remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 Section 56’s first sentence, which provides a time bar for FELA claims, is not relevant to the issue at hand. For ease of reference, we hereinafter refer to the first relevant sentence, describing where suit “may be brought,” as the provision’s “first” sentence, and the sentence that immediately follows, referring to “concurrent” jurisdiction, as the “second.” 2 We note, moreover, that Nelson and Tyrrell overlooked the Senate Report’s explicit reference to the first sentence of §56 as a venue provision, with no mention of personal jurisdiction. S. Rep. No. 432, 61st Cong., 2d Sess., 3 (1910). 3 The Montana Supreme Court also erred in asserting that “Congress drafted the FELA to make a railroad ‘at home’ for jurisdictional purposes wherever it is ‘doing business.’ ” 383 Mont. 417, 425, 373 P. 3d 1, 6 (2016). As discussed, supra , at 5–7, in §56’s first sentence, Congress dealt with venue only, not personal jurisdiction. 4 Justice Sotomayor, dissenting in part, renews a debate comprehensively aired in Daimler AG v. Bauman , 571 U. S. ___ (2014). There, as again here, Justice Sotomayor treats the assertion of jurisdiction by the State of Washington courts in International Shoe Co. v. Washington , 326 U. S. 310 (1945) , as an exercise of general, dispute-blind, jurisdiction, post , at 3, thereby overlooking the fundamental difference between International Shoe and these cases. In International Shoe , the defendant corporation’s in-state activities had “not only been continuous and systematic, but also g[a]ve rise to the liabilities sued on.” 326 U. S., at 317. The state courts there asserted jurisdiction not over claims that had nothing to do with the State; instead, they exercised adjudicatory authority to hold the defendant corporation accountable for activity pursued within the State of Washington. Daimler , 571 U. S., at ___, ___, n. 10 (slip op., at 7, 14, n. 10). This Court, therefore, had no occasion in International Shoe to “engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.” Post , at 3. In marked contrast to International Shoe , Nelson’s and Tyrrell’s claims have no relationship to anything that occurred or had its principal impact in Montana. SUPREME COURT OF THE UNITED STATES _________________ No. 16–405 _________________ BNSF RAILWAY CO., PETITIONER v. KELLI TYRRELL, special administrator for the ESTATE OF BRENT T. TYRRELL, DECEASED, et al. on writ of certiorari to the supreme court of montana [May 30, 2017] Justice Sotomayor, concurring in part and dissenting in part. I concur in the Court’s conclusion that the Federal Employers’ Liability Act (FELA), 45 U. S. C. §51 et seq. , does not confer personal jurisdiction over railroads on state courts. I also agree that the Montana Supreme Court erred when it concluded that the nature of the claim here—a FELA claim against a railroad—answers the question whether the Due Process Clause allows the exercise of personal jurisdiction over BNSF. But my agreement with the majority ends there. I continue to disagree with the path the Court struck in Daimler AG v. Bauman, 571 U. S. ___ (2014), which limits general jurisdiction over a corporate defendant only to those States where it is “ ‘essentially at home,’ ” id., at ___ (slip op., at 8). And even if the Court insists on adhering to that standard, I dissent from its decision to apply it here in the first instance rather than remanding to the Montana Supreme Court for it to conduct what should be a fact-intensive analysis under the proper legal framework. Accordingly, I join Parts I and II of the Court’s opinion, but dissent from Part III and the judgment. The Court would do well to adhere more faithfully to the direction from International Shoe Co. v. Washington , 326 U. S. 310 (1945), which instructed that general jurisdiction is proper when a corporation’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” Id ., at 318. Under International Shoe , in other words, courts were to ask whether the benefits a defendant attained in the forum State warranted the burdens associated with general personal jurisdiction. See id. , at 317–318. The majority itself acknowledges that International Shoe should govern, describing the question as whether a defendant’s affiliations with a State are sufficiently “ ‘continuous and systematic’ ” to warrant the exercise of general jurisdiction there. Ante, at 10. If only its analysis today reflected that directive. Instead, the majority opinion goes on to reaffirm the restrictive “at home” test set out in Daimler— a test that, as I have explained, has no home in our precedents and creates serious inequities. See 571 U. S., at ___–___ (Sotomayor, J., concurring in judgment) (slip op., at 8–19). The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. See id. , at ___–___ (slip op., at 17–18). What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.[ 1 ] The result? It is individual plaintiffs, harmed by the actionsof a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in dis-tant jurisdictions with which they have no contacts or connection. Moreover, the comparative contacts analysis invented in Daimler resurfaces here and proves all but dispositive. The majority makes much of the fact that BNSF’s contacts in Montana are only a percentage of its contacts with other jurisdictions. Ante , at 3, 11. But International Shoe , which the majority agrees is the springboard for our modern personal jurisdiction jurisprudence, ante, at 9, applied no comparative contacts test. There the Court analyzed whether the Delaware corporation had “by its activities in the State of Washington rendered itself amenable to proceedings” in the State. 326 U. S. , at 311. The Court evaluated whether the corporation had offices in the forum State, made contracts there, delivered goods there, or employed salesmen there. See id. , at 313. Despite acknowledging that the corporation maintained places of business in several States, ibid. , the Court did not engage in a comparison between International Shoe’s contacts within the State of Washington and the other States in which it operated.[ 2 ] The Court noted that the corporation employed 11 to 13 salesmen in Washington but did not query how that number compared to the number of salesmen in other States. Ibid. As well it should not have; the relative percentage of contacts is irrelevant. The focus should be on the quality and quantity of the defendant’s contacts in the forum State.[ 3 ] The majority does even Daimler itself a disservice, paying only lipservice to the question the Court purported to reserve there—the possibility of an “exceptional case” in which general jurisdiction would be proper in a forum State that is neither a corporate defendant’s place of incorporation nor its principal place of business. See 571 U. S., at ___, n. 19 (slip op., at 20, n. 19). Its opinion here could be understood to limit that exception to the exact facts of Perkins v. Benguet Consol. Mining Co. , 342 U. S. 437 (1952) . See ante , at 10–11. That reading is so narrow as to read the exception out of existence entirely; certainly a defendant with significant contacts with more than one State falls outside its ambit. And so it is inevitable under its own reasoning that the majority would conclude that BNSF’s contacts with Montana are insufficient to justify the exercise of personal jurisdiction here. This result is perverse. Despite having reserved the possibility of an “exceptional case” in Daimler , the majority here has re-jected that possibility out of hand. Worse, the majority reaches its conclusion only by departing from the Court’s normal practice.[ 4 ] Had it remanded to the Montana Supreme Court to reevaluate the due process question under the correct legal standard, that court could have examined whether this is such an “exceptional case.” Instead, with its ruling today, the Court unnecessarily sends a signal to the lower courtsthat the exceptional-circumstances inquiry is all form, no substance. I respectfully concur in part and dissent in part. Notes 1 As many commentators have observed, lower courts adhered to the continuous-and-systematic standard for decades before Daimler , and its predecessor Goodyear Dunlop Tires Operations, S. A. v. Brown , 564 U. S. 915 (2011) , wrought the present sea change. See, e.g., Cornett & Hoffheimer, Good-Bye Significant Contacts: General Personal Jurisdiction after Daimler AG v. Bauman , 76 Ohio St. L. J. 101 (2015); Parry, Rethinking Personal Jurisdiction after Bauman and Walden , 19 Lewis & Clark L. Rev. 607 (2015); Doernberg, Resoling International Shoe , 2 Tex. A&M L. Rev. 247 (2014); Feder, Goodyear , “Home,” and the Uncertain Future of Doing Business Jurisdiction, 63 S. C. L. Rev. 671 (2012). 2 The majority responds that the language from International Shoe informs only a specific jurisdiction case. Ante , at 12, n. 4. But the majority’s view of International Shoe is overly restrictive. The terms “specific jurisdiction” and “general jurisdiction” are nowhere to be found in that opinion. And I continue to believe, as I noted in Daimler , that there is no material difference between the “continuous and systematic” terminology International Shoe used for what we now call specific jurisdiction and the “continuous” and “substantial” terminology it used for what we now call general jurisdiction. See Daimler, 571 U. S., at ___, n. 6 (Sotomayor, J., concurring in judgment) (slip op., at 8, n. 6). 3 Indeed, in neither Perkins v. Benguet Consol. Mining Co. , 342 U. S. 437 (1952) , nor Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 (1984) , did the Court engage in a comparative-contacts analysis. 4 The Montana Supreme Court reached this question only by wrongly assuming that 45 U. S. C. §56 is a jurisdictional statute and that a defendant’s unique status as a railroad company is dispositive of the jurisdictional question. A remand rather than an outright reversal is this Court’s traditional practice where a lower court applies the incorrect legal standard; we have done it repeatedly just this Term. See, e.g., Bethune-Hill v. Virginia State Bd. of Elections , 580 U. S. ___ (2017); Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. , ante, p. ___; McLane Co. v. EEOC , ante, p. ___; Moore v. Texas , ante , p. ___.

The Supreme Court held that a provision of the Federal Employers' Liability Act (FELA) governing venue in federal court does not address personal jurisdiction over railroads, and that a Montana rule allowing for personal jurisdiction over companies doing business in the state was unconstitutional as applied to an out-of-state company with only attenuated connections to the forum.

Lawsuits & Legal Procedures

Goodyear Dunlop Tires Operations, S.A. v. Brown

https://supreme.justia.com/cases/federal/us/564/915/

OPINION OF THE COURT GOODYEAR DUNLOP TIRES OPERATIONS, S. A.V. BROWN 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-76 GOODYEAR DUNLOP TIRES OPERATIONS, S. A., et al., PETITIONERS v. EDGAR D. BROWN, et ux., co-administrators of the ESTATE OF JULIAN DAVID BROWN, et al. on writ of certiorari to the court of appeals of north carolina [June 27, 2011]    Justice Ginsburg delivered the opinion of the Court.    This case concerns the jurisdiction of state courts over corporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of a United States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?    A bus accident outside Paris that took the lives of two 13-year-old boys from North Carolina gave rise to the liti-gation we here consider. Attributing the accident to a defective tire manufactured in Turkey at the plant of a foreign subsidiary of The Goodyear Tire and Rubber Company (Goodyear USA), the boys’ parents commenced an action for damages in a North Carolina state court; they named as defendants Goodyear USA, an Ohio corporation, and three of its subsidiaries, organized and operating, respectively, in Turkey, France, and Luxembourg. Goodyear USA, which had plants in North Carolina and regularly engaged in commercial activity there, did not contest the North Carolina court’s jurisdiction over it; Goodyear USA’s foreign subsidiaries, however, maintained that North Carolina lacked adjudicatory authority over them.    A state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is therefore subject to review for compatibility with the Fourteenth Amendment’s Due Process Clause. International Shoe Co. v. Washington , 326 U. S. 310 , 316 (1945) (assertion of jurisdiction over out-of-state corporation must comply with “ ‘traditional notions of fair play and substantial justice’ ” (quoting Milliken v. Meyer , 311 U. S. 457 , 463 (1940))). Opinions in the wake of the pathmarking International Shoe decision have differentiated between general or all-purpose jurisdiction, and specific or case-linked jurisdiction. Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , 414, nn. 8, 9 (1984).    A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum State. See International Shoe , 326 U. S., at 317. Specific jurisdiction, on the other hand, depends on an “affiliatio[n] between the forum and the underlying controversy,” principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation. von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966) (hereinafter von Mehren & Trautman); see Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 782 (1988) (hereinafter Brilmayer). In contrast to general, all-purpose jurisdiction, specific jurisdiction is confined to adjudication of “issues deriving from, or connected with, the very controversy that establishes jurisdiction.” von Mehren & Trautman 1136.    Because the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have caused the accident was manufactured and sold abroad, North Carolina courts lacked specific jurisdiction to adjudicate the controversy. The North Carolina Court of Appeals so acknowledged. Brown v. Meter , 199 N. C. App. 50, 57–58, 681 S. E. 2d 382, 388 (2009). Were the foreign subsidiaries nonetheless amenable to general jurisdiction in North Carolina courts? Confusing or blending general and specific jurisdictional inquiries, the North Carolina courts answered yes. Some of the tires made abroad by Goodyear’s foreign subsidiaries, the North Carolina Court of Appeals stressed, had reached North Carolina through “the stream of commerce”; that connection, the Court of Appeals believed, gave North Carolina courts the handle needed for the exercise of general jurisdiction over the foreign corporations. Id. , at 67–68, 681 S. E. 2d, at 394–395.    A connection so limited between the forum and the for-eign corporation, we hold, is an inadequate basis for the exercise of general jurisdiction. Such a connection does not establish the “continuous and systematic” affiliation necessary to empower North Carolina courts to entertain claims unrelated to the foreign corporation’s contacts with the State. I    On April 18, 2004, a bus destined for Charles de Gaulle Airport overturned on a road outside Paris, France. Passengers on the bus were young soccer players from North Carolina beginning their journey home. Two 13-year-olds, Julian Brown and Matthew Helms, sustained fatal injuries. The boys’ parents, respondents in this Court, filed a suit for wrongful-death damages in the Superior Court of Onslow County, North Carolina, in their capacity as administrators of the boys’ estates. Attributing the accident to a tire that failed when its plies separated, the parents alleged negligence in the “design, construction, testing, and inspection” of the tire. 199 N. C. App., at 51, 681 S. E. 2d, at 384 (internal quotation marks omitted).    Goodyear Luxembourg Tires, SA (Goodyear Luxembourg), Goodyear Lastikleri T. A. S. (Goodyear Turkey), and Goodyear Dunlop Tires France, SA (Goodyear France), petitioners here, were named as defendants. Incorporated in Luxembourg, Turkey, and France, respectively, petitioners are indirect subsidiaries of Goodyear USA, an Ohio corporation also named as a defendant in the suit. Petitioners manufacture tires primarily for sale in European and Asian markets. Their tires differ in size and construction from tires ordinarily sold in the United States. They are designed to carry significantly heavier loads, and to serve under road conditions and speed limits in the manufacturers’ primary markets.[ Footnote 1 ]    In contrast to the parent company, Goodyear USA, which does not contest the North Carolina courts’ personal jurisdiction over it, petitioners are not registered to do business in North Carolina. They have no place of business, employees, or bank accounts in North Carolina. They do not design, manufacture, or advertise their products in North Carolina. And they do not solicit business in North Carolina or themselves sell or ship tires to North Carolina customers. Even so, a small percentage of petitioners’ tires (tens of thousands out of tens of millions manufactured between 2004 and 2007) were distributed within North Carolina by other Goodyear USA affiliates. These tires were typically custom ordered to equip specialized vehicles such as cement mixers, waste haulers, and boat and horse trailers. Petitioners state, and respondents do not here deny, that the type of tire involved in the accident, a Goodyear Regional RHS tire manufactured by Goodyear Turkey, was never distributed in North Carolina.    Petitioners moved to dismiss the claims against them for want of personal jurisdiction. The trial court denied the motion, and the North Carolina Court of Appeals af-firmed. Acknowledging that the claims neither “related to, nor … ar[o]se from, [petitioners’] contacts with North Carolina,” the Court of Appeals confined its analysis to “general rather than specific jurisdiction,” which the court recognized required a “higher threshold” showing: A defendant must have “continuous and systematic contacts” with the forum. Id. , at 58, 681 S. E. 2d, at 388 (internal quotation marks omitted). That threshold was crossed, the court determined, when petitioners placed their tires “in the stream of interstate commerce without any limitation on the extent to which those tires could be sold in North Carolina.” Id. , at 67, 681 S. E. 2d, at 394.    Nothing in the record, the court observed, indicated that petitioners “took any affirmative action to cause tires which they had manufactured to be shipped into North Carolina.” Id. , at 64, 681 S. E. 2d, at 392. The court found, however, that tires made by petitioners reached North Carolina as a consequence of a “highly-organized distribution process” involving other Goodyear USA subsidiaries. Id. , at 67, 681 S. E. 2d, at 394. Petitioners, the court noted, made “no attempt to keep these tires from reaching the North Carolina market.” Id. , at 66, 681 S. E. 2d, at 393. Indeed, the very tire involved in the accident, the court observed, conformed to tire standards established by the U. S. Department of Transportation and bore markings required for sale in the United States. Ibid .[ Footnote 2 ] As further support, the court invoked North Carolina’s “interest in providing a forum in which its citizens are able to seek redress for [their] injuries,” and noted the hardship North Carolina plaintiffs would experience “[were they] required to litigate their claims in France,” a country to which they have no ties. Id. , at 68, 681 S. E. 2d, at 394. The North Carolina Supreme Court denied discretionary review. Brown v. Meter, 364 N. C. 128, 695 S. E. 2d 756 (2010).    We granted certiorari to decide whether the general jurisdiction the North Carolina courts asserted over petitioners is consistent with the Due Process Clause of the Fourteenth Amendment. 561 U. S. ___ (2010). II A    The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state tribunal’s authority to proceed against a defendant. Shaffer v. Heitner , 433 U. S. 186 , 207 (1977). The canonical opinion in this area remains International Shoe, 326 U. S. 310 , in which we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendant has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. , at 316 (quoting Meyer , 311 U. S., at 463).    Endeavoring to give specific content to the “fair play and substantial justice” concept, the Court in International Shoe classified cases involving out-of-state corporate defendants. First, as in International Shoe itself, jurisdiction unquestionably could be asserted where the corporation’s in-state activity is “continuous and systematic” and that activity gave rise to the episode-in-suit . 326 U. S., at 317. Further, the Court observed, the commission of certain “single or occasional acts” in a State may be sufficient to render a corporation answerable in that State with respect to those acts, though not with respect to matters unrelated to the forum connections. Id. , at 318. The heading courts today use to encompass these two International Shoe categories is “specific jurisdiction.” See von Mehren & Trautman 1144–1163. Adjudicatory authority is “specific” when the suit “aris[es] out of or relate[s] to the defendant’s contacts with the forum.” Helicopteros , 466 U. S., at 414, n. 8. International Shoe distinguished from cases that fit within the “specific jurisdiction” categories, “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” 326 U. S., at 318. Adjudicatory authority so grounded is today called “general jurisdiction.” Helicopteros , 466 U. S., at 414, n. 9. For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which the corporation is fairly regarded as at home. See Brilmayer 728 (identifying domicile, place of incorporation, and principal place of business as “paradig[m]” bases for the exercise of general jurisdiction).    Since International Shoe , this Court’s decisions have elaborated primarily on circumstances that warrant the exercise of specific jurisdiction, particularly in cases involving “single or occasional acts” occurring or having their impact within the forum State. As a rule in these cases, this Court has inquired whether there was “some act by which the defendant purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla , 357 U. S. 235 , 253 (1958). See, e.g. , World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 , 287, 297 (1980) (Oklahoma court may not exercise personal jurisdiction “over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the defendants’ only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma”); Burger King Corp. v. Rudzewicz , 471 U. S. 462 , 474–475 (1985) (franchisor headquartered in Florida may maintain breach-of-contract action in Florida against Michigan franchisees, where agreement contemplated on-going interactions between franchisees and franchisor’s headquarters); Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U. S. 102 , 105 (1987) (Taiwanese tire manufacturer settled product liability action brought in California and sought indemnification there from Japanese valve assembly manufacturer; Japanese company’s “mere awareness … that the components it manufactured, sold, and delivered outside the United States would reach the forum State in the stream of commerce” held insufficient to permit California court’s adjudication of Taiwanese company’s cross-complaint); id. , at 109 (opinion of O’Connor, J.); id. , at 116–117 (Brennan, J., concurring in part and concurring in judgment). See also Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610, 628 (1988) (in the wake of International Shoe , “specific jurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction plays a reduced role”).    In only two decisions postdating International Shoe , discussed infra , at 11–13, has this Court considered whether an out-of-state corporate defendant’s in-state contacts were sufficiently “continuous and systematic” to justify the exercise of general jurisdiction over claims unrelated to those contacts: Perkins v. Benguet Consol. Mining Co. , 342 U. S. 437 (1952) (general jurisdiction appropriately exercised over Philippine corporation sued in Ohio, where the company’s affairs were overseen during World War II); and Helicopteros , 466 U. S. 408 (helicopter owned by Colombian corporation crashed in Peru; survivors of U. S. citizens who died in the crash, the Court held, could not maintain wrongful-death actions against the Colombian corporation in Texas, for the corporation’s helicopter purchases and purchase-linked activity in Texas were insufficient to subject it to Texas court’s general jurisdiction). B    To justify the exercise of general jurisdiction over petitioners, the North Carolina courts relied on the petitioners’ placement of their tires in the “stream of commerce.” See supra , at 5. The stream-of-commerce metaphor has been invoked frequently in lower court decisions permitting “jurisdiction in products liability cases in which the product has traveled through an extensive chain of distribution before reaching the ultimate consumer.” 18 W. Fletcher, Cyclopedia of the Law of Corporations §8640.40, p. 133 (rev. ed. 2007). Typically, in such cases, a nonresident defendant, acting outside the forum, places in the stream of commerce a product that ultimately causes harm inside the forum. See generally Dayton, Personal Jurisdiction and the Stream of Commerce, 7 Rev. Litigation 239, 262–268 (1988) (discussing origins and evolution of the stream-of-commerce doctrine).    Many States have enacted long-arm statutes authorizing courts to exercise specific jurisdiction over manufacturers when the events in suit, or some of them, occurred within the forum state. For example, the “Local Injury; Foreign Act” subsection of North Carolina’s long-arm statute authorizes North Carolina courts to exercise personal jurisdiction in “any action claiming injury to person or property within this State arising out of [the defendant’s] act or omission outside this State,” if, “in addition[,] at or about the time of the injury,” ”[p]roducts … manufactured by the defendant were used or consumed, within this State in the ordinary course of trade.” N. C. Gen. Stat. Ann. §1–75.4(4)(b) (Lexis 2009).[ Footnote 3 ] As the North Carolina Court of Appeals recognized, this provision of the State’s long-arm statute “does not apply to this case,” for both the act alleged to have caused injury (the fabrication of the allegedly defective tire) and its impact (the accident) occurred outside the forum. See 199 N. C. App., at 61, n. 6, 681 S. E. 2d, at 390, n. 6.[ Footnote 4 ]    The North Carolina court’s stream-of-commerce analysis elided the essential difference between case-specific and all-purpose (general) jurisdiction. Flow of a manufacturer’s products into the forum, we have explained, may bolster an affiliation germane to specific jurisdiction. See, e.g. , World-Wide Volkswagen , 444 U. S., at 297 (where “the sale of a product … is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve … the market for its product in [several] States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others ” (em-phasis added)). But ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant. See, e.g. , Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd. , 647 F. 2d 200, 203, n. 5 (CADC 1981) (defendants’ marketing arrangements, although “adequate to permit litigation of claims relating to [their] introduction of … wine into the United States stream of commerce, … would not be adequate to support general, ‘all purpose’ adjudicatory authority”). A corporation’s “continuous activity of some sorts within a state,” International Shoe instructed, “is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” 326 U. S., at 318. Our 1952 decision in Perkins v. Benguet Consol. Mining Co . remains “[t]he textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.” Donahue v. Far Eastern Air Transport Corp. , 652 F. 2d 1032, 1037 (CADC 1981).    Sued in Ohio, the defendant in Perkins was a Philippine mining corporation that had ceased activities in the Philippines during World War II. To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, it was doing so in Ohio: the corporation’s president maintained his office there, kept the company files in that office, and supervised from the Ohio office “the necessarily limited wartime activities of the company.” Perkins , 342 U. S., at 447–448. Although the claim-in-suit did not arise in Ohio, this Court ruled that it would not violate due process for Ohio to adjudicate the controversy. Ibid. ; see Keeton v. Hustler Magazine, Inc. , 465 U. S. 770 , 779–780, n. 11 (1984) (Ohio’s exercise of general jurisdiction was permissible in Perkins because “Ohio was the corporation’s principal, if temporary, place of business”).    We next addressed the exercise of general jurisdiction over an out-of-state corporation over three decades later, in Helicopteros. In that case, survivors of United States citizens who died in a helicopter crash in Peru instituted wrongful-death actions in a Texas state court against the owner and operator of the helicopter, a Colombian corporation. The Colombian corporation had no place of business in Texas and was not licensed to do business there. “Basically, [the company’s] contacts with Texas consisted of sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [a Texas enterprise] for substantial sums; and sending personnel to [Texas] for training.” 466 U. S., at 416. These links to Texas, we determined, did not “constitute the kind of continuous and systematic general business contacts … found to exist in Perkins, ” and were insufficient to support the exercise of jurisdiction over a claim that neither “ar[o]se out of … no[r] related to” the defendant’s activities in Texas. Id. , at 415–416 (internal quotation marks omitted). Helicopteros concluded that “mere purchases [made in the forum State], even if occurring at regular intervals, are not enough to warrant a State’s assertion of [general] jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Id. , at 418. We see no reason to differentiate from the ties to Texas held insufficient in Helicopteros , the sales of petitioners’ tires sporadically made in North Carolina through intermediaries. Under the sprawling view of general jurisdiction urged by respondents and embraced by the North Carolina Court of Appeals, any substantial manufacturer or seller of goods would be amenable to suit, on any claim for relief, wherever its products are distributed. But cf. World-Wide Volkswagen , 444 U. S., at 296 (every seller of chattels does not, by virtue of the sale, “appoint the chattel his agent for service of process”).    Measured against Helicopteros and Perkins , North Caro-lina is not a forum in which it would be permissible to subject petitioners to general jurisdiction. Unlike the defendant in Perkins , whose sole wartime business activity was conducted in Ohio, petitioners are in no sense at home in North Carolina. Their attenuated connections to the State, see supra , at 4–5, fall far short of the “the continuous and systematic general business contacts” necessary to empower North Carolina to entertain suit against them on claims unrelated to anything that connects them to the State. Helicopteros , 466 U. S., at 416.[ Footnote 5 ] C    Respondents belatedly assert a “single enterprise” theory, asking us to consolidate petitioners’ ties to North Carolina with those of Goodyear USA and other Goodyear entities. See Brief for Respondents 44–50. In effect, respondents would have us pierce Goodyear corporate veils, at least for jurisdictional purposes. See Brilmayer & Paisley, Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Cal. L. Rev. 1, 14, 29–30 (1986) (merging parent and subsidiary for jurisdictional purposes requires an inquiry “comparable to the corporate law question of piercing the corporate veil”). But see 199 N. C. App., at 64, 681 S. E. 2d, at 392 (North Carolina Court of Appeals understood that petitioners are “separate corporate entities … not directly re-sponsible for the presence in North Carolina of tires that they had manufactured”). Neither below nor in their brief in opposition to the petition for certiorari did respondents urge disregard of petitioners’ discrete status as subsidiaries and treatment of all Goodyear entities as a “unitary business,” so that jurisdiction over the parent would draw in the subsidiaries as well.[ Footnote 6 ] Brief for Respondents 44. Respondents have therefore forfeited this contention, and we do not address it. This Court’s Rule 15.2; Granite Rock Co. v. Teamsters , 561 U. S. ___, ___ (2010) (slip op., at 16). *  *  *    For the reasons stated, the judgment of the North Carolina Court of Appeals is Reversed. Footnote 1 Respondents portray Goodyear USA’s structure as a reprehensible effort to “outsource” all manufacturing, and correspondingly, tort litigation, to foreign jurisdictions. See Brief for Respondents 51–53. Yet Turkey, where the tire alleged to have caused the accident-in-suit was made, is hardly a strange location for a facility that primarily supplies markets in Europe and Asia. Footnote 2 Such markings do not necessarily show that any of the tires were destined for sale in the United States. To facilitate trade, the Solicitor General explained, the United States encourages other countries to “treat compliance with [Department of Transportation] standards, in-cluding through use of DOT markings, as evidence that the products are safely manufactured.” Brief for United States as Amicus Curiae 32. Footnote 3 Cf. D. C. Code §13–423(a)(4) (2001) (providing for specific jurisdiction over defendant who “caus[es] tortious injury in the [forum] by an act or omission outside the [forum]” when, in addition, the defendant “derives substantial revenue from goods used or consumed … in the [forum]”). Footnote 4 The court instead relied on N. C. Gen. Stat. Ann. §1–75.4(1)(d), see 199 N. C. App., at 57, 681 S. E. 2d, at 388, which provides for jurisdiction, “whether the claim arises within or without [the] State,” when the defendant “[i]s engaged in substantial activity within this State, whether such activity is wholly interstate, intrastate, or otherwise.” This provision, the North Carolina Supreme Court has held, was “in-tended to make available to the North Carolina courts the full juris-dictional powers permissible under federal due process.” Dillon v. Numismatic Funding Corp. , 291 N. C. 674, 676, 231 S. E. 2d 629, 630 (1977). Footnote 5 As earlier noted, see supra , at 6, the North Carolina Court of Appeals invoked the State’s “well-recognized interest in providing a forum in which its citizens are able to seek redress for injuries that they have sustained.” 199 N. C. App., at 68, 681 S. E. 2d, at 394. But “[g]eneral jurisdiction to adjudicate has in [United States] practice never been based on the plaintiff’s relationship to the forum. There is nothing in [our] law comparable to … article 14 of the Civil Code of France (1804) under which the French nationality of the plaintiff is a sufficient ground for jurisdiction.” von Mehren & Trautman 1137; see Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474, 492–495 (2006) (French law permitting plaintiff-based jurisdiction is rarely invoked in the absence of other supporting factors). When a defendant’s act outside the forum causes injury in the forum, by contrast, a plaintiff’s residence in the forum may strengthen the case for the exercise of specific jurisdiction . See Calder v. Jones , 465 U. S. 783 , 788 (1984); von Mehren & Trautman 1167–1173. Footnote 6 In the brief they filed in the North Carolina Court of Appeals, respondents stated that petitioners were part of an “integrated world-wide efforts to design, manufacture, market and sell their tires in the United States, including in North Carolina.” App. 485 (emphasis added). See also Brief in Opposition 18. Read in context, that assertion was offered in support of a narrower proposition: The distribution of petitioners’ tires in North Carolina, respondents maintained, demonstrated petitioners’ own “calculated and deliberate efforts to take advantage of the North Carolina market.” App. 485. As already explained, see supra , at 12–13, even regularly occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.

The Supreme Court held that a state court cannot exercise general jurisdiction over a foreign subsidiary of a US company, unless the subsidiary has significant and continuous contacts with the state that make it essentially at home there. Specific jurisdiction, on the other hand, depends on the relationship between the forum and the specific claims in the case.

Lawsuits & Legal Procedures

Ashcroft v. Iqbal

https://supreme.justia.com/cases/federal/us/556/662/

OPINION OF THE COURT ASHCROFT V. IQBAL 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-1015 JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, et al., PETITIONERS v. JAVAID IQBAL et al. on writ of certiorari to the united states court of appeals for the second circuit [May 18, 2009]    Justice Kennedy delivered the opinion of the Court.    Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, 2001, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent claims he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin.    In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a claim against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a claim despite petitioners’ official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court’s decision.    Respondent’s account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that petitioners deprived him of his clearly established constitutional rights. We hold respondent’s pleadings are insufficient. I    Following the 2001 attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 “the FBI had received more than 96,000 tips or potential leads from the public.” Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, 11–12 (Apr. 2003) (hereinafter OIG Report), http://www.usdoj.gov/oig/special/ 0306/full.pdf?bcsi_scan_61073EC0F74759AD=0&bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court’s case file).    In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to terrorism in general. Id. , at 1. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be “of ‘high interest’ ” to the investigation. Id., at 111. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. Id., at 112–113.    Respondent was one of the detainees. According to his complaint, in November 2001 agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Iqbal v. Hasty, 490 F. 3d 143, 147–148 (CA2 2007). Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person “of high interest” to the September 11 investigation and in January 2002 was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). Id., at 148. As the facility’s name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. Ibid. ADMAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Ibid. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. Id., at 149. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 “John Doe” federal corrections officers. See Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971). The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitioners—officials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04–CV–1809 (JG)(JA), ¶¶1011, App. to Pet. for Cert. 157a (hereinafter Complaint).    The 21-cause-of-action complaint does not challenge respondent’s arrest or his confinement in the MDC’s general prison population. Rather, it concentrates on his treatment while confined to the ADMAX SHU. The complaint sets forth various claims against defendants who are not before us. For instance, the complaint alleges that respondent’s jailors “kicked him in the stomach, punched him in the face, and dragged him across” his cell without justification, id., ¶113, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, id., ¶¶143–145, App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be “[n]o prayers for terrorists,” id., ¶154, App. to Pet. for Cert. 184a.    The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Id., ¶47, at 164a. It further alleges that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶69, at 168a. Lastly, the complaint posits that petitioners “each knew of, condoned, and willfully and maliciously agreed to subject” respondent to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id., ¶96, at 172a–173a. The pleading names Ashcroft as the “principal architect” of the policy, id., ¶10, at 157a, and identifies Mueller as “instrumental in [its] adoption, promulgation, and implementation.” Id., ¶11, at 157a.    Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent’s complaint as true, the court held that “it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against” petitioners. Id., at 136a–137a (relying on Conley v. Gibson , 355 U. S. 41 (1957)). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic Corp. v. Twombly , 550 U. S. 544 (2007), which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss.    The Court of Appeals considered Twombly’ s applicability to this case. Acknowledging that Twombly retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals’ opinion discussed at length how to apply this Court’s “standard for assessing the adequacy of pleadings.” 490 F. 3d, at 155. It concluded that Twombly called for a “flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. ” Id., at 157–158. The court found that petitioners’ appeal did not present one of “those contexts” requiring amplification. As a consequence, it held respondent’s pleading adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law. Id., at 174.    Judge Cabranes concurred. He agreed that the majority’s “discussion of the relevant pleading standards reflect[ed] the uneasy compromise … between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure.” Id., at 178 (internal quotation marks and citations omitted). Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officials—entitled to assert the defense of qualified immunity and charged with responding to “a national and international security emergency unprecedented in the history of the American Republic”—to the burdens of discovery on the basis of a complaint as nonspecific as respondent’s. Id., at 179. Reluctant to vindicate that concern as a member of the Court of Appeals, ibid., Judge Cabranes urged this Court to address the appropriate pleading standard “at the earliest opportunity.” Id., at 178. We granted certiorari, 554 U. S. ___ (2008), and now reverse. II    We first address whether the Court of Appeals had subject-matter jurisdiction to affirm the District Court’s order denying petitioners’ motion to dismiss. Respondent disputed subject-matter jurisdiction in the Court of Appeals, but the court hardly discussed the issue. We are not free to pretermit the question. Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt. Arbaugh v. Y & H Corp. , 546 U. S. 500 , 514 (2006) (citing United States v. Cotton , 535 U. S. 625 , 630 (2002)). According to respondent, the District Court’s order denying petitioners’ motion to dismiss is not appealable under the collateral-order doctrine. We disagree. A    With exceptions inapplicable here, Congress has vested the courts of appeals with “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U. S. C. §1291. Though the statute’s finality requirement ensures that “interlocutory appeals—appeals before the end of district court proceedings—are the exception, not the rule,” Johnson v. Jones , 515 U. S. 304 , 309 (1995), it does not prevent “review of all prejudgment orders.” Behrens v. Pelletier , 516 U. S. 299 , 305 (1996). Under the collateral-order doctrine a limited set of district-court orders are reviewable “though short of final judgment.” Ibid. The orders within this narrow category “are immediately appealable because they ‘finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’ ” Ibid. (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 , 546 (1949)).    A district-court decision denying a Government officer’s claim of qualified immunity can fall within the narrow class of appealable orders despite “the absence of a final judgment.” Mitchell v. Forsyth , 472 U. S. 511 , 530 (1985). This is so because qualified immunity—which shields Government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” Harlow v. Fitzgerald , 457 U. S. 800 , 818 (1982)—is both a defense to liability and a limited “entitlement not to stand trial or face the other burdens of litigation.” Mitchell , supra , 472 U. S., at 526. Provided it “turns on an issue of law,” id. , at 530, a district-court order denying qualified immunity “ ‘conclusively determine[s]’ ” that the defendant must bear the burdens of discovery; is “conceptually distinct from the merits of the plaintiff’s claim”; and would prove “effectively unreviewable on appeal from a final judgment.” Id. , at 527528 (citing Cohen, supra, at 546). As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in Cohen . But the applicability of the doctrine in the context of qualified-immunity claims is well established; and this Court has been careful to say that a district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a “final decision” within the meaning of §1291. Behrens, 516 U. S., at 307 . B Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners’ appeal. The District Court’s order denying petitioners’ motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision “subject to immediate appeal.” Ibid . Respondent says that “a qualified immunity appeal based solely on the complaint’s failure to state a claim, and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction.” Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined.       In Hartman v. Moore , 547 U. S. 250 (2006), the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in Hartman concerned the elements a plaintiff “must plead and prove in order to win” a First Amendment retaliation claim. Id., at 257, n. 5. Similarly, two Terms ago in Wilkie v. Robbins , 551 U. S. 537 (2007), the Court considered another interlocutory order denying qualified immunity. The legal issue there was whether a Bivens action can be employed to challenge interference with property rights. 551 U. S., at 549, n. 4. These cases cannot be squared with respondent’s argument that the collateral-order doctrine restricts appellate jurisdiction to the “ultimate issu[e]” whether the legal wrong asserted was a violation of clearly established law while excluding the question whether the facts pleaded establish such a violation. Iqbal Brief 15. Indeed, the latter question is even more clearly within the category of appealable decisions than the questions presented in Hartman and Wilkie , since whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded. In that sense the sufficiency of respondent’s pleadings is both “inextricably intertwined with,” Swint v. Chambers County Comm’n , 514 U. S. 35 , 51 (1995), and “directly implicated by,” Hartman, supra , at 257, n. 5, the qualified immunity defense.    Respondent counters that our holding in Johnson , 515 U. S. 304 , confirms the want of subject-matter jurisdiction here. That is incorrect. The allegation in Johnson was that five defendants, all of them police officers, unlawfully beat the plaintiff. Johnson considered “the appealability of a portion of” the District Court’s summary judgment order that, “though entered in a ‘qualified immunity’ case, determine[d] only” that there was a genuine issue of material fact that three of the defendants participated in the beating. Id., at 313.    In finding that order not a “final decision” for purposes of §1291, the Johnson Court cited Mitchell for the proposition that only decisions turning “ ‘ on an issue of law ’ ” are subject to immediate appeal. 515 U. S., at 313 . Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson , it is a “fact-related” legal inquiry. Id., at 314. To conduct it, a court of appeals may be required to consult a “vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials.” Id., at 316. That process generally involves matters more within a district court’s ken and may replicate inefficiently questions that will arise on appeal following final judgment. Ibid. Finding those concerns predominant, Johnson held that the collateral orders that are “final” under Mitchell turn on “abstract,” rather than “fact-based,” issues of law. 515 U. S., at 317.    The concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings. True, the categories of “fact-based” and “abstract” legal questions used to guide the Court’s decision in Johnson are not well defined. Here, however, the order denying petitioners’ motion to dismiss falls well within the latter class. Reviewing that order, the Court of Appeals considered only the allegations contained within the four corners of respondent’s complaint; resort to a “vast pretrial record” on petitioners’ motion to dismiss was unnecessary. Id., at 316. And determining whether respondent’s complaint has the “heft” to state a claim is a task well within an appellate court’s core competency. Twombly, 550 U. S., at 557. Evaluating the sufficiency of a complaint is not a “fact-based” question of law, so the problem the Court sought to avoid in Johnson is not implicated here. The District Court’s order denying petitioners’ motion to dismiss is a final decision under the collateral-order doctrine over which the Court of Appeals had, and this Court has, jurisdiction. We proceed to consider the merits of petitioners’ appeal. III    In Twombly, supra, at 553–554, the Court found it necessary first to discuss the antitrust principles implicated by the complaint. Here too we begin by taking note of the elements a plaintiff must plead to state a claim of unconstitutional discrimination against officials entitled to assert the defense of qualified immunity.    In Bivens —proceeding on the theory that a right suggests a remedy—this Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko , 534 U. S. 61 , 66 (2001). Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability “to any new context or new category of defendants.” 534 U. S., at 68. See also Wilkie , 551 U. S., at 549 –550. That reluctance might well have disposed of respondent’s First Amendment claim of religious discrimination. For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, see Davis v. Passman , 442 U. S. 228 (1979), we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment. Bush v. Lucas , 462 U. S. 367 (1983). Petitioners do not press this argument, however, so we assume, without deciding, that respondent’s First Amendment claim is actionable under Bivens .    In the limited settings where Bivens does apply, the implied cause of action is the “federal analog to suits brought against state officials under Rev. Stat. §1979, 42 U. S. C. §1983.” Hartman , 547 U. S., at 254, n. 2. Cf. Wilson v. Layne , 526 U. S. 603 , 609 (1999). Based on the rules our precedents establish, respondent correctly concedes that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal Brief 46 (“[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior ”). See Monell v. New York City Dept. of Social Servs. , 436 U. S. 658 , 691 (1978) (finding no vicarious liability for a municipal “person” under 42 U. S. C. §1983); see also Dunlop v. Munroe , 7 Cranch 242, 269 (1812) (a federal official’s liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates’ duties); Robertson v. Sichel , 127 U. S. 507 , 515–516 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”). Because vicarious liability is inapplicable to Bivens and §1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.    The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520 , 540–541 (1993) (First Amendment); Washington v. Davis , 426 U. S. 229 , 240 (1976) (Fifth Amendment). Under extant precedent purposeful discrimination requires more than “intent as volition or intent as awareness of consequences.” Personnel Administrator of Mass. v. Feeney , 442 U. S. 256 , 279 (1979). It instead involves a decisionmaker’s undertaking a course of action “ ‘because of,’ not merely ‘in spite of,’ [the action’s] adverse effects upon an identifiable group.” Ibid. It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin.    Respondent disagrees. He argues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” Iqbal Brief 45–46. That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. IV A    We turn to respondent’s complaint. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held in Twombly, 550 U. S. 544 , the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id ., at 555 (citing Papasan v. Allain, 478 U. S. 265 , 286 (1986)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” 550 U. S., at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. , at 557.    To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. , at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid . Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. , at 557 (brackets omitted).    Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F. 3d, at 157–158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).    In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.    Our decision in Twombly illustrates the two-pronged approach. There, we considered the sufficiency of a complaint alleging that incumbent telecommunications providers had entered an agreement not to compete and to forestall competitive entry, in violation of the Sherman Act, 15 U. S. C. §1. Recognizing that §1 enjoins only anticompetitive conduct “effected by a contract, combination, or conspiracy,” Copperweld Corp. v. Independence Tube Corp. , 467 U. S. 752 , 775 (1984), the plaintiffs in Twombly flatly pleaded that the defendants “ha[d] entered into a contract, combination or conspiracy to prevent competitive entry … and ha[d] agreed not to compete with one another.” 550 U. S., at 551 (internal quotation marks omitted). The complaint also alleged that the defendants’ “parallel course of conduct … to prevent competition” and inflate prices was indicative of the unlawful agreement alleged. Ibid. (internal quotation marks omitted).    The Court held the plaintiffs’ complaint deficient under Rule 8. In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a “ ‘legal conclusion’ ” and, as such, was not entitled to the assumption of truth. Id., at 555. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce. The Court next addressed the “nub” of the plaintiffs’ complaint—the well-pleaded, nonconclusory factual allegation of parallel behavior—to determine whether it gave rise to a “plausible suggestion of conspiracy.” Id., at 565–566. Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior. Id. , at 567. Because the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement, the Court held the plaintiffs’ complaint must be dismissed. Id. , at 570. B    Under Twombly ’s construction of Rule 8, we conclude that respondent’s complaint has not “nudged [his] claims” of invidious discrimination “across the line from conceivable to plausible.” Ibid. We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶96, App. to Pet. for Cert. 173a–174a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ¶10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id. , ¶11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly , amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim, 550 U. S., at 555, namely, that petitioners adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney , 442 U. S., at 279. As such, the allegations are conclusory and not entitled to be assumed true. Twombly , supra, 550 U. S., at 554–555. To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs’ express allegation of a “ ‘contract, combination or conspiracy to prevent competitive entry,’ ” id. , at 551, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.    We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Complaint ¶47, App. to Pet. for Cert. 164a. It further claims that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶69, at 168a. Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest” because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.    The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.    But even if the complaint’s well-pleaded facts give rise to a plausible inference that respondent’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent’s complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC. Respondent’s constitutional claims against petitioners rest solely on their ostensible “policy of holding post-September-11th detainees” in the ADMAX SHU once they were categorized as “of high interest.” Complaint ¶69, App. to Pet. for Cert. 168a. To prevail on that theory, the complaint must contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-September-11 detainees as “of high interest” because of their race, religion, or national origin.    This the complaint fails to do. Though respondent alleges that various other defendants, who are not before us, may have labeled him a person of “of high interest” for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving “restrictive conditions of confinement” for post-September-11 detainees until they were “ ‘cleared’ by the FBI.” Ibid. Accepting the truth of that allegation, the complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests is that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners’ constitutional obligations. He would need to allege more by way of factual content to “nudg[e]” his claim of purposeful discrimination “across the line from conceivable to plausible.” Twombly , 550 U. S., at 570.    To be sure, respondent can attempt to draw certain contrasts between the pleadings the Court considered in Twombly and the pleadings at issue here. In Twombly , the complaint alleged general wrongdoing that extended over a period of years, id., at 551, whereas here the complaint alleges discrete wrongs—for instance, beatings—by lower level Government actors. The allegations here, if true, and if condoned by petitioners, could be the basis for some inference of wrongful intent on petitioners’ part. Despite these distinctions, respondent’s pleadings do not suffice to state a claim. Unlike in Twombly , where the doctrine of respondeat superior could bind the corporate defendant, here, as we have noted, petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic. Yet respondent’s complaint does not contain any factual allegation sufficient to plausibly suggest petitioners’ discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8.    It is important to note, however, that we express no opinion concerning the sufficiency of respondent’s complaint against the defendants who are not before us. Respondent’s account of his prison ordeal alleges serious official misconduct that we need not address here. Our decision is limited to the determination that respondent’s complaint does not entitle him to relief from petitioners. C    Respondent offers three arguments that bear on our disposition of his case, but none is persuasive. 1    Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute. Iqbal Brief 37–38. This argument is not supported by Twombly and is incompatible with the Federal Rules of Civil Procedure. Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. 550 U. S., at 554. That Rule in turn governs the pleading standard “in all civil actions and proceedings in the United States district courts.” Fed. Rule Civ. Proc. 1. Our decision in Twombly expounded the pleading standard for “all civil actions,” ibid. , and it applies to antitrust and discrimination suits alike. See 550 U. S., at 555–556, and n. 3. 2    Respondent next implies that our construction of Rule 8 should be tempered where, as here, the Court of Appeals has “instructed the district court to cabin discovery in such a way as to preserve” petitioners’ defense of qualified immunity “as much as possible in anticipation of a summary judgment motion.” Iqbal Brief 27. We have held, however, that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process. Twombly , supra , at 559 (“It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through careful case management given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side” (internal quotation marks and citation omitted)).    Our rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity. The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation, including “avoidance of disruptive discovery.” Siegert v. Gilley , 500 U. S. 226 , 236 (1991) (Kennedy, J., concurring in judgment). There are serious and legitimate reasons for this. If a Government official is to devote time to his or her duties, and to the formulation of sound and responsible policies, it is counterproductive to require the substantial diversion that is attendant to participating in litigation and making informed decisions as to how it should proceed. Litigation, though necessary to ensure that officials comply with the law, exacts heavy costs in terms of efficiency and expenditure of valuable time and resources that might otherwise be directed to the proper execution of the work of the Government. The costs of diversion are only magnified when Government officials are charged with responding to, as Judge Cabranes aptly put it, “a national and international security emergency unprecedented in the history of the American Republic.” 490 F. 3d, at 179.    It is no answer to these concerns to say that discovery for petitioners can be deferred while pretrial proceedings continue for other defendants. It is quite likely that, when discovery as to the other parties proceeds, it would prove necessary for petitioners and their counsel to participate in the process to ensure the case does not develop in a misleading or slanted way that causes prejudice to their position. Even if petitioners are not yet themselves subject to discovery orders, then, they would not be free from the burdens of discovery.    We decline respondent’s invitation to relax the pleading requirements on the ground that the Court of Appeals promises petitioners minimally intrusive discovery. That promise provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties. Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise. 3    Respondent finally maintains that the Federal Rules expressly allow him to allege petitioners’ discriminatory intent “generally,” which he equates with a conclusory allegation. Iqbal Brief 32 (citing Fed. Rule Civ. Proc. 9). It follows, respondent says, that his complaint is sufficiently well pleaded because it claims that petitioners discriminated against him “on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶96, App. to Pet. for Cert. 172a–173a. Were we required to accept this allegation as true, respondent’s complaint would survive petitioners’ motion to dismiss. But the Federal Rules do not require courts to credit a complaint’s conclusory statements without reference to its factual context.    It is true that Rule 9(b) requires particularity when pleading “fraud or mistake,” while allowing “[m]alice, intent, knowledge, and other conditions of a person’s mind [to] be alleged generally.” But “generally” is a relative term. In the context of Rule 9, it is to be compared to the particularity requirement applicable to fraud or mistake. Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid—though still operative—strictures of Rule 8. See 5A C. Wright & A. Miller, Federal Practice and Procedure §1301, p. 291 (3d ed. 2004) (“[A] rigid rule requiring the detailed pleading of a condition of mind would be undesirable because, absent overriding considerations pressing for a specificity requirement, as in the case of averments of fraud or mistake, the general ‘short and plain statement of the claim’ mandate in Rule 8(a) … should control the second sentence of Rule 9(b)”). And Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label “general allegation,” and expect his complaint to survive a motion to dismiss. V    We hold that respondent’s complaint fails to plead sufficient facts to state a claim for purposeful and unlawful discrimination against petitioners. The Court of Appeals should decide in the first instance whether to remand to the District Court so that respondent can seek leave to amend his deficient complaint.    The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. SOUTER, J., DISSENTING ASHCROFT V. IQBAL 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-1015 JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, et al., PETITIONERS v. JAVAID IQBAL et al. on writ of certiorari to the united states court of appeals for the second circuit [May 18, 2009]    Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.    This case is here on the uncontested assumption that Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 (1971), allows personal liability based on a federal officer’s violation of an individual’s rights under the First and Fifth Amendments, and it comes to us with the explicit concession of petitioners Ashcroft and Mueller that an officer may be subject to Bivens liability as a supervisor on grounds other than respondeat superior . The Court apparently rejects this concession and, although it has no bearing on the majority’s resolution of this case, does away with supervisory liability under Bivens . The majority then misapplies the pleading standard under Bell Atlantic Corp. v. Twombly , 550 U. S. 544 (2007), to conclude that the complaint fails to state a claim . I respectfully dissent from both the rejection of supervisory liability as a cognizable claim in the face of petitioners’ concession, and from the holding that the complaint fails to satisfy Rule 8(a)(2) of the Federal Rules of Civil Procedure. I A    Respondent Iqbal was arrested in November 2001 on charges of conspiracy to defraud the United States and fraud in relation to identification documents, and was placed in pretrial detention at the Metropolitan Detention Center in Brooklyn, New York. Iqbal v. Hasty, 490 F. 3d 143, 147–148 (CA2 2007). He alleges that FBI officials carried out a discriminatory policy by designating him as a person “ ‘of high interest’ ” in the investigation of the September 11 attacks solely because of his race, religion, or national origin. Owing to this designation he was placed in the detention center’s Administrative Maximum Special Housing Unit for over six months while awaiting the fraud trial. Id ., at 148. As I will mention more fully below, Iqbal contends that Ashcroft and Mueller were at the very least aware of the discriminatory detention policy and condoned it (and perhaps even took part in devising it), thereby violating his First and Fifth Amendment rights.[ Footnote 1 ]    Iqbal claims that on the day he was transferred to the special unit, prison guards, without provocation, “picked him up and threw him against the wall, kicked him in the stomach, punched him in the face, and dragged him across the room.” First Amended Complaint in No. 04–CV–1809 (JG) (JA), ¶113, App. to Pet. for Cert. 176a (hereinafter Complaint). He says that after being attacked a second time he sought medical attention but was denied care for two weeks. Id., ¶¶187–188, at 189a. According to Iqbal’s complaint, prison staff in the special unit subjected him to unjustified strip and body cavity searches, id., ¶¶136–140, at 181a, verbally berated him as a “ ‘terrorist’ ” and “ ‘Muslim killer,’ ” id., ¶87, at 170a–171a, refused to give him adequate food, id., ¶91, at 171a–172a, and intentionally turned on air conditioning during the winter and heating during the summer, id., ¶84, at 170a. He claims that prison staff interfered with his attempts to pray and engage in religious study, id. , ¶¶153–154, at 183a–184a, and with his access to counsel, id., ¶¶168, 171, at 186a–187a.    The District Court denied Ashcroft and Mueller’s motion to dismiss Iqbal’s discrimination claim, and the Court of Appeals affirmed. Ashcroft and Mueller then asked this Court to grant certiorari on two questions: “1. Whether a conclusory allegation that a cabinet-level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens . “2. Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.” Pet. for Cert. I. The Court granted certiorari on both questions. The first is about pleading; the second goes to the liability standard.    In the first question, Ashcroft and Mueller did not ask whether “a cabinet-level officer or other high-ranking official” who “knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts committed by subordinate officials” was subject to liability under Bivens. In fact, they conceded in their petition for certiorari that they would be liable if they had “actual knowledge” of discrimination by their subordinates and exhibited “ ‘deliberate indifference’ ” to that discrimination. Pet. for Cert. 29 (quoting Farmer v. Brennan , 511 U. S. 825 , 837 (1994)). Instead, they asked the Court to address whether Iqbal’s allegations against them (which they call conclusory) were sufficient to satisfy Rule 8(a)(2), and in particular whether the Court of Appeals misapplied our decision in Twombly construing that rule. Pet. for Cert. 11–24.    In the second question, Ashcroft and Mueller asked this Court to say whether they could be held personally liable for the actions of their subordinates based on the theory that they had constructive notice of their subordinates’ unconstitutional conduct. Id. , at 25–33. This was an odd question to pose, since Iqbal has never claimed that Ashcroft and Mueller are liable on a constructive notice theory. Be that as it may, the second question challenged only one possible ground for imposing supervisory liability under Bivens . In sum, both questions assumed that a defendant could raise a Bivens claim on theories of supervisory liability other than constructive notice, and neither question asked the parties or the Court to address the elements of such liability.    The briefing at the merits stage was no different. Ashcroft and Mueller argued that the factual allegations in Iqbal’s complaint were insufficient to overcome their claim of qualified immunity; they also contended that they could not be held liable on a theory of constructive notice. Again they conceded, however, that they would be subject to supervisory liability if they “had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being ‘of high interest’ and they were deliberately indifferent to that discrimination.” Brief for Petitioners 50; see also Reply Brief for Petitioners 21–22. Iqbal argued that the allegations in his complaint were sufficient under Rule 8(a)(2) and Twombly , and conceded that as a matter of law he could not recover under a theory of respondeat superior . See Brief for Respondent Iqbal 46. Thus, the parties agreed as to a proper standard of supervisory liability, and the disputed question was whether Iqbal’s complaint satisfied Rule 8(a)(2).    Without acknowledging the parties’ agreement as to the standard of supervisory liability, the Court asserts that it must sua sponte decide the scope of supervisory liability here. Ante , at 11–13. I agree that, absent Ashcroft and Mueller’s concession, that determination would have to be made; without knowing the elements of a supervisory liability claim, there would be no way to determine whether a plaintiff had made factual allegations amounting to grounds for relief on that claim. See Twombly , 550 U. S., at 557–558. But deciding the scope of supervisory Bivens liability in this case is uncalled for. There are several reasons, starting with the position Ashcroft and Mueller have taken and following from it.    First, Ashcroft and Mueller have, as noted, made the critical concession that a supervisor’s knowledge of a subordinate’s unconstitutional conduct and deliberate indifference to that conduct are grounds for Bivens liability. Iqbal seeks to recover on a theory that Ashcroft and Mueller at least knowingly acquiesced (and maybe more than acquiesced) in the discriminatory acts of their subordinates; if he can show this, he will satisfy Ashcroft and Mueller’s own test for supervisory liability. See Farmer , supra , at 842 (explaining that a prison official acts with “deliberate indifference” if “the official acted or failed to act despite his knowledge of a substantial risk of serious harm”). We do not normally override a party’s concession, see, e.g. , United States v. International Business Machines Corp. , 517 U. S. 843 , 855 (1996) (holding that “[i]t would be inappropriate for us to [e]xamine in this case, without the benefit of the parties’ briefing,” an issue the Government had conceded), and doing so is especially inappropriate when, as here, the issue is unnecessary to decide the case, see infra , at 8. I would therefore accept Ashcroft and Mueller’s concession for purposes of this case and proceed to consider whether the complaint alleges at least knowledge and deliberate indifference.    Second, because of the concession, we have received no briefing or argument on the proper scope of supervisory liability, much less the full-dress argument we normally require. Mapp v. Ohio , 367 U. S. 643 , 676–677 (1961) (Harlan, J., dissenting). We consequently are in no position to decide the precise contours of supervisory liability here, this issue being a complicated one that has divided the Courts of Appeals. See infra , at 7–8. This Court recently remarked on the danger of “bad decisionmaking” when the briefing on a question is “woefully inadequate,” Pearson v. Callahan , 555 U. S. ___, ___ (2009) (slip op., at 14), yet today the majority answers a question with no briefing at all. The attendant risk of error is palpable.    Finally, the Court’s approach is most unfair to Iqbal. He was entitled to rely on Ashcroft and Mueller’s concession, both in their petition for certiorari and in their merits briefs, that they could be held liable on a theory of knowledge and deliberate indifference. By overriding that concession, the Court denies Iqbal a fair chance to be heard on the question. B    The majority, however, does ignore the concession. According to the majority, because Iqbal concededly cannot recover on a theory of respondeat superior , it follows that he cannot recover under any theory of supervisory liability. Ante , at 13. The majority says that in a Bivens action, “where masters do not answer for the torts of their servants,” “the term ‘supervisory liability’ is a misnomer,” and that “[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ibid . Lest there be any mistake, in these words the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects. Ante , at 19 (“[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic”).    The dangers of the majority’s readiness to proceed without briefing and argument are apparent in its cursory analysis, which rests on the assumption that only two outcomes are possible here: respondeat superior liability, in which “an employer is subject to liability for torts committed by employees while acting within the scope of their employment,” Restatement (Third) of Agency §2.04 (2005), or no supervisory liability at all. The dichotomy is false. Even if an employer is not liable for the actions of his employee solely because the employee was acting within the scope of employment, there still might be conditions to render a supervisor liable for the conduct of his subordinate. See, e.g., Whitfield v. Meléndez-Rivera , 431 F. 3d 1, 14 (CA1 2005) (distinguishing between respondeat superior liability and supervisory liability); Bennett v. Eastpointe , 410 F. 3d 810, 818 (CA6 2005) (same); Richardson v. Goord , 347 F. 3d 431, 435 (CA2 2003) (same); Hall v. Lombardi , 996 F. 2d 954, 961 (CA8 1993) (same).    In fact, there is quite a spectrum of possible tests for supervisory liability: it could be imposed where a supervisor has actual knowledge of a subordinate’s constitutional violation and acquiesces, see, e.g., Baker v. Monroe Twp. , 50 F. 3d 1186, 1994 (CA3 1995); Woodward v. Worland , 977 F. 2d 1392, 1400 (CA10 1992); or where supervisors “ ‘know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see,’ ” International Action Center v. United States , 365 F. 3d 20, 28 (CADC 2004) (Roberts, J.) (quoting Jones v. Chicago , 856 F. 2d 985, 992 (CA7 1988) (Posner, J.)); or where the supervisor has no actual knowledge of the violation but was reckless in his supervision of the subordinate, see, e.g., Hall , supra , at 961; or where the supervisor was grossly negligent, see, e.g., Lipsett v. University of Puerto Rico , 864 F. 2d 881, 902 (CA1 1988). I am unsure what the general test for supervisory liability should be, and in the absence of briefing and argument I am in no position to choose or devise one.    Neither is the majority, but what is most remarkable about its foray into supervisory liability is that its conclusion has no bearing on its resolution of the case. The majority says that all of the allegations in the complaint that Ashcroft and Mueller authorized, condoned, or even were aware of their subordinates’ discriminatory conduct are “conclusory” and therefore are “not entitled to be assumed true.” Ante , at 17. As I explain below, this conclusion is unsound, but on the majority’s understanding of Rule 8(a)(2) pleading standards, even if the majority accepted Ashcroft and Mueller’s concession and asked whether the complaint sufficiently alleges knowledge and deliberate indifference, it presumably would still conclude that the complaint fails to plead sufficient facts and must be dismissed.[ Footnote 2 ] II    Given petitioners’ concession, the complaint satisfies Rule 8(a)(2). Ashcroft and Mueller admit they are liable for their subordinates’ conduct if they “had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being ‘of high interest’ and they were deliberately indifferent to that discrimination.” Brief for Petitioners 50. Iqbal alleges that after the September 11 attacks the Federal Bureau of Investigation (FBI) “arrested and detained thousands of Arab Muslim men,” Complaint ¶47, App. to Pet. for Cert. 164a, that many of these men were designated by high-ranking FBI officials as being “ ‘of high interest,’ ” id. , ¶¶48, 50, at 164a, and that in many cases, including Iqbal’s, this designation was made “because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity,” id. , ¶49. The complaint further alleges that Ashcroft was the “principal architect of the policies and practices challenged,” id. , ¶10, at 157a, and that Mueller “was instrumental in the adoption, promulgation, and implementation of the policies and practices challenged,” id. , ¶11. According to the complaint, Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject [Iqbal] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Id. , ¶96, at 172a–173a. The complaint thus alleges, at a bare minimum, that Ashcroft and Mueller knew of and condoned the discriminatory policy their subordinates carried out. Actually, the complaint goes further in alleging that Ashcroft and Muller affirmatively acted to create the discriminatory detention policy. If these factual allegations are true, Ashcroft and Mueller were, at the very least, aware of the discriminatory policy being implemented and deliberately indifferent to it.    Ashcroft and Mueller argue that these allegations fail to satisfy the “plausibility standard” of Twombly . They contend that Iqbal’s claims are implausible because such high-ranking officials “tend not to be personally involved in the specific actions of lower-level officers down the bureaucratic chain of command.” Brief for Petitioners 28. But this response bespeaks a fundamental misunderstanding of the enquiry that Twombly demands. Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual allegations are probably true. We made it clear, on the contrary, that a court must take the allegations as true, no matter how skeptical the court may be. See Twombly , 550 U. S., at 555 (a court must proceed “on the assumption that all the allegations in the complaint are true (even if doubtful in fact)”); id ., at 556 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable”); see also Neitzke v. Williams , 490 U. S. 319 , 327 (1989) (“Rule 12(b)(6) does not countenance … dismissals based on a judge’s disbelief of a complaint’s factual allegations”). The sole exception to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here.    Under Twombly , the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible. That is, in Twombly ’s words, a plaintiff must “allege facts” that, taken as true, are “suggestive of illegal conduct.” 550 U. S., at 564, n. 8. In Twombly , we were faced with allegations of a conspiracy to violate §1 of the Sherman Act through parallel conduct. The difficulty was that the conduct alleged was “consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.” Id. , at 554. We held that in that sort of circumstance, “[a]n allegation of parallel conduct is … much like a naked assertion of conspiracy in a §1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557 (brackets omitted). Here, by contrast, the allegations in the complaint are neither confined to naked legal conclusions nor consistent with legal conduct. The complaint alleges that FBI officials discriminated against Iqbal solely on account of his race, religion, and national origin, and it alleges the knowledge and deliberate indifference that, by Ashcroft and Mueller’s own admission, are sufficient to make them liable for the illegal action. Iqbal’s complaint therefore contains “enough facts to state a claim to relief that is plausible on its face.” Id. , at 570.    I do not understand the majority to disagree with this understanding of “plausibility” under Twombly . Rather, the majority discards the allegations discussed above with regard to Ashcroft and Mueller as conclusory, and is left considering only two statements in the complaint: that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11,” Complaint ¶47, App. to Pet. for Cert. 164a, and that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001,” id. , ¶69, at 168a. See ante , at 17. I think the majority is right in saying that these allegations suggest only that Ashcroft and Mueller “sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity,” ante , at 19, and that this produced “a disparate, incidental impact on Arab Muslims,” ante , at 18. And I agree that the two allegations selected by the majority, standing alone, do not state a plausible entitlement to relief for unconstitutional discrimination.    But these allegations do not stand alone as the only significant, nonconclusory statements in the complaint, for the complaint contains many allegations linking Ashcroft and Mueller to the discriminatory practices of their subordinates. See Complaint ¶10, App. to Pet. for Cert. 157a (Ashcroft was the “principal architect” of the discriminatory policy); id. , ¶11 (Mueller was “instrumental” in adopting and executing the discriminatory policy); id. , ¶96, at 172a–173a (Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject” Iqbal to harsh conditions “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest”).    The majority says that these are “bare assertions” that, “much like the pleading of conspiracy in Twombly , amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim” and therefore are “not entitled to be assumed true.” Ante , at 17 (quoting Twombly , supra , at 555). The fallacy of the majority’s position, however, lies in looking at the relevant assertions in isolation. The complaint contains specific allegations that, in the aftermath of the September 11 attacks, the Chief of the FBI’s International Terrorism Operations Section and the Assistant Special Agent in Charge for the FBI’s New York Field Office implemented a policy that discriminated against Arab Muslim men, including Iqbal, solely on account of their race, religion, or national origin. See Complaint ¶¶47–53, App. to Pet. for Cert. 164a–165a. Viewed in light of these subsidiary allegations, the allegations singled out by the majority as “conclusory” are no such thing. Iqbal’s claim is not that Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject” him to a discriminatory practice that is left undefined; his allegation is that “they knew of, condoned, and willfully and maliciously agreed to subject” him to a particular, discrete, discriminatory policy detailed in the complaint. Iqbal does not say merely that Ashcroft was the architect of some amorphous discrimination, or that Mueller was instrumental in an ill-defined constitutional violation; he alleges that they helped to create the discriminatory policy he has described. Taking the complaint as a whole, it gives Ashcroft and Mueller “ ‘fair notice of what the … claim is and the grounds upon which it rests.’ ” Twombly , 550 U. S., at 555 (quoting Conley v. Gibson , 355 U. S. 41 , 47 (1957) (omission in original)).    That aside, the majority’s holding that the statements it selects are conclusory cannot be squared with its treatment of certain other allegations in the complaint as nonconclusory. For example, the majority takes as true the statement that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Complaint ¶69, App. to Pet. for Cert. 168a; see ante , at 17. This statement makes two points: (1) after September 11, the FBI held certain detainees in highly restrictive conditions, and (2) Ashcroft and Mueller discussed and approved these conditions. If, as the majority says, these allegations are not conclusory, then I cannot see why the majority deems it merely conclusory when Iqbal alleges that (1) after September 11, the FBI designated Arab Muslim detainees as being of “ ‘high interest’ ” “because of the race, religion, and national origin of the detainees, and not because of any evidence of the detainees’ involvement in supporting terrorist activity,” Complaint ¶¶48–50, App. to Pet. for Cert. 164a, and (2) Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed” to that discrimination, id. , ¶96, at 172a. By my lights, there is no principled basis for the majority’s disregard of the allegations linking Ashcroft and Mueller to their subordinates’ discrimination.    I respectfully dissent. Footnote 1 Iqbal makes no claim against Ashcroft and Mueller based simply on his right, as a pretrial detainee, to be free from punishment prior to an adjudication of guilt on the fraud charges. See Bell v. Wolfish , 441 U. S. 520 , 535 (1979). Footnote 2 If I am mistaken, and the majority’s rejection of the concession is somehow outcome determinative, then its approach is even more unfair to Iqbal than previously explained, see supra , at 6, for Iqbal had no reason to argue the (apparently dispositive) supervisory liability standard in light of the concession. 556 U. S. ____ (2009) ASHCROFT V. IQBAL 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-1015 JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, et al., PETITIONERS v. JAVAID IQBAL et al. on writ of certiorari to the united states court of appeals for the second circuit [May 18, 2009]    Justice Breyer, dissenting.    I agree with Justice Souter and join his dissent. I write separately to point out that, like the Court, I believe it important to prevent unwarranted litigation from interfering with “the proper execution of the work of the Government.” Ante , at 21. But I cannot find in that need adequate justification for the Court’s interpretation of Bell Atlantic Corp. v. Twombly , 550 U. S. 544 (2007), and Federal Rule of Civil Procedure 8. The law, after all, provides trial courts with other legal weapons designed to prevent unwarranted interference. As the Second Circuit explained, where a Government defendant asserts a qualified immunity defense, a trial court, responsible for managing a case and “mindful of the need to vindicate the purpose of the qualified immunity defense,” can structure discovery in ways that diminish the risk of imposing unwarranted burdens upon public officials. See Iqbal v. Hasty , 490 F.3d 143, 158 (2007). A district court, for example, can begin discovery with lower level government defendants before determining whether a case can be made to allow discovery related to higher level government officials. See ibid . Neither the briefs nor the Court’s opinion provides convincing grounds for finding these alternative case-management tools inadequate, either in general or in the case before us. For this reason, as well as for the independently sufficient reasons set forth in Justice Souter’s opinion, I would affirm the Second Circuit.

In *Ashcroft v. Iqbal*, the Supreme Court held that a plaintiff must plead factual matter that, if taken as true, states a claim that the defendants deprived him of his clearly established constitutional rights to proceed with a lawsuit. The Court found that the plaintiff's pleadings were insufficient to state a claim against the high-level government officials named as defendants, as the plaintiff did not allege specific facts linking them to the unconstitutional policy that subjected him to harsh conditions of confinement based on his race, religion, or national origin.

Lawsuits & Legal Procedures

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc.

https://supreme.justia.com/cases/federal/us/590/18-1086/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–1086 _________________ LUCKY BRAND DUNGAREES, INC., et al., PETITIONERS v. MARCEL FASHIONS GROUP, INC. on writ of certiorari to the united states court of appeals for the second circuit [May 14, 2020] Justice Sotomayor delivered the opinion of the Court. This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action. I Marcel and Lucky Brand both sell jeans and other apparel. Both entities also use the word “Lucky” as part of their marks on clothing. In 1986, Marcel received a federal trademark registration for “Get Lucky”; a few years later, in 1990, Lucky Brand began selling apparel using the registered trademark “Lucky Brand” and other marks that include the word “Lucky.” 779 F.3d 102, 105 (CA2 2015). Three categories of marks are at issue in this case: Marcel’s “Get Lucky” mark; Lucky Brand’s “Lucky Brand” mark; and various other marks owned by Lucky Brand that contain the word “Lucky.” These trademarks have led to nearly 20 years of litigation between the two companies, proceeding in three rounds. A In 2001—the first round—Marcel sued Lucky Brand, alleging that Lucky Brand’s use of the phrase “Get Lucky” in advertisements infringed Marcel’s trademark. In 2003, the parties signed a settlement agreement. As part of the deal, Lucky Brand agreed to stop using the phrase “Get Lucky.” App. 191. In exchange, Marcel agreed to release any claims regarding Lucky Brand’s use of its own trademarks. Id. , at 191–192. B The ink was barely dry on the settlement agreement when, in 2005, the parties began a second round of litigation (2005 Action). Lucky Brand filed suit, alleging that Marcel and its licensee violated its trademarks by copying its designs and logos in a new clothing line. As relevant here, Marcel filed several counterclaims that all turned, in large part, on Lucky Brand’s alleged continued use of “Get Lucky”: One batch of allegations asserted that Lucky Brand had continued to use Marcel’s “Get Lucky” mark in violation of the settlement agreement, while others alleged that Lucky Brand’s use of the phrase “Get Lucky” and “Lucky Brand” together was “confusingly similar to”—and thus infringed––Marcel’s “Get Lucky” mark. Defendants’ Answer, Affirmative Defenses, and Counterclaims to Plaintiffs’ Complaint in No. 1:05–cv–06757 (SDNY), Doc. 40–2, p. 39; see id. , at 34–41. None of Marcel’s counterclaims alleged that Lucky Brand’s use of its own marks alone— i.e. , independent of any alleged use of “Get Lucky”—infringed Marcel’s “Get Lucky” mark. Lucky Brand moved to dismiss the counterclaims, alleging that they were barred by the release provision of the settlement agreement. After the District Court denied the motion without prejudice, Lucky Brand noted the release defense once more in its answer to Marcel’s counterclaims. But as the 2005 Action proceeded, Lucky Brand never again invoked the release defense. The 2005 Action concluded in two phases. First, as a sanction for misconduct during discovery, the District Court concluded that Lucky Brand violated the settlement agreement by continuing to use “Get Lucky” and permanently enjoined Lucky Brand from copying or imitating Marcel’s “Get Lucky” mark. Order Granting Partial Summary Judgment and Injunction in No. 1:05–cv–06757, Doc. 183; see also App. 203–204. The injunction did not enjoin, or even mention, Lucky Brand’s use of any other marks or phrases containing the word “Lucky.” Order Granting Partial Summary Judgment and Injunction, Doc. 183. The case then proceeded to trial. The jury found against Lucky Brand on Marcel’s remaining counterclaims—those that alleged infringement from Lucky Brand’s continued use of the “Get Lucky” catchphrase alongside its own marks. See Brief for Respondent 52. C In April 2011, the third round of litigation began: Marcel filed an action against Lucky Brand (2011 Action), maintaining that Lucky Brand continued to infringe Marcel’s “Get Lucky” mark and, in so doing, contravened the judgment issued in the 2005 Action. This complaint did not reprise Marcel’s earlier allegation (in the 2005 Action) that Lucky Brand continued to use the “Get Lucky” phrase. Marcel argued only that Lucky Brand’s continued, post-2010 use of Lucky Brand’s own marks—some of which used the word “Lucky”—infringed Marcel’s “Get Lucky” mark in a manner that (according to Marcel) was previously found infringing.[ 1 ] Marcel requested that the District Court enjoin Lucky Brand from using any of Lucky Brand’s marks containing the word “Lucky.” The District Court granted Lucky Brand summary judgment, concluding that Marcel’s claims in the 2011 Action were essentially the same as its counterclaims in the 2005 Action. But the Court of Appeals for the Second Circuit disagreed. 779 F.3d 102. The court concluded that Marcel’s claims in the 2011 Action were distinct from those it had asserted in the 2005 Action, because the claims at issue in the 2005 Action were “for earlier infringements.” Id. , at 110. As the court noted, “[w]inning a judgment . . . does not deprive the plaintiff of the right to sue” for the defendant’s “subsequent similar violations.” Id. , at 107. The Second Circuit further rejected Marcel’s request to hold Lucky Brand in contempt for violating the injunction issued in the 2005 Action. The court noted that the conduct at issue in the 2011 Action was Lucky Brand’s use of its own marks—not the use of the phrase “Get Lucky.” By contrast, the 2005 injunction prohibited Lucky Brand from using the “Get Lucky” mark—not Lucky Brand’s own marks that happened to contain the word “Lucky.” Id. , at 111. Moreover, the court reasoned that the jury in the 2005 Action had been “free to find infringement of Marcel’s ‘Get Lucky’ mark based solely on Lucky Brand’s use of [the phrase] ‘Get Lucky.’ ” Id. , at 112. The court vacated and remanded for further proceedings. On remand to the District Court, Lucky Brand moved to dismiss, arguing—for the first time since its motion to dismiss and answer in the 2005 Action—that Marcel had released its claims by entering the settlement agreement. Marcel countered that Lucky Brand was precluded from invoking the release defense, because it could have pursued the defense fully in the 2005 Action but had neglected to do so. The District Court granted Lucky Brand’s motion to dismiss, holding that it could assert its release defense and that the settlement agreement indeed barred Marcel’s claims. The Second Circuit vacated and remanded, concluding that a doctrine it termed “defense preclusion” prohibited Lucky Brand from raising the release defense in the 2011 Action. 898 F.3d 232 (2018). Noting that a different category of preclusion—issue preclusion—may be wielded against a defendant, see Parklane Hosiery Co. v. Shore , 439 U.S. 322 (1979), the court reasoned that the same should be true of claim preclusion: A defendant should be precluded from raising an unlitigated defense that it should have raised earlier. The panel then held that “defense preclusion” bars a party from raising a defense where: “(i) a previous action involved an adjudication on the merits”; “(ii) the previous action involved the same parties”; “(iii) the defense was either asserted or could have been asserted, in the prior action”; and “(iv) the district court, in its discretion, concludes that preclusion of the defense is appropriate.” 898 F. 3d, at 241. Finding each factor satisfied in this case, the panel vacated the District Court’s judgment. We granted certiorari, 588 U. S. ___ (2019), to resolve differences among the Circuits regarding when, if ever, claim preclusion applies to defenses raised in a later suit. Compare 898 F. 3d, at 241, with Hallco Mfg. Co. v. Foster , 256 F.3d 1290 , 1297–1298 (CA Fed. 2001); McKinnon v. Blue Cross and Blue Shield of Alabama , 935 F.2d 1187, 1192 (CA11 1991). II A This case asks whether so-called “defense preclusion” is a valid application of res judicata: a term that now comprises two distinct doctrines regarding the preclusive effect of prior litigation. 18 C. Wright, H. Miller, & E. Cooper, Federal Practice and Procedure §4402 (3d ed. 2016) (Wright & Miller). The first is issue preclusion (sometimes called collateral estoppel), which precludes a party from relitigating an issue actually decided in a prior case and necessary to the judgment. Allen v. McCurry , 449 U.S. 90 , 94 (1980); see Parklane Hosiery , 439 U. S., at 326, n. 5. The second doctrine is claim preclusion (sometimes itself called res judicata). Unlike issue preclusion, claim preclusion prevents parties from raising issues that could have been raised and decided in a prior action—even if they were not actually litigated. If a later suit advances the same claim as an earlier suit between the same parties, the earlier suit’s judgment “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Brown v. Felsen , 442 U.S. 127 , 131 (1979); see also Wright & Miller §4407. Suits involve the same claim (or “cause of action”) when they “ ‘aris[e] from the same transaction,’ ” United States v. Tohono O’odham Nation , 563 U.S. 307 , 316 (2011) (quoting Kremer v. Chemical Constr. Corp. , 456 U.S. 461 , 482, n. 22 (1982)), or involve a “common nucleus of operative facts,” Restatement (Second) of Judgments §24, Comment b , p. 199 (1982) (Restatement (Second)). Put another way, claim preclusion “describes the rules formerly known as ‘merger’ and ‘bar.’ ” Taylor v. Sturgell , 553 U.S. 880 , 892, n. 5 (2008). “If the plaintiff wins, the entire claim is merged in the judgment; the plaintiff cannot bring a second independent action for additional relief, and the defendant cannot avoid the judgment by offering new defenses.” Wright & Miller §4406. But “[i]f the second lawsuit involves a new claim or cause of action, the parties may raise assertions or defenses that were omitted from the first lawsuit even though they were equally relevant to the first cause of action.” Ibid. As the Second Circuit itself seemed to recognize, see 898 F. 3d, at 236–237, this Court has never explicitly recognized “defense preclusion” as a standalone category of res judicata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion. See, e.g. , Davis v. Brown , 94 U.S. 423 , 428 (1877) (holding that where two lawsuits involved different claims, preclusion operates “only upon the matter actually at issue and determined in the original action”).[ 2 ] The parties thus agree that where, as here, issue preclusion does not apply, a defense can be barred only if the “causes of action are the same” in the two suits—that is, where they share a “ ‘common nucleus of operative fact[s].’ ” Brief for Respondent 2, 27, 31, 50; accord, Reply Brief 3. B Put simply, the two suits here were grounded on different conduct, involving different marks, occurring at different times. They thus did not share a “common nucleus of operative facts.” Restatement (Second) §24, Comment b , at 199. To start, claims to relief may be the same for the purposes of claim preclusion if, among other things, “ ‘a different judgment in the second action would impair or destroy rights or interests established by the judgment entered in the first action.’ ” Wright & Miller §4407. Here, however, the 2011 Action did not imperil the judgment of the 2005 Action because the lawsuits involved both different conduct and different trademarks. In the 2005 Action, Marcel alleged that Lucky Brand infringed Marcel’s “Get Lucky” mark both by directly imitating its “Get Lucky” mark and by using the “Get Lucky” slogan alongside Lucky Brand’s other marks in a way that created consumer confusion. Brief for Respondent 52. Marcel appears to admit, thus, that its claims in the 2005 Action depended on Lucky Brand’s alleged use of “Get Lucky.” Id., at 9–10 (“Marcel’s reverse-confusion theory [in the 2005 Action] depended, in part, on Lucky’s continued imitation of the GET LUCKY mark”). By contrast, the 2011 Action did not involve any alleged use of the “Get Lucky” phrase. Indeed, Lucky Brand had been enjoined in the 2005 Action from using “Get Lucky,” and in the 2011 Action, Lucky Brand was found not to have violated that injunction. 779 F. 3d, at 111–112. The parties thus do not argue that Lucky Brand continued to use “Get Lucky” after the 2005 Action concluded, and at oral argument, counsel for Marcel appeared to confirm that Marcel’s claims in the 2011 Action did not allege that Lucky Brand continued to use “Get Lucky.” Tr. of Oral Arg. 46. Instead, Marcel alleged in the 2011 Action that Lucky Brand committed infringement by using Lucky Brand’s own marks containing the word “Lucky”—not the “Get Lucky” mark itself. Plainly, then, the 2011 Action challenged different conduct, involving different marks. Not only that, but the complained-of conduct in the 2011 Action occurred after the conclusion of the 2005 Action. Claim preclusion generally “does not bar claims that are predicated on events that postdate the filing of the initial complaint.” Whole Woman’s Health v. Hellerstedt , 579 U. S. ___, ___ (2016) (slip op., at 12) (internal quotation marks omitted); Lawlor v. National Screen Service Corp. , 349 U.S. 322 , 327–328 (1955) (holding that two suits were not “based on the same cause of action,” because “[t]he conduct presently complained of was all subsequent to” the prior judgment and it “cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case”). This is for good reason: Events that occur after the plaintiff files suit often give rise to new “[m]aterial operative facts” that “in themselves, or taken in conjunction with the antecedent facts,” create a new claim to relief. Restatement (Second) §24, Comment f , at 203; 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner, Federal Practice §131.22[1], p. 131–55, n. 1 (3d ed. 2019) (citing cases where “[n]ew facts create[d a] new claim”). This principle takes on particular force in the trademark context, where the enforceability of a mark and likelihood of confusion between marks often turns on extrinsic facts that change over time. As Lucky Brand points out, liability for trademark infringement turns on marketplace realities that can change dramatically from year to year. Brief for Petitioners 42–45. It is no surprise, then, that the Second Circuit held that Marcel’s 2011 Action claims were not barred by the 2005 Action. By the same token, the 2005 Action could not bar Lucky Brand’s 2011 defenses. At bottom, the 2011 Action involved different marks, different legal theories, and different conduct—occurring at different times. Because the two suits thus lacked a “common nucleus of operative facts,” claim preclusion did not and could not bar Lucky Brand from asserting its settlement agreement defense in the 2011 Action. III Resisting this conclusion, Marcel points to treatises and this Court’s cases, arguing that they support a version of “defense preclusion” doctrine that extends to the facts of this case. Brief for Respondent 24–26. But these authorities do no such thing. As an initial matter, regardless of what those authorities might imply about “defense preclusion,” none of them describe scenarios applicable here. Moreover, we doubt that these authorities stand for anything more than that traditional claim- or issue - preclusion principles may bar defenses raised in a subsequent suit—principles that, as explained above, do not bar Lucky Brand’s release defense here. Take, for example, cases that involve either judgment enforcement or a collateral attack on a prior judgment. Id. , at 26–35. In the former scenario, a party takes action to enforce a prior judgment already issued against another; in the latter, a party seeks to avoid the effect of a prior judgment by bringing a suit to undo it. If, in either situation, a different outcome in the second action “would nullify the initial judgment or would impair rights established in the initial action,” preclusion principles would be at play. Restatement (Second) §22(b), at 185; Wright & Miller §4414. In both scenarios, courts simply apply claim preclusion or issue preclusion to prohibit a claim or defense that would attack a previously decided claim.[ 3 ] But these principles do not preclude defendants from asserting defenses to new claims, which is precisely what Marcel would have us do here. In any event, judgment-enforcement and collateral-attack scenarios are far afield from the circumstances of this case. Lucky Brand’s defense in the 2011 Action did not threaten the judgment issued in the 2005 Action or, as Marcel argues, “achieve the same practical result” that the above-mentioned principles seek to avoid. Brief for Respondent 31–32. Indeed, while the judgment in the 2005 Action plainly prohibited Lucky Brand from using “Get Lucky,” it did not do the same with respect to Lucky Brand’s continued, standalone use of its own marks containing the word “Lucky”—the only conduct at issue in the 2011 Action. Put simply, Lucky Brand’s defense to new claims in the 2011 Action did not risk impairing the 2005 judgment. Nor do cases like Beloit v. Morgan , 7 Wall. 619 (1869), aid Marcel. See Brief for Respondent 32–33. To be sure, Beloit held that a defendant in a second suit over bonds “of the same issue” was precluded from raising a defense it had not raised in the first suit. 7 Wall., at 620. But the Court there explained that the judgment in the first suit “established conclusively the original validity of the securities described in the bill, and the liability of the town to pay them.” Id. , at 623. In other words, by challenging the validity of all bonds of the same issue, the defense in the second suit would have threatened the validity of the judgment in the first suit. The same cannot be said of the defense raised in the 2011 Action vis-à-vis the judgment in the 2005 Action. *  *  * At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses. The judgment of the Second Circuit is therefore reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Notes 1 See Complaint for Injunctive Relief and Trademark Infringement in No. 1:11–cv–05523 (SDNY), Doc. 1, ¶15 (“Despite the entry of the [2005 Action judgment], [Lucky Brand] ha[s] continued to willfully . . . infringe [Marcel’s] GET LUCKY mark by using the Lucky Brand marks in the identical manner and form and on the same goods for which [it] w[as] found liable for infringement”); id. , ¶20 (“Despite the entry of the” 2005 Action judgment, Lucky Brand has “continued its uninterrupted and willful use of the Lucky Brand marks and any other trademarks including the word ‘Lucky’ ”). 2 There may be good reasons to question any application of claim preclusion to defenses. It has been noted that in suits involving successive claims against the same defendant, courts often “assum[e] that the defendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.” Wright & Miller §4414. This is because “[v]arious considerations, other than actual merits, may govern” whether to bring a defense, “such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and [a party’s] own situation.” Cromwell v. County of Sac , 94 U.S. 351 , 356 (1877). Here, however, this Court need not determine when (if ever) applying claim preclusion to defenses may be appropriate, because a necessary predicate—identity of claims—is lacking. 3 One might ask: If any preclusion of defenses (under the claim-preclusion rubric) requires identity of claims in two suits, how could the second similar suit have avoided standard claim preclusion in the first place? Different contexts may yield different answers. In a judgment-enforcement context, the answer may be that claim preclusion applies only “to a final judgment rendered in an action separate from that in which the doctrine is asserted.” 18 J. Moore, D. Coquillette, G. Joseph, G. Vairo, & C. Varner, Federal Practice §131.31[1], p. 131–116 (3d ed. 2019) (emphasis added). Thus—although claim preclusion does apply to a later, standalone suit seeking relief that could have been obtained in the first—it “is not applicable to . . . efforts to obtain supplemental relief in the original action, or direct attacks on the judgment.” Ibid (footnote deleted) . The upshot is that—even if a court deems the underlying core of operative facts to be the same—a plaintiff in that circumstance is not precluded from enforcing its rights with respect to continuing wrongful conduct.

Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. (2020): The Supreme Court ruled that Lucky Brand was not barred from raising a new defense in a later lawsuit against Marcel Fashions Group, as the two suits did not share the same claim for relief, and the defense had not been fully litigated in the earlier suit. The Court emphasized that claim preclusion requires identity of claims in both suits, and the defense must have been available and relevant in both actions to be precluded.

Lawsuits & Legal Procedures

Atlantic Marine Construction Co. v. U.S. District Court for Western District of Texas

https://supreme.justia.com/cases/federal/us/571/49/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–929 _________________ ATLANTIC MARINE CONSTRUCTION COMPANY, INC., PETITIONER v. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS et al. on writ of certiorari to the united states court of appeals for the fifth circuit [December 3, 2013]      Justice Alito delivered the opinion of the Court.      The question in this case concerns the procedure that is available for a defendant in a civil case who seeks to enforce a forum-selection clause. We reject petitioner’s argument that such a clause may be enforced by a motion to dismiss under 28 U. S. C. §1406(a) or Rule 12(b)(3) of the Federal Rules of Civil Procedure. Instead, a forum-selection clause may be enforced by a motion to transfer under §1404(a) (2006 ed., Supp. V), which provides that “[f ]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” When a defendant files such a motion, we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer. In the present case, both the District Court and the Court of Appeals misunderstood the standards to be applied in adjudicating a §1404(a) motion in a case involving a forum-selection clause, and we therefore reverse the decision below. I      Petitioner Atlantic Marine Construction Co., a Virginia corporation with its principal place of business in Virginia, entered into a contract with the United States Army Corps of Engineers to construct a child-development center at Fort Hood in the Western District of Texas. Atlantic Marine then entered into a subcontract with respondent J-Crew Management, Inc., a Texas corporation, for work on the project. This subcontract included a forum-selection clause, which stated that all disputes between the parties “ ‘shall be litigated in the Circuit Court for the City of Norfolk, Virginia, or the United States District Court for the Eastern District of Virginia, Norfolk Division.’ ” In re Atlantic Marine Constr. Co., 701 F. 3d 736, 737–738 (CA5 2012).      When a dispute about payment under the subcontract arose, however, J-Crew sued Atlantic Marine in the Western District of Texas, invoking that court’s diversity ju- risdiction. Atlantic Marine moved to dismiss the suit, arguing that the forum-selection clause rendered venue in the Western District of Texas “wrong” under §1406(a) and “improper” under Federal Rule of Civil Procedure 12(b)(3). In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under §1404(a). J-Crew opposed these motions.      The District Court denied both motions. It first concluded that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum. The District Court then held that Atlantic Marine bore the burden of establishing that a transfer would be appropriate under §1404(a) and that the court would “consider a nonexhaustive and nonexclusive list of public and private interest factors,” of which the “forum-selection clause [was] only one such factor.” United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, *5 (WD Tex., Apr. 6, 2012). Giving particular weight to its findings that “compulsory process will not be available for the majority of J-Crew’s witnesses” and that there would be “significant expense for those willing witnesses,” the District Court held that Atlantic Marine had failed to carry its burden of showing that transfer “would be in the interest of justice or increase the convenience to the parties and their witnesses.” Id., at *7–*8; see also 701 F. 3d, at 743.      Atlantic Marine petitioned the Court of Appeals for a writ of mandamus directing the District Court to dismiss the case under §1406(a) or to transfer the case to the East- ern District of Virginia under §1404(a). The Court of Appeals denied Atlantic Marine’s petition because Atlantic Marine had not established a “ ‘clear and indisputable’ ” right to relief. Id., at 738; see Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 381 (2004) (mandamus “petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable” (internal quotation marks omitted; brackets in original)). Relying on Stewart Organization, Inc. v. Ricoh Corp., 487 U. S. 22 (1988) , the Court of Appeals agreed with the District Court that §1404(a) is the exclusive mechanism for enforcing a forum-selection clause that points to another federal forum when venue is otherwise proper in the district where the case was brought. See 701 F. 3d, at 739–741. [ 1 ] The court stated, however, that if a forum-selection clause points to a nonfederal forum, dismissal under Rule 12(b)(3) would be the correct mechanism to enforce the clause because §1404(a) by its terms does not permit transfer to any tribunal other than another federal court. Id., at 740. The Court of Appeals then concluded that the District Court had not clearly abused its discretion in refusing to transfer the case after conducting the balance-of-interests analysis required by §1404(a). Id., at 741–743; see Cheney, supra, at 380 (permitting mandamus relief to correct “a clear abuse of discretion” (internal quotation marks omitted)). That was so even though there was no dispute that the forum-selection clause was valid. See 701 F. 3d, at 742; id., at 744 (concurring opinion). We granted certiorari. 569 U. S. ___ (2013). II      Atlantic Marine contends that a party may enforce a forum-selection clause by seeking dismissal of the suit under §1406(a) and Rule 12(b)(3). We disagree. Section 1406(a) and Rule 12(b)(3) allow dismissal only when venue is “wrong” or “improper.” Whether venue is “wrong” or “improper” depends exclusively on whether the court in which the case was brought satisfies the requirements of federal venue laws, and those provisions say nothing about a forum-selection clause. A      Section 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” Rule 12(b)(3) states that a party may move to dismiss a case for “improper venue.” These provisions therefore authorize dismissal only when venue is “wrong” or “improper” in the forum in which it was brought.      This question—whether venue is “wrong” or “improper”—is generally governed by 28 U. S. C. §1391 (2006 ed., Supp. V). [ 2 ] That provision states that “[e]xcept as otherwise provided by law . . . this section shall govern the venue of all civil actions brought in district courts of the United States.” §1391(a)(1) (emphasis added). It further provides that “[a] civil action may be brought in—(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.” §1391(b). [ 3 ] When venue is challenged, the court must determine whether the case falls within one of the three categories set out in §1391(b). If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under §1406(a). Whether the parties entered into a contract containing a forum-selection clause has no bearing on whether a case falls into one of the categories of cases listed in §1391(b). As a result, a case filed in a district that falls within §1391 may not be dismissed under §1406(a) or Rule 12(b)(3).           Petitioner’s contrary view improperly conflates the special statutory term “venue” and the word “forum.” It is certainly true that, in some contexts, the word “venue” is used synonymously with the term “forum,” but §1391 makes clear that venue in “all civil actions” must be determined in accordance with the criteria outlined in that section. That language cannot reasonably be read to allow judicial consideration of other, extrastatutory limitations on the forum in which a case may be brought.      The structure of the federal venue provisions confirms that they alone define whether venue exists in a given forum. In particular, the venue statutes reflect Congress’ intent that venue should always lie in some federal court whenever federal courts have personal jurisdiction over the defendant. The first two paragraphs of §1391(b) define the preferred judicial districts for venue in a typical case, but the third paragraph provides a fallback option: If no other venue is proper, then venue will lie in “any judicial district in which any defendant is subject to the court’s personal jurisdiction” (emphasis added). The statute thereby ensures that so long as a federal court has personal jurisdiction over the defendant, venue will always lie somewhere. As we have previously noted, “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” Smith v. United States, 507 U. S. 197, 203 (1993) (internal quotation marks omitted). Yet petitioner’s approach would mean that in some number of cases—those in which the forum-selection clause points to a state or foreign court—venue would not lie in any federal district. That would not comport with the statute’s design, which contemplates that venue will always exist in some federal court.      The conclusion that venue is proper so long as the requirements of §1391(b) are met, irrespective of any forum-selection clause, also follows from our prior decisions construing the federal venue statutes. In Van Dusen v. Barrack, 376 U. S. 612 (1964) , we considered the meaning of §1404(a), which authorizes a district court to “transfer any civil action to any other district or division where it might have been brought.” The question in Van Dusen was whether §1404(a) allows transfer to a district in which venue is proper under §1391 but in which the case could not have been pursued in light of substantive state-law limitations on the suit. See id., at 614–615. In holding that transfer is permissible in that context, we construed the phrase “where it might have been brought” to refer to “the federal laws delimiting the districts in which such an action ‘may be brought,’ ” id., at 624, noting that “the phrase ‘may be brought’ recurs at least 10 times” in §§1391–1406, id., at 622. We perceived “no valid reason for reading the words ‘where it might have been brought’ to narrow the range of permissible federal forums beyond those permitted by federal venue statutes.” Id., at 623.      As we noted in Van Dusen, §1406(a) “shares the same statutory context” as §1404(a) and “contain[s] a similar phrase.” Id., at 621, n. 11. It instructs a court to transfer a case from the “wrong” district to a district “in which it could have been brought.” The most reasonable interpretation of that provision is that a district cannot be “wrong” if it is one in which the case could have been brought under §1391. Under the construction of the venue laws we adopted in Van Dusen, a “wrong” district is therefore a district other than “those districts in which Congress has provided by its venue statutes that the action ‘may be brought.’ ” Id., at 618 (emphasis added). If the federal venue statutes establish that suit may be brought in a particular district, a contractual bar cannot render venue in that district “wrong.”      Our holding also finds support in Stewart, 487 U. S. 22 . As here, the parties in Stewart had included a forum-selection clause in the relevant contract, but the plaintiff filed suit in a different federal district. The defendant had initially moved to transfer the case or, in the alternative, to dismiss for improper venue under §1406(a), but by the time the case reached this Court, the defendant had abandoned its §1406(a) argument and sought only transfer under §1404(a). We rejected the plaintiff’s argument that state law governs a motion to transfer venue pursuant to a forum-selection clause, concluding instead that “federal law, specifically 28 U. S. C. §1404(a), governs the District Court’s decision whether to give effect to the parties’ forum-selection clause.” Id., at 32. We went on to explain that a “motion to transfer under §1404(a) . . . calls on the district court to weigh in the balance a number of case-specific factors” and that the “presence of a forum-selection clause . . . will be a significant factor that figures centrally in the district court’s calculus.” Id., at 29.      The question whether venue in the original court was “wrong” under §1406(a) was not before the Court, but we wrote in a footnote that “[t]he parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U. S. C. §1406(a) because respondent apparently does business in the Northern District of Alabama. See 28 U. S. C. §1391(c) (venue proper in judicial district in which corporation is doing business).” Id., at 28, n. 8. In other words, because §1391 made venue proper, venue could not be “wrong” for purposes of §1406(a). Though dictum, the Court’s observation supports the holding we reach today. A contrary view would all but drain Stewart of any significance. If a forum-selection clause rendered venue in all other federal courts “wrong,” a defendant could always obtain automatic dismissal or transfer under §1406(a) and would not have any reason to resort to §1404(a). Stewart’s holding would be limited to the presumably rare case in which the defendant inexplicably fails to file a motion under §1406(a) or Rule 12(b)(3). B      Although a forum-selection clause does not render venue in a court “wrong” or “improper” within the meaning of §1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under §1404(a). That provision states that “[f ]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” Unlike §1406(a), §1404(a) does not condition transfer on the ini- tial forum’s being “wrong.” And it permits transfer to any district where venue is also proper (i.e., “where [the case] might have been brought”) or to any other district to which the parties have agreed by contract or stipulation.      Section 1404(a) therefore provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district. And for the reasons we address in Part III, infra, a proper application of §1404(a) requires that a forum-selection clause be “given controlling weight in all but the most exceptional cases.” Stewart, supra, at 33 (Kennedy, J., concurring).      Atlantic Marine argues that §1404(a) is not a suitable mechanism to enforce forum-selection clauses because that provision cannot provide for transfer when a forum-selection clause specifies a state or foreign tribunal, see Brief for Petitioner 18–19, and we agree with Atlantic Marine that the Court of Appeals failed to provide a sound answer to this problem. The Court of Appeals opined that a forum-selection clause pointing to a nonfederal forum should be enforced through Rule 12(b)(3), which permits a party to move for dismissal of a case based on “improper venue.” 701 F. 3d, at 740. As Atlantic Marine persua- sively argues, however, that conclusion cannot be reconciled with our construction of the term “improper venue” in §1406 to refer only to a forum that does not satisfy federal venue laws. If venue is proper under federal venue rules, it does not matter for the purpose of Rule 12(b)(3) whether the forum-selection clause points to a federal or a nonfederal forum.      Instead, the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U. S. 422, 430 (2007) (“For the federal court system, Congress has codified the doctrine . . . ”); see also notes following §1404 (Historical and Revision Notes) (Section 1404(a) “was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper”). For the remaining set of cases calling for a nonfederal forum, §1404(a) has no application, but the residual doctrine of forum non conveniens “has continuing application in federal courts.” Sinochem, 549 U. S., at 430 (internal quotation marks and brackets omitted); see also ibid. (noting that federal courts invoke forum non conveniens “in cases where the alternative forum is abroad, and perhaps in rare instances where a state or territorial court serves litigational convenience best” (internal quotation marks and citation omitted)). And because both §1404(a) and the forum non conveniens doctrine from which it derives entail the same balancing-of-interests standard, courts should evaluate a forum-selection clause pointing to a nonfederal forum in the same way that they evaluate a forum-selection clause pointing to a federal forum. See Stewart, 487 U. S., at 37 (Scalia, J., dissenting) (Section 1404(a) “did not change ‘the relevant factors’ which federal courts used to consider under the doctrine of forum non conveniens” (quoting Norwood v. Kirkpatrick, 349 U. S. 29, 32 (1955) )). C      An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule’s application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that §1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms. [ 4 ] III      Although the Court of Appeals correctly identified §1404(a) as the appropriate provision to enforce the forum-selection clause in this case, the Court of Appeals erred in failing to make the adjustments required in a §1404(a) analysis when the transfer motion is premised on a forum-selection clause. When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. [ 5 ] Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied. And no such exceptional factors appear to be present in this case. A      In the typical case not involving a forum-selection clause, a district court considering a §1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the parties and various public-interest considerations. [ 6 ] Ordinarily, the district court would weigh the relevant factors and decide whether, on balance, a transfer would serve “the convenience of parties and witnesses” and otherwise promote “the interest of justice.” §1404(a).      The calculus changes, however, when the parties’ contract contains a valid forum-selection clause, which “represents the parties’ agreement as to the most proper forum.” Stewart, 487 U. S., at 31. The “enforcement of valid forum-selection clauses, bargained for by the parties, protects their legitimate expectations and furthers vital interests of the justice system.” Id., at 33 (Kennedy, J., concurring). For that reason, and because the overarching consideration under §1404(a) is whether a transfer would promote “the interest of justice,” “a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases.” Id., at 33 (same). The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways.      First, the plaintiff’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. Because plaintiffs are ordinarily allowed to select whatever forum they consider most advantageous (consistent with jurisdictional and venue limitations), we have termed their selection the “plaintiff’s venue privilege.” Van Dusen, 376 U. S., at 635. [ 7 ] But when a plaintiff agrees by contract to bring suit only in a specified forum—presumably in exchange for other binding promises by the defendant—the plaintiff has effectively exercised its “venue privilege” before a dispute arises. Only that initial choice deserves deference, and the plaintiff must bear the burden of showing why the court should not transfer the case to the forum to which the parties agreed.      Second, a court evaluating a defendant’s §1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties’ private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum. As we have explained in a different but “ ‘instructive’ ” context, Stewart, supra, at 28, “[w]hatever ‘inconvenience’ [the parties] would suffer by being forced to litigate in the contractual forum as [they] agreed to do was clearly foreseeable at the time of contracting.” The Bremen v. Zapata Off-Shore Co., 407 U. S. 1 –18 (1972); see also Stewart, supra, at 33 (Kennedy, J., concurring) (stating that Bremen’s “reasoning applies with much force to federal courts sitting in diversity”).      As a consequence, a district court may consider arguments about public-interest factors only. See n. 6, supra. Because those factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses should control except in unusual cases. Although it is “conceiv- able in a particular case” that the district court “would refuse to transfer a case notwithstanding the counterweight of a forum-selection clause,” Stewart, supra, at 30–31, such cases will not be common.      Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a §1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules—a factor that in some circumstances may affect public-interest considerations. See Piper Aircraft Co. v. Reyno, 454 U. S. 235 , n. 6 (1981) (listing a court’s familiarity with the “law that must govern the action” as a potential factor). A federal court sitting in diversity ordinarily must follow the choice-of-law rules of the State in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487 –496 (1941). However, we previously identified an exception to that prin- ciple for §1404(a) transfers, requiring that the state law applicable in the original court also apply in the trans- feree court. See Van Dusen, 376 U. S., at 639. We deemed that exception necessary to prevent “defendants, properly subjected to suit in the transferor State,” from “invok[ing] §1404(a) to gain the benefits of the laws of another jurisdiction . . . .” Id., at 638; see Ferens v. John Deere Co., 494 U. S. 516, 522 (1990) (extending the Van Dusen rule to §1404(a) motions by plaintiffs).      The policies motivating our exception to the Klaxon rule for §1404(a) transfers, however, do not support an extension to cases where a defendant’s motion is premised on enforcement of a valid forum-selection clause. See Ferens, supra, at 523. To the contrary, those considerations lead us to reject the rule that the law of the court in which the plaintiff inappropriately filed suit should follow the case to the forum contractually selected by the parties. In Van Dusen, we were concerned that, through a §1404(a) transfer, a defendant could “defeat the state-law advantages that might accrue from the exercise of [the plaintiff’s] venue privilege.” 376 U. S., at 635. But as discussed above, a plaintiff who files suit in violation of a forum-selection clause enjoys no such “privilege” with respect to its choice of forum, and therefore it is entitled to no concomitant “state-law advantages.” Not only would it be inequitable to allow the plaintiff to fasten its choice of substantive law to the venue transfer, but it would also encourage gamesmanship. Because “§1404(a) should not create or multiply opportunities for forum shopping,” Ferens, supra, at 523, we will not apply the Van Dusen rule when a transfer stems from enforcement of a forum-selection clause: The court in the contractually selected venue should not apply the law of the transferor venue to which the parties waived their right. [ 8 ]      When parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations. A forum-selection clause, after all, may have figured centrally in the parties’ negotiations and may have affected how they set monetary and other contractual terms; it may, in fact, have been a critical factor in their agreement to do business together in the first place. In all but the most un-usual cases, therefore, “the interest of justice” is served by holding parties to their bargain. B      The District Court’s application of §1404(a) in this case did not comport with these principles. The District Court improperly placed the burden on Atlantic Marine to prove that transfer to the parties’ contractually preselected forum was appropriate. As the party acting in violation of the forum-selection clause, J-Crew must bear the burden of showing that public-interest factors overwhelmingly disfavor a transfer.      The District Court also erred in giving weight to arguments about the parties’ private interests, given that all private interests, as expressed in the forum-selection clause, weigh in favor of the transfer. The District Court stated that the private-interest factors “militat[e] against a transfer to Virginia” because “compulsory process will not be available for the majority of J-Crew’s witnesses” and there will be “significant expense for those willing witnesses.” 2012 WL 8499879, *6–*7; see 701 F. 3d, at 743 (noting District Court’s “concer[n] with J-Crew’s ability to secure witnesses for trial”). But when J-Crew entered into a contract to litigate all disputes in Virginia, it knew that a distant forum might hinder its ability to call certain witnesses and might impose other burdens on its litigation efforts. It nevertheless promised to resolve its disputes in Virginia, and the District Court should not have given any weight to J-Crew’s current claims of inconvenience.      The District Court also held that the public-interest factors weighed in favor of keeping the case in Texas because Texas contract law is more familiar to federal judges in Texas than to their federal colleagues in Vir- ginia. That ruling, however, rested in part on the District Court’s belief that the federal court sitting in Virginia would have been required to apply Texas’ choice-of-law rules, which in this case pointed to Texas contract law. See 2012 WL 8499879, *8 (citing Van Dusen, supra, at 639). But for the reasons we have explained, the trans- feree court would apply Virginia choice-of-law rules. It is true that even these Virginia rules may point to the contract law of Texas, as the State in which the contract was formed. But at minimum, the fact that the Virginia court will not be required to apply Texas choice-of-law rules reduces whatever weight the District Court might have given to the public-interest factor that looks to the familiarity of the transferee court with the applicable law. And, in any event, federal judges routinely apply the law of a State other than the State in which they sit. We are not aware of any exceptionally arcane features of Texas contract law that are likely to defy comprehension by a fed- eral judge sitting in Virginia. *  *  *      We reverse the judgment of the Court of Appeals for the Fifth Circuit. Although no public-interest factors that might support the denial of Atlantic Marine’s motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question. It is so ordered. Notes 1 Venue was otherwise proper in the Western District of Texas because the subcontract at issue in the suit was entered into and was to be performed in that district. See United States ex rel. J-Crew Management, Inc. v. Atlantic Marine Constr. Co., 2012 WL 8499879, *5 (WD Tex., Apr. 6, 2012) (citing ). 2 Section 1391 governs “venue generally,” that is, in cases where a more specific venue provision does not apply. Cf., e.g., §1400 (identifying proper venue for copyright and patent suits). 3 Other provisions of §1391 define the requirements for proper venue in particular circumstances. 4 We observe, moreover, that a motion under Rule 12(b)(6), unlike a motion under §1404(a) or the forum non conveniens doctrine, may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise. Even if Professor Sachs is ultimately correct, therefore, defendants would have sensible reasons to invoke §1404(a) or the forum non conveniens doctrine in addition to Rule 12(b)(6). 5 Our analysis presupposes a contractually valid forum-selection clause. 6 Factors relating to the parties’ private interests include “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Piper Aircraft Co. v. Reyno, (internal quotation marks omitted). Public-interest factors may include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Ibid. (internal quotation marks omitted). The Court must also give some weight to the plaintiffs’ choice of forum. See Norwood v. Kirkpatrick, . 7 We note that this “privilege” exists within the confines of statutory limitations, and “[i]n most instances, the purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.” Leroy v. Great Western United Corp., –184 (1979). 8 For the reasons detailed above, see Part II–B, supra, the same standards should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or for-eign forums. We have noted in contexts unrelated to forum-selection clauses that a defendant “invoking forum non conveniens ordinarily bears a heavy burden in opposing the plaintiff’s chosen forum.” Sinochem Int’l Co. v. Malaysia Int’l Shipping Co., . That is because of the “hars[h] result” of that doctrine: Unlike a §1404(a) motion, a successful motion under forum non conveniens requires dismissal of the case. Norwood, 349 U. S., at 32. That inconveniences plaintiffs in several respects and even “makes it possible for [plaintiffs] to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate.” Id., at 31 (internal quotation marks omitted). Such caution is not warranted, however, when the plaintiff has violated a contractual obligation by filing suitin a forum other than the one specified in a valid forum-selection clause. In such a case, dismissal would work no injustice on the plaintiff.

The Supreme Court ruled that a forum-selection clause in a contract between Atlantic Marine Construction Co. and J-Crew Management, Inc. should have been enforced by transferring the case to the forum specified in the clause, rather than dismissing it. The Court also clarified that the standards for transferring a case under §1404(a) are different from those for dismissing a case due to improper venue or forum non conveniens, especially when a valid forum-selection clause is involved.

Lawsuits & Legal Procedures

Ford Motor Co. v. Montana Eighth Judicial District Court

https://supreme.justia.com/cases/federal/us/592/19-368/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–368 and 19–369 _________________ FORD MOTOR COMPANY, PETITIONER 19–368 v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, et al. on writ of certiorari to the supreme court of montana FORD MOTOR COMPANY, PETITIONER 19–369 v. ADAM BANDEMER on writ of certiorari to the supreme court of minnesota [March 25, 2021] Justice Kagan delivered the opinion of the Court. In each of these two cases, a state court held that it had jurisdiction over Ford Motor Company in a products- liability suit stemming from a car accident. The accident happened in the State where suit was brought. The victim was one of the State’s residents. And Ford did substantial business in the State—among other things, advertising, selling, and servicing the model of vehicle the suit claims is defective. Still, Ford contends that jurisdiction is improper because the particular car involved in the crash was not first sold in the forum State, nor was it designed or manufactured there. We reject that argument. When a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State’s courts may entertain the resulting suit. I Ford is a global auto company. It is incorporated in Delaware and headquartered in Michigan. But its business is everywhere. Ford markets, sells, and services its products across the United States and overseas. In this country alone, the company annually distributes over 2.5 million new cars, trucks, and SUVs to over 3,200 licensed dealerships. See App. 70, 100. Ford also encourages a resale market for its products: Almost all its dealerships buy and sell used Fords, as well as selling new ones. To enhance its brand and increase its sales, Ford engages in wide-ranging promotional activities, including television, print, online, and direct-mail advertisements. No matter where you live, you’ve seen them: “Have you driven a Ford lately?” or “Built Ford Tough.” Ford also ensures that consumers can keep their vehicles running long past the date of sale. The company provides original parts to auto supply stores and repair shops across the country. (Goes another slogan: “Keep your Ford a Ford.”) And Ford’s own network of dealers offers an array of maintenance and repair services, thus fostering an ongoing relationship between Ford and its customers. Accidents involving two of Ford’s vehicles—a 1996 Explorer and a 1994 Crown Victoria—are at the heart of the suits before us. One case comes from Montana. Markkaya Gullett was driving her Explorer near her home in the State when the tread separated from a rear tire. The vehicle spun out, rolled into a ditch, and came to rest upside down. Gullett died at the scene of the crash. The representative of her estate sued Ford in Montana state court, bringing claims for a design defect, failure to warn, and negligence. The second case comes from Minnesota. Adam Bandemer was a passenger in his friend’s Crown Victoria, traveling on a rural road in the State to a favorite ice-fishing spot. When his friend rear-ended a snowplow, this car too landed in a ditch. Bandemer’s air bag failed to deploy, and he suffered serious brain damage. He sued Ford in Minnesota state court, asserting products-liability, negligence, and breach-of-warranty claims. Ford moved to dismiss the two suits for lack of personal jurisdiction, on basically identical grounds. According to Ford, the state court (whether in Montana or Minnesota) had jurisdiction only if the company’s conduct in the State had given rise to the plaintiff ’s claims. And that causal link existed, Ford continued, only if the company had designed, manufactured, or—most likely—sold in the State the particular vehicle involved in the accident.[ 1 ] In neither suit could the plaintiff make that showing. Ford had designed the Explorer and Crown Victoria in Michigan, and it had manufactured the cars in (respectively) Kentucky and Canada. Still more, the company had originally sold the cars at issue outside the forum States—the Explorer in Washington, the Crown Victoria in North Dakota. Only later resales and relocations by consumers had brought the vehicles to Montana and Minnesota. That meant, in Ford’s view, that the courts of those States could not decide the suits. Both the Montana and the Minnesota Supreme Courts (affirming lower court decisions) rejected Ford’s argument. The Montana court began by detailing the varied ways Ford “purposefully” seeks to “serve the market in Montana.” 395 Mont. 478, 488, 443 P.3d 407, 414 (2019). The company advertises in the State; “has thirty-six dealerships” there; “sells automobiles, specifically Ford Explorers[,] and parts” to Montana residents; and provides them with “certified repair, replacement, and recall services.” Ibid . Next, the court assessed the relationship between those activities and the Gullett suit. Ford’s conduct, said the court, encourages “Montana residents to drive Ford vehicles.” Id., at 491, 443 P. 3d, at 416. When that driving causes in-state injury, the ensuing claims have enough of a tie to Ford’s Montana activities to support jurisdiction. Whether Ford “designed, manufactured, or sold [the] vehicle” in the State, the court concluded, is “immaterial.” Ibid. Minnesota’s Supreme Court agreed. It highlighted how Ford’s “marketing and advertisements” influenced state residents to “purchase and drive more Ford vehicles.” 931 N.W.2d 744, 754 (2019). Indeed, Ford had sold in Minnesota “more than 2,000 1994 Crown Victoria[s]”—the “very type of car” involved in Bandemer’s suit. Id., at 751, 754. That the “ particular vehicle ” injuring him was “designed, manufactured, [and first] sold” elsewhere made no difference. Id., at 753 (emphasis in original). In the court’s view, Ford’s Minnesota activities still had the needed connection to Bandemer’s allegations that a defective Crown Victoria caused in-state injury. See id., at 754. We granted certiorari to consider if Ford is subject to jurisdiction in these cases. 589 U. S. ___ (2020). We hold that it is. II A The Fourteenth Amendment’s Due Process Clause limits a state court’s power to exercise jurisdiction over a defendant. The canonical decision in this area remains International Shoe Co. v. Washington , 326 U.S. 310 (1945). There, the Court held that a tribunal’s authority depends on the defendant’s having such “contacts” with the forum State that “the maintenance of the suit” is “reasonable, in the context of our federal system of government,” and “does not offend traditional notions of fair play and substantial justice.” Id. , at 316–317 (internal quotation marks omitted). In giving content to that formulation, the Court has long focused on the nature and extent of “the defendant’s relationship to the forum State.” Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. , 582 U. S. ___, ___ (2017) (slip op., at 5) (citing cases). That focus led to our recognizing two kinds of personal jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called case-linked) jurisdiction. See Goodyear Dunlop Tires Operations, S. A. v. Brown , 564 U.S. 915 , 919 (2011). A state court may exercise general jurisdiction only when a defendant is “essentially at home” in the State. Ibid. General jurisdiction, as its name implies, extends to “any and all claims” brought against a defendant. Ibid. Those claims need not relate to the forum State or the defendant’s activity there; they may concern events and conduct anywhere in the world. But that breadth imposes a correlative limit: Only a select “set of affiliations with a forum” will expose a defendant to such sweeping jurisdiction. Daimler AG v. Bauman , 571 U.S. 117 , 137 (2014). In what we have called the “paradigm” case, an individual is subject to general jurisdiction in her place of domicile. Ibid . (internal quotation marks omitted). And the “equivalent” forums for a corporation are its place of incorporation and principal place of business. Ibid. (internal quotation marks omitted); see id. , at 139, n. 19 (leaving open “the possibility that in an exceptional case” a corporation might also be “at home” elsewhere). So general jurisdiction over Ford (as all parties agree) attaches in Delaware and Michigan—not in Montana and Minnesota. See supra, at 2. Specific jurisdiction is different: It covers defendants less intimately connected with a State, but only as to a narrower class of claims. The contacts needed for this kind of jurisdiction often go by the name “purposeful availment.” Burger King Corp. v. Rudzewicz , 471 U.S. 462 , 475 (1985). The defendant, we have said, must take “some act by which [it] purposefully avails itself of the privilege of conducting activities within the forum State.” Hanson v. Denckla , 357 U.S. 235 , 253 (1958). The contacts must be the defendant’s own choice and not “random, isolated, or fortuitous.” Keeton v. Hustler Magazine, Inc. , 465 U.S. 770 , 774 (1984). They must show that the defendant deliberately “reached out beyond” its home—by, for example, “exploi[ting] a market” in the forum State or entering a contractual relationship centered there. Walden v. Fiore , 571 U.S. 277 , 285 (2014) (internal quotation marks and alterations omitted). Yet even then—because the defendant is not “at home”—the forum State may exercise jurisdiction in only certain cases. The plaintiff ’s claims, we have often stated, “must arise out of or relate to the defendant’s contacts” with the forum. Bristol-Myers , 582 U. S., at ___ (slip op., at 5) (quoting Daimler , 571 U. S., at 127; alterations omitted); see, e.g., Burger King , 471 U. S., at 472; Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U.S. 408 , 414 (1984); International Shoe , 326 U. S., at 319. Or put just a bit differently, “there must be ‘an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation.’ ” Bristol-Myers , 582 U. S., at ___−___, ___ (slip op., at 5−6, 7) (quoting Goodyear , 564 U. S., at 919). These rules derive from and reflect two sets of values—treating defendants fairly and protecting “interstate federalism.” World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 , 293 (1980); see id., at 297–298. Our decision in International Shoe founded specific jurisdiction on an idea of reciprocity between a defendant and a State: When (but only when) a company “exercises the privilege of conducting activities within a state”—thus “enjoy[ing] the benefits and protection of [its] laws”—the State may hold the company to account for related misconduct. 326 U. S., at 319; see Burger King , 471 U. S., at 475−476. Later decisions have added that our doctrine similarly provides defendants with “fair warning”—knowledge that “a particular activity may subject [it] to the jurisdiction of a foreign sovereign.” Id., at 472 (internal quotation marks omitted); World-Wide Volkswagen , 444 U. S., at 297 (likewise referring to “clear notice”). A defendant can thus “structure [its] primary conduct” to lessen or avoid exposure to a given State’s courts. Id. , at 297. And this Court has considered alongside defendants’ interests those of the States in relation to each other. One State’s “sovereign power to try” a suit, we have recognized, may prevent “sister States” from exercising their like authority. Id., at 293. The law of specific jurisdiction thus seeks to ensure that States with “little legitimate interest” in a suit do not encroach on States more affected by the controversy. Bristol-Myers , 582 U. S., at ___ (slip op., at 6).[ 2 ] B Ford contends that our jurisdictional rules prevent Montana’s and Minnesota’s courts from deciding these two suits. In making that argument, Ford does not contest that it does substantial business in Montana and Minnesota—that it actively seeks to serve the market for automobiles and related products in those States. See Brief for Petitioner 6, 9, 13. Or to put that concession in more doctrinal terms, Ford agrees that it has “purposefully avail[ed] itself of the privilege of conducting activities” in both places. Hanson , 357 U. S., at 253; see supra, at 5−6. Ford’s claim is instead that those activities do not sufficiently connect to the suits, even though the resident-plaintiffs allege that Ford cars malfunctioned in the forum States. In Ford’s view, the needed link must be causal in nature: Jurisdiction attaches “only if the defendant’s forum conduct gave rise to the plaintiff ’s claims.” Brief for Petitioner 13 (emphasis in original). And that rule reduces, Ford thinks, to locating specific jurisdiction in the State where Ford sold the car in question, or else the States where Ford designed and manufactured the vehicle. See id., at 2; Reply Brief 2, 19; supra, at 3 (identifying those States). On that view, the place of accident and injury is immaterial. So (Ford says) Montana’s and Minnesota’s courts have no power over these cases. But Ford’s causation-only approach finds no support in this Court’s requirement of a “connection” between a plaintiff ’s suit and a defendant’s activities. Bristol - Myers , 582 U. S., at ___ (slip op., at 8). That rule indeed serves to narrow the class of claims over which a state court may exercise specific jurisdiction. But not quite so far as Ford wants. None of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do. As just noted, our most common formulation of the rule demands that the suit “arise out of or relate to the defendant’s contacts with the forum.” Id ., at ___ (slip op., at 5) (quoting Daimler , 571 U. S., at 127; emphasis added; alterations omitted); see supra, at 6. The first half of that standard asks about causation; but the back half, after the “or,” contemplates that some relationships will support jurisdiction without a causal showing. That does not mean anything goes. In the sphere of specific jurisdiction, the phrase “relate to” incorporates real limits, as it must to adequately protect defendants foreign to a forum. But again, we have never framed the specific jurisdiction inquiry as always requiring proof of causation— i.e., proof that the plaintiff ’s claim came about because of the defendant’s in-state conduct. See also Bristol-Myers , 582 U. S., at ___, ___ (slip op., at 5, 7) (quoting Goodyear , 564 U. S., at 919) (asking whether there is “an affiliation between the forum and the underlying controversy,” without demanding that the inquiry focus on cause). So the case is not over even if, as Ford argues, a causal test would put jurisdiction in only the States of first sale, manufacture, and design. A different State’s courts may yet have jurisdiction, because of another “activity [or] occurrence” involving the defendant that takes place in the State. Bristol- Myers , 582 U. S., at ___, ___ (slip op., at 6, 7) (quoting Goodyear , 564 U. S., at 919).[ 3 ] And indeed, this Court has stated that specific jurisdiction attaches in cases identical to the ones here—when a company like Ford serves a market for a product in the forum State and the product malfunctions there. In World-Wide Volkswagen , the Court held that an Oklahoma court could not assert jurisdiction over a New York car dealer just because a car it sold later caught fire in Oklahoma. 444 U. S., at 295. But in so doing, we contrasted the dealer’s position to that of two other defendants—Audi, the car’s manufacturer, and Volkswagen, the car’s nationwide importer (neither of which contested jurisdiction): “[I]f the sale of a product of a manufacturer or distributor such as Audi or Volkswagen is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in [several or all] other States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others.” Id. , at 297. Or said another way, if Audi and Volkswagen’s business deliberately extended into Oklahoma (among other States), then Oklahoma’s courts could hold the companies accountable for a car’s catching fire there—even though the vehicle had been designed and made overseas and sold in New York. For, the Court explained, a company thus “purposefully avail[ing] itself ” of the Oklahoma auto market “has clear notice” of its exposure in that State to suits arising from local accidents involving its cars. Ibid. And the company could do something about that exposure: It could “act to alleviate the risk of burdensome litigation by procuring insurance, passing the expected costs on to customers, or, if the risks are [still] too great, severing its connection with the State.” Ibid. Our conclusion in World-Wide Volkswagen —though, as Ford notes, technically “dicta,” Brief for Petitioner 34—has appeared and reappeared in many cases since. So, for example, the Court in Keeton invoked that part of World-Wide Volkswagen to show that when a corporation has “continuously and deliberately exploited [a State’s] market, it must reasonably anticipate being haled into [that State’s] court[s]” to defend actions “based on” products causing injury there. 465 U. S., at 781 (citing 444 U. S., at 297–298); see Burger King , 471 U. S., at 472–473 (similarly citing World-Wide Volkswagen ). On two other occasions, we reaffirmed that rule by reciting the above block-quoted language verbatim. See Goodyear , 564 U. S., at 927; Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty. , 480 U.S. 102 , 110 (1987) (opinion of O’Connor, J.). And in Daimler , we used the Audi/Volkswagen scenario as a paradigm case of specific jurisdiction (though now naming Daimler, the maker of Mercedes Benzes). Said the Court, to “illustrate[ ]” specific jurisdiction’s “province[ ]”: A California court would exercise specific jurisdiction “if a California plaintiff, injured in a California accident involving a Daimler-manufactured vehicle, sued Daimler [in that court] alleging that the vehicle was defectively designed.” 571 U. S., at 127, n. 5. As in World-Wide Volkswagen , the Court did not limit jurisdiction to where the car was designed, manufactured, or first sold. Substitute Ford for Daimler, Montana and Minnesota for California, and the Court’s “illustrat[ive]” case becomes . . . the two cases before us. To see why Ford is subject to jurisdiction in these cases (as Audi, Volkswagen, and Daimler were in their analogues), consider first the business that the company regularly conducts in Montana and Minnesota. See generally 395 Mont., at 488, 443 P. 3d, at 414; 931 N. W. 2d, at 748; supra, at 3−4. Small wonder that Ford has here conceded “purposeful availment” of the two States’ markets. See supra, at 7−8. By every means imaginable—among them, billboards, TV and radio spots, print ads, and direct mail—Ford urges Montanans and Minnesotans to buy its vehicles, including (at all relevant times) Explorers and Crown Victorias. Ford cars—again including those two models—are available for sale, whether new or used, throughout the States, at 36 dealerships in Montana and 84 in Minnesota. And apart from sales, Ford works hard to foster ongoing connections to its cars’ owners. The company’s dealers in Montana and Minnesota (as elsewhere) regularly maintain and repair Ford cars, including those whose warranties have long since expired. And the company distributes replacement parts both to its own dealers and to independent auto shops in the two States. Those activities, too, make Ford money. And by making it easier to own a Ford, they encourage Montanans and Minnesotans to become lifelong Ford drivers. Now turn to how all this Montana- and Minnesota-based conduct relates to the claims in these cases, brought by state residents in Montana’s and Minnesota’s courts. Each plaintiff ’s suit, of course, arises from a car accident in one of those States. In each complaint, the resident-plaintiff alleges that a defective Ford vehicle—an Explorer in one, a Crown Victoria in the other—caused the crash and resulting harm. And as just described, Ford had advertised, sold, and serviced those two car models in both States for many years. (Contrast a case, which we do not address, in which Ford marketed the models in only a different State or region.) In other words, Ford had systematically served a market in Montana and Minnesota for the very vehicles that the plaintiffs allege malfunctioned and injured them in those States. So there is a strong “relationship among the defendant, the forum, and the litigation”—the “essential foundation” of specific jurisdiction. Helicopteros , 466 U. S., at 414 (internal quotation marks omitted). That is why this Court has used this exact fact pattern (a resident-plaintiff sues a global car company, extensively serving the state market in a vehicle, for an in-state accident) as an illustration—even a paradigm example—of how specific jurisdiction works. See Daimler , 571 U. S., at 127, n. 5; supra, at 11.[ 4 ] The only complication here, pressed by Ford, is that the company sold the specific cars involved in these crashes outside the forum States, with consumers later selling them to the States’ residents. Because that is so, Ford argues, the plaintiffs’ claims “would be precisely the same if Ford had never done anything in Montana and Minnesota.” Brief for Petitioner 46. Of course, that argument merely restates Ford’s demand for an exclusively causal test of connection—which we have already shown is inconsistent with our caselaw. See Tr. of Oral Arg. 4; supra , at 8−9. And indeed, a similar assertion could have been made in World-Wide Volkswagen —yet the Court made clear that systematic contacts in Oklahoma rendered Audi accountable there for an in-state accident, even though it involved a car sold in New York. See supra, at 9−10. So too here, and for the same reasons, see supra, at 11−12—even supposing (as Ford does) that without the company’s Montana or Minnesota contacts the plaintiffs’ claims would be just the same. But in any event, that assumption is far from clear. For the owners of these cars might never have bought them, and so these suits might never have arisen, except for Ford’s contacts with their home States. Those contacts might turn any resident of Montana or Minnesota into a Ford owner—even when he buys his car from out of state. He may make that purchase because he saw ads for the car in local media. And he may take into account a raft of Ford’s in-state activities designed to make driving a Ford convenient there: that Ford dealers stand ready to service the car; that other auto shops have ample supplies of Ford parts; and that Ford fosters an active resale market for its old models. The plaintiffs here did not in fact establish, or even allege, such causal links. But cf. post, at 3–4 (Alito, J., concurring in judgment) (nonetheless finding some kind of causation). Nor should jurisdiction in cases like these ride on the exact reasons for an individual plaintiff ’s purchase, or on his ability to present persuasive evidence about them.[ 5 ] But the possibilities listed above—created by the reach of Ford’s Montana and Minnesota contacts—underscore the aptness of finding jurisdiction here, even though the cars at issue were first sold out of state. For related reasons, allowing jurisdiction in these cases treats Ford fairly, as this Court’s precedents explain. In conducting so much business in Montana and Minnesota, Ford “enjoys the benefits and protection of [their] laws”—the enforcement of contracts, the defense of property, the resulting formation of effective markets. International Shoe , 326 U. S., at 319. All that assistance to Ford’s in-state business creates reciprocal obligations—most relevant here, that the car models Ford so extensively markets in Montana and Minnesota be safe for their citizens to use there. Thus our repeated conclusion: A state court’s enforcement of that commitment, enmeshed as it is with Ford’s government-protected in-state business, can “hardly be said to be undue.” Ibid. ; see supra, at 10−11. And as World-Wide Volkswagen described, it cannot be thought surprising either. An automaker regularly marketing a vehicle in a State, the Court said, has “clear notice” that it will be subject to jurisdiction in the State’s courts when the product malfunctions there (regardless where it was first sold). 444 U. S., at 297; see supra, at 10. Precisely because that exercise of jurisdiction is so reasonable, it is also predictable—and thus allows Ford to “structure [its] primary conduct” to lessen or even avoid the costs of state-court litigation. World-Wide Volkswagen , 444 U. S., at 297. Finally, principles of “interstate federalism” support jurisdiction over these suits in Montana and Minnesota. Id. , at 293. Those States have significant interests at stake—“providing [their] residents with a convenient forum for redressing injuries inflicted by out-of-state actors,” as well as enforcing their own safety regulations. Burger King , 471 U. S., at 473; see Keeton , 465 U. S., at 776. Consider, next to those, the interests of the States of first sale (Washington and North Dakota)—which Ford’s proposed rule would make the most likely forums. For each of those States, the suit involves all out-of-state parties, an out-of-state accident, and out-of-state injuries; the suit’s only connection with the State is that a former owner once (many years earlier) bought the car there. In other words, there is a less significant “relationship among the defendant, the forum, and the litigation.” Walden , 571 U. S., at 284 (internal quotation marks omitted). So by channeling these suits to Washington and North Dakota, Ford’s regime would undermine, rather than promote, what the company calls the Due Process Clause’s “jurisdiction-allocating function.” Brief for Petitioner 24. C Ford mainly relies for its rule on two of our recent decisions— Bristol-Myers and Walden . But those precedents stand for nothing like the principle Ford derives from them. If anything, they reinforce all we have said about why Montana’s and Minnesota’s courts can decide these cases. Ford says of Bristol-Myers that it “squarely foreclose[s]” jurisdiction. Reply Brief 2. In that case, non-resident plaintiffs brought claims in California state court against Bristol-Myers Squibb, the manufacturer of a nationally marketed prescription drug called Plavix. The plaintiffs had not bought Plavix in California; neither had they used or suffered any harm from the drug there. Still, the California Supreme Court thought it could exercise jurisdiction because Bristol-Myers Squibb sold Plavix in California and was defending there against identical claims brought by the State’s residents. This Court disagreed, holding that the exercise of jurisdiction violated the Fourteenth Amendment. In Ford’s view, the same must be true here. Each of these plaintiffs, like the plaintiffs in Bristol-Myers , alleged injury from a particular item (a car, a pill) that the defendant had sold outside the forum State. Ford reads Bristol-Myers to preclude jurisdiction when that is true, even if the defendant regularly sold “the same kind of product” in the State. Reply Brief 2 (emphasis in original). But that reading misses the point of our decision. We found jurisdiction improper in Bristol-Myers because the forum State, and the defendant’s activities there, lacked any connection to the plaintiffs’ claims. See 582 U. S., at ___ (slip op., at 8) (“What is needed—and what is missing here—is a connection between the forum and the specific claims at issue”). The plaintiffs, the Court explained, were not residents of California. They had not been prescribed Plavix in California. They had not ingested Plavix in California. And they had not sustained their injuries in California. See ibid. (emphasizing these points). In short, the plaintiffs were engaged in forum-shopping—suing in California because it was thought plaintiff-friendly, even though their cases had no tie to the State. See id., at ___ (slip op., at 10) (distinguishing the Plavix claims from the litigation in Keeton , see supra, at 10, because they “involv[e] no in-state injury and no injury to residents of the forum State”). That is not at all true of the cases before us. Yes, Ford sold the specific products in other States, as Bristol-Myers Squibb had. But here, the plaintiffs are residents of the forum States. They used the allegedly defective products in the forum States. And they suffered injuries when those products malfunctioned in the forum States. In sum, each of the plaintiffs brought suit in the most natural State—based on an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place” there. Bristol-Myers , 582 U. S., at ___−___, ___ (slip op., at 5−6, 7) (internal quotation marks omitted). So Bristol-Myers does not bar jurisdiction. Ford falls back on Walden as its last resort. In that case, a Georgia police officer working at an Atlanta airport searched, and seized money from, two Nevada residents before they embarked on a flight to Las Vegas. The victims of the search sued the officer in Nevada, arguing that their alleged injury (their inability to use the seized money) occurred in the State in which they lived. This Court held the exercise of jurisdiction in Nevada improper even though “the plaintiff[s] experienced [the] effect[s]” of the officer’s conduct there. 571 U. S., at 290. According to Ford, our ruling shows that a plaintiff ’s residence and place of injury can never support jurisdiction. See Brief for Petitioner 32. And without those facts, Ford concludes, the basis for jurisdiction crumbles here as well. But Walden has precious little to do with the cases before us. In Walden , only the plaintiffs had any contacts with the State of Nevada; the defendant-officer had never taken any act to “form[ ] a contact” of his own. 571 U. S., at 290. The officer had “never traveled to, conducted activities within, contacted anyone in, or sent anything or anyone to Nevada . ” Id. , at 289. So to use the language of our doctrinal test: He had not “purposefully avail[ed himself] of the privilege of conducting activities” in the forum State. Hanson , 357 U. S., at 253. Because that was true, the Court had no occasion to address the necessary connection between a defendant’s in-state activity and the plaintiff ’s claims. But here, Ford has a veritable truckload of contacts with Montana and Minnesota, as it admits. See supra, at 11−12. The only issue is whether those contacts are related enough to the plaintiffs’ suits. As to that issue, so what if (as Walden held) the place of a plaintiff ’s injury and residence cannot create a defendant’s contact with the forum State? Those places still may be relevant in assessing the link between the defendant’s forum contacts and the plaintiff ’s suit—including its assertions of who was injured where. And indeed, that relevance is a key part of Bristol-Myers ’ reasoning. See 582 U. S., at ___ (slip op., at 9) (finding a lack of “connection” in part because the “plaintiffs are not California residents and do not claim to have suffered harm in that State”). One of Ford’s own favorite cases thus refutes its appeal to the other. *  *  * Here, resident-plaintiffs allege that they suffered in-state injury because of defective products that Ford extensively promoted, sold, and serviced in Montana and Minnesota. For all the reasons we have given, the connection between the plaintiffs’ claims and Ford’s activities in those States—or otherwise said, the “relationship among the defendant, the forum[s], and the litigation”—is close enough to support specific jurisdiction. Walden , 571 U. S., at 284 (internal quotation marks omitted). The judgments of the Montana and Minnesota Supreme Courts are therefore affirmed. It is so ordered. Justice Barrett took no part in the consideration or decision of these cases. Notes 1 Ford’s Brief in Support of Motion to Dismiss in Lucero v. Ford Motor Co. , No. DV–18–247 (8th Jud. Dist., Cascade Cty., Mont.), pp. 14−15; Ford Motor Co.’s Memorandum in Support of Motion to Dismiss in No. 77–cv–16–1025 (7th Jud. Dist., Todd Cty., Minn.), pp. 11−12, and n. 3. 2 One of the concurrences here expresses a worry that our International Shoe -based body of law is not “well suited for the way in which business is now conducted,” and tentatively suggests a 21st-century rethinking. Post, at 1 (Alito, J., concurring in judgment). Fair enough perhaps, see infra, at 12−13, n. 4, but the concurrence then acknowledges that these cases have no distinctively modern features, and it decides them on grounds that (as it agrees) are much the same as ours. See post , at 3−4; compare ibid. with infra , at 11–15. The other concurrence proposes instead a return to the mid-19th century—a replacement of our current doctrine with the Fourteenth Amendment’s original meaning respecting personal jurisdiction. Post, at 9−10 (Gorsuch, J., concurring in judgment). But that opinion never reveals just what the Due Process Clause as understood at its ratification required, and its ground for deciding these cases is correspondingly spare. Post, at 11. This opinion, by contrast, resolves these cases by proceeding as the Court has done for the last 75 years—applying the standards set out in International Shoe and its progeny, with attention to their underlying values of ensuring fairness and protecting interstate federalism. 3 In thus reiterating this Court’s longstanding approach, we reject Justice Gorsuch’s apparent (if oblique) view that a state court should have jurisdiction over a nationwide corporation like Ford on any claim, no matter how unrelated to the State or Ford’s activities there. See post, at 11. On that view, for example, a California court could hear a claim against Ford brought by an Ohio plaintiff based on an accident occurring in Ohio involving a car purchased in Ohio. Removing the need for any connection between the case and forum State would transfigure our specific jurisdiction standard as applied to corporations. “Case-linked” jurisdiction, see supra, at 5–6, would then become not case-linked at all. 4 None of this is to say that any person using any means to sell any good in a State is subject to jurisdiction there if the product malfunctions after arrival. We have long treated isolated or sporadic transactions differently from continuous ones. See, e.g., World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 , 297 (1980); supra, at 6. And we do not here consider internet transactions, which may raise doctrinal questions of their own. See Walden v. Fiore , 571 U.S. 277 , 290, n. 9 (2014) (“[T]his case does not present the very different questions whether and how a defendant’s virtual ‘presence’ and conduct translate into ‘contacts’ with a particular State”). So consider, for example, a hypothetical offered at oral argument. “[A] retired guy in a small town” in Maine “carves decoys” and uses “a site on the Internet” to sell them. Tr. of Oral Arg. 39. “Can he be sued in any state if some harm arises from the decoy?” Ibid . The differences between that case and the ones before us virtually list themselves. (Just consider all our descriptions of Ford’s activities outside its home bases.) So we agree with the plaintiffs’ counsel that resolving these cases does not also resolve the hypothetical. See id., at 39−40. 5 It should, for example, make no difference if a plaintiff had recently moved to the forum State with his car, and had not made his purchasing decision with that move in mind—so had not considered any of Ford’s activities in his new home State. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–368 and 19–369 _________________ FORD MOTOR COMPANY, PETITIONER 19–368 v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, et al. on writ of certiorari to the supreme court of montana FORD MOTOR COMPANY, PETITIONER 19–369 v. ADAM BANDEMER on writ of certiorari to the supreme court of minnesota [March 25, 2021] Justice Alito, concurring in the judgment. These cases can and should be decided without any alteration or refinement of our case law on specific personal jurisdiction. To be sure, for the reasons outlined in Justice Gorsuch’s thoughtful opinion, there are grounds for questioning the standard that the Court adopted in International Shoe Co. v. Washington , 326 U.S. 310 (1945). And there are also reasons to wonder whether the case law we have developed since that time is well suited for the way in which business is now conducted. But there is nothing distinctively 21st century about the question in the cases now before us, and the answer to that question is settled by our case law. Since International Shoe, the rule has been that a state court can exercise personal jurisdiction over a defendant if the defendant has “minimum contacts” with the forum—which means that the contacts must be “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id., at 316 (quoting Milliken v. Meyer , 311 U.S. 457 , 463 (1940)). That standard is easily met here. Ford has long had a heavy presence in Minnesota and Montana. It spends billions on national advertising. It has many franchises in both States. Ford dealers in Minnesota and Montana sell and service Ford vehicles, and Ford ships replacement parts to both States. In entertaining these suits, Minnesota and Montana courts have not reached out and grabbed suits in which they “have little legitimate interest.” Bristol- Myers Squibb Co. v. Superior Court of Cal., San Francisco Cty. , 582 U. S. ___, ___ (2017) (slip op., at 6). Their residents, while riding in vehicles purchased within their borders, were killed or injured in accidents on their roads. Can anyone seriously argue that requiring Ford to litigate these cases in Minnesota and Montana would be fundamentally unfair? Well, Ford makes that argument. It would send the plaintiffs packing to the jurisdictions where the vehicles in question were assembled (Kentucky and Canada), designed (Michigan), or first sold (Washington and North Dakota) or where Ford is incorporated (Delaware) or has its principal place of business (Michigan). As might have been predicted, the Court unanimously rejects this understanding of “traditional notions of fair play and substantial justice.” And in doing so, we merely follow what we said in World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286 , 297–298 (1980), which was essentially this: If a car manufacturer makes substantial efforts to sell vehicles in States A and B (and other States), and a defect in a vehicle first sold in State A causes injuries in an accident in State B, the manufacturer can be sued in State B. That rule decides these cases. Ford, however, asks us to adopt an unprecedented rule under which a defendant’s contacts with the forum State must be proven to have been a but-for cause of the tort plaintiff ’s injury. The Court properly rejects that argument, and I agree with the main thrust of the Court’s opinion. My only quibble is with the new gloss that the Court puts on our case law. Several of our opinions have said that a plaintiff ’s claims “ ‘must arise out of or relate to the defendant’s contacts’ ” with the forum. See ante , at 6 (citing cases). The Court parses this phrase “as though we were dealing with language of a statute,” Reiter v. Sonotone Corp. , 442 U.S. 330 , 341 (1979), and because this phrase is cast in the disjunctive, the Court recognizes a new category of cases in which personal jurisdiction is permitted: those in which the claims do not “arise out of ” ( i.e. , are not caused by) the defendant’s contacts but nevertheless sufficiently “relate to” those contacts in some undefined way, ante , at 8–9. This innovation is unnecessary and, in my view, unwise. To say that the Constitution does not require the kind of proof of causation that Ford would demand—what the majority describes as a “strict causal relationship,” ante, at 8—is not to say that no causal link of any kind is needed. And here, there is a sufficient link. It is reasonable to infer that the vehicles in question here would never have been on the roads in Minnesota and Montana if they were some totally unknown brand that had never been advertised in those States, was not sold in those States, would not be familiar to mechanics in those States, and could not have been easily repaired with parts available in those States. See ante, at 13–14 (describing this relationship between Ford’s activities and these suits). The whole point of those activities was to put more Fords (including those in question here) on Minnesota and Montana roads. The common-sense relationship between Ford’s activities and these suits, in other words, is causal in a broad sense of the concept, and personal jurisdiction can rest on this type of link without strict proof of the type Ford would require. When “arise out of ” is understood in this way, it is apparent that “arise out of ” and “relate to” overlap and are not really two discrete grounds for jurisdiction. The phrase “arise out of or relate to” is simply a way of restating the basic “minimum contacts” standard adopted in International Shoe . Recognizing “relate to” as an independent basis for specific jurisdiction risks needless complications. The “ordinary meaning” of the phrase “relate to” “is a broad one.” Morales v. Trans World Airlines, Inc. , 504 U.S. 374 , 383 (1992). Applying that phrase “according to its terms [is] a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc. , 519 U.S. 316 , 335 (1997) (Scalia, J., concurring). To rein in this phrase, limits must be found, and the Court assures us that “relate to,” as it now uses the concept, “incorporates real limits.” Ante, at 9. But without any indication what those limits might be, I doubt that the lower courts will find that observation terribly helpful. Instead, what limits the potentially boundless reach of “relate to” is just the sort of rough causal connection I have described. I would leave the law exactly where it stood before we took these cases, and for that reason, I concur in the judgment. SUPREME COURT OF THE UNITED STATES _________________ Nos. 19–368 and 19–369 _________________ FORD MOTOR COMPANY, PETITIONER 19–368 v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, et al. on writ of certiorari to the supreme court of montana FORD MOTOR COMPANY, PETITIONER 19–369 v. ADAM BANDEMER on writ of certiorari to the supreme court of minnesota [March 25, 2021] Justice Gorsuch, with whom Justice Thomas joins, concurring in the judgment. Since International Shoe Co. v. Washington , 326 U.S. 310 (1945), this Court’s cases have sought to divide the world of personal jurisdiction in two. A tribunal with “general jurisdiction” may entertain any claim against the defendant. But to trigger this power, a court usually must ensure the defendant is “ ‘at home’ ” in the forum State. Daimler AG v. Bauman , 571 U.S. 117 , 137 (2014). Meanwhile, “specific jurisdiction” affords a narrower authority. It applies only when the defendant “ ‘purposefully avails’ ” itself of the opportunity to do business in the forum State and the suit “ ‘arise[s] out of or relate[s] to’ ” the defendant’s contacts with the forum State. Burger King Corp. v. Rudzewicz , 471 U.S. 462 , 472, 475 (1985). While our cases have long admonished lower courts to keep these concepts distinct, some of the old guardrails have begun to look a little battered. Take general jurisdiction. If it made sense to speak of a corporation having one or two “homes” in 1945, it seems almost quaint in 2021 when corporations with global reach often have massive operations spread across multiple States. To cope with these changing economic realities, this Court has begun cautiously expanding the old rule in “ ‘exceptional case[s].’ ” BNSF R. Co. v. Tyrrell , 581 U. S. ___, ___ (2017) (slip op., at 10). Today’s case tests the old boundaries from another direction. Until now, many lower courts have proceeded on the premise that specific jurisdiction requires two things. First, the defendant must “purposefully avail” itself of the chance to do business in a State. Second, the plaintiff ’s suit must “arise out of or relate to” the defendant’s in-state activities. Typically, courts have read this second phrase as a unit requiring at least a but-for causal link between the defendant’s local activities and the plaintiff ’s injuries. E.g., Tamburo v. Dworkin , 601 F.3d 693, 708–709 (CA7 2010) (collecting cases); see also Burger King , 471 U. S., at 475 (discussing “proximate[ ] results”). As every first year law student learns, a but-for causation test isn’t the most demanding. At a high level of abstraction, one might say any event in the world would not have happened “but for” events far and long removed. Now, though, the Court pivots away from this understanding. Focusing on the phrase “arise out of or relate to” that so often appears in our cases, the majority asks us to parse those words “as though we were dealing with language of a statute.” Reiter v. Sonotone Corp. , 442 U.S. 330 , 341 (1979). In particular, the majority zeros in on the disjunctive conjunction “or,” and proceeds to build its entire opinion around that linguistic feature. Ante , at 8–9. The majority admits that “arise out of ” may connote causation. But, it argues, “relate to” is an independent clause that does not. Where this leaves us is far from clear. For a case to “relate to” the defendant’s forum contacts, the majority says, it is enough if an “affiliation” or “relationship” or “connection” exists between them. Ante, at 6, 12, 16. But what does this assortment of nouns mean ? Loosed from any causation standard, we are left to guess. The majority promises that its new test “does not mean anything goes,” but that hardly tells us what does. Ante, at 9. In some cases, the new test may prove more forgiving than the old causation rule. But it’s hard not to wonder whether it may also sometimes turn out to be more demanding. Unclear too is whether, in cases like that, the majority would treat causation and “affiliation” as alternative routes to specific jurisdiction, or whether it would deny jurisdiction outright. For a glimpse at the complications invited by today’s decision, consider its treatment of North Dakota and Washington. Those are the States where Ford first sold the allegedly defective cars at issue in the cases before us. The majority seems to suggest that, if the plaintiffs had sought to bring their suits in those States, they would have failed. The majority stresses that the “only connection” between the plaintiffs’ claims and North Dakota and Washington is the fact that former owners once bought the allegedly defective cars there. Ante, at 15. But the majority never tells us why that “connection” isn’t enough. Surely, North Dakota and Washington would contend they have a strong interest in ensuring they don’t become marketplaces for unreasonably dangerous products. Nor is it clear why the majority casts doubt on the availability of specific jurisdiction in these States without bothering to consider whether the old causation test might allow it. After all, no one doubts Ford purposefully availed itself of those markets. The plaintiffs’ injuries, at least arguably, “arose from” (or were caused by) the sale of defective cars in those places. Even if the majority’s new affiliation test isn’t satisfied, don’t we still need to ask those causation questions, or are they now to be abandoned? Consider, too, a hypothetical the majority offers in a footnote. The majority imagines a retiree in Maine who starts a one-man business, carving and selling wooden duck decoys. In time, the man sells a defective decoy over the Internet to a purchaser in another State who is injured. See ante , at 13, n. 4. We aren’t told how. (Was the decoy coated in lead paint?) But put that aside. The majority says this hypothetical supplies a useful study in contrast with our cases. On the majority’s telling, Ford’s “continuous” contacts with Montana and Minnesota are enough to establish an “affiliation” with those States; by comparison, the decoy seller’s contacts may be too “isolated” and “sporadic” to entitle an injured buyer to sue in his home State. But if this comparison highlights anything, it is only the litigation sure to follow. For between the poles of “continuous” and “isolated” contacts lie a virtually infinite number of “affiliations” waiting to be explored. And when it comes to that vast terrain, the majority supplies no meaningful guidance about what kind or how much of an “affiliation” will suffice. Nor, once more, does the majority tell us whether its new affiliation test supplants or merely supplements the old causation inquiry. Not only does the majority’s new test risk adding new layers of confusion to our personal jurisdiction jurisprudence. The whole project seems unnecessary. Immediately after disavowing any need for a causal link between the defendant’s forum activities and the plaintiffs’ injuries, the majority proceeds to admit that such a link may be present here. Ante, at 14. The majority stresses that the Montana and Minnesota plaintiffs before us “might” have purchased their cars because of Ford’s activities in their home States. They “may” have relied on Ford’s local advertising. And they “may” have depended on Ford’s promise to furnish in-state servicers and dealers. If the majority is right about these things, that would be more than enough to establish a but-for causal link between Ford’s in-state activities and the plaintiffs’ decisions to purchase their allegedly defective vehicles. Nor should that result come as a surprise: One might expect such causal links to be easy to prove in suits against corporate behemoths like Ford. All the new euphemisms—“affiliation,” “relationship,” “connection”—thus seem pretty pointless.[ 1 ] * With the old International Shoe dichotomy looking increasingly uncertain, it’s hard not to ask how we got here and where we might be headed. Before International Shoe , it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court’s competency normally depended on the defendant’s presence in, or consent to, the sovereign’s jurisdiction. But once a plaintiff was able to “tag” the defendant with process in the jurisdiction, that State’s courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State. Pennoyer v. Neff , 95 U.S. 714 , 733 (1878); Burnham v. Superior Court of Cal. , County of Marin , 495 U.S. 604 , 610–611 (1990); J. Story, Commentaries on the Conflict of Laws 912–913 (3d ed. 1846); Massie v. Watts , 6 Cranch 148, 157, 161–162 (1810).[ 2 ] International Shoe ’s emergence may be attributable to many influences, but at least part of the story seems to involve the rise of corporations and interstate trade. See Honda Motor Co. v. Oberg , 512 U.S. 415 , 431 (1994). A corporation doing business in its State of incorporation is one thing; the old physical presence rules for individuals seem easily adaptable to them. But what happens when a corporation, created and able to operate thanks to the laws of one State, seeks the privilege of sending agents or products into another State? Early on, many state courts held conduct like that renders an out-of-state corporation present in the second jurisdiction. And a present company could be sued for any claim, so long as the plaintiff served an employee doing corporate business within the second State. E.g. , Pennsylvania Lumbermen’s Mut. Fire Ins. Co. v. Meyer , 197 U.S. 407 , 413–415 (1905). Other States sought to obviate any potential question about corporate jurisdiction by requiring an out-of-state corporation to incorporate under their laws too, or at least designate an agent for service of process. Either way, the idea was to secure the out-of-state company’s presence or consent to suit. E.g. , Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co. , 243 U.S. 93 , 95–96 (1917). Unsurprisingly, corporations soon looked for ways around rules like these. No one, after all, has ever liked greeting the process server. For centuries, individuals facing imminent suit sought to avoid it by fleeing the court’s territorial jurisdiction. But this tactic proved “too crude for the American business genius,” and it held some obvious disadvantages. See Jackson, What Price “Due Process, ” 5 N. Y. L. Rev. 435, 436 (1927). Corporations wanted to retain the privilege of sending their personnel and products to other jurisdictions where they lacked a charter to do business. At the same time, when confronted with lawsuits in the second forum, they sought to hide behind their foreign charters and deny their presence. Really, their strategy was to do business without being seen to do business. Id ., at 438 (“No longer is the foreign corporation confronted with the problem ‘to be or not to be’—it can both be and not be!”). Initially and routinely, state courts rejected ploys like these. See, e.g., Pullman Palace Car Co. v. Lawrence , 74 Miss. 782, 796–799, 22 So. 53, 55–56 (Miss. 1897). But, in a series of decisions at the turn of the last century, this Court eventually provided a more receptive audience. On the one hand, the Court held that an out-of-state corporation often has a right to do business in another State unencumbered by that State’s registration rules, thanks to the so-called dormant Commerce Clause. International Textbook Co. v. Pigg , 217 U.S. 91 , 107–112 (1910). On the other hand, the Court began invoking the Due Process Clause to restrict the circumstances in which an out-of-state corporation could be deemed present. So, for example, the Court ruled that even an Oklahoma corporation purchasing a large portion of its merchandise in New York was not “doing business” there. Rosenberg Bros. & Co. v. Curtis Brown Co. , 260 U.S. 516 , 517–518 (1923). Perhaps advocates of this arrangement thought it promoted national economic growth. See Dodd, Jurisdiction in Personal Actions, 23 Ill. L. Rev. 427, 444–445 (1929). But critics questioned its fidelity to the Constitution and traditional jurisdictional principles, noting that it often left injured parties with no practical forum for their claims too. Jackson, 5 N. Y. L. Rev., at 436–438. In many ways, International Shoe sought to start over. The Court “cast . . . aside” the old concepts of territorial jurisdiction that its own earlier decisions had seemingly twisted in favor of out-of-state corporations. Burnham , 495 U. S., at 618. At the same time, the Court also cast doubt on the idea, once pursued by many state courts, that a company “consents” to suit when it is forced to incorporate or designate an agent for receipt of process in a jurisdiction other than its home State. Ibid .[ 3 ] In place of nearly everything that had come before, the Court sought to build a new test focused on “ ‘traditional notions of fair play and substantial justice.’ ” International Shoe , 326 U. S., at 316 (quoting Milliken v. Meyer , 311 U.S. 457 , 463 (1940)). It was a heady promise. But it is unclear how far it has really taken us. Even today, this Court usually considers corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can be found. Burnham , 495 U. S., at 610–611.[ 4 ] Nearly 80 years removed from International Shoe , it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why. Maybe, too, International Shoe just doesn’t work quite as well as it once did. For a period, its specific jurisdiction test might have seemed a reasonable new substitute for assessing corporate “presence,” a way to identify those out-of-state corporations that were simply pretending to be absent from jurisdictions where they were really transacting business. When a company “purposefully availed” itself of the benefits of another State’s market in the 1940s, it often involved sending in agents, advertising in local media, or developing a network of on-the-ground dealers, much as Ford did in these cases. E.g., International Shoe , 326 U. S., at 313–314, 320. But, today, even an individual retiree carving wooden decoys in Maine can “purposefully avail” himself of the chance to do business across the continent after drawing online orders to his e-Bay “store” thanks to Internet advertising with global reach. Ante , at 12–13, n. 4. A test once aimed at keeping corporations honest about their out-of-state operations now seemingly risks hauling individuals to jurisdictions where they have never set foot. Perhaps this is the real reason why the majority introduces us to the hypothetical decoy salesman. Yes, he arguably availed himself of a new market. Yes, the plaintiff ’s injuries arguably arose from (or were caused by) the product he sold there. Yes, International Shoe ’s old causation test would seemingly allow for personal jurisdiction. But maybe the majority resists that conclusion because the old test no longer seems as reliable a proxy for determining corporate presence as it once did. Maybe that’s the intuition lying behind the majority’s introduction of its new “affiliation” rule and its comparison of the Maine retiree’s “sporadic” and “isolated” sales in the plaintiff ’s State and Ford’s deep “relationships” and “connections” with Montana and Minnesota. Ante, at 13, n. 4. If that is the logic at play here, I cannot help but wonder if we are destined to return where we began. Perhaps all of this Court’s efforts since International Shoe , including those of today’s majority, might be understood as seeking to recreate in new terms a jurisprudence about corporate jurisdiction that was developing before this Court’s muscular interventions in the early 20th century. Perhaps it was, is, and in the end always will be about trying to assess fairly a corporate defendant’s presence or consent. International Shoe may have sought to move past those questions. But maybe all we have done since is struggle for new words to express the old ideas. Perhaps, too, none of this should come as a surprise. New technologies and new schemes to evade the process server will always be with us. But if our concern is with “ ‘ traditional notions of fair play and substantial justice,’ ” International Shoe , 326 U. S., at 316 (emphasis added), not just our personal and idiosyncratic impressions of those things, perhaps we will always wind up asking variations of the same questions.[ 5 ] None of this is to cast doubt on the outcome of these cases. The parties have not pointed to anything in the Constitution’s original meaning or its history that might allow Ford to evade answering the plaintiffs’ claims in Montana or Minnesota courts. No one seriously questions that the company, seeking to do business, entered those jurisdictions through the front door. And I cannot see why, when faced with the process server, it should be allowed to escape out the back. Jackson, 5 N. Y. L. Rev., at 439. The real struggle here isn’t with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe ’s increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution’s text and the lessons of history. Notes 1 The majority says personal jurisdiction should not turn on a plain-tiff’s ability to “allege” or “establish” his or her reasons for doing business with the defendant. Ante , at 14. But the implicit assumption here—that the plaintiff bears the burden of proving personal jurisdiction—is often mistaken. Perhaps because a lack of personal jurisdiction is a waivable affirmative defense, some States place the burden of proving the defense on the defendant. Even in places where the plaintiff bears the burden, I fail to see why it would be so terrible (or burdensome) to require an individual to plead and prove his or her reasons for purchase. Frequently, doing so may be simple—far simpler than showing how the defendant’s connections with the jurisdiction satisfy a new and amorphous “affiliation” test. 2 Some disagree that due process requires even this much. Recent scholarship, for example, contends Pennoyer ’s territorial account of sovereign power is mostly right, but the rules it embodies are not “fixed in constitutional amber”—that is, Congress might be able to change them. Sachs, Pennoyer Was Right, 95 Texas L. Rev. 1249, 1255 (2017). Others suggest that fights over personal jurisdiction would be more sensibly waged under the Full Faith and Credit Clause. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1, 3 (1945). Whether these theories are right or wrong, they at least seek to answer the right question—what the Constitution as originally understood requires, not what nine judges consider “fair” and “just.” 3 It is unclear what remains of the old “consent” theory after International Shoe ’s criticism. Some courts read International Shoe and the cases that follow as effectively foreclosing it, while others insist it remains viable. Compare Lanham v. BNSF R. Co. , 305 Neb. 124, 130–136, 939 N.W.2d 363, 368–371 (Neb. 2020), with Rodriguez v. Ford Motor Co. , 2019-NMCA-023, ¶12–¶14, 458 P.3d 569, 575–576 (N. M. Ct. App. 2018). 4 Since Burnham , some courts have sought to revive the tag rule for artificial entities while others argue that doing so would be inconsistentwith International Shoe . Compare First Am. Corp. v. Price Waterhouse LLP , 154 F.3d 16 , 20–21 (CA2 1998), with Martinez v. Aero Caribbean , 764 F.3d 1062, 1067–1069 (CA9 2014). 5 The majority worries that the thoughts expressed here threaten to “transfigure our specific jurisdiction standard as applied to corporations” and “return [us] to the mid-19th century.” Ante , at 7, n. 2; ante , at 9, n. 3. But it has become a tired trope to criticize any reference to the Constitution’s original meaning as (somehow) both radical and antiquated.  Seeking to understand the Constitution’s original meaning is part of our job.  What’s the majority’s real worry anyway—that corporations might lose special protections?  The Constitution has always allowed suits against individuals on any issue in any State where they set foot. Supra, at 8–9.  Yet the majority seems to recoil at even entertaining the possibility the Constitution might tolerate similar results for “nationwide corporation[s],” whose “business is everywhere.” Ante , at 2; ante , at 9, n. 3.

The Supreme Court ruled that state courts have jurisdiction over Ford Motor Company in products-liability suits stemming from car accidents that occurred in the state, involved state residents, and where Ford conducted substantial business. Ford's argument that jurisdiction is improper because the specific car involved in the accident was not first sold, designed, or manufactured in the state was rejected. The Court found that Ford's extensive business activities in the states, including advertising, sales, and servicing, established sufficient connections for the state courts to assert jurisdiction.

Labor & Employment

Lochner v. New York

https://supreme.justia.com/cases/federal/us/198/45/

U.S. Supreme Court Lochner v. New York, 198 U.S. 45 (1905) Lochner v. New York No. 292 Argued February 23, 24, 1905 Decided April 17, 1906 198 U.S. 45 ERROR TO THE COUNTY COURT OF ONEIDA COUNTY, STATE OF NEW YORK Syllabus The general right to make a contract in relation to his business is part of the liberty protected by the Fourteenth Amendment, and this includes the right to purchase and sell labor, except as controlled by the State in the legitimate exercise of its police power. Liberty of contract relating to labor includes both parties to it; the one has as much right to purchase as the other to sell labor. There is no reasonable ground, on the score of health, for interfering with the liberty of the person or the right of free contract, by determining the hours of labor, in the occupation of a baker. Nor can a law limiting such hours be justified a a health law to safeguard the public health, or the health of the individuals following that occupation. Section 110 of the labor law of the State of New York, providing that no employes shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the State, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract in relation to labor, and, as such, it is in conflict with, and void under, the Federal Constitution. This is a writ of error to the County Court of Oneida County, in the State of New York (to which court the record had been remitted), to review the judgment of the Court of Appeal of that State affirming the judgment of the Supreme Court, which itself affirmed the judgment of the County Court, convicting the defendant of a misdemeanor on an indictment under a statute of that State, known, by its short title, as the labor Page 198 U. S. 46 law. The section of the statute under which the indictment was found is section 110, and is reproduced in the margin, * (together with the other sections of the labor law upon the subject of bakeries, being sections 111 to 115, both inclusive). The indictment averred that the defendant "wrongfully and unlawfully required and permitted an employee working for him in his biscuit, bread and cake bakery and confectionery establishment, at the city of Utica, in this county, to work more than sixty hours in one week," after having been theretofore convicted of a violation of the same act, and therefore, as averred, he committed the crime or misdemeanor, second offense. The plaintiff in error demurred to the indictment on several grounds, one of which was that the facts stated did not Page 198 U. S. 47 constitute a crime. The demurrer was overruled, and the plaintiff in error having refused to plead further, a plea of not guilty was entered by order of the court and the trial commenced, and he was convicted of misdemeanor, second offense, as indicted, and sentenced to pay a fine of $50 and to stand committed until paid, not to exceed fifty days in the Oneida County jail. A certificate of reasonable doubt was granted by the county judge of Oneida County, whereon an appeal was taken to the Appellate Division of the Supreme Court, Fourth Department, where the judgment of conviction was affirmed. 73 App.Div.N.Y. 120. A further appeal was then taken to the Court of Appeals, where the judgment of conviction was again affirmed. 177 N.Y. 145. Page 198 U. S. 52 MR. JUSTICE PECKHAM, after making the foregoing statement of the facts, delivered the opinion of the court. The indictment, it will be seen, charges that the plaintiff in error violated the one hundred and tenth section of article 8, chapter 415, of the Laws of 1897, known as the labor law of the State of New York, in that he wrongfully and unlawfully required and permitted an employee working for him to work more than sixty hours in one week. There is nothing in any of the opinions delivered in this case, either in the Supreme Court or the Court of Appeals of the State, which construes the section, in using the word "required," as referring to any physical force being used to obtain the labor of an employee. It is assumed that the word means nothing more than the requirement arising from voluntary contract for such labor in excess of the number of hours specified in the statute. There is no pretense in any of the opinions that the statute was intended to meet a case of involuntary labor in any form. All the opinions assume that there is no real distinction, so far as this question is concerned, between the words "required" and "permitted." The mandate of the statute that "no employee shall be required or permitted to work," is the substantial equivalent of an enactment that "no employee shall contract or agree to work," more than ten hours per day, and, as there is no provision for special emergencies, the statute is mandatory in all cases. It is not an act merely fixing the number of hours which shall constitute a legal day's work, but an absolute prohibition upon the employer's permitting, under any circumstances, more than ten hours' work to be done in his establishment. The employee may desire to earn the extra money which would arise from his working more than the prescribed Page 198 U. S. 53 time, but this statute forbids the employer from permitting the employee to earn it. The statute necessarily interferes with the right of contract between the employer and employes concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578 . Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere. Mugler v. Kansas, 123 U. S. 623 ; In re Kemmler, 136 U. S. 436 ; Crowley v. Christensen, 137 U. S. 86 ; In re Converse, 137 U. S. 624 . The State therefore has power to prevent the individual from making certain kinds of contracts, and, in regard to them, the Federal Constitution offers no protection. If the contract be one which the State, in the legitimate exercise of its police power, has the right to prohibit, it is not prevented from prohibiting it by the Fourteenth Amendment. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution as coming under the liberty of Page 198 U. S. 54 person or of free contract. Therefore, when the State, by its legislature, in the assumed exercise of its police powers, has passed an act which seriously limits the right to labor or the right of contract in regard to their means of livelihood between persons who are sui juris (both employer and employee), it becomes of great importance to determine which shall prevail -- the right of the individual to labor for such time as he may choose or the right of the State to prevent the individual from laboring or from entering into any contract to labor beyond a certain time prescribed by the State. This court has recognized the existence and upheld the exercise of the police powers of the States in many cases which might fairly be considered as border ones, and it has, in the course of its determination of questions regarding the asserted invalidity of such statutes on the ground of their violation of the rights secured by the Federal Constitution, been guided by rules of a very liberal nature, the application of which has resulted, in numerous instances, in upholding the validity of state statutes thus assailed. Among the later cases where the state law has been upheld by this court is that of Holden v. Hardy, 169 U. S. 366 . A provision in the act of the legislature of Utah was there under consideration, the act limiting the employment of workmen in all underground mines or workings to eight hours per day "except in cases of emergency, where life or property is in imminent danger." It also limited the hours of labor in smelting and other institutions for the reduction or refining of ores or metals to eight hours per day except in like cases of emergency. The act was held to be a valid exercise of the police powers of the State. A review of many of the cases on the subject, decided by this and other courts, is given in the opinion. It was held that the kind of employment, mining, smelting, etc., and the character of the employes in such kinds of labor, were such as to make it reasonable and proper for the State to interfere to prevent the employees from being constrained by the rules laid down by the proprietors in regard to labor. The following citation Page 198 U. S. 55 from the observations of the Supreme Court of Utah in that case was made by the judge writing the opinion of this court, and approved: "The law in question is confined to the protection of that class of people engaged in labor in underground mines and in smelters and other works wherein ores are reduced and refined. This law applies only to the classes subjected by their employment to the peculiar conditions and effects attending underground mining and work in smelters and other works for the reduction and refining of ores. Therefore it is not necessary to discuss or decide whether the legislature can fix the hours of labor in other employments." It will be observed that, even with regard to that class of labor, the Utah statute provided for cases of emergency wherein the provisions of the statute would not apply. The statute now before this court has no emergency clause in it, and, if the statute is valid, there are no circumstances and no emergencies under which the slightest violation of the provisions of the act would be innocent. There is nothing in Holden v. Hardy which covers the case now before us. Nor does Atkin v. Kansas, 191 U. S. 207 , touch the case at bar. The Atkin case was decided upon the right of the State to control its municipal corporations and to prescribe the condition upon which it will permit work of a public character to be done for a municipality. Knoxville Iron Co. v. Harbison, 183 U. S. 13 , is equally far from an authority for this legislation. The employees in that case were held to be at a disadvantage with the employer in matters of wages, they being miners and coal workers, and the act simply provided for the cashing of coal orders when presented by the miner to the employer. The latest case decided by this court involving the police power is that of Jacobson v. Massachusetts, decided at this term and reported in 197 U. S. 197 U.S. 11. It related to compulsory vaccination, and the law was held valid as a proper exercise of the police powers with reference to the public health. It was stated in the opinion that it was a case "of an adult who, for aught that appears, was himself in perfect health and a fit Page 198 U. S. 56 subject for vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation adopted in execution of its provisions for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease." That case is also far from covering the one now before the court. Petit v. Minnesota, 177 U. S. 164 , was upheld as a proper exercise of the police power relating to the observance of Sunday, and the case held that the legislature had the right to declare that, as matter of law, keeping barber shops open on Sunday was not a work of necessity or charity. It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the Fourteenth Amendment would have no efficacy, and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext -- become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor. This is not a question of substituting the judgment of the Page 198 U. S. 57 court for that of the legislature. If the act be within the power of the State, it is valid although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: is it within the police power of the State?, and that question must be answered by the court. The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground. It is a question of which of two powers or rights shall prevail -- the power of the State to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes Page 198 U. S. 58 with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. This case has caused much diversity of opinion in the state courts. In the Supreme Court, two of the five judges composing the Appellate Division dissented from the judgment affirming the validity of the act. In the Court of Appeals, three of the seven judges also dissented from the judgment upholding the statute. Although found in what is called a labor law of the State, the Court of Appeals has upheld the act as one relating to the public health -- in other words, as a health law. One of the judges of the Court of Appeals, in upholding the law, stated that, in his opinion, the regulation in question could not be sustained unless they were able to say, from common knowledge, that working in a bakery and candy factory was an unhealthy employment. The judge held that, while the evidence was not uniform, it still led him to the conclusion that the occupation of a baker or confectioner was unhealthy, and tended to result in diseases of the respiratory organs. Three of the judges dissented from that view, and they thought the occupation of a baker was not to such an extent unhealthy as to warrant the interference of the legislature with the liberty of the individual. We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, therefore, a proper case is made out in which to deny the right of an individual, sui juris, as employer or employee, to make contracts for the labor of the latter under the protection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go. The case differs widely, as we have already stated, from the expressions of this court in regard to laws of this nature, as stated in Holden v. Hardy and Jacobson v. Massachusetts, supra. Page 198 U. S. 59 We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding, the trade of a baker has never been regarded as an unhealthy one. Very likely, physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the Government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a physician's clerk, or a clerk in almost any kind of business, would all come under the power of the legislature on this assumption. No trade, no occupation, no mode of earning one's living could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the Page 198 U. S. 60 business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employs. Upon the assumption of the validity of this act under review, it is not possible to say that an act prohibiting lawyers' or bank clerks, or others from contracting to labor for their employers more than eight hours a day would be invalid. It might be said that it is unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer's clerk, the real estate clerk, or the broker's clerk in such offices is therefore unhealthy, and the legislature, in its paternal wisdom, must therefore have the right to legislate on the subject of, and to limit the hours for, such labor, and, if it exercises that power and its validity be questioned, it is sufficient to say it has reference to the public health; it has reference to the health of the employees condemned to labor day after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and cannot be questioned by the courts. It is also urged, pursuing the same line of argument, that it is to the interest of the State that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must be valid as health laws, enacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the Federal Constitution from undue interference with liberty of person and freedom of contract is visionary wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract, would come under the restrictive sway of the legislature. Not only the hours of employees, but the hours of employers, could be regulated, and doctors, lawyers, scientists, all professional men, as well as athletes and artisans, could be forbidden to fatigue their brains and bodies by prolonged hours of exercise, lest the fighting strength Page 198 U. S. 61 of the State be impaired. We mention these extreme cases because the contention is extreme. We do not believe in the soundness of the views which uphold this law. On the contrary, we think that such a law as this, although passed in the assumed exercise of the police power, and as relating to the public health, or the health of the employees named, is not within that power, and is invalid. The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employees if the hours of labor are not curtailed. If this be not clearly the case, the individuals whose rights are thus made the subject of legislative interference are under the protection of the Federal Constitution regarding their liberty of contract as well as of person, and the legislature of the State has no power to limit their right as proposed in this statute. All that it could properly do has been done by it with regard to the conduct of bakeries, as provided for in the other sections of the act above set forth. These several sections provide for the inspection of the premises where the bakery is carried on, with regard to furnishing proper wash-rooms and water-closets, apart from the bake-room, also with regard to providing proper drainage, plumbing and painting; the sections, in addition, provide for the height of the ceiling, the cementing or tiling of floors, where necessary in the opinion of the factory inspector, and for other things of Page 198 U. S. 62 that nature; alterations are also provided for and are to be made where necessary in the opinion of the inspector, in order to comply with the provisions of the statute. These various sections may be wise and valid regulations, and they certainly go to the full extent of providing for the cleanliness and the healthiness, so far as possible, of the quarters in which bakeries are to be conducted. Adding to all these requirements a prohibition to enter into any contract of labor in a bakery for more than a certain number of hours a week is, in our judgment, so wholly beside the matter of a proper, reasonable and fair provision as to run counter to that liberty of person and of free contract provided for in the Federal Constitution. It was further urged on the argument that restricting the hours of labor in the case of bakers was valid because it tended to cleanliness on the part of the workers, as a man was more apt to be cleanly when not overworked, and, if cleanly, then his "output" was also more likely to be so. What has already been said applies with equal force to this contention. We do not admit the reasoning to be sufficient to justify the claimed right of such interference. The State in that case would assume the position of a supervisor, or pater familias, over every act of the individual, and its right of governmental interference with his hours of labor, his hours of exercise, the character thereof, and the extent to which it shall be carried would be recognized and upheld. In our judgment, it is not possible, in fact, to discover the connection between the number of hours a baker may work in the bakery and the healthful quality of the bread made by the workman. The connection, if any exists, is too shadowy and thin to build any argument for the interference of the legislature. If the man works ten hours a day, it is all right, but if ten and a half or eleven, his health is in danger and his bread may be unhealthful, and, therefore, he shall not be permitted to do it. This, we think, is unreasonable, and entirely arbitrary. When assertions such as we have adverted to become necessary in order to give, if possible, a plausible foundation for the contention that the law is a "health law," Page 198 U. S. 63 it gives rise to at least a suspicion that there was some other motive dominating the legislature than the purpose to subserve the public health or welfare. This interference on the part of the legislatures of the several States with the ordinary trades and occupations of the people seems to be on the increase. In the Supreme Court of New York, in the case of People v. Beattie, Appellate Division, First Department, decided in 1904, 89 N.Y.Supp. 193, a statute regulating the trade of horseshoeing, and requiring the person practicing such trade to be examined and to obtain a certificate from a board of examiners and file the same with the clerk of the county wherein the person proposes to practice his trade, was held invalid as an arbitrary interference with personal liberty and private property without due process of law. The attempt was made, unsuccessfully, to justify it as a health law. The same kind of a statute was held invalid ( In re Aubry ) by the Supreme Court of Washington in December, 1904. 78 Pac.Rep. 900. The court held that the act deprived citizens of their liberty and property without due process of law and denied to them the equal protection of the laws. It also held that the trade of a horseshoer is not a subject of regulation under the police power of the State as a business concerning and directly affecting the health, welfare or comfort of its inhabitants, and that, therefore, a law which provided for the examination and registration of horseshoers in certain cities was unconstitutional as an illegitimate exercise of the police power. The Supreme Court of Illinois in Bessette v. People, 193 Illinois 334, also held that a law of the same nature, providing for the regulation and licensing of horseshoers, was unconstitutional as an illegal interference with the liberty of the individual in adopting and pursuing such calling as he may choose, subject only to the restraint necessary secure the common welfare. See also Godcharles v. Wigeman, 113 Pa. St. 431, 437; Low v. Rees Printing Co., 41 Nebraska 127, 145. In Page 198 U. S. 64 these cases, the courts upheld the right of free contract and the right to purchase and sell labor upon such terms as the parties may agree to. It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed, and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose. Minnesota v. Barber, 136 U. S. 313 ; Brimmer v. Rebman, 138 U. S. 78 . The court looks beyond the mere letter of the law in such cases. Yick Wo v. Hopkins, 118 U. S. 356 . It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to, and no such substantial effect upon, the health of the employee as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men sui juris ) in a private business, not dangerous in any degree to morals or in any real and substantial degree to the health of the employees. Under such circumstances, the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with without violating the Federal Constitution. The judgment of the Court of Appeals of New York, as well as that of the Supreme Court and of the County Court of Oneida County, must be reversed, and the case remanded to Page 198 U. S. 65 the County Court for further proceedings not inconsistent with this opinion. Reversed. * "§ 110. Hours of labor in bakeries and confectionery establishments. -- No employee shall be required or permitted to work in a biscuit, bread or cake bakery or confectionery establishment more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employee shall work." "§ 111. Drainage and plumbing of building and rooms occupied by bakeries. -- All buildings or rooms occupied as biscuit, bread, pie or cake bakeries shall be drained and plumbed in a manner conducive to the proper and healthful sanitary condition thereof, and shall be constructed with air shafts, windows or ventilating pipes, sufficient to insure ventilation. The factory inspector may direct the proper drainage, plumbing and ventilation of such rooms or buildings. No cellar or basement not now used for a bakery shall hereafter be so occupied or used unless the proprietor shall comply with the sanitary provisions of this article." "§ 112. Requirements as to rooms, furniture, utensils and manufactured products. -- Every room used for the manufacture of flour or meal food products shall be at least eight feet in height and shall have, if deemed necessary by the factory inspector, an impermeable floor constructed of cement, or of tiles laid in cement, or an additional flooring of wood properly saturated with linseed oil. The side walls of such rooms shall be plastered or wainscoted. The factory inspector may require the side walls and ceiling to be whitewashed at least once in three months. He may also require the woodwork of such walls to be painted. The furniture and utensils shall be so arranged as to be readily cleansed and not prevent the proper cleaning of any part of a room. The manufactured flour or meal food products shall be kept in dry and airy rooms, so arranged that the floors, shelves and all other facilities for storing the same can be properly cleaned. No domestic animal, except cats, shall be allowed to remain in a room used as a biscuit, bread, pie, or cake bakery, or any room in such bakery where flour or meal product are stored." "§ 113. Wash-rooms and closets; sleeping places. -- Every such bakery shall be provided with a proper washroom and water-closet or water-closet apart from the bake-room, or room where the manufacture of such food product is conducted, and no water-closet, earth-closet, privy or ash-pit shall be within or connected directly with the bake-room of any bakery, hotel or public restaurant." "No person shall sleep in a room occupied as a bake-room. Sleeping places for the persons employed in the bakery shall be separate from the rooms where flour or meal food products are manufactured or stored. If the sleeping places are on the same floor where such products are manufactured, stored or sold, the factory inspector may inspect and order them put in a proper sanitary condition." "§ 114. Inspection of bakeries. -- The factory inspector shall cause all bakeries to be inspected. If it be found upon such inspection that the bakeries so inspected are constructed and conducted in compliance with the provisions of this chapter, the factory inspector shall issue a certificate to the person owning or conducting such bakeries." "§ 115. Notice requiring alterations. -- If, in the opinion of the factory inspector, alterations are required in or upon premises occupied and used as bakeries in order to comply with the provisions of this article, a written notice shall be served by him upon the owner, agent or lessee of such premises, either personally or by mail, requiring such alteration to be made within sixty day after such service, and such alterations hall be made accordingly." MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY concurred, dissenting. While this court has not attempted to mark the precise boundaries of what is called the police power of the State, the existence of the power has been uniformly recognized, both by the Federal and state courts. All the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights. In Patterson v. Kentucky, 97 U. S. 501 , after referring to the general principle that rights given by the Constitution cannot be impaired by state legislation of any kind, this court said: "It [this court] has, nevertheless, with marked distinctness and uniformity, recognized the necessity, growing out of the fundamental conditions of civil society, of upholding state police regulations which were enacted in good faith and had appropriate and direct connection with that protection to life, health, and property which each State owes to her citizens." So, in Barbier v. Connolly, 113 U. S. 27 : "But neither the [14th] Amendment -- broad and comprehensive as it is -- nor any other Amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people." Speaking generally, the State, in the exercise of its powers, may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone, among which rights is the right "to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation." This was declared Page 198 U. S. 66 in Allgeyer v. Louisiana, 165 U. S. 578 , 165 U. S. 589 . But, in the same case, it was conceded that the right to contract in relation to persons and property or to do business within a State may be "regulated, and sometimes prohibited, when the contracts or business conflict with the policy of the State as contained in its statutes." (P. 165 U. S. 591 ). So, as said in Holden v. Hardy, 169 U. S. 366 , 169 U. S. 391 : "This right of contract, however, is itself subject to certain limitations which the State may lawfully impose in the exercise of its police powers. While this power is inherent in all government, it has doubtless been greatly expanded in its application during the past century owing to an enormous increase in the number of occupations which are dangerous, or so far detrimental to the health of the employees as to demand special precautions for their wellbeing and protection, or the safety of adjacent property. While this court has held, notably in the cases of Davidson v. New Orleans, 96 U. S. 97 , and Yick Wo v. Hopkins, 118 U. S. 356 , that the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety or morals, or the abatement of public nuisances, and a large discretion" "is necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests." " Lawton v. Steele, 152 U. S. 133 , 152 U. S. 136 ." Referring to the limitations placed by the State upon the hours of workmen, the court in the same case said (p. 118 U. S. 395 ): "These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employees, and, so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the Federal courts." Subsequently in Gundling v. Chicago, 177 U. S. 183 , 177 U. S. 188 , this court said: "Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and Page 198 U. S. 67 to what particular trade, business or occupation they shall apply are questions for the State to determine, and their determination comes within the proper exercise of the police power by the State, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass, and they form no subject for Federal interference." "As stated in Crowley v. Christensen, 137 U. S. 86 ," "the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community." In St. Louis, Iron Mountain &c. Ry. v. Paul, 173 U. S. 404 , 173 U. S. 409 , and in Knoxville Iron Co. v. Harbison, 183 U. S. 13 , 183 U. S. 21 , 183 U. S. 22 , it was distinctly adjudged that the right of contract was not "absolute in respect to every matter, but may be subjected to the restraints demanded by the safety and welfare of the State." Those cases illustrate the extent to which the State may restrict or interfere with the exercise of the right of contracting. The authorities on the same line are so numerous that further citations are unnecessary. I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the public health, the public morals or the public safety. "The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import," this court has recently said, "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good." Jacobson v. Massachusetts, 197 U. S. 11 . Page 198 U. S. 68 Granting then that there is a liberty of contract which cannot be violated even under the sanction of direct legislative enactment, but assuming, as according to settled law we may assume, that such liberty of contract is subject to such regulations as the State may reasonably prescribe for the common good and the wellbeing of society, what are the conditions under which the judiciary may declare such regulations to be in excess of legislative authority and void? Upon this point there is no room for dispute, for the rule is universal that a legislative enactment, Federal or state, is never to be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of legislative power. In Jacobson v. Massachusetts, supra, we said that the power of the courts to review legislative action in respect of a matter affecting the general welfare exists only "when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law" -- citing Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 ; Minnesota v. Barber, 136 U. S. 313 , 136 U. S. 320 ; Atkin v. Kansas, 191 U. S. 207 , 191 U. S. 223 . If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere. In other words, when the validity of a statute is questioned, the burden of proof, so to speak, is upon those who assert it to be unconstitutional. McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 421 . Let these principles be applied to the present case. By the. statute in question, it is provided that "No employee shall be required or permitted to work in a biscuit, bread or cake Page 198 U. S. 69 bakery or confectionery establishment more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employee shall work." It is plain that this statute was enacted in order to protect the physical wellbeing of those who work in bakery and confectionery establishments. It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor. Whether or not this be wise legislation it is not the province of the court to inquire. Under our systems of government, the courts are not concerned with the wisdom or policy of legislation. So that, in determining the question of power to interfere with liberty of contract, the court may inquire whether the means devised by the State are germane to an end which may be lawfully accomplished and have a real or substantial relation to the protection of health, as involved in the daily work of the persons, male and female, engaged in bakery and confectionery establishments. But when this inquiry is entered upon, I find it impossible, in view of common experience, to say that there is here no real or substantial relation between the means employed by the State and the end sought to be accomplished by its legislation. Mugler v. Kansas, supra. Nor can I say that the statute has no appropriate or direct connection with that protection to health which each State owes to her citizens, Patterson v. Kentucky, supra; or that it is not promotive of the health of the employees in question, Holden v. Hardy, Lawton v. Steele, Page 198 U. S. 70 supra; or that the regulation prescribed by the State is utterly unreasonable and extravagant or wholly arbitrary, Gundling v. Chicago, supra. Still less can I say that the statute is, beyond question, a plain, palpable invasion of rights secured by the fundamental law. Jacobson v. Massachusetts, supra. Therefore, I submit that this court will transcend its functions if it assumes to annul the statute of New York. It must be remembered that this statute does not apply to all kinds of business. It applies only to work in bakery and confectionery establishments, in which, as all know, the air constantly breathed by workmen is not as pure and healthful as that to be found in some other establishments or out of doors. Professor Hirt, in his treatise on the "Diseases of the Workers," has said: "The labor of the bakers is among the hardest and most laborious imaginable, because it has to be performed under conditions injurious to the health of those engaged in it. It is hard, very hard work, not only because it requires a great deal of physical exertion in an overheated workshop and during unreasonably long hours, but more so because of the erratic demands of the public, compelling the baker to perform the greater part of his work at night, thus depriving him of an opportunity to enjoy the necessary rest and sleep, a fact which is highly injurious to his health." Another writer says: "The constant inhaling of flour dust causes inflammation of the lungs and of the bronchial tubes. The eyes also suffer through this dust, which is responsible for the many cases of running eyes among the bakers. The long hours of toil to which all bakers are subjected produce rheumatism, cramps and swollen legs. The intense heat in the workshops induces the workers to resort to cooling drinks, which, together with their habit of exposing the greater part of their bodies to the change in the atmosphere, is another source of a number of diseases of various organs. Nearly all bakers are pale-faced and of more delicate health than the workers of other crafts, which is chiefly due to their hard work and their irregular and unnatural mode of living, whereby the power of resistance against disease is Page 198 U. S. 71 greatly diminished. The average age of a baker is below that of other workmen; they seldom live over their fiftieth year, most of them dying between the ages of forty and fifty. During periods of epidemic diseases, the bakers are generally the first to succumb to the disease, and the number swept away during such periods far exceeds the number of other crafts in comparison to the men employed in the respective industries. When, in 1720, the plague visited the city of Marseilles, France, every baker in the city succumbed to the epidemic, which caused considerable excitement in the neighboring cities and resulted in measures for the sanitary protection of the bakers." In the Eighteenth Annual Report by the New York Bureau of Statistics of Labor it is stated that, among the occupations involving exposure to conditions that interfere with nutrition is that of a baker (p. 52). In that Report, it is also stated that, "from a social point of view, production will be increased by any change in industrial organization which diminishes the number of idlers, paupers and criminals. Shorter hours of work, by allowing higher standards of comfort and purer family life, promise to enhance the industrial efficiency of the wage-working class -- improved health, longer life, more content and greater intelligence and inventiveness." (P. 82). Statistics show that the average daily working time among workingmen in different countries is, in Australia, 8 hours; in Great Britain, 9; in the United States, 9; in Denmark, 9; in Norway, 10; Sweden, France and Switzerland, 10; Germany, 10; Belgium, Italy and Austria, 11, and in Russia, 12 hours. We judicially know that the question of the number of hours during which a workman should continuously labor has been, for a long period, and is yet, a subject of serious consideration among civilized peoples and by those having special knowledge of the laws of health. Suppose the statute prohibited labor in bakery and confectionery establishments in excess of eighteen hours each day. No one, I take it, could dispute the power of the State to enact such a statute. But the statute Page 198 U. S. 72 before us does not embrace extreme or exceptional cases. It may be said to occupy a middle ground in respect of the hours of labor. What is the true ground for the State to take between legitimate protection, by legislation, of the public health and liberty of contract is not a question easily solved, nor one in respect of which there is or can be absolute certainty. There are very few, if any, questions in political economy about which entire certainty may be predicated. One writer on relation of the State to labor has well said: "The manner, occasion, and degree in which the State may interfere with the industrial freedom of its citizens is one of the most debatable and difficult questions of social science." Jevons, 33. We also judicially know that the number of hours that should constitute a day's labor in particular occupations involving the physical strength and safety of workmen has been the subject of enactments by Congress and by nearly all of the States. Many if not most of those enactments fix eight hours as the proper basis of a day's labor. I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of a weighty, substantial character, based upon the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day, from week to week, in a bakery or confectionery establishment, may endanger the health, and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the State, and to provide for those dependent upon them. If such reasons exist, that ought to be the end of this case, for the State is not amenable to the judiciary in respect of its legislative enactments unless such enactments are plainly, palpably, beyond all question, inconsistent with the Constitution Page 198 U. S. 73 of the United States. We are not to presume that the State of New York has acted in bad faith. Nor can we assume that its legislature acted without due deliberation, or that it did not determine this question upon the fullest attainable information, and for the common good. We cannot say that the State has acted without reason, nor ought we to proceed upon the theory that its action is a mere sham. Our duty, I submit, is to sustain the statute as not being in conflict with the Federal Constitution for the reason -- and such is an all-sufficient reason -- it is not shown to be plainly and palpably inconsistent with that instrument. Let the State alone in the management of its purely domestic affairs so long as it does not appear beyond all question that it has violated the Federal Constitution. This view necessarily results from the principle that the health and safety of the people of a State are primarily for the State to guard and protect. I take leave to say that the New York statute, in the particulars here involved, cannot be held to be in conflict with the Fourteenth Amendment without enlarging the scope of the Amendment far beyond its original purpose and without bringing under the supervision of this court matters which have been supposed to belong exclusively to the legislative departments of the several States when exerting their conceded power to guard the health and safety of their citizens by such regulations as they in their wisdom deem best. Health laws of every description constitute, said Chief Justice Marshall, a part of that mass of legislation which "embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves." Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 203 . A decision that the New York statute is void under the Fourteenth Amendment will, in my opinion, involve consequences of a far-reaching and mischievous character; for such a decision would seriously cripple the inherent power of the States to care for the lives, health and wellbeing of their citizens. Those are matters which can be best controlled by the States. Page 198 U. S. 74 The preservation of the just powers of the States is quite as vital as the preservation of the powers of the General Government. When this court had before it the question of the constitutionality of a statute of Kansas making it a criminal offense for a contractor for public work to permit or require his employees to perform labor upon such work in excess of eight hours each day, it was contended that the statute was in derogation of the liberty both of employees and employer. It was further contended that the Kansas statute was mischievous in its tendencies. This court, while disposing of the question only as it affected public work, held that the Kansas statute was not void under the Fourteenth Amendment. But it took occasion to say what may well be here repeated: "The responsibility therefor rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom, annul statutes that had received the sanction of the people's representatives. We are reminded by counsel that it is the solemn duty of the courts in cases before them to guard the constitutional rights of the citizen against merely arbitrary power. That is unquestionably true. But it is equally true -- indeed, the public interests imperatively demand -- that legislative enactments should be recognized and enforced by the courts as embodying the will of the people unless they are plainly and palpably, beyond all question, in violation of the fundamental law of the Constitution." Atkin v. Kansas, 191 U. S. 207 , 191 U. S. 223 . The judgment in my opinion should be affirmed. MR. JUSTICE HOLMES dissenting. I regret sincerely that I am unable to agree with the judgment Page 198 U. S. 75 in this case, and that I think it my duty to express my dissent. This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. S. 11 . United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U. S. 197 . Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U. S. 606 . The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U. S. 366 . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. Page 198 U. S. 76 It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

In Lochner v. New York, the Supreme Court ruled that a New York state law limiting the working hours of bakery employees to 60 hours per week or 10 hours per day violated the Fourteenth Amendment's protection of liberty and freedom to contract. The Court found that the law was not a legitimate exercise of the state's police power to protect public health and safety, but rather an arbitrary interference with individuals' right to contract for labor. This case reflects the Court's view that the Fourteenth Amendment does not endorse a specific economic theory and that laws restricting liberty must be justified by reasonable grounds related to health, safety, or other legitimate state interests.

Labor & Employment

Muller v. Oregon

https://supreme.justia.com/cases/federal/us/208/412/

U.S. Supreme Court Muller v. Oregon, 208 U.S. 412 (1908) Muller v. Oregon No. 107 Argued January 15, 1908 Decided February 24, 1908 208 U.S. 412 ERROR TO THE SUPREME COURT OF THE STATE OF OREGON Syllabus The peculiar value of a written constitution is that it places, in unchanging form, limitations upon legislative action, questions relating to which are not settled by even a consensus of public opinion; but when the extent of one of those limitations is affected by a question of fact which is debatable and debated, a widespread and long continued belief concerning that fact is worthy of consideration. This Court takes judicial cognizance of all matters of general knowledge -- such as the fact that woman's physical structure and the performance of maternal functions place her at a disadvantage which justifies a difference in legislation in regard to some of the burdens which rest upon her. As healthy mothers are essential to vigorous offspring, the physical wellbeing of woman is an object of public interest. The regulation of her hour of labor falls within the police power of the State, and a statute directed exclusively to such regulation does not conflict with the due process or equal protection clauses of the Fourteenth Amendment. The right of a State to regulate the working hours of women rests on the police power and the right to preserve the health of the women of the State, and is not affected by other laws of the State granting or denying to women the same rights as to contract and the elective franchise as are enjoyed by men. While the general liberty to contract in regard to one's business and the sale of one's labor is protected by the Fourteenth Amendment, that liberty is subject to proper restrictions under the police power of the State. The statute of Oregon of 1903 providing that no female shall work in certain establishments more than ten hour a day is not unconstitutional so far as respects laundries. 48 Oregon, 252, affirmed. The facts, which involve the constitutionality of the statute Page 208 U. S. 413 of Oregon limiting the hours of employment of women, are stated in the opinion. Page 208 U. S. 416 MR. JUSTICE BREWER delivered the opinion of the court: On February 19, 1903, the legislature of the State of Oregon passed an act (Session Laws 1903, p. 148) the first section of which is in these words: "SEC. 1. That no female [shall] be employed in any mechanical establishment, or factory, or laundry in this State more than ten hours during any one day. The hours of work may be so arranged as to permit the employment of females Page 208 U. S. 417 at any time so that they shall not work more than ten hours during the twenty-four hours of any one day." Sec. 3 made a violation of the provisions of the prior sections a misdemeanor subject to a fine of not less than $10 nor more than $25. On September 18, 1905, an information was filed in the circuit court of the State for the County of Multnomah, charging that the defendant "on the 4th day of September, A.D. 1905, in the county of Multnomah and State of Oregon, then and there being the owner of a laundry, known as the Grand Laundry, in the city of Portland, and the employer of females therein, did then and there unlawfully permit and suffer one Joe Haselbock, he, the said Joe Haselbock, then and there being an overseer, superintendent, and agent of said Curt Muller, in the said Grand Laundry, to require a female, to-wit, one Mrs. E. Gotcher, to work more than ten hours in said laundry on said 4th day of September, A.D. 1905, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon." A trial resulted in a verdict against the defendant, who was sentenced to pay a fine of $10. The Supreme Court of the State affirmed the conviction, State v. Muller, 48 Oregon 252, whereupon the case was brought here on writ of error. The single question is the constitutionality of the statute under which the defendant was convicted so far as it affects the work of a female in a laundry. That it does not conflict with any provisions of the state constitution is settled by the decision of the Supreme Court of the State. The contentions of the defendant, now plaintiff in error, are thus stated in his brief: "(1) Because the statute attempts to prevent persons sui juris from making their own contracts, and thus violates the provisions of the Fourteenth Amendment, as follows:" " No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. " Page 208 U. S. 418 "(2) Because the statute does not apply equally to all persons similarly situated, and is class legislation." "(3) The statute is not a valid exercise of the police power. The kinds of work prescribed are not unlawful, nor are they declared to be immoral or dangerous to the public health; nor can such a law be sustained on the ground that it is designed to protect women on account of their sex. There is no necessary or reasonable connection between the limitation prescribed by the act and the public health, safety, or welfare." It is the law of Oregon that women, whether married or single, have equal contractual and personal rights with men. As said by Chief Justice Wolverton in First National Bank v. Leonard, 36 Oregon 390, 396, after a review of the various statutes of the State upon the subject: "We may therefore say with perfect confidence that, with these three sections upon the statute book, the wife can deal not only with her separate property, acquired from whatever source, in the same manner as her husband can with property belonging to him, but that she may make contracts and incur liabilities, and the same may be enforced against her, the same as if she were a femme sole. There is now no residuum of civil disability resting upon her which is not recognized as existing against the husband. The current runs steadily and strongly in the direction of the emancipation of the wife, and the policy, as disclosed by all recent legislation upon the subject in this State, is to place her upon the same footing as if she were a femme sole not only with respect to her separate property, but as it affects her right to make binding contracts; and the most natural corollary to the situation is that the remedies for the enforcement of liabilities incurred are made coextensive and coequal with such enlarged conditions." It thus appears that, putting to one side the elective franchise, in the matter of personal and contractual rights, they stand on the same plane as the other sex. Their rights in these respects can no more be infringed than the equal rights of their brothers. We held in Lochner v. New York, 198 U. S. 45 , that Page 208 U. S. 419 a law providing that no laborer shall be required or permitted to work in bakeries more than sixty hours in a week or ten hours in a day was not, as to men, a legitimate exercise of the police power of the State, but an unreasonable, unnecessary, and arbitrary interference with the right and liberty of the individual to contract in relation to his labor, and, as such, was in conflict with, and void under, the Federal Constitution. That decision is invoked by plaintiff in error as decisive of the question before us. But this assumes that the difference between the sexes does not justify a different rule respecting a restriction of the hours of labor. In patent cases, counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation, as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters, an epitome of which is found in the margin. * Page 208 U. S. 420 While there have been but few decisions bearing directly upon the question, the following sustain the constitutionality of such legislation: Commonwealth v. Hamilton Mfg. Co., 120 Massachusetts 383; Wenham v. State, 65 Nebraska 394, 400, 406; State v. Buchanan, 29 Washington 602; Commonwealth v. Beatty, 15 Pa.Sup.Ct. 5, 17; against them is the case of Ritchie v. People, 155 Illinois 98. The legislation and opinions referred to in the margin may not be, technically speaking, authorities, and in them is little or no discussion of the constitutional question presented to us for determination, yet they are significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil. Constitutional questions, it is true, are not settled by even a consensus of present public opinion, for it is the peculiar value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government which otherwise would be lacking. At the same time, when a question of fact is debated and debatable, and the extent to Page 208 U. S. 421 which a special constitutional limitation goes is affected by the truth in respect to that fact, a widespread and long-continued belief concerning it is worthy of consideration. We take judicial cognizance of all matters of general knowledge. It is undoubtedly true, as more than once declared by this Court, that the general right to contract in relation to one's business is part of the liberty of the individual, protected by the Fourteenth Amendment to the Federal Constitution; yet it is equally well settled that this liberty is not absolute, and extending to all contracts, and that a State may, without conflicting with the provisions of the Fourteenth Amendment, restrict in many respects the individual's power of contract. Without stopping to discuss at length the extent to which a State may act in this respect, we refer to the following cases in which the question has been considered: Allgeyer v. Louisiana, 165 U. S. 578 ; Holden v. Hardy, 169 U. S. 366 ; Lochner v. New York, 198 U. S. 45 . That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon the body, and, as healthy mothers are essential to vigorous offspring, the physical wellbeing of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race. Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength, and this control in various forms, with diminishing intensity, has continued to the present. As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved. Education was long denied her, and while now the doors of the schoolroom are opened and her opportunities for acquiring knowledge are great, yet, even with that and the Page 208 U. S. 422 consequent increase of capacity for business affairs, it is still true that, in the struggle for subsistence, she is not an equal competitor with her brother. Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right. Doubtless there are individual exceptions, and there are many respects in which she has an advantage over him; but, looking at it from the viewpoint of the effort to maintain an independent position in life, she is not upon an equality. Differentiated by these matters from the other sex, she is properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men, and could not be sustained. It is impossible to close one's eyes to the fact that she still looks to her brother, and depends upon him. Even though all restrictions on political, personal, and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equal plane with him, it would still be true that she is so constituted that she will rest upon and look to him for protection; that her physical structure and a proper discharge of her maternal functions -- having in view not merely her own health, but the wellbeing of the race -- justify legislation to protect her from the greed, as well as the passion, of man. The limitations which this statute places upon her contractual powers, upon her right to agree with her employer as to the time she shall labor, are not imposed solely for her benefit, but also largely for the benefit of all. Many words cannot make this plainer. The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future wellbeing of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference Page 208 U. S. 423 justifies a difference in legislation, and upholds that which is designed to compensate for some of the burdens which rest upon her. We have not referred in this discussion to the denial of the elective franchise in the State of Oregon, for, while that may disclose a lack of political equality in all things with her brother, that is not of itself decisive. The reason runs deeper, and rests in the inherent difference between the two sexes and in the different functions in life which they perform. For these reasons, and without questioning in any respect the decision in Lochner v. New York, we are of the opinion that it cannot be adjudged that the act in question is in conflict with the Federal Constitution so far as it respects the work of a female in a laundry, and the judgment of the Supreme Court of Oregon is affirmed. * The following legislation of the states imposes restriction in some form or another upon the hours of labor that may be required of women: Massachusetts: 1874, Rev.Laws 1902, chap. 106, § 24; Rhode Island: 1885, Acts and Resolves 1902, chap. 994, p. 73; Louisiana: 1886, Rev.Laws 1904, vol. 1, § 4, p. 989; Connecticut: 1887, Gen.Stat.Revision 1902, § 4691; Maine: 1887, Rev.Stat. 1903, chap. 40, § 48; New Hampshire: 1887, Laws 1907, chap. 94, p. 95; Maryland: 1888, Pub.Gen.Laws 1903, art. 100, § 1; Virginia: 1890, Code 1904, title 51A, chap. 178A, § 3657b; Pennsylvania: 1897, Laws 1905, No. 226, p. 352; New York: 1899, Laws 1907, chap. 507, § 77, subdiv. 3, p. 1078; Nebraska: 1899, Comp.Stat. 1905, § 7955, p. 1986; Washington: Stat. 1901, chap. 68, § 1, p. 118; Colorado: Acts 1903, chap. 138, § 3, p. 310; New Jersey: 1892, Gen.Stat. 1895, p. 2350, §§ 66. 67; Oklahoma; 1890, Rev.Stat. 1903, chap. 25, art. 58, § 729; North Dakota: 1877, Rev.Code 1905, § 9440; South Dakota: 1877, Rev.Code (Penal Code § 764), p. 1185; Wisconsin: 1897, Code 1898, § 1728; South Carolina: Acts 1907, No. 233. In foreign legislation, Mr. Brandeis calls attention to these statutes: Great Britain, 1844: Law 1901, 1 Edw. VII. chap. 22. France, 1848: Act Nov. 2, 1892, and March 30, 1900. Switzerland, Canton of Glarus, 1848: Federal Law 1877, art. 2, § 1. Austria, 1855; Acts 1897, art. 96a, §§ 1-3. Holland, 1889; art. 5, § 1. Italy, June 19, 1902, art. 7. Germany, Laws 1891. Then follow extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor are dangerous for women, primarily because of their special physical organization. The matter is discussed in these reports in different aspects, but all agree as to the danger. It would, of course, take too much space to give these reports in detail. Following them are extracts from similar reports discussing the general benefits of short hours from an economic aspect of the question. In many of these reports, individual instances are given tending to support the general conclusion. Perhaps the general scope and character of all these reports may be summed up in what an inspector for Hanover says: "The reasons for the reduction of the working day to ten hours -- (a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home -- are all so important and so far-reaching that the need for such reduction need hardly be discussed."

In Muller v. Oregon (1908), the U.S. Supreme Court upheld the constitutionality of an Oregon state law limiting the working hours of women to ten hours per day. The Court recognized that the physical structure and maternal functions of women justified different treatment under the law, and that regulating their working hours fell within the state's police power to protect public health and welfare. The Court also noted that such regulations did not violate the Fourteenth Amendment's due process or equal protection clauses, as they were based on the state's interest in preserving the health of women, who played a unique role in bearing and raising children. This decision affirmed the state's authority to enact legislation aimed at protecting the well-being of women, recognizing their unique societal contributions.

Labor & Employment

Adkins v. Children's Hospital

https://supreme.justia.com/cases/federal/us/261/525/

U.S. Supreme Court Adkins v. Children's Hosp., 261 U.S. 525 (1923) Adkins v. Children's Hospital Nos. 795, 796 Argued March 14, 1923 Decided April 9, 1923 261 U.S. 525 APPEALS FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA Syllabus 1. The Court of Appeals of the District of Columbia, while constituted of two of the three Justices of that court and one Justice of the Supreme Court of the District, affirmed decrees of the latter court dismissing bills; thereafter, at the same term, (the Supreme Court Justice having been replaced by the third Justice of the Court of Appeals) it granted rehearings and reversed the decrees, and, thereafter, on second appeals, it affirmed decrees entered pursuant to the reversals. Held that objections to the jurisdiction to grant the rehearings did not go to the jurisdiction over the second appeals, and need not be decided here upon review of the decrees of affirmance. P. 261 U. S. 543 . 2. Every possible presumption stands in favor of an act of Congress until overcome beyond rational doubt. P. 261 U. S. 544 . 3. But when, in the exercise of the judicial authority to ascertain and declare the law in a given case, it is clear and indubitable that an act of Congress conflicts with the Constitution, it is the duty of the Court so to declare, and to enforce the Constitution. Id. 4. This is not to exercise a power to review and nullify an act of Congress, for no such power exists; it is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. Id. 5. That the right to contract about one's affairs is part of the liberty of the individual protected by the Fifth Amendment, is settled by repeated decisions of this Court. P. 261 U. S. 545 . 6. Within this liberty are contracts of employment of labor. In making these, generally speaking, the parties have equal right to obtain from each other the best terms they can by private bargaining. Id. Page 261 U. S. 526 7. Legislative abridgment of this freedom can only be justified by the existence of exceptional circumstances. P. 261 U. S. 546 . 8. Review of former decisions concerning interferences with liberty of contract, by (a) Statutes fixing the rates and charges of businesses affected by a public interest. P. 261 U. S. 546 . (b) Statutes relating to the performance of contracts for public work. P. 261 U. S. 547 . (c) Statutes prescribing the character, methods and time for payment of wages. Id. (d) Statutes fixing hours of labor. Id. 9. Legislation fixing hours or conditions of work may properly take into account the physical differences between men and women; but, in view of the equality of legal status, now established in this country, the doctrine that women of mature age require, or may be subjected to, restrictions upon their liberty of contract which could not lawfully be imposed on men in similar circumstances, must be rejected. P. 261 U. S. 552 . 10. The limited legislative authority to regulate hours of labor in special occupations, on the ground of health, affords no support to a wage-fixing law -- the two subjects are essentially different. P. 261 U. S. 553 . 11. The Minimum Wage Act of Sept.19, 1918, c. 174, 40 Stat. 960, in assuming to authorize the fixing of minimum wage standards for adult women, in any occupation in the District of Columbia, such standards to be based wholly upon what a board and its advisers may find to be an adequate wage to meet the necessary cost of living for women workers in each particular calling and to maintain them in good health and protect their morals, is an unconstitutional interference with the liberty of contract. P. 261 U. S. 554 . 284 Fed. 613, affirmed. APPEALS from decrees of the Court of Appeals of the District of Columbia, affirming two decrees, entered, on mandate from that court, by the Supreme Court of the District, permanently enjoining the appellants from enforcing orders fixing minimum wages under the District of Columbia Minimum Wage Act. Page 261 U. S. 539 MR. JUSTICE SUTHERLAND delivered the opinion of the Court. The question presented for determination by these appeals is the constitutionality of the Act of September 19, 1918, providing for the fixing of minimum wages for women and children in the District of Columbia. 40 Stat. 960, c. 174. The act provides for a board of three members, to be constituted, as far as practicable, so as to be equally representative Page 261 U. S. 540 of employers, employees and the public. The board is authorized to have public hearings, at which persons interested in the matter being investigated may appear and testify, to administer oaths, issue subpoenas requiring the attendance of witnesses and production of books, etc., and to make rules and regulations for carrying the act into effect. By § 8, the board is authorized -- "(1) To investigate and ascertain the wages of women and minors in the different occupations in which they are employed in the District of Columbia; (2) to examine, through any member or authorized representative, any book, payroll or other record of any employer of women or minors that, in any way appertains to or has a bearing upon the question of wages of any such women or minors, and (3) to require from such employer full and true statements of the wages paid to all women and minors in his employment." And by § 9, "to ascertain and declare, in the manner hereinafter provided, the following things: (a), Standards of minimum wages for women in any occupation within the District of Columbia, and what wages are inadequate to supply the necessary cost of living to any such women workers to maintain them in good health and to protect their morals, and (b), standards of minimum wages for minors in any occupation within the District of Columbia, and what wages are unreasonably low for any such minor workers." The act then provides (§ 10) that, if the board, after investigation, is of opinion that any substantial number of women workers in any occupation are receiving wages inadequate to supply them with the necessary cost of living, maintain them in health and protect their morals, a conference may be called to consider and inquire into and report on the subject investigated, the conference to be equally representative of employers and employees in Page 261 U. S. 541 such occupation and of the public, and to include one or more members of the board. The conference is required to make and transmit to the board a report including, among other things, "recommendations as to standards of minimum wages for women workers in the occupation under inquiry and as to what wages are inadequate to supply the necessary cost of living to women workers in such occupation and to maintain them in health and to protect their morals." § 11. The board is authorized (§ 12) to consider and review these recommendations and to approve or disapprove any or all of them. If it approve any recommendations, it must give public notice of its intention and hold a public hearing at which the persons interested will be heard. After such hearing, the board is authorized to make such order as to it may appear necessary to carry into effect the recommendations, and to require all employers in the occupation affected to comply therewith. It is made unlawful for any such employer to violate in this regard any provision of the order or to employ any woman worker at lower wages than are thereby permitted. There is a provision (§ 13) under which the board may issue a special license to a woman whose earning capacity "has been impaired by age or otherwise," authorizing her employment at less than the minimum wages fixed under the act. All questions of fact (§ 17) are to be determined by the board, from whose decision there is no appeal; but an appeal is allowed on questions of law. Any violation of the act (§ 18) by an employer or his agent or by corporate agents is declared to be a misdemeanor, punishable by fine and imprisonment. Finally, after some further provisions not necessary to be stated, it is declared (§ 23) that the purposes of the act are "to protect the women and minors of the District Page 261 U. S. 542 from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living, and the Act in each of its provisions and in its entirety shall be interpreted to effectuate these purposes." The appellee in the first case is a corporation maintaining a hospital for children in the District. It employs a large number of women in various capacities, with whom it had agreed upon rates of wages and compensation satisfactory to such employees, but which in some instances were less than the minimum wage fixed by an order of the board made in pursuance of the act. The women with whom appellee had so contracted were all of full age and under no legal disability. The instant suit was brought by the appellee in the Supreme Court of the District to restrain the board from enforcing or attempting to enforce its order on the ground that the same was in contravention of the Constitution, and particularly the due process clause of the Fifth Amendment. In the second case, the appellee, a woman twenty-one years of age, was employed by the Congress Hall Hotel Company as an elevator operator, at a salary of $35 per month and two meals a day. She alleges that the work was light and healthful, the hours short, with surroundings clean and moral, and that she was anxious to continue it for the compensation she was receiving, and that she did not earn more. Her services were satisfactory to the Hotel Company, and it would have been glad to retain her but was obliged to dispense with her services by reason of the order of the board and on account of the penalties prescribed by the act. The wages received by this appellee were the best she was able to obtain for any work she was capable of performing, and the enforcement of the order, she alleges, deprived her of such employment and wages. She further averred that she could not secure any other position at which she could make a living, with Page 261 U. S. 543 as good physical and moral surroundings, and earn as good wages, and that she was desirous of continuing and would continue the employment but for the order of the board. An injunction was prayed as in the other case. The Supreme Court of the District denied the injunction and dismissed the bill in each case. Upon appeal, the Court of Appeals, by a majority, first affirmed and subsequently, on a rehearing, reversed the trial court. Upon the first argument, a justice of the District Supreme Court was called in to take the place of one of the Appellate Court justices, who was ill. Application for rehearing was made and, by the court as thus constituted, was denied. Subsequently, and during the term, a rehearing was granted by an order concurred in by two of the Appellate Court justices, one being the justice whose place on the prior occasion had been filled by the Supreme Court member. Upon the rehearing thus granted, the Court of Appeals, rejecting the first opinion, held the act in question to be unconstitutional and reversed the decrees of the trial court. Thereupon the cases were remanded, and the trial court entered decrees in pursuance of the mandate, declaring the act in question to be unconstitutional and granting permanent injunctions. Appeals to the Court of Appeals followed, and the decrees of the trial court were affirmed. It is from these final decrees that the cases come here. Upon this state of facts the jurisdiction of the lower court to grant a rehearing, after first denying it, is challenged. We do not deem it necessary to consider the matter farther than to say that we are here dealing with the second appeals, while the proceedings complained of occurred upon the first appeals. That the lower court could properly entertain the second appeals and decide the cases does not admit of doubt, and this the appellants virtually conceded by having themselves invoked the jurisdiction. See Rooker v. Fidelity Trust Co., ante, 261 U. S. 114 . Page 261 U. S. 544 We come then, at once, to the substantive question involved. The judicial duty of passing upon the constitutionality of an act of Congress is one of great gravity and delicacy. The statute here in question has successfully borne the scrutiny of the legislative branch of the government, which, by enacting it, has affirmed its validity, and that determination must be given great weight. This Court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. But if, by clear and indubitable demonstration, a statute be opposed to the Constitution, we have no choice but to say so. The Constitution, by its own terms, is the supreme law of the land, emanating from the people, the repository of ultimate sovereignty under our form of government. A congressional statute, on the other hand, is the act of an agency of this sovereign authority, and, if it conflict with the Constitution, must fall; for that which is not supreme must yield to that which is. To hold it invalid (if it be invalid) is a plain exercise of the judicial power -- that power vested in courts to enable them to administer justice according to law. From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law. Page 261 U. S. 545 The statute now under consideration is attacked upon the ground that it authorizes an unconstitutional interference with the freedom of contract included within the guaranties of the due process clause of the Fifth Amendment. That the right to contract about one's affairs is a part of the liberty of the individual protected by this clause, is settled by the decisions of this Court and is no longer open to question. Allgeyer v. Louisiana, 165 U. S. 578 , 165 U. S. 591 ; New York Life Insurance Co. v. Dodge, 246 U. S. 357 , 246 U. S. 373 -374; Coppage v. Kansas, 236 U. S. 1 , 236 U. S. 10 , 236 U. S. 14 ; Adair v. United States, 208 U. S. 161 ; Lochner v. New York, 198 U. S. 45 ; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746 ; Muller v. Oregon, 208 U. S. 412 , 208 U. S. 421 . Within this liberty are contracts of employment of labor. In making such contracts, generally speaking, the parties have an equal right to obtain from each other the best terms they can as the result of private bargaining. In Adair v. United States, supra, Mr. Justice Harlan (pp. 208 U. S. 174 , 208 U. S. 175 ), speaking for the Court, said: "The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell. . . . In all such particulars, the employer and employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land." In Coppage v. Kansas, supra, (p. 236 U. S. 14 ), this Court, speaking through Mr. Justice Pitney, said: "Included in the right of personal liberty and the right of private property -- partaking of the nature of each -- is the right to make contracts for the acquisition of property. Chief among such contracts is that of personal employment, by which labor and other services are exchanged for money or other forms of property. If this Page 261 U. S. 546 right be struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense. The right is as essential to the laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire property, save by working for money." "An interference with this liberty so serious as that now under consideration, and so disturbing of equality of right, must be deemed to be arbitrary unless it be supportable as a reasonable exercise of the police power of the State." There is, of course, no such thing as absolute freedom of contract. It is subject to a great variety of restraints. But freedom of contract is, nevertheless, the general rule, and restraint the exception, and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances. Whether these circumstances exist in the present case constitutes the question to be answered. It will be helpful to this end to review some of the decisions where the interference has been upheld and consider the grounds upon which they rest. (1) Those dealing with statutes fixing rates and charges to be exacted by businesses impressed with a public interest. There are many cases, but it is sufficient to cite Munn v. Illinois, 94 U. S. 113 . The power here rests upon the ground that, where property is devoted to a public use, the owner thereby, in effect, grants to the public an interest in the use which may be controlled by the public for the common good to the extent of the interest thus created. It is upon this theory that these statutes have been upheld and, it may be noted in passing, so upheld even in respect of their incidental and injurious or destructive effect upon preexisting contracts. See Louisville & Nashville R.R. Co. v. Mottley, 219 U. S. 467 . In the case at bar, the statute does not depend upon Page 261 U. S. 547 the existence of a public interest in any business to be affected, and this class of cases may be laid aside as inapplicable. (2) Statutes relating to contracts for the performance of public work. Atkin v. Kansas, 191 U. S. 207 ; Heim v. McCall, 239 U. S. 175 ; Ellis v. United States, 206 U. S. 246 . These cases sustain such statutes as depending not upon the right to condition private contracts, but upon the right of the government to prescribe the conditions upon which it will permit work of a public character to be done for it, or, in the case of a State, for its municipalities. We may, therefore, in like manner, dismiss these decisions from consideration as inapplicable. (3) Statutes prescribing the character, methods and time for payment of wages. Under this head may be included McLean v. Arkansas, 211 U. S. 539 , sustaining a state statute requiring coal to be measured for payment of miners' wages before screening; Knoxville Iron Co. v. Harbison, 183 U. S. 13 , sustaining a Tennessee statute requiring the redemption in cash of store orders issued in payment of wages; Erie R.R. Co. v. Williams, 233 U. S. 685 , upholding a statute regulating the time within which wages shall be paid to employees in certain specified industries, and other cases sustaining statutes of like import and effect. In none of the statutes thus sustained was the liberty of employer or employee to fix the amount of wages the one was willing to pay and the other willing to receive interfered with. Their tendency and purpose was to prevent unfair and perhaps fraudulent methods in the payment of wages, and in no sense can they be said to be, or to furnish a precedent for, wage-fixing statutes. (4) Statutes fixing hours of labor. It is upon this class that the greatest emphasis is laid in argument, and therefore, and because such cases approach most nearly the line of principle applicable to the statute here involved, we shall consider them more at length. In some instances, Page 261 U. S. 548 the statute limited the hours of labor for men in certain occupations, and in others it was confined in its application to women. No statute has thus far been brought to the attention of this Court which by its terms, applied to all occupations. In Holden v. Hardy, 169 U. S. 366 , the Court considered an act of the Utah legislature, restricting the hours of labor in mines and smelters. This statute was sustained as a legitimate exercise of the police power on the ground that the legislature had determined that these particular employments, when too long pursued, were injurious to the health of the employees, and that, as there were reasonable grounds for supporting this determination on the part of the legislature, its decision in that respect was beyond the reviewing power of the federal courts. That this constituted the basis of the decision is emphasized by the subsequent decision in Lochner v. New York, 198 U. S. 45 , reviewing a state statute which restricted the employment of all persons in bakeries to ten hours in anyone day. The Court referred to Holden v. Hardy, supra, and, declaring it to be inapplicable, held the statute unconstitutional as an unreasonable, unnecessary and arbitrary interference with the liberty of contract, and therefore void under the Constitution. Mr. Justice Peckham, speaking for the Court (p. 198 U. S. 56 ), said: "It must, of course, be conceded that there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise, the Fourteenth Amendment would have no efficacy, and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power Page 261 U. S. 549 would be a mere pretext -- become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint." And again (pp. 198 U. S. 57 -58): "It is a question of which of two powers or rights shall prevail -- the power of the State to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates though but in a remote degree to the public health does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor." Coming then directly to the statute (p. 198 U. S. 58 ), the Court said: "We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, therefore, a proper case is made out in which to deny the right of an individual, sui juris, as employer or employee, to make contracts for the labor of the latter under the protection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go." And, after pointing out the unreasonable range to which the principle of the statute might be extended, the Court said (p. 198 U. S. 60 ): "It is also urged, pursuing the same line of argument, that it is to the interest of the State that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must Page 261 U. S. 550 be valid as health laws, enacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the Federal Constitution from undue interference with liberty of person and freedom of contract is visionary, wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract, would come under the restrictive sway of the legislature." And further (p. 198 U. S. 61 ): "Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health or to the health of the employes, if the hours of labor are not curtailed." Subsequent cases in this Court have been distinguished from that decision, but the principles therein stated have never been disapproved. In Bunting v. Oregon, 243 U. S. 426 , a state statute forbidding the employment of any person in any mill, factory or manufacturing establishment more than ten hours in any one day, and providing payment for overtime not exceeding three hours in any one day at the rate of time and a half of the regular wage, was sustained on the ground that, since the state legislature and State Supreme Court had found such a law necessary for the preservation of the health of employees in these industries, this Court would accept their judgment, in the absence of facts to support the contrary conclusion. The law was attacked Page 261 U. S. 551 on the ground that it constituted an attempt to fix wages, but that contention was rejected and the law sustained as a reasonable regulation of hours of service. Wilson v. New, 243 U. S. 332 , involved the validity of the so-called Adamson Law, which established an eight-hour day for employees of interstate carriers for which it fixed a scale of minimum wages with proportionate increases for overtime, to be enforced, however, only for a limited period. The act was sustained primarily upon the ground that it was a regulation of a business charged with a public interest. The Court, speaking through the Chief Justice, pointed out that regarding "the private right and private interest, as contradistinguished from the public interest, the power exists between the parties, the employers and employees to agree as to a standard of wages free from legislative interference," but that this did not affect the power to deal with the matter with a view to protect the public right, and then said (p. 243 U. S. 353 ): "And this emphasizes that there is no question here of purely private right since the law is concerned only with those who are engaged in a business charged with a public interest where the subject dealt with as to all the parties is one involved in that business and which we have seen comes under the control of the right to regulate to the extent that the power to do so is appropriate or relevant to the business regulated." Moreover, in sustaining the wage feature of the law, emphasis was put upon the fact (p. 243 U. S. 345 ) that it was in this respect temporary, "leaving the employers and employees free as to the subject of wages to govern their relations by their own agreements after the specified time." The act was not only temporary in this respect, but it was passed to meet a sudden and great emergency. This feature of the law was sustained principally because the parties, for the time being, could not or would not agree. Here, they are forbidden to agree. Page 261 U. S. 552 The same principle was applied in the Rent Cases ( Block v. Hirsh, 256 U. S. 135 , and Marcus Brown Holding Co. v. Feldman, 256 U. S. 170 ), where this Court sustained the legislative power to fix rents as between landlord and tenant upon the ground that the operation of the statutes was temporary to tide over an emergency, and that the circumstances were such as to clothe "the letting of buildings . . . with a public interest so great as to justify regulation by law." The Court said (p. 256 U. S. 157 ): "The regulation is put and justified only as a temporary measure [citing Wilson v. New, supra ]. A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change." In a subsequent case, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 416 , this Court, after saying "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change," pointed out that the Rent Cases dealt with laws intended to meet a temporary emergency and "went to the verge of the law." In addition to the cases cited above, there are the decisions of this Court dealing with laws especially relating to hours of labor for women: Muller v. Oregon, 208 U. S. 412 ; Riley v. Massachusetts, 232 U. S. 671 ; Miller v. Wilson, 236 U. S. 373 ; Bosley v. McLaughlin, 236 U. S. 385 . In the Muller case, the validity of an Oregon statute, forbidding the employment of any female in certain industries more than ten hours during anyone day was upheld. The decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect Page 261 U. S. 553 of the maternal functions, and also in the fact that, historically, woman has always been dependent upon man, who has established his control by superior physical strength. The cases of Riley, Miller, and Bosley follow in this respect the Muller case. But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case (p. 208 U. S. 421 ) has continued "with diminishing intensity." In view of the great -- not to say revolutionary -- changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships. In passing, it may be noted that the instant statute applies in the case of a woman employer contracting with a woman employee as it does when the former is a man. The essential characteristics of the statute now under consideration, which differentiate it from the laws fixing hours of labor, will be made to appear as we proceed. It is sufficient now to point out that the latter, as well as the statutes mentioned under paragraph (3), deal with incidents of the employment having no necessary effect upon Page 261 U. S. 554 the heart of the contract, that is, the amount of wages to be paid and received. A law forbidding work to continue beyond a given number of hours leaves the parties free to contract about wages, and thereby equalize whatever additional burdens may be imposed upon the employer as a result of the restrictions as to hours, by an adjustment in respect of the amount of wages. Enough has been said to show that the authority to fix hours of labor cannot be exercised except in respect of those occupations where work of long continued duration is detrimental to health. This Court has been careful, in every case where the question has been raised, to place its decision upon this limited authority of the legislature to regulate hours of labor and to disclaim any purpose to uphold the legislation as fixing wages, thus recognizing an essential difference between the two. It seems plain that these decisions afford no real support for any form of law establishing minimum wages. If now, in the light furnished by the foregoing exceptions to the general rule forbidding legislative interference with freedom of contract, we examine and analyze the statute in question, we shall see that it differs from them in every material respect. It is not a law dealing with any business charged with a public interest or with public work, or to meet and tide over a temporary emergency. It has nothing to do with the character, methods or periods of wage payments. It does not prescribe hours of labor or conditions under which labor is to be done. It is not for the protection of persons under legal disability or for the prevention of fraud. It is simply and exclusively a price-fixing law, confined to adult women (for we are not now considering the provisions relating to minors), who are legally as capable of contracting for themselves as men. It forbids two parties having lawful capacity -- under penalties as to the employer -- to freely contract with one another in respect of the price for Page 261 U. S. 555 which one shall render service to the other in a purely private employment where both are willing, perhaps anxious, to agree, even though the consequence may be to oblige one to surrender a desirable engagement and the other to dispense with the services of a desirable employee. * The price fixed by the board need have no relation to the capacity or earning power of the employee, the number of hours which may happen to constitute the day's work, the character of the place where the work is to be done, or the circumstances or surroundings of the employment; and, while it has no other basis to support its validity than the assumed necessities of the employee, it takes no account of any independent resources she may have. It is based wholly on the opinions of the members of the board and their advisers -- perhaps an average of their opinions, if they do not precisely agree -- as to what will be necessary to provide a living for a woman, keep her in health and preserve her morals. It applies to any and every occupation in the District, without regard to its nature or the character of the work. The standard furnished by the statute for the guidance of the board is so vague as to be impossible of practical application with any reasonable degree of accuracy. What is sufficient to supply the necessary cost of living for a woman worker and maintain her in good health and protect her morals is obviously not a precise or unvarying sum -- not even approximately so. The amount will depend upon a variety of circumstances: the individual temperament, habits of thrift, care, ability to buy necessaries intelligently, and whether the woman live alone or with her family. To those who practice economy, a given sum will afford comfort, while to those of contrary habit the same sum will be wholly inadequate. The cooperative economics of the family group are not taken into account Page 261 U. S. 556 though they constitute an important consideration in estimating the cost of living, for it is obvious that the individual expense will be less in the case of a member of a family than in the case of one living alone. The relation between earnings and morals is not capable of standardization. It cannot be shown that well paid women safeguard their morals more carefully than those who are poorly paid. Morality rests upon other considerations than wages, and there is, certainly, no such prevalent connection between the two as to justify a broad attempt to adjust the latter with reference to the former. As a means of safeguarding morals the attempted classification in our opinion, is without reasonable basis. No distinction can be made between women who work for others and those who do not; nor is there ground for distinction between women and men, for, certainly, if women require a minimum wage to preserve their morals men require it to preserve their honesty. For these reasons, and others which might be stated, the inquiry in respect of the necessary cost of living and of the income necessary to preserve health and morals, presents an individual, and not a composite, question, and must be answered for each individual considered by herself, and not by a general formula prescribed by a statutory bureau. This uncertainty of the statutory standard is demonstrated by a consideration of certain orders of the board already made. These orders fix the sum to be paid to a woman employed in a place where food is served or in a mercantile establishment, at $16.50 per week; in a printing establishment, at $15.50 per week, and in a laundry, at $15 per week, with a provision reducing this to $9 in the case of a beginner. If a woman employed to serve food requires a minimum of $16.50 per week, it is hard to understand how the same woman working in a printing establishment or in a laundry is to get on with an income lessened by from $1 to $7.50 per week. The board probably Page 261 U. S. 557 found it impossible to follow the indefinite standard of the statute, and brought other and different factors into the problem, and this goes far in the direction of demonstrating the fatal uncertainty of the act, an infirmity which, in our opinion, plainly exists. The law takes account of the necessities of only one party to the contract. It ignores the necessities of the employer by compelling him to pay not less than a certain sum not only whether the employee is capable of earning it, but irrespective of the ability of his business to sustain the burden, generously leaving him, of course, the privilege of abandoning his business as an alternative for going on at a loss. Within the limits of the minimum sum, he is precluded, under penalty of fine and imprisonment, from adjusting compensation to the differing merits of his employees. It compels him to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the employee. It therefore undertakes to solve but one-half of the problem. The other half is the establishment of a corresponding standard of efficiency, and this forms no part of the policy of the legislation, although in practice the former half without the latter must lead to ultimate failure, in accordance with the inexorable law that no one can continue indefinitely to take out more than he puts in without ultimately exhausting the supply. The law is not confined to the great and powerful employers, but embraces those whose bargaining power may be as weak as that of the employee. It takes no account of periods of stress and business depression, of crippling losses, which may leave the employer himself without adequate means of livelihood. To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person, for whose condition there Page 261 U. S. 558 rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole. The feature of this statute which, perhaps more than any other, puts upon it the stamp of invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract or the work the employee engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money. to insure her subsistence, health and morals. The ethical right of every worker, man or woman, to a living wage may be conceded. One of the declared and important purposes of trade organizations is to secure it. And with that principle, and with every legitimate effort to realize it in fact, no one can quarrel; but the fallacy of the proposed method of attaining it is that it assumes that every employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz., that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored. The necessities of the employee are alone considered, and these arise outside of the employment, are the same when there is no employment, and as great in one occupation as in another. Certainly the employer, by paying a fair equivalent for the service rendered, though not sufficient to support the employee, has neither caused nor contributed to her poverty. On the contrary, to the extent of what he pays, he has relieved it. In principle, there can be no difference between the case of selling labor and the case of selling goods. If one goes to the butcher, the baker or grocer to buy food, he is morally entitled to obtain the worth of his money, but he is not entitled to more. If what he gets is worth what he pays, he is not justified in demanding Page 261 U. S. 559 more simply because he needs more, and the shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in any peculiar sense with the question of his customer's necessities. Should a statute undertake to vest in a commission power to determine the quantity of food necessary for individual support and require the shopkeeper, if he sell to the individual at all, to furnish that quantity at not more than a fixed maximum, it would undoubtedly fall before the constitutional test. The fallacy of any argument in support of the validity of such a statute would be quickly exposed. The argument in support of that now being considered is equally fallacious, though the weakness of it may not be so plain. A statute requiring an employer to pay in money, to pay at prescribed and regular intervals, to pay the value of the services rendered, even to pay with fair relation to the extent of the benefit obtained from the service, would be understandable. But a statute which prescribes payment without regard to any of these things and solely with relation to circumstances apart from the contract of employment, the business affected by it and the work done under it, is so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States. We are asked, upon the one hand, to consider the fact that several States have adopted similar statutes, and we are invited, upon the other hand, to give weight to the fact that three times as many States, presumably as well informed and as anxious to promote the health and morals of their people, have refrained from enacting such legislation. We have also been furnished with a large number of printed opinions approving the policy of the minimum wage, and our own reading has disclosed a large number to the contrary. These are all proper enough for the consideration of the lawmaking bodies, since their tendency is to establish the desirability or undesirability of the Page 261 U. S. 560 legislation; but they reflect no legitimate light upon the question of its validity, and that is what we are called upon to decide. The elucidation of that question cannot be aided by counting heads. It is said that great benefits have resulted from the operation of such statutes, not alone in the District of Columbia, but in the several States where they have been in force. A mass of reports, opinions of special observers and students of the subject, and the like has been brought before us in support of this statement, all of which we have found interesting but only mildly persuasive. That the earnings of women now are greater than they were formerly, and that conditions affecting women have become better in other respects, may be conceded, but convincing indications of the logical relation of these desirable changes to the law in question are significantly lacking. They may be, and quite probably are, due to other causes. We cannot close our eyes to the notorious fact that earnings everywhere in all occupations have greatly increased -- not alone in States where the minimum wage law obtains, but in the country generally -- quite as much or more among men as among women and in occupations outside the reach of the law as in those governed by it. No real test of the economic value of the law can be had during periods of maximum employment, when general causes keep wages up to or above the minimum; that will come in periods of depression and struggle for employment, when the efficient will be employed at the minimum rate, while the less capable may not be employed at all. Finally, it may be said that if, in the interest of the public welfare, the police power may be invoked to justify the fixing of a minimum wage, it may, when the public welfare is thought to require it, be invoked to justify a maximum wage. The power to fix high wages connotes, by like course of reasoning, the power to fix low wages. If, in the face of the guaranties of the Fifth Page 261 U. S. 561 Amendment, this form of legislation shall be legally justified, the field for the operation of the police power will have been widened to a great and dangerous degree. If, for example, in the opinion of future lawmakers, wages in the building trades shall become so high as to preclude people of ordinary means from building and owning homes, an authority which sustains the minimum wage will be invoked to support a maximum wage for building laborers and artisans, and the same argument which has been here urged to strip the employer of his constitutional liberty of contract in one direction will be utilized to strip the employee of his constitutional liberty of contract in the opposite direction. A wrong decision does not end with itself: it is a precedent, and, with the swing of sentiment, its bad influence may run from one extremity of the arc to the other. It has been said that legislation of the kind now under review is required in the interest of social justice, for whose ends freedom of contract may lawfully be subjected to restraint. The liberty of the individual to do as he pleases, even in innocent matters, is not absolute. It must frequently yield to the common good, and the line beyond which the power of interference may not be pressed is neither definite nor unalterable, but may be made to move, within limits not well defined, with changing need and circumstance. Any attempt to fix a rigid boundary would be unwise, as well as futile. But, nevertheless, there are limits to the power, and when these have been passed, it becomes the plain duty of the courts in the proper exercise of their authority to so declare. To sustain the individual freedom of action contemplated by the Constitution is not to strike down the common good, but to exalt it, for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members. Page 261 U. S. 562 It follows from what has been said that the act in question passes the limit prescribed by the Constitution, and, accordingly, the decrees of the court below are Affirmed. MR. JUSTICE BRANDEIS took no part in the consideration or decision of these cases. * I This is the exact situation in the Lyons case, as is shown by the statement in the first part of this opinion. MR. CHIEF JUSTICE TAFT, dissenting. I regret much to differ from the Court in these cases. The boundary of the police power beyond which its exercise becomes an invasion of the guaranty of liberty under the Fifth and Fourteenth Amendments to the Constitution is not easy to mark. Our Court has been laboriously engaged in pricking out a line in successive cases. We must be careful, it seems to me, to follow that line as well as we can and not to depart from it by suggesting a distinction that is formal, rather than real. Legislatures, in limiting freedom of contract between employee and employer by a minimum wage, proceed on the assumption that employees, in the class receiving least pay, are not upon a full level of equality of choice with their employer, and, in their necessitous circumstances, are prone to accept pretty much anything that is offered. They are peculiarly subject to the overreaching of the harsh and greedy employer. The evils of the sweating system and of the long hours and low wages which are characteristic of it are well known. Now I agree that it is a disputable question in the field of political economy how far a statutory requirement of maximum hours or minimum wages may be a useful remedy for these evils, and whether it may not make the case of the oppressed employee worse than it was before. But it is not the function of this Court to hold congressional acts invalid simply because they are passed to carry out economic views which the Court believes to be unwise or unsound. Page 261 U. S. 563 Legislatures which adopt a requirement of maximum hours or minimum wages may be presumed to believe that, when sweating employers are prevented from paying unduly low wages by positive law, they will continue their business, abating that part of their profits, which were wrung from the necessities of their employees, and will concede the better terms required by the law, and that, while in individual cases hardship may result, the restriction will enure to the benefit of the general class of employees in whose interest the law is passed, and so to that of the community at large. The right of the legislature under the Fifth and Fourteenth Amendments to limit the hours of employment on the score of the health of the employee, it seems to me, has been firmly established. As to that, one would think, the line had been pricked out so that it has become a well formulated rule. In Holden v. Hardy, 169 U. S. 366 , it was applied to miners and rested on the unfavorable environment of employment in mining and smelting. In Lochner v. New York, 198 U. S. 45 , it was held that restricting those employed in bakeries to ten hours a day was an arbitrary and invalid interference with the liberty of contract secured by the Fourteenth Amendment. Then followed a number of cases, beginning with Muller v. Oregon, 208 U. S. 412 , sustaining the validity of a limit on maximum hours of labor for women, to which I shall hereafter allude, and, following these cases, came Bunting v. Oregon, 243 U. S. 426 . In that case, this Court sustained a law limiting the hours of labor of any person, whether man or woman, working in any mill, factory or manufacturing establishment to ten hours a day with a proviso as to further hours to which I shall hereafter advert. The law covered the whole field of industrial employment, and certainly covered the case of persons employed in bakeries. Yet the opinion in the Bunting case does not mention the Lochner case. No one can Page 261 U. S. 564 suggest any constitutional distinction between employment in a bakery and one in any other kind of a manufacturing establishment which should make a limit of hours in the one invalid and the same limit in the other permissible. It is impossible for me to reconcile the Bunting case and the Lochner case, and I have always supposed that the Lochner case was thus overruled sub silentio. Yet the opinion of the Court herein in support of its conclusion quotes from the opinion in the Lochner case as one which has been sometimes distinguished but never overruled. Certainly there was no attempt to distinguish it in the Bunting case. However, the opinion herein does not overrule the Bunting case in express terms, and therefore I assume that the conclusion in this case rests on the distinction between a minimum of wages and a maximum of hours in the limiting of liberty to contract. I regret to be at variance with the Court as to the substance of this distinction. In absolute freedom of contract, the one term is as important as the other, for both enter equally into the consideration given and received, a restriction as to one is not any greater, in essence, than the other, and is of the same kind. One is the multiplier, and the other the multiplicand. If it be said that long hours of labor have a more direct effect upon the health of the employee than the low wage, there is very respectable authority from close observers, disclosed in the record and in the literature on the subject quoted at length in the briefs, that they are equally harmful in this regard. Congress took this view, and we cannot say it was not warranted in so doing. With deference to the very able opinion of the Court and my brethren who concur in it, it appears to me to exaggerate the importance of the wage term of the contract of employment as more inviolate than its other terms. Its conclusion seems influenced by the fear that the Page 261 U. S. 565 concession of the power to impose a minimum wage must carry with it a concession of the power to fix a maximum wage. This, I submit, is a non sequitur. A line of distinction like the one under discussion in this case is, as the opinion elsewhere admits, a matter of degree and practical experience, and not of pure logic. Certainly the wide difference between prescribing a minimum wage and a maximum wage could, as a matter of degree and experience, be easily affirmed. Moreover, there are decisions by this Court which have sustained legislative limitations in respect to the wage term in contracts of employment. In McLean v. Arkansas, 211 U. S. 539 , it was held within legislative power to make it unlawful to estimate the graduated .pay of miners by weight after screening the coal. In Knoxville Iron Co. v. Harbison, 183 U. S. 13 , it was held that store orders issued for wages must be redeemable in cash. In Patterson v. Bark Eudora, 190 U. S. 169 , a law forbidding the payment of wages in advance was held valid. A like case is Strathearn S.S. Co. v. Dillon, 252 U. S. 348 . While these did not impose a minimum on wages, they did take away from the employee the freedom to agree as to how they should be fixed, in what medium they should be paid, and when they should be paid, all features that might affect the amount or the mode of enjoyment of them. The first two really rested on the advantage the employer had in dealing with the employee. The third was deemed a proper curtailment of a sailor's right of contract in his own interest because of his proneness to squander his wages in port before sailing. In Bunting v. Oregon, supra, employees in a mill, factory or manufacturing establishment were required, if they worked over ten hours a day, to accept for the three additional hours permitted not less than fifty percent. more than their usual wage. This was sustained as a mild penalty imposed on the employer to enforce the limitation as to hours; but it necessarily Page 261 U. S. 566 curtailed the employee's freedom to contract to work for the wages he saw fit to accept during those three hours. I do not feel, therefore, that, either on the basis of reason, experience or authority, the boundary of the police power should be drawn to include maximum hours and exclude a minimum wage. Without, however, expressing an opinion that a minimum wage limitation can be enacted for adult men, it is enough to say that the case before us involves only the application of the minimum wage to women. If I am right in thinking that the legislature can find as much support in experience for the view that a sweating wage has as great and as direct a tendency to bring about an injury to the health and morals of workers, as for the view that long hours injure their health, then I respectfully submit that Muller v. Oregon, 208 U. S. 412 , controls this case. The law which was there sustained forbade the employment of any female in any mechanical establishment or factory or laundry for more than ten hours. This covered a pretty wide field in women's work, and it would not seem that any sound distinction between that case and this can be built up on the fact that the law before us applies to all occupations of women, with power in the board to make certain exceptions. Mr. Justice Brewer, who spoke for the Court in Muller v. Oregon, based its conclusion on the natural limit to women's physical strength and the likelihood that long hours would therefore injure her health, and we have had since a series of cases which may be said to have established a rule of decision. Riley v. Massachusetts, 232 U. S. 671 ; Miller v. Wilson, 236 U. S. 373 ; Bosley v. McLaughlin, 236 U. S. 385 . The cases covered restrictions in wide and varying fields of employment, and in the later cases, it will be found that the objection to the particular law was based not on the ground that it had general application, but because it left out some employments. Page 261 U. S. 567 I am not sure from a reading of the opinion whether the Court thinks the authority of Muller v. Oregon is shaken by the adoption of the Nineteenth Amendment. The Nineteenth Amendment did not change the physical strength or limitations of women upon which the decision in Muller v. Oregon rests. The Amendment did give women political power, and makes more certain that legislative provisions for their protection will be in accord with their interests as they see them. But I don't think we are warranted in varying constitutional construction based on physical differences between men and women, because of the Amendment. But for my inability to agree with some general observations in the forcible opinion of MR. JUSTICE HOLMES who follows me, I should be silent and merely record my concurrence in what he says. It is perhaps wiser for me, however, in a case of this importance, separately to give my reasons for dissenting. I am authorized to say that MR. JUSTICE SANFORD concurs in this opinion. MR. JUSTICE HOLMES, dissenting. The question in this case is the broad one, whether Congress can establish minimum rates of wages for women in the District of Columbia with due provision for special circumstances, or whether we must say that Congress has no power to meddle with the matter at all. To me, notwithstanding the deference due to the prevailing judgment of the Court, the power of Congress seems absolutely free from doubt. The end, to remove conditions leading to ill health, immorality and the deterioration of the race, no one would deny to be within the scope of constitutional legislation. The means are means that have the approval of Congress, of many States, and of those governments from which we have learned our greatest Page 261 U. S. 568 lessons. When so many intelligent persons, who have studied the matter more than any of us can, have thought that the means are effective and are worth the price, it seems to me impossible to deny that the belief reasonably may be held by reasonable men. If the law encountered no other objection than that the means bore no relation to the end or that they cost too much, I do not suppose that anyone would venture to say that it was bad. I agree, of course, that a law answering the foregoing requirements might be invalidated by specific provisions of the Constitution. For instance, it might take private property without just compensation. But in the present instance, the only objection that can be urged is found within the vague contours of the Fifth Amendment, prohibiting the depriving any person of liberty or property without due process of law. To that I turn. The earlier decisions upon the same words in the Fourteenth Amendment began within our memory and went no farther than an unpretentious assertion of the liberty to follow the ordinary callings. Later, that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts. Without enumerating all the restrictive laws that have been upheld, I will mention a few that seem to me to have interfered with liberty of contract quite as seriously and directly as the one before us. Usury laws prohibit contracts by which a man receives more than so much interest for the money that he lends. Statutes of frauds restrict many contracts to certain forms. Some Sunday laws prohibit practically all contracts during one-seventh of our whole life. Insurance rates may be regulated. German Alliance Insurance Co. Page 261 U. S. 569 v. Lewis, 233 U. S. 389 . (I concurred in that decision without regard to the public interest with which insurance was said to be clothed. It seemed to me that the principle was general.) Contracts may be forced upon the companies. National Union Fire Insurance Co. v. Wanberg, 260 U. S. 71 . Employers of miners may be required to pay for coal by weight before screening. McLean v. Arkansas, 211 U. S. 539 . Employers generally may be required to redeem in cash store orders accepted by their employees in payment. Knoxville Iron Co. v. Harbison, 183 U. S. 13 . Payment of sailors in advance may be forbidden. Patterson v. Bark Eudora, 190 U. S. 169 . The size of a loaf of bread may be established. Schmidinger v. Chicago, 226 U. S. 578 . The responsibility of employers to their employees may be profoundly modified. New York Central R.R. Co. v. White, 243 U. S. 188 . Arizona Employers' Liability Cases, 250 U. S. 400 . Finally women's hours of labor may be fixed; Muller v. Oregon, 208 U. S. 412 ; Riley v. Massachusetts, 232 U. S. 671 , 232 U. S. 679 ; Hawley v. Walker, 232 U.S. 718; Miller v. Wilson, 236 U. S. 373 ; Bosley v. McLaughlin, 236 U. S. 385 , and the principle was extended to men with the allowance of a limited overtime to be paid for "at the rate of time and one-half of the regular wage," in Bunting v. Oregon, 243 U. S. 426 . I confess that I do not understand the principle on which the power to fix a minimum for the wages of women can be denied by those who admit the power to fix a maximum for their hours of work. I fully assent to the proposition that here, as elsewhere, the distinctions of the law are distinctions of degree, but I perceive no difference in the kind or degree of interference with liberty, the only matter with which we have any concern, between the one case and the other. The bargain is equally affected whichever half you regulate. Muller v. Oregon, I take it, is as good law today as it was in 1908. It will Page 261 U. S. 570 need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account. I should not hesitate to take them into account if I thought it necessary to sustain this act. Quong Wing v. Kirkendall, 223 U. S. 59 , 223 U. S. 63 . But after Bunting v. Oregon, 243 U. S. 426 , I had supposed that it was not necessary, and that Lochner v. New York, 198 U. S. 45 , would be allowed a deserved repose. This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living. It is safe to assume that women will not be employed at even the lowest wages allowed unless they earn them, or unless the employer's business can sustain the burden. In short, the law, in its character and operation, is like hundreds of so-called police laws that have been upheld. I see no greater objection to using a Board to apply the standard fixed by the act than there is to the other commissions with which we have become familiar, or than there is to the requirement of a license in other cases. The fact that the statute warrants classification, which, like all classifications, may bear hard upon some individuals, or in exceptional cases, notwithstanding the power given to the Board to issue a special license, is no greater infirmity than is incident to all law. But the ground on which the law is held to fail is fundamental, and therefore it is unnecessary to consider matters of detail. The criterion of constitutionality is not whether we believe the law to be for the public good. We certainly cannot be prepared to deny that a reasonable man reasonably might have that belief in view of the legislation of Great Britain, Victoria and a number of the States of this Union. The belief is fortified by a very remarkable collection of documents submitted on behalf of the appellants, material here, I conceive, only as showing that the Page 261 U. S. 571 belief reasonably may be held. In Australia, the power to fix a minimum for wages in the case of industrial disputes extending beyond the limits of any one State was given to a Court, and its President wrote a most interesting account of its operation. 29 Harv.Law Rev. 13. If a legislature should adopt what he thinks the doctrine of modern economists of all schools, that "freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee," ibid. 25, I could not pronounce an opinion with which I agree impossible to be entertained by reasonable men. If the same legislature should accept his further opinion that industrial peace was best attained by the device of a Court having the above powers, I should not feel myself able to contradict it, or to deny that the end justified restrictive legislation quite as adequately as beliefs concerning Sunday or exploded theories about usury. I should have my doubts, as I have them about this statute -- but they would be whether the bill that has to be paid for every gain, although hidden as interstitial detriments, was not greater than the gain was worth: a matter that it is not for me to decide. I am of opinion that the statute is valid, and that the decree should be reversed.

In the case of Adkins v. Children's Hospital, the U.S. Supreme Court ruled on the constitutionality of a federal law setting minimum wages for women and children in the District of Columbia. The Court held that the law interfered with the freedom of contract guaranteed by the Due Process Clause of the Fifth Amendment, and thus was unconstitutional. The Court emphasized the importance of contractual liberty and equal legal status between men and women, finding that legislative abridgment of this freedom could only be justified by exceptional circumstances, such as businesses affected by a public interest or contracts for public work. The Court's decision reaffirmed its commitment to protecting individual liberty and limiting governmental interference in private economic affairs.

Labor & Employment

Adair v. U.S.

https://supreme.justia.com/cases/federal/us/208/161/

U.S. Supreme Court Adair v. United States, 208 U.S. 161 (1908) Adair v. United States No. 293 Argued October 29, 30, 1907 Decided January 27, 1908 208 U.S. 161 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF KENTUCKY Syllabus It is not within the power of Congress to make it a criminal offense against the United States for a carrier engaged in interstate commerce, or an agent or officer thereof, to discharge an employee simply because of his membership in a labor organization, and the provision to that effect in § 10 of the act of June 1, 1898, 30 Stat. 424, concerning interstate carriers is an invasion of personal liberty, as well as of the right of property, guaranteed by the Fifth Amendment to the Constitution of the United States, and is therefore unenforceable as repugnant to the declaration of that amendment that no person shall be deprived of liberty or property without due process of law. While the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law, are subject to such reasonable restrictions as the common good or general welfare may require, it is not within the functions of government -- at least in the absence of contract -- to compel any person in the course of his business, and against his will, either to employ, or be employed by, another. An employer has the same right to prescribe terms on which he will employ one to labor as an employee has to prescribe those on which he will sell his labor, and any legislation which disturbs this equality is an arbitrary and unjustifiable interference with liberty of contract. Quare, and not decided, whether it is within the power of Congress to make it a criminal offense against the United States for either an employer engaged in interstate commerce or his employee to disregard, without sufficient notice or excuse, the terms of a valid labor contract. The power to regulate interstate commerce is the power to prescribe rules by which such commerce must be governed, but the rules prescribed must have a real and substantial relation to, or connection with, the commerce regulated, and as that relation does not exist between the membership of an employee in a labor organization and the interstate commerce with which he is connected, the provision above referred to in § 10 of the act of June 1, 1898 cannot be sustained as a regulation of interstate commerce, and, as such, within the competency of Congress. The power to regulate interstate commerce, while great and paramount, cannot be exerted in violation of any fundamental right secured by other provisions of the National Constitution. Page 208 U. S. 162 The provision above referred to, in 10 of the act of June 1, 1898, is severable, and it unconstitutionality may not affect other provision of the act or provisions of that section thereof. The facts, which involve the constitutionality of § 10 of the act of Congress concerning carriers engaged in interstate commerce (known as the Erdman Act), passed June 1, 1898, c. 370, 30 Stat. 424, are stated in the opinion. Page 208 U. S. 166 MR. JUSTICE HARLAN delivered the opinion of the court. This case involves the constitutionality of certain provisions of the act of Congress of June 1, 1898, 30 Stat. 424, c. 370, Page 208 U. S. 167 concerning carriers engaged in interstate commerce and their employes. By the first section of the act, it is provided: "That the provisions of this act shall apply to any common carrier or carriers and their officers, agents, and employes, except masters of vessels and seamen, as defined in section 4612, Revised Statutes of the United States, engaged in the transportation of passengers or property wholly by railroad, or partly by railroad and partly by water, for a continuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States. The term 'railroad' as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement or lease, and the term 'transportation' shall include all instrumentalities of shipment or carriage. The term 'employees' as used in this act shall include all persons actually engaged in any capacity in train operation or train service of any description, and notwithstanding that the cars upon or in which they are employed may be held and operated by the carrier under lease or other contract: Provided, however, That this act shall not be held to apply to employees of street railroads and shall apply only to employees engaged in railroad train service. In every such case the carrier shall be responsible for the acts and defaults of such employees in the same manner and to the same extent as if said cars were owned by it and said employees directly employed by it, and any provisions to the contrary of any such lease or other contract shall be binding only as between the parties thereto and shall not affect the obligations of said carrier either to the public or to the private parties concerned. " Page 208 U. S. 168 The 2d 3d 4th, 5th, 6th, 7th, 8th and 9th sections relate to the settlement, by means of arbitration, of controversies concerning wages, hours of labor, or conditions of employment arising between a carrier subject to the provisions of the act and its employees, which seriously interrupt or threaten to interrupt the business of the carrier. Those sections prescribe the mode in which controversies may be brought under the cognizance of arbitrators, in what way the arbitrators may be designated, and the effect of their decisions. The first subdivision of § 3 contains a proviso "that no employee shall be compelled to render personal service without his consent." The 11th section relates to the compensation and expenses of the arbitrators. By the 12th section the act of Congress of October 1, 1888, 25 Stat. 501, c. 1063, creating boards of arbitrators or commissioners for settling controversies and differences between railroad corporations and other common carriers engaged in interstate or territorial transportation of persons or property and their employees, was repealed. The 10th section, upon which the present prosecution is based, is in these words: "That any employer subject to the provisions of this act and any officer, agent, or receiver of such employer, who shall require any employee, or any person seeking employment, as a condition of such employment, to enter into an agreement, either written or verbal, not to become or remain a member of any labor corporation, association, or organization; or shall threaten any employee with loss of employment, or shall unjustly discriminate against any employee because of his membership in such a labor corporation, association, or organization; or who shall require any employee or any person seeking employment, as a condition of such employment, to enter into a contract whereby such employee or applicant for employment shall agree to contribute to any fund for charitable, social, or beneficial purposes; to release such employer from legal liability for any personal injury by reason of any benefit received from Page 208 U. S. 169 such fund beyond the proportion of the benefit arising from the employer's contribution to such fund; or who shall, after having discharged an employee, attempt or conspire to prevent such employee from obtaining employment, or who shall, after the quitting of an employee, attempt or conspire to prevent such employee from obtaining employment, is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof in any court of the United States of competent jurisdiction in the district in which such offense was committed, shall be punished for each offense by a fine of not less than one hundred dollars and not more than one thousand dollars." It may be observed in passing that, while that section makes it a crime against the United States to unjustly discriminate against an employee of an interstate carrier because of his being a member of a labor organization, it does not make it a crime to unjustly discriminate against an employee of the carrier because of his not being a member of such an organization. The present indictment was in the District Court of the United States for the Eastern District of Kentucky against the defendant Adair. The first count alleged "that at and before the time hereinafter named, the Louisville and Nashville Railroad Company is and was a railroad corporation, duly organized and existing by law and a common carrier engaged in the transportation of passengers and property wholly by steam railroad for a continuous carriage and shipment from one State of the United States to another State of the United States of America, that is to say, from the State of Kentucky into the States of Ohio, Indiana and Tennessee, and from the State of Ohio into the State of Kentucky, and was at all times aforesaid and at the time of the commission of the offense hereinafter named, a common carrier of interstate commerce, and an employer, subject to the provisions of a certain act of Congress of the United States of America, entitled, 'An Act concerning carriers engaged in interstate commerce and their employees,' approved Junc 1, 1898, and said corporation was not at any Page 208 U. S. 170 time a street railroad corporation. That before and at the time of the commission of the offense hereinafter named, one William Adair was an agent and employee of said common carrier and employer, and was at all said times master mechanic of said common carrier and employer in the district aforesaid, and before and at the time hereinafter stated, one O. B. Coppage was an employee of said common carrier and employer in the district aforesaid, and, as such employee, was at all times hereinafter named actually engaged in the capacity of locomotive fireman in train operation and train service for said common carrier and employer in the transportation of passengers and property aforesaid, and was an employee of said common carrier and employer actually engaged in said railroad transportation and train service aforesaid, to whom the provisions of said act applied, and, at the time of the commission of the offense hereinafter named, said O. B. Coppage was a member of a certain labor organization, known as the Order of Locomotive Firemen, as he the said William Adair then and there well knew, a more particular description of said organization and the members thereof is to the grand jurors unknown." The specific charge in that count was "that said William Adair, agent and employee of said common carrier and employer as aforesaid, in the district aforesaid, on and before the 15th day of October, 1906, did unlawfully and unjustly discriminate against said O. B. Coppage, employee as aforesaid, by then and there discharging said O. B. Coppage from such employment of said common carrier and employer, because of his membership in said labor organization, and thereby did unjustly discriminate against an employee of a common carrier and employer engaged in interstate commerce because of his membership in a labor organization, contrary to the forms of the statute in such cases made and provided, and against the peace and dignity of the United States." The second count repeated the general allegations of the first count as to the character of the business of the Louisville Page 208 U. S. 171 and Nashville Railroad Company and the relations between that corporation and Adair and Coppage. It charged "that said William Adair, in the district aforesaid and within the jurisdiction of this court, agent and employee of said common carrier and employer aforesaid, on and before the 15th day of October, 1906, did unlawfully threaten said O. B. Coppage, employee as aforesaid, with loss of employment, because of his membership in said labor organization, contrary to the forms of the statute in such cases made and provided, and against the peace and dignity of the United States." The accused Adair demurred to the indictment as insufficient in law, but the demurrer was overruled. After reviewing the authorities, in an elaborate opinion, the court held the tenth section of the act of Congress to be constitutional. 152 Fed.Rep. 737. The defendant pleaded not guilty, and, after trial, a verdict was returned of guilty on the first count and a judgment rendered that he pay to the United States a fine of $100. We shall, therefore, say nothing as to the second count of the indictment. It thus appears that the criminal offense charged in the count of the indictment upon which the defendant was convicted was, in substance and effect, that, being an agent of a railroad company engaged in interstate commerce and subject to the provisions of the above act of June 1, 1898, he discharged one Coppage from its service because of his membership in a labor organization -- no other ground for such discharge being alleged. May Congress make it a criminal offense against the United States -- as by the tenth section of the act of 1898 it does -- for an agent or officer of an interstate carrier, having full authority in the premises from the carrier, to discharge an employee from service simply because of his membership in a labor organization? This question is admittedly one of importance, and has been examined with care and deliberation. And the court has reached a conclusion which, in its judgment, is consistent Page 208 U. S. 172 with both the words and spirit of the Constitution and is sustained as well by sound reason. The first inquiry is whether the part of the tenth section of the act of 1898 upon which the first count of the indictment was based is repugnant to the Fifth Amendment of the Constitution declaring that no person shall be deprived of liberty or property without due process of law. In our opinion, that section, in the particular mentioned, is an invasion of the personal liberty, as well as of the right of property, guaranteed by that Amendment. Such liberty and right embraces the right to make contracts for the purchase of the labor of others and equally the right to make contracts for the sale of one's own labor; each right, however; being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests or as hurtful to the public order or as detrimental to the common good. This court has said that, "in every well ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may, at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S. 29 , and authorities there cited. Without stopping to consider what would have been the rights of the railroad company under the Fifth Amendment had it been indicted under the act of Congress, it is sufficient in this case to say that, as agent of the railroad company and as such responsible for the conduct of the business of one of its departments, it was the defendant Adair's right -- and that right inhered in his personal liberty, and was also a right of property -- to serve his employer as best he could, so long as he did nothing that was reasonably forbidden by law as injurious to the public interests. It was the right of the defendant to prescribe the terms upon which the services of Coppage would be accepted, and it was the right of Coppage to become or not, Page 208 U. S. 173 as he chose, an employee of the railroad company upon the terms offered to him. Mr. Cooley, in his treatise on Torts, p. 278, well says: "It is a part of every man's civil rights that he be left at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason, or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern. It is also his right to have business relations with anyone with whom he can make contracts, and if he is wrongfully deprived of this right by others, he is entitled to redress." In Lochner v. New York, 198 U. S. 45 , 198 U. S. 53 , 198 U. S. 56 , which involved the validity of a state enactment prescribing certain maximum hours for labor in bakeries, and which made it a misdemeanor for an employer to require or permit an employee in such an establishment to work in excess of a given number of hours each day, the court said: "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S. 578 . Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers, and with such conditions the Fourteenth Amendment was not designed to interfere. Mugler v. Kansas, 123 U. S. 623 ; In re Kemmler, 136 U. S. 436 ; Crowley v. Christensen, 137 U. S. 86 ; In re Converse, 137 U. S. 624 . . . . In every case that Page 208 U. S. 174 comes before this court, therefore, where legislation of this character is concerned and where the protection of the Federal Constitution is sought, the question necessarily arises: is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course, the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor." Although there was a difference of opinion in that case among the members of the court as to certain propositions, there was no disagreement as to the general proposition that there is a liberty of contract which cannot be unreasonably interfered with by legislation. The minority were of opinion that the business referred to in the New York statute was such as to require regulation, and that, as the statute was not shown plainly and palpably to have imposed an unreasonable restraint upon freedom of contract, it should be regarded by the courts as a valid exercise of the State's power to care for the health and safety of its people. While, as already suggested, the rights of liberty and property guaranteed by the Constitution against deprivation without due process of law are subject to such reasonable restraints as the common good or the general welfare may require, it is not within the functions of government -- at least in the absence of contract between the parties -- to compel any person, in the course of his business and against his will, to accept or retain the personal services of another, or to compel any person, against his will, to perform personal services for another. The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, Page 208 U. S. 175 for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the services of such employee. It was the legal right of the defendant Adair -- however unwise such a course might have been -- to discharge Coppage because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so -- however unwise such a course on his part might have been -- to quit the service in which he was engaged because the defendant employed some persons who were not members of a labor organization. In all such particulars, the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land. These views find support in adjudged cases, some of which are cited in the margin. [ Footnote 1 ] Of course, if the parties, by contract, fix the period of service, and prescribe the conditions upon which the contract may be terminated, such contract would control the rights of the parties as between themselves, and, for any violation of those provisions, the party wronged would have his appropriate civil action. And it may be -- but upon that point we express no opinion -- that, in the case of a labor contract between an employer engaged in interstate commerce and his employee, Congress could make it a crime for either party, without sufficient or just excuse or notice, to disregard the terms of such contract or to refuse to perform it. In the absence, however, of a valid contract between the parties controlling their conduct towards each other and fixing a period of service, it cannot be, we repeat, that an employer is under any legal obligation, against his will, to retain an employee in his personal service any more than an employee Page 208 U. S. 176 can be compelled, against his will, to remain in the personal service of another. So far as this record discloses the facts the defendant, who seemed to have authority in the premises, did not agree to keep Coppage in service for any particular time, nor did Coppage agree to remain in such service a moment longer than he chose. The latter was at liberty to quit the service without assigning any reason for his leaving. And the defendant was at liberty, in his discretion, to discharge Coppage from service without giving any reason for so doing. As the relations and the conduct of the parties towards each other was not controlled by any contract other than a general agreement on one side to accept the services of the employee and a general agreement on the other side to render services to the employer -- no term being fixed for the continuance of the employment -- Congress could not, consistently with the Fifth Amendment, make it a crime against the United States to discharge the employee because of his being a member of a labor organization. But it is suggested that the authority to make it a crime for an agent or officer of an interstate carrier, having authority in the premises from his principal, to discharge an employee from service to such carrier, simply because of his membership in a labor organization, can be referred to the power of Congress to regulate interstate commerce, without regard to any question of personal liberty or right of property arising under the Fifth Amendment. This suggestion can have no bearing in the present discussion unless the statute, in the particular just stated, is, within the meaning of the Constitution, a regulation of commerce among the States. If it be not, then clearly the Government cannot invoke the commerce clause of the Constitution as sustaining the indictment against Adair. Let us inquire what is commerce, the power to regulate which is given to Congress? This question has been frequently propounded in this court, and the answer has been -- and no more specific answer could Page 208 U. S. 177 well have been given -- that commerce among the several States comprehends traffic, intercourse, trade, navigation, communication, the transit of persons and the transmission of messages by telegraph -- indeed, every species of commercial intercourse among the several States, but not to that commerce "completely internal, which is carried on between man and man, in a State, or between different parts of the same State, and which does not extend to or affect other States." The power to regulate interstate commerce is the power to prescribe rules by which such commerce must be governed. [ Footnote 2 ] Of course, as has been often said, Congress has a large discretion in the selection or choice of the means to be employed in the regulation of interstate commerce, and such discretion is not to be interfered with except where that which is done is in plain violation of the Constitution. Northern Securities Co. v. United States, 193 U. S. 197 , and authorities there cited. In this connection, we may refer to Johnson v. Railroad, 196 U. S. 1 , relied on in argument, which case arose under the act of Congress of March 2, 1893, 27 Stat. 531, c. 196. That act required carriers engaged in interstate commerce to equip their cars used in such commerce with automatic couplers and continuous brakes, and their locomotives with driving wheel brakes. But the act, upon its face, showed that its object was to promote the safety of employees and travelers upon railroads, and this court sustained its validity upon the ground that it manifestly had reference to interstate commerce, and was calculated to subserve the interests of such commerce by affording protection to employees and travelers. It was held that there was a substantial connection between the object sought to be attained by the act and the means provided to accomplish that object. So, in regard to Employers' Liability Page 208 U. S. 178 Cases, 207 U.S. 63, decided at the present term. In that case, the court sustained the authority of Congress, under its power to regulate interstate commerce, to prescribe the rule of liability, as between interstate carriers and its employees in such interstate commerce, in cases of personal injuries received by employees while actually engaged in such commerce. The decision on this point was placed on the ground that a rule of that character would have direct reference to the conduct of interstate commerce, and would, therefore, be within the competency of Congress to establish for commerce among the States, but not as to commerce completely internal to a State. Manifestly, any rule prescribed for the conduct of interstate commerce, in order to be within the competency of Congress under its power to regulate commerce among the States, must have some real or substantial relation to or connection with the commerce regulated. But what possible legal or logical connection is there between an employee's membership in a labor organization and the carrying on of interstate commerce? Such relation to a labor organization cannot have, in itself, and in the eye of the law, any bearing upon the commerce with which the employee is connected by his labor and services. Labor associations, we assume, are organized for the general purpose of improving or bettering the conditions and conserving the interests of its members as wage-earners -- an object entirely legitimate and to be commended, rather than condemned. But surely those associations, as labor organizations, have nothing to do with interstate commerce as such. One who engages in the service of an interstate carrier will, it must be assumed, faithfully perform his duty, whether he be a member or not a member of a labor organization. His fitness for the position in which he labors and his diligence in the discharge of his duties cannot, in law or sound reason, depend in any degree upon his being or not being a member of a labor organization. It cannot be assumed that his fitness is assured, or his diligence increased, by such membership, or that he is less fit or less diligent because Page 208 U. S. 179 of his not being a member of such an organization. It is the employee as a man, and not as a member of a labor organization, who labors in the service of an interstate carrier. Will it be said that the provision in question had its origin in the apprehension, on the part of Congress, that, if it did not show more consideration for members of labor organizations than for wage-earners who were not members of such organizations, or if it did not insert in the statute some such provision as the one here in question, members of labor organizations would, by illegal or violent measures, interrupt or impair the freedom of commerce among the States? We will not indulge in any such conjectures, nor make them, in whole or in part, the basis of our decision. We could not do so consistently with the respect due to a coordinate department of the Government. We could not do so without imputing to Congress the purpose to accord to one class of wage-earners privileges withheld from another class of wage-earners engaged, it may be, in the same kind of labor and serving the same employer. Nor will we assume, in our consideration of this case, that members of labor organizations will, in any considerable numbers, resort to illegal methods for accomplishing any particular object they have in view. Looking alone at the words of the statute for the purpose of ascertaining its scope and effect, and of determining its validity, we hold that there is no such connection between interstate commerce and membership in a labor organization as to authorize Congress to make it a crime against the United States for an agent of an interstate carrier to discharge an employee because of such membership on his part. If such a power exists in Congress, it is difficult to perceive why it might not, by absolute regulation, require interstate carriers, under penalties, to employ in the conduct of its interstate business only members of labor organizations, or only those who are not members of such organizations -- a power which could not be recognized as existing under the Constitution of the United States. No such rule of criminal liability as that to which Page 208 U. S. 180 we have referred can be regarded as, in any just sense, a regulation of interstate commerce. We need scarcely repeat what this court has more than once said, that the power to regulate interstate commerce, great and paramount as that power is, cannot be exerted in violation of any fundamental right secured by other provisions of the Constitution. Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 196 ; Lottery Case, 188 U. S. 321 , 188 U. S. 353 . It results, on the whole case, that the provision of the statute under which the defendant was convicted must be held to be repugnant to the Fifth Amendment, and as not embraced by nor within the power of Congress to regulate interstate commerce, but, under the guise of regulating interstate commerce and as applied to this case, it arbitrarily sanctions an illegal invasion of the personal liberty as well as the right of property of the defendant Adair. We add that, since the part of the act of 1898 upon which the first count of the indictment is based, and upon which alone the defendant was convicted, is severable from its other parts, and, as what has been said is sufficient to dispose of the present case, we are not called upon to consider other and independent provisions of the act, such, for instance, as the provisions relating to arbitration. This decision is therefore restricted to the question of the validity of the particular provision in the act of Congress making it a crime against the United States for an agent or officer of an interstate carrier to discharge an employee from its service because of his being a member of a labor organization. The judgment must be reversed, with directions to set aside the verdict and judgment of conviction, sustain the demurrer to the indictment, and dismiss the case. It is so ordered. MR. JUSTICE MOODY did not participate in the decision of this case. [ Footnote 1 ] People v. Marcus, 185 N.Y. 257; National Protection Assn. v. Cummings, 170 N.Y. 315; Jacobs v. Cohen, 183 N.Y. 207; State v. Julow, 129 Missouri 163, State v. Goodwill, 33 W.Va. 179; Gillespie v. People, 188 Illinois 176; State v. Kreutzberg, 114 Wisconsin 530; Wallace v. Georgia, C. & N. Ry. Co., 94 Georgia 732; Hundley v. L. & N. R.R. Co., 105 Kentucky 162; Brewster v. Miller's Sons & Co., 101 Kentucky 268; N.Y. &c. R.R. Co. v. Schaffer, 65 Ohio St. 414; Arthur v. Oakes, 63 Fed.Rep. 310. [ Footnote 2 ] Gibbons v. Ogden , 9 Wheat. 1; Passenger Cases , 7 How. 283; Almy v. State of California , 24 How. 169; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 , 96 U. S. 9 , 96 U. S. 12 ; County of Mobile v. Kimball, 102 U. S. 691 ; Western Union Tel. Co. v. Pendleton, 122 U. S. 347 , 122 U. S. 356 ; Lottery Case, 188 U. S. 321 , 188 U. S. 352 ; Northern Securities Co. v. United States, 193 U. S. 197 ; Employers' Liability Cases, 207 U. S. 463 . MR. JUSTICE McKENNA, dissenting. The opinion of the court proceeds upon somewhat narrow Page 208 U. S. 181 lines, and either omits or does not give adequate prominence to the considerations which, I think, are determinative of the questions in the case. The principle upon which the opinion is grounded is, as I understand it, that a labor organization has no legal or logical connection with interstate commerce, and that the fitness of an employee has no dependence or relation with his membership in such organization. It is hence concluded that to restrain his discharge merely on account of such membership is an invasion of the liberty of the carrier guaranteed by the Fifth Amendment of the Constitution of the United States. The conclusion is irresistible if the propositions from which it is deduced may be viewed as abstractly as the opinion views them. May they be so viewed? A summary of the act is necessary to understand § 10. Detach that section from the other provisions of the act, and it might be open to condemnation. The first section of the act designates the carriers to whom it shall apply. The second section makes it the duty of the Chairman of the Interstate Commerce Commission and the Commissioner of Labor, in case of a dispute between carriers and their employees which threatens to interrupt the business of the carriers, to put themselves in communication with the parties to the controversy and use efforts to "mediation and conciliation." If the efforts fail, then § 3 provides for the appointment of a board of arbitration -- one to be named by the carrier, one by the labor organization to which the employees belong, and the two thus chosen shall select a third. There is a provision that, if the employees belong to different organizations, they shall concur in the selection of the arbitrator. The board is to give hearings; power is invested in the board to summon witnesses, and provision is made for filing the award in the clerk's office of the Circuit Court of the United States for the district where the controversy arose. Other sections complete the scheme of arbitration thus outlined, and make, as far as possible, the proceedings of the arbitrators Page 208 U. S. 182 judicial, and, pending them, put restrictions on the parties and damages for violation of the restrictions. Even from this meager outline may be perceived the justification and force of § 10. It prohibits discrimination by a carrier engaged in interstate commerce in the employment under the circumstances hereafter mentioned or the discharge from employment of members of labor organizations "because of such membership." This the opinion condemns. The actions prohibited, it is asserted, are part of the liberty of a carrier protected by the Constitution of the United States from limitation or regulation. I may observe that the declaration is clear and unembarrassed by any material benefit to the carrier from its exercise. It may be exercised with reason or without reason, though the business of the carrier is of public concern. This, then, is the contention, and I bring its elements into bold relief to submit against them what I deem to be stronger considerations, based on the statute and sustained by authority. I take for granted that the expressions of the opinion of the court, which seem to indicate that the provisions of § 10 are illegal because their violation is made criminal, are used only for description and incidental emphasis, and not as the essential ground of the objections to those provisions. I may assume at the outset that the liberty guaranteed by the Fifth Amendment is not a liberty free from all restraints and limitations, and this must be so or government could not be beneficially exercised in many cases. Therefore, in judging of any legislation which imposes restraints or limitations, the inquiry must be, what is their purpose and is the purpose within one of the powers of government? Applying this principle immediately to the present case without beating about in the abstract, the inquiry must be whether § 10 of the act of Congress has relation to the purpose which induced the act and which it was enacted to accomplish, and whether such purpose is in aid of interstate commerce, and not a mere restriction upon the liberty of carriers to employ whom they please, or to have business relations with whom they please. In the inquiry, there Page 208 U. S. 183 is necessarily involved a definition of interstate commerce and of what is a regulation of it. As to the first, I may concur with the opinion; as to the second, an immediate and guiding light is afforded by the Employers' Liability Cases, recently decided, 207 U. S. 463 . In those cases, there was a searching scrutiny of the powers of Congress, and it was held to be competent to establish a new rule of liability of the carrier to his employees -- in a word, competent to regulate the relation of master and servant, a relation apparently remote from commerce and one which was earnestly urged by the railroad to be remote from commerce. To the contention, the court said: "But we may not test the power of Congress to regulate commerce solely by abstractly considering the broad subject to which a regulation relates, irrespective of whether the regulation in question is one of interstate commerce. On the contrary, the test of power is not merely the matter regulated, but whether the regulation is directly one of interstate commerce or is embraced within the grant conferred on Congress to use all lawful means necessary and appropriate to the execution of that power to regulate commerce." In other words, that the power is not confined to a regulation of the mere movement of goods or persons. And there are other examples in our decisions -- examples, too, of liberty of contract and liberty of forming business relations (made conspicuous as grounds of decision in the present case) -- which were compelled to give way to the power of Congress. Northern Securities Company v. United States, 193 U. S. 197 . In that case, exactly the same definitions were made as made here, and the same contentions were pressed as are pressed here. The Northern Securities Company was not a railroad company. Its corporate powers were limited to buying, selling and holding stock, bonds and other securities, and, it was contended that, as such business was not commerce at all, it could not be within the power of Congress to regulate. The contention was not yielded to, though it had the support of members of this court. Asserting the application of the Anti-Trust Page 208 U. S. 184 Act of 1890 to such business and the power of Congress to regulate it, the court said "that a sound construction of the Constitution allows to Congress a large discretion 'with respect to the means by which the powers it [the commerce clause] confers are to be carried into execution, which enables that body to perform the high duties assigned to it, in the manner most beneficial to the people.'" It was in recognition of this principle that it was declared in United States v. Joint Traffic Association, 171 U. S. 571 : "The prohibition of such contracts [contracts fixing rates] may, in the judgment of Congress, be one of the reasonable necessities of proper regulation of commerce, and Congress is the judge of such necessity and propriety unless, in case of a possible gross perversion of the principle, the courts might be applied to for relief." The contentions of the parties in the case invoked the declaration. There, as here, an opposition was asserted between the liberty of the railroads to contract with one another and the power of Congress to regulate commerce. That power was pronounced paramount, and it was not perceived, as it seems to be perceived now, that it was subordinate and controlled by the provisions of the Fifth Amendment. Nor was the relation of the power of Congress to that amendment overlooked. It was commented upon and reconciled. And there is nothing whatever in Gibbons v. Ogden , 9 Wheat. 1, or in Lottery Case, 188 U. S. 321 , which is to the contrary. From these considerations, we may pass to an inspection of the statute of which § 10 is a part, and inquire as to its purpose and if the means which it employs has relation to that purpose and to interstate commerce. The provisions of the act are explicit, and present a well coordinated plan for the settlement of disputes between carriers and their employees by bringing the disputes to arbitration and accommodation, and thereby prevent strikes and the public disorder and derangement of business that may be consequent upon them. I submit no worthier purpose can engage legislative attention or be the object of legislative action, and, it might be urged, Page 208 U. S. 185 to attain which the congressional judgment of means should not be brought under a rigid limitation and condemned, if it contribute in any degree to the end, as a "gross perversion of the principle" of regulation, the condition which, it was said in United States v. Joint Traffic Association, supra, might justify an appeal to the courts. We are told that labor associations are to be commended. May not then Congress recognize their existence; yes, and recognize their power as conditions to be counted with in framing its legislation? Of what use would it be to attempt to bring bodies of men to agreement and compromise of controversies if you put out of view the influences which move them or the fellowship which binds them -- maybe controls and impels them -- whether rightfully or wrongfully, to make the cause of one the cause of all? And this practical wisdom Congress observed -- observed, I may say, not in speculation of uncertain provision of evils, but in experience of evils -- an experience which approached to the dimensions of a National calamity. The facts of history should not be overlooked, nor the course of legislation. The act involved in the present case was preceded by one enacted in 1888 of similar purport. 25 Stat. 501, c. 1063. That act did not recognize labor associations, or distinguish between the members of such associations and the other employees of carriers. It failed in its purpose, whether from defect in its provisions or other cause, we may only conjecture. At any rate, it did not avert the strike at Chicago in 1894. Investigation followed, and, as a result of it, the act of 1898 was finally passed. Presumably its provisions and remedy were addressed to the mischief which the act of 1888 failed to reach or avert. It was the judgment of Congress that the scheme of arbitration might be helped by engaging in it the labor associations. Those associations unified bodies of employees in every department of the carriers, and this unity could be an obstacle or an aid to arbitration. It was attempted to be made an aid, but how could it be made an aid if, pending the efforts of "mediation and conciliation" Page 208 U. S. 186 of the dispute, as provided in § 2 of the act, other provisions of the act may be arbitrarily disregarded which are of concern to the members in the dispute? How can it be an aid, how can controversies which may seriously interrupt or threaten to interrupt the business of carriers (I paraphrase the words of the statute), be averted or composed if the carrier can bring on the conflict or prevent its amicable settlement by the exercise of mere whim and caprice? I say mere whim or caprice, for this is the liberty which is attempted to be vindicated as the Constitutional right of the carriers. And it may be exercised in mere whim and caprice. If ability, the qualities of efficient and faithful workmanship can be found outside of labor associations, surely they may be found inside of them. Liberty is an attractive theme, but the liberty which is exercised in sheer antipathy does not plead strongly for recognition. There is no question here of the right of a carrier to mingle in his service "union" and "non-union" men. If there were, broader considerations might exist. In such a right there would be no discrimination for the "union" and no discrimination against it. The efficiency of an employee would be its impulse and ground of exercise. I need not stop to conjecture whether Congress could or would limit such right. It is certain that Congress has not done so by any provision of the act under consideration. Its letter, spirit and purpose are decidedly the other way. It imposes, however, a restraint, which should be noticed. The carriers may not require an applicant for employment or an employee to agree not to become or remain a member of a labor organization. But this does not constrain the employment of anybody, be he what he may. But it is said it cannot be supposed that labor organizations will, "by illegal or violent measures, interrupt or impair the freedom of commerce," and to so suppose would be disrespect to a coordinate branch of the Government and to impute to it a purpose "to accord to one class of wage-earners privileges withheld from another class of wage-earners engaged, it may Page 208 U. S. 187 be, in the same kind of labor and serving the same employer." Neither the supposition nor the disrespect is necessary, and, it may be urged, they are no more invidious than to impute to Congress a careless or deliberate or purposeless violation of the Constitutional rights of the carriers. Besides, the legislation is to be accounted for. It, by its letter, makes a difference between members of labor organizations and other employees of carriers. If it did not, it would not be here for review. What did Congress mean? Had it no purpose? Was it moved by no cause? Was its legislation mere wantonness, and an aimless meddling with the commerce of the country? These questions may find their answers in In re Debs, 158 U. S. 564 . I have said that it is not necessary to suppose that labor organizations will violate the law, and it is not. Their power may be effectively exercised without violence or illegality, and it cannot be disrespect to Congress to let a committee of the Senate speak for it and tell the reason and purposes of its legislation. The Committee on Education, in its report, said of the bill: "The measure under consideration may properly be called a voluntary arbitration bill, having for its object the settlement of disputes between capital and labor, as far as the interstate transportation companies are concerned. The necessity for the bill arises from the calamitous results in the way of ill-considered strikes arising from the tyranny of capital or the unjust demands of labor organizations, whereby the business of the country is brought to a standstill and thousands of employees, with their helpless wives and children, are confronted with starvation." And, concluding the report, said: "It is our opinion that this bill, should it became a law, would reduce to a minimum labor strikes which affect interstate commerce, and we therefore recommend its passage." With the report was submitted a letter from the Secretary of the Interstate Commerce Commission which expressed the judgment of that body, formed, I may presume, from experience of the factors in the problem. The letter said: "With the corporations as employers on one side and the organizations Page 208 U. S. 188 of railway employees as the other, there will be a measure of equality of power and force which will surely bring about the essential requisites of friendly relation, respect, consideration, and forebearance." And again: "It has been shown before the labor commission of England that, where the associations are strong enough to command the respect of their employers, the relations between employer and employee seem most amicable. For there, the employers have learned the practical convenience of treating with one thoroughly representative body instead of with isolated fragments of workmen, and the labor associations have learned the limitations of their powers." It is urged by defendant in error that "there is a marked distinction between a power to regulate commerce and a power to regulate the affairs of an individual or corporation engaged in such commerce," and how can it be, it is asked, a regulation of commerce to prevent a carrier from selecting his employees or constraining him to keep in his service those whose loyalty to him is "seriously impaired, if not destroyed, by their prior allegiance to their labor unions"? That the power of regulation extends to the persons engaged in interstate commerce is settled by decision. Employers' Liability Cases, 207 U. S. 463 , and the cases cited in Mr. Justice Moody's dissenting opinion. The other proposition points to no evil or hazard of evil. Section 10 does not constrain the employment of incompetent workmen, and gives no encouragement or protection to the disloyalty of an employee or to deficiency in his work or duty. If guilty of either, he may be instantly discharged without incurring any penalty under the statute. Counsel also makes a great deal of the difference between direct and indirect effect upon interstate commerce, and assert that § 10 is an indirect regulation, at best, and not within the power of Congress to enact. Many cases are cited which, it is insisted, sustain the contention. I cannot take time to review the cases. I have already alluded to the contention, and it is enough to say that it gives too much isolation to § 10. Page 208 U. S. 189 The section is part of the means to secure and make effective the scheme of arbitration set forth in the statute. The contention, besides, is completely answered by Employers' Liability Cases, supra. In that case, as we have seen, the power of Congress was exercised to establish a rule of liability of a carrier to his employees for personal injuries received in his service. It is manifest that the kind or extent of such liability is neither traffic nor intercourse, the transit of persons or the carrying of things. Indeed, such liability may have wider application than to carriers. It may exist in a factory; it may exist on a farm, and in both places, or in commerce -- its direct influence might be hard to find or describe. And yet this court did not hesitate to pronounce it to be within the power of Congress to establish. "The primary object," it was said in Johnson v. Railroad, 196 U. S. 17 , of the safety appliance act, "was to promote the public welfare by securing the safety of employees and travelers." The rule of liability for injuries is even more round about in its influence on commerce and as much so as the prohibition of § 10. To contend otherwise seems to me to be an oversight of the proportion of things. A provision of law which will prevent or tend to prevent the stoppage of every wheel in every car of an entire railroad system certainly has as direct influence on interstate commerce as the way in which one car may be coupled to another, or the rule of liability for personal injuries to an employee. It also seems to me to be an oversight of the proportions of things to contend that, in order to encourage a policy of arbitration between carriers and their employees which may prevent a disastrous interruption of commerce, the derangement of business, and even greater evils to the public welfare, Congress cannot restrain the discharge of an employee, and yet can, to enforce a policy of unrestrained competition between railroads, prohibit reasonable agreements between them as to the rates at which merchandise shall be carried. And mark the contrast of what is prohibited. In the one case, the restraint, it may be, of a whim -- certainly of nothing that affects the ability of an employee to perform his Page 208 U. S. 190 duties; nothing, therefore, which is of any material interest to the carrier; in the other case, a restraint of a carefully considered policy which had as its motive great material interests and benefits to the railroads, and, in the opinion of many, to the public. May such action be restricted, must it give way to the public welfare, while the other, moved, it may be, by prejudice and antagonism, is intrenched impregnably in the Fifth Amendment of the Constitution against regulation in the public interest. I would not be misunderstood. I grant that there are rights which can have no material measure. There are rights which, when exercised in a private business, may not be disturbed or limited. With them we are not concerned. We are dealing with rights exercised in a quasi -public business, and therefore subject to control in the interest of the public. I think the judgment should be affirmed. MR. JUSTICE HOLMES, dissenting. I also think that the statute is constitutional, and, but for the decision of my brethren, I should have felt pretty clear about it. As we all know, there are special labor unions of men engaged in the service of carriers. These unions exercise a direct influence upon the employment of labor in that business, upon the terms of such employment and upon the business itself. Their very existence is directed specifically to the business, and their connection with it is at least as intimate and important as that of safety couplers, and, I should think, as the liability of master to servant, matters which, it is admitted, Congress might regulate, so far as they concern commerce among the States. I suppose that it hardly would be denied that some of the relations of railroads with unions of railroad employees are closely enough connected with commerce to justify legislation by Congress. If so, legislation to prevent the exclusion of such unions from employment is sufficiently near. Page 208 U. S. 191 The ground on which this particular law is held bad is not so much that it deals with matters remote from commerce among the States, as that it interferes with the paramount individual rights, secured by the Fifth Amendment. The section is, in substance, a very limited interference with freedom of contract, no more. It does not require the carriers to employ anyone. It does not forbid them to refuse to employ anyone, for any reason they deem good, even where the notion of a choice of persons is a fiction and wholesale employment is necessary upon general principles that it might be proper to control. The section simply prohibits the more powerful party to exact certain undertakings, or to threaten dismissal or unjustly discriminate on certain grounds against those already employed. I hardly can suppose that the grounds on which a contract lawfully may be made to end are less open to regulation than other terms. So I turn to the general question whether the employment can be regulated at all. I confess that I think that the right to make contracts at will that has been derived from the word liberty in the amendments has been stretched to its extreme by the decisions; but they agree that sometimes the right may be restrained. Where there is, or generally is believed to be, an important ground of public policy for restraint, the Constitution does not forbid it, whether this court agrees or disagrees with the policy pursued. It cannot be doubted that, to prevent strikes, and, so far as possible, to foster its scheme of arbitration might be deemed by Congress an important point of policy, and I think it impossible to say that Congress might not reasonably think that the provision in question would help a good deal to carry its policy along. But suppose the only effect really were to tend to bring about the complete unionizing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do is one on which intelligent people may differ -- I think that laboring men sometimes attribute to them advantages, as Page 208 U. S. 192 many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind -- but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest not only of the men, but of the railroads and the country at large.

In Adair v. United States, the Supreme Court ruled that Congress cannot criminalize the act of a carrier engaged in interstate commerce firing an employee due to their membership in a labor organization. The Court held that this provision of the Interstate Commerce Act violated the Fifth Amendment's guarantee of liberty and property, as it interfered with the employer's right to prescribe terms of employment and the employee's right to sell their labor. This case affirmed the principle of liberty of contract, where both employers and employees have the right to agree on terms of employment. The Court also noted that the power to regulate interstate commerce does not allow Congress to violate fundamental constitutional rights.

Labor & Employment

NLRB v. Fansteel Metallurgical Corp.

https://supreme.justia.com/cases/federal/us/306/240/

U.S. Supreme Court Labor Board v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939) Labor Board v. Fansteel Metallurgical Corp. No. 436 Argued January 12, 13, 1939 Decided February 27, 1939 306 U.S. 240 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus 1. Seizure and forcible retention of an employer's factory buildings by employees, in a "sit-down" strike, is good cause for their discharge. P. 306 U. S. 252 . 2. The National Labor Relations Act does not undertake to abrogate the right of an employer to refuse to retain in his employ those who illegally take and hold possession of his property. P. 306 U. S. 255 . 3. The National Labor Relations Act is not to be construed as compelling employers to retain persons in their employ regardless of their unlawful conduct. In recognizing the right to strike, it contemplates a lawful strike, and where a strike, even though actuated by unfair labor practices of the employer, is initiated Page 306 U. S. 241 and conducted in lawlessness by the seizure and retention of the employer's property, and the strikers are discharged because of their lawlessness, they do not remain "employees" within the meaning of § 2(3), and are not within the authority to reinstate "employees" reposed in the Board by § 10(c). P. 306 U. S. 256 . 4. The provision of § 10(c) of the Act, by which the Board may require an employer to take such affirmative action as will "effectuate the policies" of the Act, does not authorize the Board to require reemployment of men who have been discharged for such unlawful conduct. P. 306 U. S. 257 . 5. Strikers who aided and abetted a "sit-down" strike are in no better case than the "sit-down" strikers themselves. Assuming that, through not having been formally discharged, they retained the status of "employees" by virtue of § 2(3), that provision does not automatically reinstate them, and the provision that the Board may require "such affirmative action, including reinstatement of employees," as will "effectuate the policies" of the Act, will not countenance an order requiring reinstatement in such circumstances. P. 306 U. S. 259 . 6. An order of the National Labor Relations Board requiring reinstatement of employees must be supported by specific findings. P. 306 U. S. 261 . 7. An order of the Board that the employer bargain with a particular organization as exclusive representative of employees should not be enforced where, by reason of valid discharges and new employments, there is no ground to conclude that the organization is the choice of a majority of the employees for the purpose of collective bargaining. P. 306 U. S. 261 . 8. An order of the Board requiring an employer to withdraw recognition from an organization of employees should be upheld where there is substantial evidence that the formation of this organization was brought about through promotion efforts of the employer contrary to the provision of § 8(2) of the Act. P. 306 U. S. 262 . 98 F.2d 375 affirmed with modifications. Certiorari, 305 U.S. 590, to review a judgment setting aside an order of the National Labor Relations Board. Page 306 U. S. 247 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. The Circuit Court of Appeals set aside an order of the National Labor Relations Board requiring respondent to desist from labor practices found to be in violation of the National Labor Relations Act, and to offer reinstatement to certain discharged employees with backpay. While the other portions of the Board's order are under review, the principal question presented relates to the authority of the Board to require respondent to reinstate employees who were discharged because of their unlawful conduct in seizing respondent's property in what is called a "sit-down strike." Respondent, Fansteel Metallurgical Corporation, is engaged at North Chicago, Illinois, in the manufacture and sale of products made from rare metals. No question is raised as to the intimate relation of its operations to interstate commerce, or the effect upon that commerce of the unfair labor practices with which the corporation is charged. The findings of the Board show that, in the summer of 1936, a group of employees organized Lodge 66 under the auspices of a committee of the Amalgamated Association of Iron, Steel, and Tin Workers of North America; that respondent employed a "labor spy" to engage in espionage within the Union, and his employment was continued until about December 1, 1936; that, on September 10, 1936, respondent's superintendent was requested to meet with a committee of the union, and the superintendent required that the committee should consist Page 306 U. S. 248 only of employees of five years' standing; that a committee, so constituted, presented a contract relating to working conditions; that the superintendent objected to "closed shop and check-off provisions," and announced that it was respondent's policy to refuse recognition to "outside" unions; that, on September 21, 1936, the superintendent refused to confer with the committee in which an "outside" organizer had been included; that, meanwhile, and later, respondent's representatives sought to have a "company union" set up, but the attempt proved abortive; that, from November, 1936, to January, 1937, the superintendent required the president of the Union to work in a room adjoining the superintendent's office with the purpose of keeping him away from the other workers; that while, in September, 1936, the Union did not have a majority of the production and maintenance employees, an appropriate unit for collective bargaining, by February 17, 1937, 155 of respondent's 229 employees in that unit had joined the Union and had designated it as their collective bargaining representative; that, on that date, a committee of the Union met twice with the superintendent, who refused to bargain with the Union as to rates of pay, hours, and conditions of employment, the refusal being upon the ground that respondent would not deal with an "outside" union. Shortly after the second meeting in the afternoon of February 17th, the Union committee decided upon a "sit-down strike" by taking over and holding two of respondent's "key" buildings. These were thereupon occupied by about 95 employees. Work stopped, and the remainder of the plant also ceased operations. Employees who did not desire to participate were permitted to leave, and a number of Union members who were on the night shift and did not arrive for work until after the seizure did not join their fellow members inside the buildings. At about six o'clock in the evening, the superintendent, Page 306 U. S. 249 accompanied by police officials and respondent's counsel, went to each of the buildings and demanded that the men leave. They refused, and respondent's counsel "thereupon announced in loud tones that all the men in the plant were discharged for the seizure and retention of the buildings." The men continued to occupy the buildings until February 26, 1937. Their fellow members brought them food, blankets, stoves, cigarettes, and other supplies. On February 18th, respondent obtained from the state court an injunction order requiring the men to surrender the premises. The men refused to obey the order, and a writ of attachment for contempt was served on February 19th. Upon the men's refusal to submit, a pitched battle ensued, and the men successfully resisted the attempt by the sheriff to evict and arrest them. Efforts at mediation on the part of the United States Department of Labor and the Governor of Illinois proved unavailing. On February 26th, the sheriff with an increased force of deputies, made a further attempt, and this time, after another battle, the men were ousted and placed under arrest. Most of them were eventually fined and given jail sentences for violating the injunction. Respondent, on regaining possession, undertook to resume operations, and production gradually began. By March 12th, the restaffing was approximately complete. A large number of the strikers, including many who had participated in the occupation of the buildings, were individually solicited to return to work with backpay, but without recognition of the Union. Some accepted the offer, and were reinstated; others refused to return unless there were union recognition and mass reinstatement, and were still out at the time of the hearing before the Board. New men were hired to fill the positions of those remaining on strike. Meanwhile, the Union was not inactive. On March 3d and 5th, there were requests, which respondent refused, Page 306 U. S. 250 for meetings to consider the recognition of the Union for collective bargaining. There was no collective request for reinstatement of all the strikers. The position of practically all the strikers who did not go back, and who were named in the complaint filed with the Board, was "that they were determined to stay out until the Union reached a settlement with the respondent." Early in April, a labor organization known as Rare Metal Workers of America, Local No. 1, was organized among respondent's employees. There was a meeting in one of respondent's buildings on April 15th which was attended by about 200 employees, and the balloting resulted in a vote of 185 to 15 in favor of the formation of an "independent" organization. Another meeting was held soon after for the election of officers. Respondent accorded these efforts various forms of support. The Board concluded that the Rare Metal Workers of America, Local No. 1, was the result of the respondent's "anti-union campaign," and that respondent had dominated and interfered with its formation and administration. Upon the basis of these findings and its conclusions of law, the Board made its order directing respondent to desist from interfering with its employees in the exercise of their right to self-organization, and to bargain collectively through representatives of their own choosing, as guaranteed in § 7 of the Act; from dominating or interfering with the formation or administration of the Rare Metal Workers of America, Local No. 1, or any other labor organization of its employees or contributing support thereto, and from refusing to bargain collectively with the Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge 66, as the exclusive representative of the employees described. The Board also ordered the following affirmative action which it was found would "effectuate the policies" of the Act -- that is, upon request, to bargain collectively with the Amalgamated Page 306 U. S. 251 Association as stated above; to offer, upon application, to the employees who went on strike on February 17, 1937, and thereafter, "immediate and full reinstatement to their former positions," with backpay, dismissing, if necessary, all persons hired since that date; to withdraw all recognition from Rare Metal Workers of America, Local No. 1, as a representative of the employees for the purpose of dealing with respondent as to labor questions, and to "completely disestablish" that organization as such representative, and to post notices of compliance. 5 N.L.R.B. 930. The Board found that respondent had not engaged in unfair labor practices by "discrimination in regard to hire or tenure of employment" in order to "encourage or discourage membership in any labor organization," and, accordingly, the complaint under § 8(3) of the Act was dismissed. Id. On respondent's petition, the Circuit Court of Appeals set aside the Board's order 98 F.2d 375, and this Court granted certiorari, 305 U.S. 590. First. The unfair labor practices. -- The Board concluded that, by "the anti-union statements and actions" of the superintendent on September 10, 1936, and September 21, 1936, by "the campaign to introduce into the plant a company union," by "the isolation of the union president from contact with his fellow employees," and by the employment and use of a "labor spy," respondent had interfered with its employees, and restrained and coerced them, in the exercise of their right to self-organization guaranteed in § 7 of the Act, and thus had engaged in an unfair labor practice under § 8(1) of the Act. Owing to the fact that, in September, 1936, the Union did not have a majority of the employees in the appropriate unit, the Board held that it was precluded from finding unfair labor practices in refusing to bargain collectively at that time, but the Board found that there Page 306 U. S. 252 was such a refusal on February 17, 1937, when the Union did have a majority of the employees in the appropriate unit, and that this constituted a violation of § 8(5). These conclusions are supported by the findings of the Board, and the latter, in this relation, have substantial support in the evidence. Second. The discharge of the employees for illegal conduct in seizing and holding respondent's buildings. -- The Board does not now contend that there was not a real discharge on February 17th when the men refused to surrender possession. The discharge was clearly proved. Nor is there any basis for dispute as to the cause of the discharge. Representatives of respondent demanded that the men leave, and, on their refusal, announced that they were discharged "for the seizure and retention of the buildings." The fact that it was a general announcement applicable to all the men in the plant who thus refused to leave does not detract from the effect of the discharge, either in fact or in law. Nor is it questioned that the seizure and retention of respondent's property were unlawful. It was a high-handed proceeding without shadow of legal right. It became the subject of denunciation by the state court under the state law, resulting in fines and jail sentences for defiance of the court's order to vacate and in a final decree for respondent as the complainant in the injunction suit. This conduct on the part of the employees manifestly gave good cause for their discharge unless the National Labor Relations Act abrogates the right of the employer to refuse to retain in his employ those who illegally take and hold possession of his property. Third. The authority of the Board to require the reinstatement of the employees thus discharged. -- The contentions of the Board, in substance, are these: (1) that Page 306 U. S. 253 the unfair labor practices of respondent led to the strike, and thus furnished ground for requiring the reinstatement of the strikers; (2) that, under the terms of the Act, employees who go on strike because of an unfair labor practice retain their status as employees, and are to be considered as such despite discharge for illegal conduct; (3) that the Board was entitled to order reinstatement or reemployment in order to "effectuate the policies" of the Act. (1) For the unfair labor practices of respondent, the Act provided a remedy. Interference in the summer and fall of 1936 with the right of self-organization could at once have been the subject of complaint to the Board. The same remedy was available to the employees when collective bargaining was refused on February 17, 1937. But, reprehensible as was that conduct of the respondent, there is no ground for saying that it made respondent an outlaw, or deprived it of its legal rights to the possession and protection of its property. The employees had the right to strike, but they had no license to commit acts of violence or to seize their employer's plant. We may put on one side the contested questions as to the circumstances and extent of injury to the plant and its contents in the efforts of the men to resist eviction. The seizure and holding of the buildings was itself a wrong apart from any acts of sabotage. But, in its legal aspect, the ousting of the owner from lawful possession is not essentially different from an assault upon the officers of an employing company, or the seizure and conversion of its goods, or the despoiling of its property, or other unlawful acts in order to force compliance with demands. To justify such conduct because of the existence of a labor dispute or of an unfair labor practice would be to put a premium on resort to force, instead of legal remedies, and to subvert the principles of law and order which lie at the foundations of society. Page 306 U. S. 254 As respondent's unfair labor practices afforded no excuse for the seizure and holding of its buildings, respondent had its normal rights of redress. Those rights, in their most obvious scope, included the right to discharge the wrongdoers from its employ. To say that respondent could resort to the state court to recover damages or to procure punishment, but was powerless to discharge those responsible for the unlawful seizure, would be to create an anomalous distinction for which there is no warrant unless it can be found in the terms of the National Labor Relations Act. We turn to the provisions which the Board invokes. (2) In construing the Act in Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 301 U. S. 45 -46, we said that it "does not interfere with the normal exercise of the right of the employer to select its employees or to discharge them;" that the employer "may not, under cover of that right, intimidate or coerce its employees with respect to their self-organization and representation, and, on the other hand, the Board is not entitled to make its authority a pretext for interference with the right of discharge when that right is exercised for other reasons than such intimidation and coercion." See also Associated Press v. Labor Board, 301 U. S. 103 , 301 U. S. 132 . Compare Texas & New Orleans R. Co. v. Brotherhood, 281 U. S. 548 , 281 U. S. 571 ; Virginian Railway Co. v. System Federation No. 40, 300 U. S. 515 , 300 U. S. 559 . It is apparent under that construction of the Act that, had there been no strike, and employees had been guilty of unlawful conduct in seizing or committing depredations upon the property of their employer, that conduct would have been good reason for discharge, as discharge on that ground would not be for the purpose of intimidating or coercing employees with respect to their right of self-organization or representation, or because of any lawful Page 306 U. S. 255 union activity, but would rest upon an independent and adequate basis. But the Board, in exercising its authority under §10(c) to reinstate "employees," insists that, here, the status of the employees was continued, despite discharge for unlawful conduct, by virtue of the definition of the term "employee" in § 2(3). By that definition, the term includes "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment. . . ." We think that the argument misconstrues the statute. We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct -- to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property, which they would not have enjoyed had they remained at work. Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression. We find no such expression in the cited provision. We think that the true purpose of Congress is reasonably clear. Congress was intent upon the protection of the right of employees to self-organization and to the selection of representatives of their own choosing for collective bargaining without restraint or coercion. Labor Board v. Jones & Laughlin Steel Corp., supra, page p. 301 U. S. 33 . To assure that protection, the employer is not permitted to discharge his employees because of union activity or agitation for collective bargaining. Associated Press v. Labor Board, supra. The conduct thus protected is lawful conduct. Page 306 U. S. 256 Congress also recognized the right to strike -- that the employees could lawfully cease work at their own volition because of the failure of the employer to meet their demands. Section 13 provides that nothing in the Act "shall be construed so as to interfere with or impede or diminish in any way the right to strike." But this recognition of "the right to strike" plainly contemplates a lawful strike -- the exercise of the unquestioned right to quit work. As we said in Labor Board v. Mackay Radio & Telegraph Co., 304 U. S. 333 , 304 U. S. 347 , "if men strike in connection with a current labor dispute, their action is not to be construed as a renunciation of the employment relation, and they remain employees for the remedial purposes specified in the act." There is thus abundant opportunity for the operation of § 2(3) without construing it as countenancing lawlessness or as intended to support employees in acts of violence against the employer's property by making it impossible for the employer to terminate the relation upon that independent ground. Here, the strike was illegal in its inception and prosecution. As the Board found, it was initiated by the decision of the Union committee "to take over and hold two of the respondent's key' buildings." It was pursuant to that decision that the men occupied the buildings and the work stopped. This was not the exercise of "the right to strike" to which the Act referred. It was not a mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful. It was an illegal seizure of the buildings in order to prevent their use by the employer in a lawful manner, and thus, by acts of force and violence, to compel the employer to submit. When the employees resorted to that sort of compulsion, they took a position outside the protection of the statute, and accepted the risk of the termination of their employment Page 306 U. S. 257 upon grounds aside from the exercise of the legal rights which the statute was designed to conserve. (3) The Board contends that its order is valid under the terms of the Act "regardless of whether the men remained employees." The Board bases its contention on the general authority, conferred by § 10(c), to require the employer to take such affirmative action as will "effectuate the policies" of the Act. Such action, it is argued, may embrace not only reinstatement of those whose status as employees has been continued by virtue of § 2(3), but also a requirement of the "reemployment" of those who have ceased to be employed. The authority to require affirmative action to "effectuate the policies" of the Act is broad, but it is not unlimited. It has the essential limitations which inhere in the very policies of the Act which the Board invokes. Thus, in Consolidated Edison Co. v. Labor Board, 305 U. S. 197 , we held that the authority to order affirmative action did not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices, even though the Board is of the opinion that the policies of the Act may be effectuated by such an order. We held that the power to command affirmative action is remedial, not punitive, and is to be exercised in aid of the Board's authority to restrain violations and as a means of removing or avoiding the consequences of violation where those consequences are of a kind to thwart the purposes of the Act. We repeat that the fundamental policy of the Act is to safeguard the rights of self-organization and collective bargaining, and thus, by the promotion of industrial peace, to remove obstructions to the free flow of commerce as defined in the Act. There is not a line in the statute to warrant the conclusion that it is any part of the policies Page 306 U. S. 258 of the Act to encourage employees to resort to force and violence in defiance of the law of the land. On the contrary, the purpose of the Act is to promote peaceful settlements of disputes by providing legal remedies for the invasion of the employees' rights. Elections may be ordered to decide what representatives are desired by the majority of employees in appropriate units as determined by the Board. To secure the prevention of unfair labor practices by employers, complaints may be filed and heard, and orders made. The affirmative action that is authorized is to make these remedies effective in the redress of the employees' rights, to assure them self-organization and freedom in representation, not to license them to commit tortious acts, or to protect them from the appropriate consequences of unlawful conduct. We are of the opinion that to provide for the reinstatement or reemployment of employees guilty of the acts which the Board finds to have been committed in this instance would not only not effectuate any policy of the Act, but would directly tend to make abortive its plan for peaceable procedure. What we have said also meets the point that the question whether reinstatement or reemployment would effectuate the policies of the Act is committed to the decision of the Board in the exercise of its discretion, subject only to the limitation that its action may not be "arbitrary, unreasonable, or capricious." The Board recognizes that, in "many situations," reinstatement or reemployment after discharge for illegal acts would not be proper, but the Board insists that it was proper in this instance. For the reasons we have given, we disagree with that view. We think that a clearer case could hardly be presented, and that, whatever discretion may be deemed to be committed to the Board, its limits were transcended by the order under review. Page 306 U. S. 259 The Board stresses the fact that, when respondent was able to obtain possession of its buildings and to resume operations, it offered reemployment to many of the men who had participated in the strike. The contention confuses what an employer may voluntarily and legally do in the exercise of his right of selection, and what the Board is entitled to compel. In announcing the reopening, respondent stated its belief that a large number of men who had taken part in the seizure of the plant were compelled to do so through coercion and intimidation, and that applications for reemployment from such men would receive favorable consideration. The Board challenges the statement that respondent limited its rehiring to such applicants. The Board points to evidence showing that everyone who applied for reemployment during the period of restaffing was taken back without condition, except two employees who were advanced in years and were not reinstated solely for that reason, and to the testimony of the superintendent that at least thirty-seven were rehired "who had been in the sit-down." We find it unnecessary to consider in detail the respective contentions as to respondent's offer of reemployment, for we think that its action did not alter the unlawful character of the strike or respondent's rights in that aspect. The important point is that respondent stood absolved by the conduct of those engaged in the "sit-down" from any duty to reemploy them, but respondent was nevertheless free to consider the exigencies of its business and to offer reemployment if it chose. In so doing, it was simply exercising its normal right to select its employees. Fourth. The requirement of reinstatement of employees who aided and abetted those who seized and held the buildings. There is a group of fourteen persons in this class who were not within the buildings, and hence do not appear to have been within the announcement of discharge, Page 306 U. S. 260 but who went on strike and fall within the order for reinstatement. The Board made no separate findings with respect to these particular persons, and refers us to the evidence to show their relation to the transactions under review. This, however, sufficiently appears in the stipulation of facts, to which the Board was a party, naming in paragraph 12 these fourteen persons and describing their conduct as follows: "All of the following men were employees of the company on February 17, 1937, but did not participate in the seizure and retention of the building, but aided and abetted the men within the said buildings 3 and 5 in the retention of the said buildings by soliciting, procuring, and delivering of food, bedding, cigarettes, stoves, or other supplies, or in some other manner, and thereby assisted the said men in buildings 3 and 5 to remain therein contrary to the injunction order and writ of injunction heretofore mentioned; that all of the said men named in this paragraph had actual knowledge of the issuance of the said injunction order and writ of injunction ordering and directing the men in buildings 3 and 5 to vacate the same, and that their activities in aiding and abetting the men in buildings 3 and 5 were done with a view to and for the purpose of assisting the said men to remain in the said buildings after the issuance of the said injunction order and writ of injunction and with knowledge thereof. None of the men named in this paragraph was discharged by the company on February 17, 1937, or thereafter, and none of these men was recalled to work by the company upon the resumption of plant operations shortly after February 26th, 1937: [the names follow]." It cannot be said that, independently of the Act, respondent was bound to reinstate those who had thus aided and abetted the "sit-down" strikers in defying the court's order. If it be assumed that, by virtue of § 2(3), Page 306 U. S. 261 they still had the status of "employees," that provision did not automatically provide reinstatement. Whether the Board could order it must turn on the application of the provision empowering the Board to require "such affirmative action, including reinstatement of employees" as will "effectuate the policies" of the Act. We are thus returned to the question already discussed, and we think that, in that respect, these aiders and abettors, likewise guilty of unlawful conduct, are in no better case than the "sit-down" strikers themselves. We find no ground for concluding that there is any policy of the Act which justifies the Board in ordering reinstatement in such circumstances. Fifth. -- There are nine other persons apparently embraced within the order of reinstatement as to which respondent interposes special objections. As to seven, respondent objects to the reinstatement upon the ground that they were inefficient, and that no showing of union activity by any of them was made. As to two others, respondent contends that they refused its request to return to work without any conditions, and that their places were accordingly filled. With respect to these nine persons, and to a miscellaneous group of five others, including three as to whom the trial examiner recommended dismissal of the complaint, the Board has not supplied specific findings upon the points in controversy to sustain its order. We are of the opinion that the Circuit Court of Appeals did not err in setting aside the requirement of reinstatement. Sixth. The requirement that respondent shall bargain collectively with Lodge 66 of the Amalgamated Association as the exclusive representative of the employees in the described unit. Respondent resumed work about March 12, 1937. The Board's order was made on March 14, 1938. In view of Page 306 U. S. 262 the change in the situation by reason of the valid discharge of the "sit-down" strikers and the filling of positions with new men, we see no basis for a conclusion that, after the resumption of work Lodge 66 was the choice of a majority of respondent's employees for the purpose of collective bargaining. The Board's order properly requires respondent to desist from interfering in any manner with its employees in the exercise of their right to self-organization, and to bargain collectively, through representatives of their own choosing. But it is a different matter to require respondent to treat Lodge 66 in the altered circumstances as such a representative. If it is contended that Lodge 66 is the choice of the employees, the Board has abundant authority to settle the question by requiring an election. Seventh. The requirement that respondent shall withdraw all recognition from Rare Metal Workers of America, Local No. 1. While respondent presents a strong protest, insisting that Local No. 1 of the Rare Metal Workers was the free choice of the employees after work was resumed, we cannot say that there is not substantial evidence that the formation of this organization was brought about through promotion efforts of respondent contrary to the provision of § 8(2), and we think that the order of the Board in this respect should be sustained. Whether Rare Metal Workers of America, Local No. 1, or any other organization, is the choice of the majority of the employees in the proper unit can be determined by proceedings open to the Board. The provisions of the Board's order contained in Paragraph 1, subdivisions (a) and (b), in Paragraph 2, subdivision (d), and in Paragraph 2, subdivisions (e) and (f), so far as these refer to the first-mentioned provisions, and the final Paragraph of the order dismissing the charge Page 306 U. S. 263 under § 8(3) of the Act, are sustained. The other provisions of the order are set aside. The judgment of the Circuit Court of Appeals is modified accordingly, and, as modified, is affirmed. Modified and affirmed. MR. JUSTICE FRANKFURTER took no part in the consideration and decision of this case. MR. JUSTICE STONE, concurring in part. I concur in so much of the Court's decision as holds that the Board was without statutory authority to order reinstatement of those employees who were discharged on February 17, 1937. But I rest this conclusion solely on the construction of § 2(3) and § 10(c) of the National Labor Relations Act. By § 10(c), the Board is given authority to reinstate in their employment only those who are "employees." Before the Board made its order, respondent's employees, by reason of their lawful discharge for cause, had lost their status as such, which would otherwise have been preserved to them under § 2(3). The National Labor Relations Act, as its purpose and scope are disclosed by its preamble and operative provisions and explained by the reports of the Congressional committees recommending its enactment, Report No. 573, Senate Committee on Education and Labor, 74th Cong., 1st Sess.; Report No. 1147, House Committee on Labor, 74th Cong., 1st Sess., is aimed at securing the peaceable settlement of labor disputes by the prevention of unfair labor practices of the employer, and by requiring him to bargain collectively with his employees. Since one means adopted by the Act to secure this end is the reinstatement, by the discretionary action of the National Labor Relations Board, of employees when unfair labor Page 306 U. S. 264 practices have caused them to cease work, it was necessary to provide that they should not lose their status as employees by reason of that fact. This was accomplished by § 2(3), which provides: "The term 'employee' shall include . . . any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice. . . ." Having in mind the purposes of the Act and the end sought by the enactment of this section, I think its fair meaning is that attributed to it by the Senate Committee Report, supra, pp. 6-7, which declared: "The bill thus observes the principle that men do not lose their right to be considered as employees for the purposes of this bill merely by collectively refraining from work during the course of a labor controversy. . . . And to hold that a worker who, because of an unfair labor practice, has been discharged or locked out or gone on strike is no longer an employee would be to give legal sanction to an illegal act, and to deny redress to the individual injured thereby." But it does not follow, because the section preserves this right to employees where they have ceased work by reason of a labor dispute or unfair labor practice, that its language is to be read as depriving the employer of his right, which the statute does not purport to withdraw, to terminate the employer-employee relationship for reasons dissociated with the stoppage of work because of unfair labor practices. The language which saves the employee status for those who have ceased work because of unfair labor practices does not embrace also those who have lost their status for a wholly different reason -- their discharge for unlawful practices which the Act does not countenance. Page 306 U. S. 265 There is nothing in the Act, read as a whole, to indicate such a purpose, and there is no language in § 2(3) directed to such an end. I cannot attribute to Congress, in the adoption of § 2(3), explained as it was in the Senate Committee Report, a purpose to cut off the right of an employer to discharge employees who have destroyed his factory, and to refuse to reemploy them, if that is the real reason for his action. If a plainer indication of such a purpose had been given by the language of § 2(3), I should have thought it of sufficiently dubious constitutionality to require us to construe its language otherwise, if that could reasonably be done, leaving it to Congress to say so, in unmistakable language, if it really meant to impose that duty on the employer. As to the fourteen employees who aided and abetted the sit-down strike, but who were not discharged, I think they retained their status under § 2(3), and that the Board had power to reinstate them. Whether that power should be exercised was a matter committed to the Board's discretion, not ours. In other respects I concur with the decision of the Court. MR. JUSTICE REED, dissenting in part. This Court agrees with the conclusion of the Labor Board that the respondent was guilty of unfair labor practices, prior to the strike, in campaigning for a company union, isolating the union president, making, through its superintendent, anti-union statements and employing a labor spy. It also accepts the Board's conclusion that there was further pre-strike violation by respondent of the Labor Relations Act by refusal to bargain collectively. None questions the power of the Board to reinstate striking employees as a means of redress for unfair labor practices. The issue, while important, Page 306 U. S. 266 is narrow. Can an employee, on strike or let out by an unfair labor practice, be discharged, finally, by an employer so as to be ineligible for reinstatement under the act? The issue, so stated, glows feebly apart from the fire of controversy. But it may permit a more objective appraisal than to examine it when illustrated by conduct on the part of the employees which is thought to put "a premium on resort to force," and to subvert "the principles of law and order which lie at the foundations of society." None on either side of the disputed issue needs be suspected of "countenancing lawlessness," or of encouraging employees to resort to "violence in defiance of the law of the land." Disapproval of a sit-down does not logically compel the acceptance of the theory that an employer has the power to bar his striking employee from the protection of the Labor Act. The Labor Act was enacted in an effort to protect interstate commerce from the interruptions of labor disputes. This object was sought through prohibition of certain practices deemed unfair to labor, and the sanctions adopted to enforce the prohibitions included reinstatement of employees. To assure that the status of strikers was not changed from employees to individuals beyond the protection of the act, the term employee was defined to include "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice. . . ." § 2(3), Act of July 5, 1935. Without this assurance of the continued protection of the act, the striking employee would be quickly put beyond the pale of its protection by discharge. As now construed by the Court, the employer may discharge any striker, with or without cause, so long as the discharge is not used to interfere with self-organization or collective bargaining. Friction easily engendered by labor strife may readily give rise to conduct, Page 306 U. S. 267 from nose-thumbing to sabotage, which will give fair occasion for discharge on grounds other than those prohibited by the Labor Act. The Congress sought by clear language to eliminate this prolific source of ill feeling by the provision just quoted, which should be interpreted in accordance with its language as continuing the eligibility of a striker for reinstatement, regardless of conduct by the striker or action by the employer. The constitutional problem involved in such a conclusion is not different from the one involved in compelling an employer to reinstate an employee discharged for union activity. There is here no protection for unlawful activity. Every punishment which compelled obedience to law still remains in the hands of the peace officers. It is only that the act of ceasing work in a current labor dispute involving unfair labor practices suspends for a period, not now necessary to determine, the right of an employer to terminate the relation. The interference with the normal exercise of the right to discharge extends only to the necessity of protecting the relationship in industrial strife. The point is made that an employer should not be compelled to reemploy an employee guilty, perhaps, of sabotage. This depends upon circumstances. It is the function of the Board to weigh the charges and countercharges and determine the adjustment most conducive to industrial peace. Courts certainly should not interfere with the normal action of administrative bodies in such circumstances. Here, both labor and management had erred grievously in their respective conduct. It cannot be said to be unreasonable to restore both to their former status. Such restoration would apply to the sit-down strikers and those striking employees who aided and abetted them. I am of the view that the provisions of the order of the Board ordering an offer of reinstatement to the employees Page 306 U. S. 268 discussed above should be sustained. As the remainder of the order is affected by the determination upon this issue but not wholly controlled by the conclusions, no opinion is expressed as to the other requirements of the order. MR. JUSTICE BLACK concurs in this dissent.

In the case of Labor Board v. Fansteel Metallurgical Corp., the United States Supreme Court ruled that employees who engage in a "sit-down" strike, illegally seizing and holding possession of their employer's property, can be lawfully discharged and are not protected by the National Labor Relations Act. The Court also upheld the employer's right to refuse to reinstate these employees, even if their strike was initially prompted by unfair labor practices. The Court further ruled that an order from the National Labor Relations Board requiring reinstatement must be supported by specific findings and that exclusive bargaining with a particular organization should only be enforced if that organization represents the majority of employees.

Labor & Employment

Hodges v. U.S.

https://supreme.justia.com/cases/federal/us/203/1/

U.S. Supreme Court Hodges v. United States, 203 U.S. 1 (1906) Hodges v. United States No. 14 of October Term. 1905 Submitted October 19, 1905 Restored to the docket for oral argument November 6, 1905 Argued April 23, 1906 Decided May 28, 1906 Opinion withheld until dissent filed, October 24, 1906 203 U.S. 1 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS Syllabus The Fourteenth and Fifteenth Amendments operate solely on state action, and not on individual action. Unless the Thirteenth Amendment vests jurisdiction in the national government, the remedy for wrongs committed by individuals on persons of African descent is through state action and state tribunals, subject to supervision of this Court by writ of error in proper cases. Notwithstanding the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments, the national government still remains one of enumerated powers, and the Tenth Amendment is not shorn of its vitality. Slavery and involuntary servitude as denounced by the Thirteenth Amendment mean a condition of enforced compulsory service of one to another, and while the cause inciting that amendment was the emancipation of the colored race, it reaches every race and every individual. The result of the Amendments to the Constitution adopted after the Civil War was to abolish slavery, and to make the emancipated slaves citizens, Page 203 U. S. 2 and not wards of the nation, over whom Congress retained jurisdiction. This decision of the people is binding upon the courts, and they cannot attempt to determine whether it was the wiser course. The United States court has no jurisdiction under the Thirteenth Amendment or §§ 1978, 1979, 5508, 5510, Revised Statutes, of a charge of conspiracy made and carried out in a state to prevent citizens of African descent, because of their race and color, from making or carrying out contracts and agreements to labor. On October 8, 1903, the grand jury returned into the District Court of the United States for the Eastern District of Arkansas an indictment charging that the defendants (now plaintiffs in error), with others, "did knowingly, willfully, and unlawfully conspire to oppress, threaten, and intimidate Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, jim Hall, and George Shelton, citizens of the United States of African descent, in the free exercise and enjoyment of rights and privileges secured to them and each of them by the Constitution and laws of the United States, and because of their having exercised the same, to-wit, the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton, being then and there persons of African descent and citizens of the United States and of the State of Arkansas, had then and there made and entered into contracts and agreements with James A. Davis and James S. Hodges, persons then and there doing business under the name of Davis & Hodges as copartners, carrying on the business of manufacturers of lumber at White Hall, in said county, the said contracts being for the employment by said firm of the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton as laborers and workmen in and about their said manufacturing establishment, by which contracts the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were, on their part, to perform labor and services at Page 203 U. S. 3 said manufactory, and were to receive, on the other hand, for their labor and services, compensation, the same being a right and privilege conferred upon them by the Thirteenth Amendment to the Constitution of the United States and the laws passed in pursuance thereof, and being a right similar to that enjoyed in said state by the white citizens thereof, and while the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were in the enjoyment of said right and privilege, the said defendants did knowingly, willfully, and unlawfully conspire as aforesaid to injure, oppress, threaten, and intimidate them in the free exercise and enjoyment of said right and privilege, and because of their having so exercised the same, and because they were citizens of African descent, enjoying said right, by then and there notifying the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton that they must abandon said contracts and their said work at said mill and cease to perform any further labor thereat, or receive any further compensation for said labor, and by threatening, in case they did not so abandon said work, to injure them, and by thereafter then and there willfully and unlawfully marching and moving in a body to and against the place of business of the said firm while the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were engaged thereat, and while they were in the performance of said contracts thereon, the said defendants being then and there armed with deadly weapons, threatening and intimidating the said workmen there employed, with the purpose of compelling them, by violence and threats and otherwise, to remove from said place of business, to stop said work, and to cease the enjoyment of said right and privilege, and by then and there willfully, deliberately, and unlawfully compelling said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton to quit said work and Page 203 U. S. 4 abandon said place and cease the free enjoyment of all advantages under said contracts, the same being so done by said defendants and each of them for the purpose of driving the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton from said place of business and from their labor because they were colored men and citizens of African descent, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States." A demurrer to this indictment, on the ground that the offense created by §§ 1977 and 5508, Rev.Stat., under which it was found, was not within the jurisdiction of the courts of the United States, but was judicially cognizable by state tribunals only, was overruled, a trial had, and the three plaintiffs in error found guilty, sentenced separately to imprisonment for different terms and to fine, and to be thereafter ineligible to any office of profit or trust created by the Constitution or laws of the United States. Sections 1977, 1978, 1979, 5508, and 5510 read as follows: "SEC. 1977. All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." "SEC. 1978. All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." "SEC. 1979. Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities Page 203 U. S. 5 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." "SEC. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit or trust created by the Constitution or laws of the United States." "SEC. 5510. Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects, or causes to be subjected any inhabitant of any state or territory to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not more than one thousand dollars, or by imprisonment not more than one year, or by both." There being constitutional questions involved, the judgment was brought directly to this Court on writ of error. Page 203 U. S. 14 MR. JUSTICE BREWER delivered the opinion of the Court. While the indictment was founded on sections 1977 and 5508, we have quoted other sections to show the scope of the legislation of Congress on the general question involved. That, prior to the three post-bellum amendments to the Constitution, the national government had no jurisdiction over a wrong like that charged in this indictment is conceded; that the Fourteenth and Fifteenth Amendments do not justify the legislation is also beyond dispute, for they, as repeatedly held, are restrictions upon state action, and no action on the part of the state is complained of. Unless, therefore, the Thirteenth Amendment vests in the nation the jurisdiction claimed, the remedy must be sought through Page 203 U. S. 15 state action and in state tribunals, subject to the supervision of this Court by writ of error in proper cases. In the Slaughter-House Cases , 16 Wall. 36, 83 U. S. 76 , in defining the privileges and immunities of citizens of the several states, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. C.C. 371: "'The inquiry,' he says," "is what are the privileges and immunities of citizens of the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would be more tedious than difficult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole." And, after referring to other cases, this Court added (p. 83 U. S. 77 ): "It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretense was set up that those rights depended on the federal government for their existence or protection beyond the very few express limitations which the federal Constitution imposed upon the states -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the states, as above defined, lay within the constitutional and legislative power of the states, and without that of the federal government. " Page 203 U. S. 16 Notwithstanding the adoption of these three amendments, the national government still remains one of enumerated powers, and the Tenth Amendment, which reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people," is not shorn of its vitality. True, the Thirteenth Amendment grants certain specified and additional power to Congress, but any congressional legislation directed against individual action which was not warranted before the Thirteenth Amendment must find authority in it. And, in interpreting the scope of that Amendment, it is well to bear in mind the words of Mr. Chief Justice Marshall, in Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 188 , which, though spoken more than four score years ago, are still the rule of construction of constitutional provisions: "As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." The Thirteenth Amendment reads: "SEC. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." "SEC. 2. Congress shall have power to enforce this article by appropriate legislation." The meaning of this is as clear as language can make it. The things denounced are slavery and involuntary servitude, and Congress is given power to enforce that denunciation. All understand by these terms a condition of enforced compulsory service of one to another. While the inciting cause of the Amendment was the emancipation of the colored race, yet it is not an attempt to commit that race to the care of the nation. It is the denunciation of a condition, and not a declaration Page 203 U. S. 17 in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon, are as much within its compass as slavery or involuntary servitude of the African. Of this Amendment it was said by Mr. Justice Miller in Slaughter-House Cases , 16 Wall. 69: "Its two short sections seem hardly to admit of construction." And again: "To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government . . . requires an effort, to say the least of it." A reference to the definitions in the dictionaries of words whose meaning is so thoroughly understood by all seems an affectation, yet in Webster slavery is defined as "the State of entire subjection of one person to the will of another," and a slave is said to be "a person who is held in bondage to another." Even the secondary meaning given recognizes the fact of subjection, as "one who has lost the power of resistance; one who surrenders himself to any power whatever; as a slave to passion, to lust, to strong drink, to ambition," and servitude is by the same authority declared to be "the state of voluntary or compulsory subjection to a master." It is said, however, that one of the disabilities of slavery, one of the indicia of its existence, was a lack of power to make or perform contracts, and that, when these defendants, by intimidation and force, compelled the colored men named in the indictment to desist from performing their contract, they, to that extent, reduced those parties to a condition of slavery -- that is, of subjection to the will of defendants -- and deprived them of a freeman's power to perform his contract. But every wrong done to an individual by another, acting singly or in concert with others, operates pro tanto to abridge some of the freedom to which the individual is entitled. A freeman has a right to be protected in his person from an assault and battery. He is entitled to hold his property safe from trespass Page 203 U. S. 18 or appropriation, but no mere personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery. Indeed, this is conceded by counsel for the government, for in their brief (after referring to certain decisions of this Court), it is said: "With these decisions and many others that might be cited before us, it is vain to contend that the federal Constitution secures to a citizen of the United States the right to work at a given occupation or particular calling free from injury, oppression, or interference by individual citizens." "Even though such right be a natural or inalienable right, the duty of protecting the citizen in the enjoyment of such right, free from individual interference, rests alone with the state." "Unless, therefore, the additional element, to-wit, the infliction of an injury upon one individual citizen by another solely on account of his color, be sufficient ground to redress such injury, the individual citizen suffering such injury must be left for redress of his grievance to the state laws." The logic of this concession points irresistibly to the contention that the Thirteenth Amendment operates only to protect the African race. This is evident from the fact that nowhere in the record does it appear that the parties charged to have been wronged by the defendants had ever been themselves slaves, or were the descendants of slaves. They took no more from the Amendment than any other citizens of the United States. But if, as we have seen, that denounces a condition possible for all races and all individuals, then a like wrong perpetrated by white men upon a Chinese, or by black men upon a white man, or by any men upon any man on account of his race, would come within the jurisdiction of Congress, and that protection of individual rights which, prior to the Thirteenth Amendment, was unquestionably within the jurisdiction solely of the states, would, by virtue of that Amendment, be transferred to the nation, and subject to the legislation of Congress. Page 203 U. S. 19 But that it was not the intent of the Amendment to denounce every act done to an individual which was wrong if done to a free man, and yet justified in a condition of slavery, and to give authority to Congress to enforce such denunciation, consider the legislation in respect to the Chinese. In slave times, in the slave states, not infrequently every free negro was required to carry with him a copy of a judicial decree or other evidence of his right to freedom or be subject to arrest. That was one of the incidents or badges of slavery. By the Act of May 5, 1892, Congress required all Chinese laborers within the limits of the United States to apply for a certificate, and anyone who, after one year from the passage of the act, should be found within the jurisdiction of the United States without such certificate might be arrested and deported. In Fong Yue Ting v. United States, 149 U. S. 698 , the validity of the Chinese deportation act was presented, elaborately argued, and fully considered by this Court. While there was a division of opinion, yet at no time during the progress of the litigation, and by no individual, counsel, or court connected with it was it suggested that the requiring of such a certificate was evidence of a condition of slavery, or prohibited by the Thirteenth Amendment. One thing more: at the close of the Civil War, when the problem of the emancipated slaves was before the nation, it might have left them in a condition of alienage, or established them as wards of the government, like the Indian tribes, and thus retained for the nation jurisdiction over them, or it might, as it did, give them citizenship. It chose the latter. By the Fourteenth Amendment, it made citizens of all born within the limits of the United States and subject to its jurisdiction. By the Fifteenth, it prohibited any state from denying the right of suffrage on account of race, color, or previous condition of servitude, and by the Thirteenth, it forbade slavery or involuntary servitude anywhere within the limits of the land. Whether this was or was not the wiser way to deal with the great problem is not a matter for the courts to Page 203 U. S. 20 consider. It is for us to accept the decision, which declined to constitute them wards of the nation or leave them in a condition of alienage where they would be subject to the jurisdiction of Congress, but gave them citizenship, doubtless believing that thereby, in the long run, their best interests would be subserved, they taking their chances with other citizens in the states where they should make their homes. For these reasons, we think that the United States court had no jurisdiction of the wrong charged in the indictment. The judgments are reversed, and the case remanded with instructions to sustain the demurrer to the indictment. The judgments are reversed, and the case remanded with instructions to sustain the demurrer to the indictment. MR. JUSTICE BROWN concurs in the judgments. MR. JUSTICE HARLAN, with whom concurs MR. JUSTICE DAY, dissenting. [ Footnote 1 ] The plaintiffs in error were indicted with eleven others in the District Court of the United States, Eastern District of Arkansas for the crime of having knowingly, willfully, and unlawfully conspired to oppress, threaten, and intimidate Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton, persons of African descent and citizens of the United States and of Arkansas, in the free exercise and enjoyment of the right and privilege -- alleged to be secured to them respectively by the Constitution and laws of the United States -- of disposing of their labor and services by contract and of performing the terms of such contract without discrimination against them because of their race or color, and without illegal interference or by violent means. [ Footnote 2 ] Page 203 U. S. 21 The indictment was based primarily upon section 5508 of the Revised Statutes, which provides: "SEC. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the Page 203 U. S. 22 same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than five thousand dollars, and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit, or trust created by the Constitution or laws of the United States." Other sections of the statutes relating to civil rights, and referred to in the discussion at the bar, although not, perhaps, vital to the decision of the present case, are as follows: "SEC. 1977. All persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, and be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." "SEC. 1978. All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof, to inherit, purchase, lease, sell, hold, and convey real and personal property." "SEC. 1979. Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution Page 203 U. S. 23 and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." "SEC. 5510. Every person who, under color of any law, statute, ordinance, regulation, or custom, subjects, or causes to be subjected, any inhabitant of any state or territory to the deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not more than one thousand dollars, or by imprisonment not more than one year, or by both." A demurrer to the indictment was overruled, and the defendants having pleaded not guilty, they were tried before a jury, and some of them -- the present plaintiffs in error -- were convicted of the crime charged, were each fined $100, and ordered to be imprisoned for one year and a day. A motion for new trial having been denied, they have brought the case to this Court. In our consideration of the questions now raise, it must be taken, upon this record, as conclusively established by the verdict and judgment -- That certain persons -- the said Berry Winn and others above named with him -- citizens of the United States, and of Arkansas, and of African descent, entered into a contract whereby they agreed to perform, for compensation, service and labor in and about the manufacturing business in that State of a private individual; That those persons, in execution of their contract, entered upon and were actually engaged in performing the work they agreed to do, when the defendants -- the present plaintiffs in error -- knowingly and willfully conspired to injure, oppress, threaten, and intimidate such laborers, solely because of their having made that contract, and because of their race and color, in the free exercise of their right to dispose of their labor, and Page 203 U. S. 24 prevent them from carrying out their contract to render such service and labor; That, in the prosecution of such conspiracy, the defendants, by violent means, compelled those laborers, simply "because they were colored men and citizens of African descent, " to quit their work and abandon the place at which they were performing labor in execution of their contract; and That, in consequence of those acts of the defendant conspirators, the laborers referred to were hindered and prevented, solely because of their race and color, from enjoying the right by contract to dispose of their labor upon such terms and to such persons as to them seemed best. Was the right or privilege of these laborers thus to dispose of their labor secured to them "by the Constitution or laws of the United States?" If so, then this case is within the very letter of section 5508 of the Revised Statutes, and the judgment should be affirmed if that section be not unconstitutional. But I need not stop to discuss the constitutionality of section 5508. It is no longer open to question in this Court that Congress may, by appropriate legislation, protect any right or privilege arising from, created or secured by, or dependent upon, the Constitution or laws of the United States. That is what that section does. It purports to do nothing more. In Ex Parte Yarbrough, 110 U. S. 651 , it was distinctly adjudged that section 5508 was a valid exercise of power by Congress. In Logan v. United States, 144 U. S. 263 , 144 U. S. 286 , 144 U. S. 293 , this Court stated that the validity of section 5508 had been sustained in the Yarbrough case, and, speaking by Mr. Justice Gray, said: "In United States v. Reese, 92 U. S. 214 , 92 U. S. 217 , decided at October term, 1875, this Court, speaking by Chief Justice Waite, said:" "Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide. These may be varied to meet the necessities of the particular right to be Page 203 U. S. 25 protected." After referring to prior adjudications, the Court in the Logan case also unanimously declared: "The whole scope and effect of this series of decisions is that, while certain fundamental rights, recognized and declared, but not granted or created, in some of the amendments to the Constitution are thereby guaranteed only against violation or abridgment by the United States or by the states, as the case may be, and cannot therefore be affirmatively enforced by Congress against unlawful acts of individuals, yet that every right created by, arising under, or dependent upon the Constitution of the United States may be protected and enforced by Congress, by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may, in its discretion, deem most eligible and best adapted to attain the object." In Motes v. United States, 178 U. S. 458 , the language of the Court was: "We have seen that, by section 5508 of the Revised Statutes, it is made an offense against the United States for two or more persons to conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, the punishment prescribed being a fine of not more than $5,000, imprisonment not more than ten years, and ineligibility to any office or place of honor, profit, or trust created by the Constitution or laws of the United States. And by section 5509 it is provided that if, in committing the above offense, any other felony or misdemeanor be committed, the offender shall suffer such punishment as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed. No question has been made -- indeed, none could successfully be made -- as to the constitutionality of these statutory provisions. Ex Parte Yarbrough, 110 U. S. 651 ; United States v. Waddell, 112 U. S. 76 . Referring to those provisions and to the clause of the Constitution giving Congress authority to pass all laws Page 203 U. S. 26 necessary and proper for carrying into execution the powers specifically granted to it, and all other powers vested in the government of the United States, . . . this Court has said:" "In the exercise of this general power of legislation, Congress may use any means appearing to it most eligible and appropriate, which are adapted to the end to be accomplished, and are consistent with the letter and the spirit of the Constitution." " Logan v. United States, 144 U. S. 263 , 144 U. S. 283 ." In view of these decisions, it is unnecessary to examine the grounds upon which the constitutionality of section 5508 rests, and I may assume that the power of the national government, by appropriate legislation, to protect a right created by, derived from, or dependent in any degree upon, the Constitution of the United States, cannot be disputed. I come now to the main question -- whether a conspiracy or combination to forcibly prevent citizens of African descent, solely because of their race and color, from disposing of their labor by contract upon such terms as they deem proper, and from carrying out such contract, infringes or violates a right or privilege created by, derived from, or dependent upon, the Constitution of the United States. Before the Thirteenth Amendment was adopted, the existence of freedom or slavery within any state depended wholly upon the Constitution and laws of such state. However abhorent to many was the thought that human beings of African descent were held as slaves and chattels, no remedy for that state of things as it existed in some of the states could be given by the United States in virtue of any power it possessed prior to the adoption of the Thirteenth Amendment. That condition, however, underwent a radical change when that Amendment became a part of the supreme law of the land, and, as such, binding upon all the states and all the people as well as upon every branch of government, federal and state. By the Amendment it was ordained that "neither slavery nor involuntary servitude, except as a punishment for Page 203 U. S. 27 crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction," and "Congress shall have power to enforce this article by appropriate legislation." Although in words and form prohibitive, yet, in law, by its own force, that Amendment destroyed slavery and all its incidents and badges, and established freedom. It also conferred upon every person within the jurisdiction of the United States (except those legally imprisoned for crime) the right, without discrimination against them on account of their race, to enjoy all the privileges that inhere in freedom. It went further, however, and, by its second section, invested Congress with power, by appropriate legislation, to enforce its provisions. To that end, by direct, primary legislation, Congress may not only prevent the reestablishing of the institution of slavery, pure and simple, but may make it impossible that any of its incidents or badges should exist or be enforced in any state or territory of the United States. It therefore became competent for Congress, under the Thirteenth Amendment, to make the establishing of slavery, as well as all attempts, whether in the form of a conspiracy or otherwise, to subject anyone to the badges or incidents of slavery offenses against the United States, punishable by fine or imprisonment or both. And legislation of that character would certainly be appropriate for the protection of whatever rights were given or created by the Amendment. So legislation making it an offense against the United States to conspire to injure or intimidate a citizen in the free exercise of any right secured by the Constitution is broad enough to embrace a conspiracy of the kind charged in the present indictment. "A right or immunity, whether created by the Constitution or only guaranteed by it, may be protected by Congress." This Court so adjudged in Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 310 , as it had previously adjudged in Prigg v. Pennsylvania , 16 Pet. 539, and in United States v. Reese, 92 U. S. 214 . The colored laborers against whom the conspiracy in question was directed Page 203 U. S. 28 owe their freedom as well as their exemption from the incidents and badges of slavery alone to the Constitution of the United States. Yet it is said that their right to enjoy freedom and to be protected against the badges and incidents of slavery is not secured by the Constitution or laws of the United States. It may be also observed that the freedom created and established by the Thirteenth Amendment was further protected against assault when the Fourteenth Amendment became a part of the supreme law of the land, for that Amendment provided that no state shall deprive any person of life, liberty, or property without due process of law. To deprive any person of a privilege inhering in the freedom ordained and established by the Thirteenth Amendment is to deprive him of a privilege inhering in the liberty recognized by the Fourteenth Amendment. It is true that the present case is not one of the deprivation, by the Constitution or laws of the state, of the privilege of disposing of one's labor as he deems proper. But it is one of a combination and conspiracy by individuals acting in hostility to rights conferred by the Amendment that ordained and established freedom and conferred upon every person within the jurisdiction of the United States (not held lawfully in custody for crime) the privileges that are fundamental in a state of freedom, and which were violently taken from the laborers in question solely because of their race and color. Let us see whether these principles do not find abundant support in adjudged cases. One of the earliest cases arising under the Thirteenth Amendment was that of United States v. Cruikshank, 1 Woods, 308, 318, 320. It became necessary in that case for Mr. Justice Bradley, holding the circuit court, to consider the scope and effect of the Thirteenth Amendment and the extent of the power of Congress to enforce its provisions. Referring to the Thirteenth Amendment, that eminent jurist said that "this is not merely a prohibition against the passage Page 203 U. S. 29 or enforcement of any law inflicting or establishing slavery or involuntary servitude, but it is a positive declaration that slavery shall not exist. . . . So, undoubtedly, by the Thirteenth Amendment, Congress has power to legislate for the entire eradication of slavery in the United States. This Amendment had an affirmative operation the moment it was adopted. It enfranchised four millions of slaves, if, indeed, they had not previously been enfranchised by the operation of the Civil War. Congress therefore acquired the power not only to legislate for the eradication of slavery, but the power to give full effect to this bestowment of liberty on these millions of people. All this it essayed to do by the civil rights bill passed April 9, 1866, 14 Stat. 27, by which it was declared that all persons born in the United States, and not subject to a foreign power (except Indians, not taxed), should be citizens of the United States, and that such citizens, of every race and color, without any regard to any previous condition of slavery or involuntary servitude, should have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, and give evidence to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and should be subject to like punishment, pains, and penalties, and to none other, any law, etc., to the contrary notwithstanding. It was supposed that the eradication of slavery and involuntary servitude of every form and description required that the slave should be made a citizen and placed on an entire equality before the law with the white citizen, and therefore that Congress had the power, under the amendment, to declare and effectuate these objects. . . . Conceding this to be true (which I think it is), Congress then had the right to go further and to enforce its declaration by passing laws for the prosecution and punishment of those who should deprive or attempt to deprive any person of the rights thus conferred upon them. Without having this power, Page 203 U. S. 30 Congress could not enforce the amendment. It cannot be doubted, therefore, that Congress had the power to make it a penal offense to conspire to deprive a person of, or to hinder him in, the exercise and enjoyment of the rights and privileges conferred by the Thirteenth Amendment and the laws thus passed in pursuance thereof. But this power does not authorize Congress to pass laws for the punishment of ordinary crimes and offenses against persons of the colored race or any other race. That belongs to the state government alone. All ordinary murders, robberies, assaults, thefts and offenses whatsoever are cognizable only in the state courts, unless, indeed, the state should deny to the class or persons referred to the equal protection of the laws. . . . To illustrate: if in a community or neighborhood composed principally of whites, a citizen of African descent, or of the Indian race, not within the exception of the Amendment, should propose to lease and cultivate a farm, and a combination should be formed to expel him and prevent him from the accomplishment of his purpose on account of his race or color, it cannot be doubted that this would be a case within in power of Congress to remedy and redress. It would be a case of interference with that person's exercise of his equal rights as a citizen because of his race. But if that person should be injured in his person or property by any wrongdoer for the mere felonious or wrongful purpose of malice, revenge, hatred, or gain, without any design to interfere with his rights of citizenship or equality before the laws, as being a person of a different race and color from the white race, it would be an ordinary crime, punishable by the state laws only." This was followed by the Civil Rights Cases, 109 U. S. 3 , 109 U. S. 20 -22, in which the Court passed upon the constitutionality of an act of Congress providing for the full and equal enjoyment by every race equally, of the accommodations, advantages, and facilities of theaters and public conveyances, and other places of public amusement, and in which the Court also considered the scope and effect of the Thirteenth Amendment. In that case, the Court, speaking by Mr. Justice Bradley, Page 203 U. S. 31 who, as we have seen, delivered the judgment in the case just cited, said: " By its own unaided force and effect, it abolished slavery and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character, for the Amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and therefore the Thirteenth Amendment may be regarded as nullifying all state laws which establish or uphold slavery. But it has a reflex character also establishing and decreeing universal civil and political freedom throughout the United States, and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. . . . The long existence of African slavery in this country gave us very distinct notions of what it was and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses. . . . We must not forget that the province and scope of the Thirteenth and Fourteenth Amendments are different; the former simply abolished slavery; the latter prohibited the states from abridging the privileges or immunities of citizens of the United States, by depriving them of life, liberty, or property without due process of law, and Page 203 U. S. 32 from denying to any the equal protection of the laws. The Amendments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not; under the Fourteenth, as we have already shown, it must necessarily be and can only be corrective in its character, addressed to counteract and afford relief against state regulations or proceedings." I participated in the decision of the Civil Rights Cases, but was not able to concur with my brethren in holding the act there involved to be beyond the power of Congress. But I stood with the Court in the declaration that the Thirteenth Amendment not only established and decreed universal, civil and political freedom throughout this land, but abolished the incidents or badges of slavery, among which, as the Court declared, was the disability, based merely on race discrimination, to hold property, to make contracts, to have a standing in court, and to be a witness against a white person. One of the important aspects in the present discussion of the Civil Rights Cases is that the Court there proceeded distinctly upon the ground that, although the Constitution and statutes of a state may not be repugnant to the Thirteenth Amendment, nevertheless Congress, by legislation of a direct and primary character, may, in order to enforce the Amendment, reach and punish individuals whose acts are in hostility Page 203 U. S. 33 to rights and privileges derived from, or secured by, or dependent upon, that Amendment. These views were explicitly referred to and reaffirmed in the recent case of Clyatt v. United States, 197 U. S. 207 . That was an indictment against a single individual for having unlawfully and knowingly returned, forcibly and against their will, two persons from Florida to Georgia to be held in the latter state in a condition of peonage, in violation of the statutes of the United States (Rev.Stat. 1990, 5526). A person arbitrarily or forcibly held against his will for the purpose of compelling him to render personal services in discharge of a debt is in a condition of peonage. It was not claimed in that case that peonage was sanctioned by or could be maintained under the Constitution or laws either of Florida or Georgia. The argument there on behalf of the accused was, in part, that the Thirteenth Amendment was directed solely against the states and their laws, and that its provisions could not be made applicable to individuals whose illegal conduct was not authorized, permitted, or sanctioned by some act, resolution, order, regulation, or usage of the state. That argument was rejected by every member of this Court, and we all agreed that Congress had power, under the Thirteenth Amendment, not only to forbid the existence of peonage, but to make it an offense against the United States for any person to hold, arrest, return, or cause to be held, arrested or returned, or who in any manner aided in the arrest or return, of another person to a condition of peonage. After quoting the above sentences from the opinion in the Civil Rights Cases, MR. JUSTICE BREWER, speaking for the Court, said: "Other authorities to the same effect might be cited. It is not open to doubt that Congress may enforce the Thirteenth Amendment by direct legislation, punishing the holding of a person in slavery or in involuntary servitude except as a punishment for crime. In the exercise of that power, Congress has enacted these sections denouncing peonage, and punishing one who holds another in that condition of involuntary servitude. Page 203 U. S. 34 This legislation is not limited to the territories or other parts of the strictly national domain, but is operative in the states and wherever the sovereignty of the United States extends. We entertain no doubt of the validity of this legislation, or its applicability to the case of any person holding another in a state of peonage, and this whether there be municipal ordinance or state law sanctioning such holding. It operates directly on every citizen of the republic, wherever his residence may be. " The Clyatt case proceeded upon the ground that, although the Constitution and laws of the state might be in perfect harmony with the Thirteenth Amendment, yet the compulsory holding of one individual by another individual for the purpose of compelling the former, by personal service, to discharge his indebtedness to the latter created a condition of involuntary servitude or peonage, was in derogation of the freedom established by that Amendment, and therefore could be reached and punished by the nation. Is it consistent with the principle upon which that case rests to say that an organized body of individuals who forcibly prevent free citizens, solely because of their race, from making a living in a legitimate way, do not infringe any right secured by the national Constitution, and may not be reached or punished by the nation? One who is shut up by superior or overpowering force, constantly present and threatening, from earning his living in a lawful way of his own choosing, is as much in a condition of involuntary servitude as if he were forcibly held in a condition of peonage. In each case, his will is enslaved because illegally subjected, by a combination that he cannot resist, to the will of others in respect of matters which a freeman is entitled to control in such way as to him seems best. It would seem impossible under former decisions to sustain the view that a combination or conspiracy of individuals, albeit acting without the sanction of the state, may not be reached and punished by the United States if the combination and conspiracy has for its object, by force, to prevent or burden the free exercise or enjoyment Page 203 U. S. 35 of a right or privilege created or secured by the Constitution or laws of the United States. The only way in which the present case can be taken out of section 5508 is to hold that a combination or conspiracy of individuals to prevent citizens of African descent, because of their race, from freely disposing of their labor by contract does not infringe or violate any right or privilege secured by the Constitution or laws of the United States. But such a proposition, I submit, is inadmissible if regard be had to former decisions. As we have seen, this Court has held that the Thirteenth Amendment, by its own force, without the aid of legislation, not only conferred freedom upon every person (not legally held in custody for crime) within the jurisdiction of the United States, but the right and privilege of being free from the badges or incidents of slavery. And it has declared that one of the insuperable incidents of slavery, as it existed at the time of the adoption of the Thirteenth Amendment, was the disability of those in slavery to make contracts. It has also adjudged -- no member of this Court holding to the contrary -- that any attempt to subject citizens to the incidents or badges of slavery could be made an offense against the United States. If the Thirteenth Amendment established freedom, and conferred, without the aid of legislation, the right to be free from the badges and incidents of slavery, and if the disability to make or enforce contracts for one's personal services was a badge of slavery as it existed when the Thirteenth Amendment was adopted, how is it possible to say that the combination or conspiracy charged in the present indictment, and conclusively established by the verdict and judgment, was not in hostility to rights secured by the Constitution? I have already said that the liberty protected by the Fourteenth Amendment against state action inconsistent with due process of law is neither more nor less than the freedom established by the Thirteenth Amendment. This, I think, cannot be doubted. In Allgeyer v. Louisiana, 165 U. S. 578 , 165 U. S. 589 , Page 203 U. S. 36 we said that such liberty "means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work when he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned. " All these rights, as this Court adjudged in the Allgeyer case, are embraced in the liberty which the Fourteenth Amendment protects against hostile state action when such state action is wanting in due process of law. They are rights essential in the freedom conferred by the Thirteenth Amendment. If, for instance, a person is prevented because of his race from living and working where and for whom he will, or from earning his livelihood by any lawful calling that he may elect to pursue, then he is hindered in the exercise of rights and privileges secured to freemen by the Constitution of the United States. If secured by the Constitution of the United States, then unquestionably rights of that class are embraced by such legislation as that found in section 5508. The opinion of the Court, it may be observed, does not, in words, adjudge section 5508 to be unconstitutional. But if its scope and effect are not wholly misapprehended by me, the Court does adjudge that Congress cannot make it an offense against the United States for individuals to combine or conspire to prevent, even by force, citizens of African descent, solely because of their race, from earning a living. Such is the import and practical effect of the present decision, although the Court has heretofore unanimously held that the right to earn one's living in all legal ways, and to make lawful contracts in reference thereto, is a vital part of the freedom established by the Constitution, and although it has been held, time and again, that Congress may, by appropriate Page 203 U. S. 37 legislation, grant, protect, and enforce any right, derived from, secured or created by, or dependent upon, that instrument. These general principles, it is to be regretted, are now modified so as to deny to millions of citizen laborers of African descent, deriving their freedom from the nation, the right to appeal for national protection against lawless combinations of individuals who seek, by force, and solely because of the race of such laborers, to deprive them of the freedom established by the Constitution of the United States, so far as that freedom involves the right of such citizens, without discrimination against them because of their race, to earn a living in all lawful ways, and to dispose of their labor by contract. I cannot assent to an interpretation of the Constitution which denies national protection to vast numbers of our people in respect of rights derived by them from the nation. The interpretation now placed on the Thirteenth Amendment is, I think, entirely too narrow, and is hostile to the freedom established by the supreme law of the land. It goes far towards neutralizing many declarations made as to the object of the recent Amendments of the Constitution, a common purpose of which, this Court has said, was to secure to a people theretofore in servitude, the free enjoyment, without discrimination merely on account of their race, of the essential rights that appertain to American citizenship and to freedom. United States v. Reese, 92 U. S. 214 , 92 U. S. 217 ; United States v. Cruikshank, 92 U. S. 542 , 92 U. S. 555 ; Ex Parte Virginia, 100 U. S. 334 , 100 U. S. 345 ; Strauder v. West Virginia, 100 U. S. 306 ; Neal v. Delaware, 103 U. S. 386 ; Civil Rights Cases, 109 U. S. 3 , 109 U. S. 23 . The objections urged to the view taken by the Court are not met by the suggestion that this Court may revise the final judgment of the state court if it should deny to the complaining party a right secured by the federal Constitution, for the revisory power of this Court would be of no avail to the complaining party if it be true, as seems now to be adjudged, that a conspiracy to deprive colored citizens, solely because of Page 203 U. S. 38 their race, of the right to earn a living in a lawful way infringes no right secured to them by the federal Constitution. As the nation has destroyed both slavery and involuntary servitude everywhere within the jurisdiction of the United States, and invested Congress with power, by appropriate legislation, to protect the freedom thus established against all the badges and incidents of slavery as it once existed, as the disability to make valid contracts for one's services was, as this Court has said, an inseparable incident of the institution of slavery which the Thirteenth Amendment destroyed, and as a combination or conspiracy to prevent citizens of African descent, solely because of their race, from making and performing such contracts, is thus in hostility to the rights and privileges that inhere in the freedom established by that Amendment, I am of opinion that the case is within section 5508, and that the judgment should be affirmed. For these reasons, I dissent from the opinion and judgment of the court. [ Footnote 1 ] Dissent announced May 28, 1906, but not filed until October 24, 1906. [ Footnote 2 ] The indictment charged that "the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton, being then and there persons of African descent, and citizens of the United States and of the State of Arkansas, had then and there made and entered into contracts and agreements with James A. Davis and James S. Hodges, persons then and there doing business under the name of Davis & Hodges, as copartners carrying on the business of manufacturers of lumber at White Hall, in said county, the said contracts being for the employment by said firm of the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton, as laborers and workmen in and about their said manufacturing establishment, by which contracts the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were, on their part, to perform labor and services at said manufactory, and were to receive, on the other hand, for their labor and services, compensation, the same being a right and privilege conferred upon them by the Thirteenth Amendment to the Constitution of the United States and the laws passed in pursuance thereof, and being a right similar to that enjoyed in said state by the white citizens thereof, and while the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were in the enjoyment of said right and privilege the said defendants did knowingly, willfully, and unlawfully conspire as aforesaid to injure, oppress, threaten, and intimidate them in the free exercise and enjoyment of said right and privilege, and because of their having so exercised the same, and because they were citizens of African descent, enjoying said right, by then and there notifying the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton that they must abandon said contracts and their said work at said mill, and cease to perform any further labor thereat, or receive any further compensation for said labor, and by threatening, in case they did not so abandon said work, to injure them, and by thereafter then and there willfully and unlawfully marching and moving in a body to and against the places of business of the said firm while the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were engaged thereat, and while they were in the performance of said contracts thereon, the said defendants being then and there armed with deadly weapons, threatening and intimidating the said workmen there employed, with the purpose of compelling them, by violence and threats and otherwise, to remove from said place of business, to stop said work, and to cease the enjoyment of said right and privilege, and by then and there willfully, deliberately, and unlawfully compelling said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton to quit said work and abandon said place and cease the free enjoyment of all advantages under said contracts, the same being so done by said defendants and each of them for the purpose of driving the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton from said place of business and from their labor because they were colored men and citizens of African descent, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The Supreme Court ruled that the 13th, 14th, and 15th Amendments do not give the national government jurisdiction over individual actions that violate the rights of African Americans. The Amendments abolished slavery and made emancipated slaves citizens, but they do not give the national government the power to prosecute individuals who conspire to oppress or intimidate African Americans in the exercise of their rights. The Court held that the national government's powers are still enumerated and limited by the 10th Amendment, and that any remedies for wrongs committed by individuals must be sought through state tribunals, with the Supreme Court retaining supervisory power through writs of error.

Labor & Employment

Pickering v. Board of Education

https://supreme.justia.com/cases/federal/us/391/563/

U.S. Supreme Court Pickering v. Board of Education, 391 U.S. 563 (1968) Pickering v. Board of Education of Township High School District 205, Will County No. 510 Argued March 27, 1968 Decided June 3, 1968 391 U.S. 563 APPEAL FROM THE SUPREME COURT OF ILLINOIS Syllabus Appellee, Board of Education, dismissed appellant, a teacher, for writing and publishing in a newspaper a letter criticizing the Board's allocation of school funds between educational and athletic programs and the Board's and superintendent's methods of informing, or preventing the informing of, the school district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. At a hearing, the Board charged that numerous statements in the letter were false, and that the publication of the statements unjustifiably impugned the Board and school administration. The Board found all the statements false as charged, and concluded that publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and that "the interests of the school require[d] [appellant's dismissal]" under the applicable statute. There was no evidence at the hearing as to the effect of appellant's statements on the community or school administration. The Illinois courts, reviewing the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether the Board could reasonably conclude that the publication was "detrimental to the best interests of the schools," upheld the dismissal, rejecting appellant's claim that the letter was protected by the First and Fourteenth Amendments, on the ground that, as a teacher, he had to refrain from making statements about the schools' operation "which, in the absence of such position, he would have an undoubted right to engage in." Held: 1. "[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 605 -606 (1967). The teacher's interest as a citizen in making public comment must be balanced against the State's interest in promoting the efficiency of its employees' public services. P. 391 U. S. 568 . 2. Those statements of appellant's which were substantially correct regarded matters of public concern and presented no questions Page 391 U. S. 564 of faculty discipline or harmony; hence those statements afforded no proper basis for the Board's action in dismissing appellant. Pp. 391 U. S. 569 -570. 3. Appellant's statements which were false likewise concerned issues then currently the subject of public attention and were neither shown nor could be presumed to have interfered with appellant's performance of his teaching duties or the schools' general operation. They were thus entitled to the same protection as if they had been made by a member of the general public, and, absent proof that those false statements were knowingly or recklessly made, did not justify the Board in dismissing appellant from public employment. New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Pp. 391 U. S. 570 -575. 36 Ill. 2d 568 , 225 N.E.2d 1 , reversed and remanded. MR. JUSTICE MARSHALL delivered the opinion of the Court. Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant's dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was "detrimental to the efficient operation and administration of the schools of the district" and hence, under the relevant Page 391 U. S. 565 Illinois statute, Ill.Rev.Stat. c. 122, § 10-22.4 (1963), that "interests of the school require[d] [his dismissal]." Appellant's claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board's action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant's letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overrode appellant's First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. 36 Ill. 2d 568 , 225 N.E.2d 1 (1967). We noted probable jurisdiction of appellant's claim that the Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments. [ Footnote 1 ] 389 U.S. 925 (1967). For the reasons detailed below, we agree that appellant's rights to freedom of speech were violated, and we reverse. I In February of 1961, the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed, and the schools were built with the money raised by the bond Page 391 U. S. 566 sales. In May of 1964, a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board, and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor (which we reproduce in an 391 U.S. 563 app|>Appendix to this opinion) that resulted in his dismissal. Prior to the vote on the second tax increase proposal, a variety of articles attributed to the District 205 Teachers' Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district's schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper. The letter constituted, basically, an attack on the School Board's handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue. The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing, the Board charged that numerous statements in the letter were false, and that the publication Page 391 U. S. 567 of the statements unjustifiably impugned the "motives, honesty, integrity, truthfulness, responsibility and competence" of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment "controversy, conflict and dissension" among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made. The Illinois courts reviewed the proceedings solely to determine whether the Board's findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant's publication of the letter was "detrimental to the best interests of the schools." Pickering's claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools "which in the absence of such position he would have an undoubted right to engage in." It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant's dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. Page 391 U. S. 568 In any event, it clearly rejected Pickering's claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position. II To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967). "[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, supra, at 385 U. S. 605 -606. At the same time, it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. III The Board contends that "the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with Page 391 U. S. 569 his education and experience." Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made "with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not," New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 280 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run. An examination of the statements in appellant's letter objected to by the Board [ Footnote 2 ] reveals that they, like the letter as a whole, consist essentially of criticism of the Board's allocation of school funds between educational and athletic programs, and of both the Board's and the superintendent's methods of informing, or preventing the informing of, the district's taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in Page 391 U. S. 570 contact in the course of his daily work as a teacher. Thus, no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board's position here can be taken to suggest that even comments on matters of public concern that are substantially correct, such as statements (1)-(4) of appellant's letter, see 391 U.S. 563 app|>Appendix, infra may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it. [ Footnote 3 ] We next consider the statements in appellant's letter which we agree to be false. The Board's original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering's letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, Page 391 U. S. 571 have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools. However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members' own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant's letter containing the statements that we have found to be false, see 391 U.S. 563 app|>Appendix, infra ) cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest. In addition, the fact that particular illustrations of the Board's claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering's letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written. More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open Page 391 U. S. 572 debate is vital to informed decisionmaking by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal. In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant's errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher's presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether, under such circumstances, a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them. [ Footnote 4 ] What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in Page 391 U. S. 573 the classroom [ Footnote 5 ] or to have interfered with the regular operation of the schools generally. In these circumstances, we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. IV The public interest in having free and unhindered debate on matters of public importance -- the core value of the Free Speech Clause of the First Amendment -- is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); St. Amant v. Thompson, 390 U. S. 727 (1968). Compare Linn v. United Plant Guard Workers, 383 U. S. 53 (1966). The same test has been applied to suits for invasion of privacy based on false statements where a "matter of public interest" is involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State's power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times. Page 391 U. S. 574 This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U. S. 64 (1964); Wood v. Georgia, 370 U. S. 375 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district attorney about the judges before whom he regularly appeared. While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be. In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, [ Footnote 6 ] a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no Page 391 U. S. 575 such showing has been made in this case regarding appellant's letter, see 391 U.S. 563 app|>Appendix, infra, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurs in the judgment of the Court for the reasons set out in his concurring opinions in Time, Inc. v. Hill, 35 U. S. 374 , 35 U. S. 401 , Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 88 , and Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 80 , and in the separate opinions of MR. JUSTICE BLACK in Curtis Publishing Co. v. Butts, 388 U. S. 130 , 388 U. S. 170 , and New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 293 . [ Footnote 1 ] Appellant also challenged the statutory standard on which the Board based his dismissal as vague and overbroad. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960). Because of our disposition of this case, we do not reach appellant's challenge to the statute on its face. [ Footnote 2 ] We have set out in the 391 U.S. 563 app|>Appendix our detailed analysis of the specific statements in appellant's letter which the Board found to be false, together with our reasons for concluding that several of the statements were, contrary to the findings of the Board, substantially correct. [ Footnote 3 ] It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases. [ Footnote 4 ] There is likewise no occasion furnished by this case for consideration of the extent to which teachers can be required by narrowly drawn grievance procedures to submit complaints about the operation of the schools to their superiors for action thereon prior to bringing the complaints before the public. [ Footnote 5 ] We also note that this case does not present a situation in which a teacher's public statements are so without foundation as to call into question his fitness to perform his duties in the classroom. In such a case, of course, the statements would merely be evidence of the teacher's general competence, or lack thereof, and not an independent basis for dismissal. [ Footnote 6 ] Because we conclude that appellant's statements were not knowingly or recklessly false, we have no occasion to pass upon the additional question whether a statement that was knowingly or recklessly false would, if it were neither shown nor could reasonably be presumed to have had any harmful effects, still be protected by the First Amendment. See also n 5, supra. | 391 U.S. 563 app| APPENDIX TO OPINION OF THE COURT A. Appellant's letter LETTERS TO THE EDITOR **** Graphic Newspapers, Inc. Thursday, September 24, 1964, Page 4 Dear Editor: I enjoyed reading the back issues of your paper which you loaned to me. Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru November, 1961 issues of your paper, so that it can be checked. One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been left out of the program. They may have been left out but they got put back in very quickly, because Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic field than Lockport Central. It has a track that isn't quite regulation distance even Page 391 U. S. 576 though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn't supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems one just can't help noticing it. I am not saying the school shouldn't have these facilities, because I think they should, but promises are promises, or are they? Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers' salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn't the case. However, this shows their "stop at nothing" attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, "Any teacher that opposes the referendum should be prepared for the consequences." I think this gets at the reason we have problems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any. Remember those letters entitled "District 205 Teachers Speak," I think the voters should know that those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in the high school. In fact, many teachers didn't even know who was writing them. Did you know that those letters had to have the approval of the superintendent before they could be put in the paper? That's the kind of totalitarianism teachers Page 391 U. S. 577 live in at the high school, and your children go to school in. In last week's paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous, and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer's child should only have to pay about 30� for his lunch instead of 35� to pay for free lunches for the athletes. In a reply to this letter, your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn't pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers. You see we don't need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches' salaries, athletic directors' salaries, baseball pitching machines, sodded football fields, and thousands of dollars for other sports equipment. These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers' salaries is getting the cart before the horse. If these things aren't enough for you, look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also. Page 391 U. S. 578 Once again, the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building. As I see it, the bond issue is a fight between the Board of Education that is trying to push tax supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don't know whom to trust with any more tax money. I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school? Respectfully, Marvin L. Pickering. B. Analysis. The foregoing letter contains eight principal statements which the Board found to be false. [ Footnote 2/1 ] Our independent review of the record [ Footnote 2/2 ] convinces us that Justice Page 391 U. S. 579 Schaefer was correct in his dissenting opinion in this case when he concluded that many of appellant's statements which were found by the Board to be false were, in fact, substantially correct. We shall deal with each of the statements found to be false in turn. (1) Appellant asserted in his letter that the two new high schools when constructed deviated substantially from the original promises made by the Board during the campaign on the bond issue about the facilities they would contain. The Board based its conclusion that this statement was false on its determination that the promises referred to were those made in the campaign to pass the second bond issue in December of 1961. In the campaign on the first bond issue the Board stated that the plans for the two schools did not include such items as swimming pools, auditoriums, and athletic fields. The publicity put out by the Board on the second bond issue mentioned nothing about the addition of an auditorium to the plans and also mentioned nothing specific about Page 391 U. S. 580 athletic fields, although a general reference to "state required physical education" facilities was included that was similar to a reference made in the material issued by the Board during the first campaign. In sum, the Board first stated that certain facilities were not to be included in the new high schools as an economy measure, changed its mind after the defeat of the first bond issue and decided to include some of the facilities previously omitted, and never specifically or even generally indicated to the taxpayers the change. Appellant's claim that the original plans, as disclosed to the public, deviated from the buildings actually constructed is thus substantially correct and his characterization of the Board's prior statement as a "promise" is fair as a matter of opinion. The Board's conclusion to the contrary based on its determination that appellant's statement referred only to the literature distributed during the second bond issue campaign is unreasonable in that it ignores the word "original" that modifies "promises" in appellant's letter. (2) Appellant stated that the Board incorrectly informed the public that "teachers' salaries" total $1,297,746 per year. The Board found that statement false. However, the superintendent of schools admitted that the only way the Board's figure could be regarded as accurate was to change the word "teachers" to "instructional" whereby the salaries of deans, principals, librarians, counselors, and four secretaries at each of the district's three high schools would be included in the total. Appellant's characterization of the Board's figure as incorrect is thus clearly accurate. (3) Pickering claimed that the superintendent had said that any teacher who did not support the 1961 bond issue referendum should be prepared for the consequences. The Board found this claim false. However, the statement was corroborated by the testimony of two other teachers, although the superintendent denied making the Page 391 U. S. 581 remark attributed to him. The Illinois Supreme Court appears to have agreed that something along the lines stated by appellant was said, since it relied, in upholding the Board's finding that appellant's version of the remark was false, on testimony by one of the two teachers that he interpreted the remark to be a prediction about the adverse consequences for the schools should the referendum not pass, rather than a threat against noncooperation by teachers. However, the other teacher testified that he didn't know how to interpret the remark. Accordingly, while appellant may have misinterpreted the meaning of the remark, he did not misreport it. (4) Appellant's letter stated that letters from teachers to newspapers had to have the approval of the superintendent before they could be submitted for publication. The Board relied in finding this statement false on the testimony by the superintendent that no approval was required by him. However, the Handbook for Teachers of the district specifically stated at that time that material submitted to local papers should be checked with the building principal and submitted in triplicate to the publicity coordinator. In particular, the teachers' letters to which appellant was specifically referring in his own letter had, in fact, been submitted to the superintendent prior to their publication. Thus, this statement is substantially correct. The other four statements challenged by the Board, are factually incorrect in varying degrees. (5) Appellant's letter implied that providing athletes in the schools with free lunches meant that other students must pay 35� instead of 30� for their lunches. This statement is erroneous in that, while discontinuing free lunches for athletes would have permitted some small decrease in the 35� charge for lunch to other students, the decrease would not have brought the price down to 30�. (6) Appellant claimed that the Board had been spending $200,000 a year on athletics while neglecting the wants Page 391 U. S. 582 of teachers. This claim is incorrect in that the $200,000 per year figure included over $130,000 of nonrecurring capital expenditures. (7) Appellant also claimed that the Board had been spending $50,000 a year on transportation for athletes. This claim is completely false, in that the expenditures on travel for athletes per year were about $10,000. (8) Finally, appellant stated that football fields had been sodded on borrowed money, while the Board had been unable to pay teachers' salaries. This statement is substantially correct as to the football fields being sodded with borrowed money, because the money spent was the proceeds of part of the bond issue, which can fairly be characterized as borrowed. It is incorrect insofar as it suggests that the district's teachers had actually not been paid upon occasion, but correct if taken to mean that the Board had at times some difficulty in obtaining the funds with which to pay teachers. The manner in which the last four statements are false is perfectly consistent with good faith error, and there is no evidence in the record to show that anything other than carelessness or insufficient information was responsible for their being made. [ Footnote 2/1 ] We shall not bother to enumerate some of the statements which the Board found to be false because their triviality is so readily apparent that the Board could not rationally have considered them as detrimental to the interests of the schools regardless of their truth or falsity. [ Footnote 2/2 ] This Court has regularly held that, where constitutional rights are in issue an independent examination of the record will be made in order that the controlling legal principles may be applied to the actual facts of the case. E.g., Norris v. Alabama, 294 U. S. 587 (1935); Pennekamp v. Florida, 328 U. S. 331 (1946); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 285 (1964). However, even in cases where the upholding or rejection of a constitutional claim turns on the resolution of factual questions, we also consistently give great, if not controlling, weight to the findings of the state courts. In the present case, the trier of fact was the same body that was also both the victim of appellant's statements and the prosecutor that brought the charges aimed at securing his dismissal. The state courts made no independent review of the record, but simply contented themselves with ascertaining, in accordance with statute, whether there was substantial evidence to support the Board's findings. Appellant requests us to reverse the state courts' decisions upholding his dismissal on the independent ground that the procedure followed above deprived him of due process in that he was not afforded an impartial tribunal. However, appellant makes this contention for the first time in this Court, not having raised it at any point in the state proceedings. Because of this, we decline to treat appellant's claim as an independent ground for our decision in this case. On the other hand, we do not propose to blind ourselves to the obvious defects in the factfinding process occasioned by the Board's multiple functioning vis-a-vis appellant. Compare Tumey v. Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. S. 133 (1955). Accordingly, since the state courts have at no time given de novo consideration to the statements in the letter, we feel free to examine the evidence in this case completely independently and to afford little weight to the factual determinations made by the Board. MR. JUSTICE WHITE, concurring in part and dissenting in part. The Court holds that truthful statements by a school teacher critical of the school board are within the ambit of the First Amendment. So also are false statements innocently or negligently made. The State may not fire the teacher for making either unless, as I gather it, there are special circumstances, not present in this case, demonstrating an overriding state interest, such as the need for confidentiality or the special obligations which a teacher in a particular position may owe to his superiors. [ Footnote 3/1 ] Page 391 U. S. 583 The core of today's decision is the holding that Pickering's discharge must be tested by the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964). To this extent I am in agreement. The Court goes on, however, to reopen a question I had thought settled by New York Times and the cases that followed it, particularly Garrison v. Louisiana, 379 U. S. 64 (1964). The Court devotes several pages to reexamining the facts in order to reject the determination below that Pickering's statements harmed the school system, ante at 391 U. S. 570 -573, when the question of harm is clearly irrelevant given the Court's determination that Pickering's statements were neither knowingly nor recklessly false and its ruling that, in such circumstances a teacher may not be fired even if the statements are injurious. The Court then gratuitously suggests that, when statements are found to be knowingly or recklessly false, it is an open question whether the First Amendment still protects them unless they are shown or can be presumed to have caused harm. Ante at 391 U. S. 574 , n. 6. Deliberate or reckless falsehoods serve no First Amendment ends and deserve no protection under that Amendment. The Court unequivocally recognized this in Garrison, where after reargument the Court said that "the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection." 379 U.S. at 379 U. S. 75 . The Court today neither Page 391 U. S. 584 explains nor justifies its withdrawal from the firm stand taken in Garrison. As I see it, a teacher may be fired without violation of the First Amendment for knowingly or recklessly making false statements regardless of their harmful impact on the schools. As the Court holds, however, in the absence of special circumstances he may not be fired if his statements were true or only negligently false, even if there is some harm to the school system. I therefore see no basis or necessity for the Court's foray into factfinding with respect to whether the record supports a finding as to injury. [ Footnote 3/2 ] If Pickering's false statements were either knowingly or recklessly made, injury to the school system becomes irrelevant, and the First Amendment would not prevent his discharge. For the State to be constitutionally precluded from terminating his employment, reliance on some other constitutional provision would be required. Nor can I join the Court in its findings with regard to whether Pickering knowingly or recklessly published false statements. Neither the State in presenting its evidence nor the state tribunals in arriving at their findings and conclusions of law addressed themselves to the elements of the new standard which the Court holds the First Amendment to require in the circumstances of this case. Indeed, the state courts expressly rejected the applicability of both New York Times and Garrison. I find it wholly unsatisfactory for this Court to make the initial determination of knowing or reckless falsehood from the cold record now before us. It would be far more appropriate to remand this case to the state courts for further proceedings in light of the constitutional standard which the Court deems applicable to this case, once the relevant facts have been ascertained in appropriate proceedings. [ Footnote 3/1 ] See ante at 391 U. S. 569 -570, 391 U. S. 572 and nn. 3, 4. The Court does not elaborate upon its suggestion that there may be situations in which, with reference to certain areas of public comment, a teacher may have special obligations to his superiors. It simply holds that, in this case, with respect to the particular public comment made by Pickering, he is more like a member of the general public and, apparently, too remote from the school board to require placing him into any special category. Further, as I read the Court's opinion, it does not foreclose the possibility that, under the First Amendment a school system may have an enforceable rule, applicable to teachers, that public statements about school business must first be submitted to the authorities to check for accuracy. [ Footnote 3/2 ] Even if consideration of harm were necessary in this case, I could not join the Court in concluding on this record that harm to the school administration was not proved and could not be presumed.

The Supreme Court ruled that a teacher's interest as a citizen in making public comments is protected by the First Amendment and must be balanced against the state's interest in promoting efficient public services. The Court found that the teacher's statements, both true and false, concerned issues of public concern and did not interfere with his teaching duties or school operations. Therefore, the teacher's dismissal for publishing the letter was unconstitutional.

Labor & Employment

Skidmore v. Swift & Co.

https://supreme.justia.com/cases/federal/us/323/134/

U.S. Supreme Court Skidmore v. Swift & Co., 323 U.S. 134 (1944) Skidmore v. Swift & Co. No. 12 Argued October 13, 1944 Decided December 4, 1944 323 U.S. 134 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus 1. No principle of law precluded a determination that waiting time was working time under the Fair Labor Standards Act. Armour & Co. v. Wantock, ante, p. 323 U. S. 126 . P. 323 U. S. 136 . 2. Whether time spent on the employer's premises (or in hailing distance) by fire guards subject to call was working time under the Fair Labor Standards Act is a question of fact to be resolved by appropriate findings of the trial court. P. 323 U. S. 136 . 3. Although the rulings, interpretations, and opinions of the Administrator under the Fair Labor Standards Act do not control judicial decision, they do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. P. 323 U. S. 140 . 136 F.2d 112 reversed. Certiorari, 322 U.S. 723, to review the affirmance of a judgment, 53 F. Supp. 1020, denying recovery in a suit under the Fair Labor Standards Act for overtime, liquidated damages, and attorney's fees. Page 323 U. S. 135 MR. JUSTICE JACKSON delivered the opinion of the Court. Seven employees of the Swift and Company packing plant at Fort Worth, Texas, brought an action under the Fair Labor Standards Act to recover overtime, liquidated damages, and attorneys' fees totalling approximately $77,000. The District Court rendered judgment denying this claim wholly, and the Circuit Court of Appeals for the Fifth Circuit affirmed. 136 F.2d 112. It is not denied that the daytime employment of these persons was working time within the Act. Two were engaged in general fire hall duties and maintenance of firefighting equipment of the Swift plant. The others operated elevators or acted as relief men in fire duties. They worked from 7:00 a.m. to 3:30 p.m., with a half-hour lunch period, five days a week. They were paid weekly salaries. Under their oral agreement of employment, however, petitioners undertook to stay in the fire hall on the Company premises, or within hailing distance, three and a half to four nights a week. This involved no task except to answer alarms, either because of fire or because the sprinkler was set off for some other reason. No fires occurred during the period in issue, the alarms were rare, and the time required for their answer rarely exceeded an hour. For each alarm answered, the employees were Page 323 U. S. 136 paid, in addition to their fixed compensation, an agreed amount, fifty cents at first, and later sixty-four cents. The Company provided a brick fire hall equipped with steam heat and air-conditioned rooms. It provided sleeping quarters, a pool table, a domino table, and a radio. The men used their time in sleep or amusement as they saw fit, except that they were required to stay in or close by the fire hall and be ready to respond to alarms. It is stipulated that "they agreed to remain in the fire hall and stay in it or within hailing distance, subject to call, in event of fire or other casualty, but were not required to perform any specific tasks during these periods of time, except in answering alarms." The trial court found the evidentiary facts as stipulated; it made no findings of fact, as such, as to whether, under the arrangement of the parties and the circumstances of this case, which, in some respects, differ from those of the Armour case ( ante, p. 323 U. S. 126 ), the fire hall duty or any part thereof constituted working time. It said, however, as a "conclusion of law" that "the time plaintiffs spent in the fire hall subject to call to answer fire alarms does not constitute hours worked for which overtime compensation is due them under the Fair Labor Standards Act, as interpreted by the Administrator and the Courts," and in its opinion observed, "of course, we know pursuing such pleasurable occupations or performing such personal chores does not constitute work." The Circuit Court of Appeals affirmed. For reasons set forth in the Armour case, decided herewith, we hold that no principle of law found either in the statute or in Court decisions precludes waiting time from also being working time. We have not attempted to, and we cannot, lay down a legal formula to resolve cases so varied in their facts as are the many situations in which employment involves waiting time. Whether, in a concrete case, such time falls within or without the Act is a question of fact to be resolved by appropriate findings of the trial Page 323 U. S. 137 court. Walling v. Jacksonville Paper Co., 317 U. S. 564 , 317 U. S. 572 . This involves scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances. Facts may show that the employee was engaged to wait, or they way show that he waited to be engaged. His compensation may cover both waiting and task, or only performance of the task itself. Living quarters may in some situations be furnished as a facility of the task and in another as a part of its compensation. The law does not impose an arrangement upon the parties. It imposes upon the courts the task of finding what the arrangement was. We do not minimize the difficulty of such an inquiry where the arrangements of the parties have not contemplated the problem posed by the statute. But it does not differ in nature or in the standards to guide judgment from that which frequently confronts courts where they must find retrospectively the effect of contracts as to matters which the parties failed to anticipate or explicitly to provide for. Congress did not utilize the services of an administrative agency to find facts and to determine in the first instance whether particular cases fall within or without the Act. Instead, it put this responsibility on the courts. Kirschbaum v. Walling, 316 U. S. 517 , 316 U. S. 523 . But it did create the office of Administrator, impose upon him a variety of duties, endow him with powers to inform himself of conditions in industries and employments subject to the Act, and put on him the duties of bringing injunction actions to restrain violations. Pursuit of his duties has accumulated a considerable experience in the problems of ascertaining working time in employments involving periods of inactivity and a knowledge of the customs Page 323 U. S. 138 prevailing in reference to their solution. From these he is obliged to reach conclusions as to conduct without the law, so that he should seek injunctions to stop it, and that within the law, so that he has no call to interfere. He has set forth his views of the application of the Act under different circumstances in an interpretative bulletin and in informal rulings. They provide a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it. Wage and Hour Division, Interpretative Bulletin No. 13. The Administrator thinks the problems presented by inactive duty require a flexible solution, rather than the all-in or all-out rules respectively urged by the parties in this case, and his Bulletin endeavors to suggest standards and examples to guide in particular situations. In some occupations, it says, periods of inactivity are not properly counted as working time even though the employee is subject to call. Examples are an operator of a small telephone exchange where the switchboard is in her home and she ordinarily gets several hours of uninterrupted sleep each night; or a pumper of a stripper well or watchman of a lumber camp during the off season, who may be on duty twenty-four hours a day but ordinarily "has a normal night's sleep, has ample time in which to eat his meals, and has a certain amount of time for relaxation and entirely private pursuits." Exclusion of all such hours the Administrator thinks may be justified. In general, the answer depends "upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call and the number of consecutive hours that the employee is subject to call without being required to perform active work." "Hours worked are not limited to the time spent in active labor, but include time given by the employee to the employer. . . ." Page 323 U. S. 139 The facts of this case do not fall within any of the specific examples given, but the conclusion of the Administrator, as expressed in the brief amicus curiae, is that the general tests which he has suggested point to the exclusion of sleeping and eating time of these employees from the work-week and the inclusion of all other on-call time: although the employees were required to remain on the premises during the entire time, the evidence shows that they were very rarely interrupted in their normal sleeping and eating time, and these are pursuits of a purely private nature which would presumably occupy the employees' time whether they were on duty or not, and which apparently could be pursued adequately and comfortably in the required circumstances; the rest of the time is different, because there is nothing in the record to suggest that, even though pleasurably spent, it was spent in the ways the men would have chosen had they been free to do so. There is no statutory provision as to what, if any, deference courts should pay to the Administrator's conclusions. And while we have given them notice, we have had no occasion to try to prescribe their influence. The rulings of this Administrator are not reached as a result of hearing adversary proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. They are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district court's processes, as an authoritative pronouncement of a higher court might do. But the Administrator's policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. They do determine the policy which will guide applications for enforcement Page 323 U. S. 140 by injunction on behalf of the Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrator's policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable, and in some cases decisive, weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin. We consider that the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. The courts in the Armour case weighed the evidence in the particular case in the light of the Administrator's rulings and reached a result consistent therewith. The evidence in this case, in some respects, such as the understanding as to separate compensation for answering alarms, is different. Each case must stand on its own facts. But, in this case, although the District Court referred to the Administrator's Bulletin, its evaluation and inquiry were apparently restricted by its notion that waiting time may not be work, an understanding of the law which we hold to be erroneous. Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent herewith. Reversed.

Here is a summary of the Supreme Court case Skidmore v. Swift & Co. (1944): Issue: Whether time spent on-call by fire guards, subject to occasional alarms, constitutes "working time" under the Fair Labor Standards Act. Holding: The Supreme Court held that there is no legal principle preventing waiting time from being considered working time. The Court determined that this was a question of fact to be decided by the trial court. While not binding, the Court also stated that the interpretations and opinions of the Administrator under the Fair Labor Standards Act should be considered as a source of guidance by courts and litigants. Result: The judgment of the lower court was reversed, and the case was remanded for further proceedings consistent with the Supreme Court's opinion.

Labor & Employment

West Coast Hotel Co. v. Parrish

https://supreme.justia.com/cases/federal/us/300/379/

U.S. Supreme Court West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) West Coast Hotel Co. v. Parrish No. 293 Argued December 16, 17, 1936 Decided March 29, 1937 300 U.S. 379 APPEAL FROM THE SUPREME COURT OF WASHINGTON Syllabus 1. Deprivation of liberty to contract is forbidden by the Constitution if without due process of law, but restraint or regulation of this liberty, if reasonable in relation to its subject and if adopted for the protection of the community against evils menacing the health, safety, morals and welfare of the people, is due process. P. 300 U. S. 391 . 2. In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression. P. 300 U. S. 393 . 3. The State has a special interest in protecting women against employment contracts which through poor working conditions, long hours or scant wages may leave them inadequately supported and undermine their health; because: (1) The health of women is peculiarly related to the vigor of the race; (2) Women are especially liable to be overreached and exploited by unscrupulous employers; and (3) This exploitation and denial of a living wage is not only detrimental to the health and wellbeing of the women affected, but casts a direct burden for their support upon the community. Pp. 300 U. S. 394 , 300 U. S. 398 , et seq. 4. Judicial notice is taken of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved. P. 300 U. S. 399 . 5. A state law for the setting of minimum wages for women is not an arbitrary discrimination because it does not extend to men. P. 300 U. S. 400 . 6. A statute of the State of Washington (Laws, 1913, c. 174; Remington's Rev.Stats., 1932, § 7623 et seq. ) providing for the establishment of minimum wages for women, held valid. Adkins v. Children's Hospital, 261 U. S. 525 , is overruled; Morehead v. New York ex rel. Tipaldo, 298 U. S. 587 , distinguished. P. 300 U. S. 400 . 185 Wash. 581; 55 P.2d 1083, affirmed. Page 300 U. S. 380 This was an appeal from a judgment for money directed by the Supreme Court of Washington, reversing the trial court, in an action by a chambermaid against a hotel company to recover the difference between the amount of wages paid or tendered to her as per contract and a larger amount computed on the minimum wage fixed by a state board or commission. Page 300 U. S. 386 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. This case presents the question of the constitutional validity of the minimum wage law of the State of Washington. The Act, entitled "Minimum Wages for Women," authorizes the fixing of minimum wages for women and minors. Laws of 1913 (Washington) chap. 174; Remington's Rev.Stat. (1932), § 7623 et seq. It provides: "SECTION 1. The welfare of the State of Washington demands that women and minors be protected from conditions of labor which have a pernicious effect on their health and morals. The State of Washington, therefore, exercising herein its police and sovereign power declares that inadequate wages and unsanitary conditions of labor exert such pernicious effect." "SEC. 2. It shall be unlawful to employ women or minors in any industry or occupation within the State of Washington under conditions of labor detrimental to their health or morals, and it shall be unlawful to employ Page 300 U. S. 387 women workers in any industry within the State of Washington at wages which are not adequate for their maintenance." "SEC. 3. There is hereby created a commission to be known as the 'Industrial Welfare Commission' for the State of Washington, to establish such standards of wages and conditions of labor for women and minors employed within the State of Washington as shall be held hereunder to be reasonable and not detrimental to health and morals, and which shall be sufficient for the decent maintenance of women." Further provisions required the Commission to ascertain the wages and conditions of labor of women and minors within the State. Public hearings were to be held. If, after investigation, the Commission found that, in any occupation, trade or industry, the wages paid to women were "inadequate to supply them necessary cost of living and to maintain the workers in health," the Commission was empowered to call a conference of representatives of employers and employees together with disinterested persons representing the public. The conference was to recommend to the Commission, on its request, an estimate of a minimum wage adequate for the purpose above stated, and, on the approval of such a recommendation, it became the duty of the Commission to issue an obligatory order fixing minimum wages. Any such order might be reopened, and the question reconsidered with the aid of the former conference or a new one. Special licenses were authorized for the employment of women who were "physically defective or crippled by age or otherwise," and also for apprentices, at less than the prescribed minimum wage. By a later Act, the Industrial Welfare Commission was abolished, and its duties were assigned to the Industrial Welfare Committee, consisting of the Director of Labor and Industries, the Supervisor of Industrial Insurance, Page 300 U. S. 388 the Supervisor of Industrial Relations, the Industrial Statistician, and the Supervisor of Women in Industry. Laws of 1921 (Washington) c. 7; Remington's Rev.Stat. (1932), §§ 10840, 10893. The appellant conducts a hotel. The appellee, Elsie Parrish, was employed as a chambermaid and (with her husband) brought this suit to recover the difference between the wages paid her and the minimum wage fixed pursuant to the state law. The minimum wage was $14.50 per week of 48 hours. The appellant challenged the act as repugnant to the due process clause of the Fourteenth Amendment of the Constitution of the United States. The Supreme Court of the State, reversing the trial court, sustained the statute and directed judgment for the plaintiffs. Parrish v. West Coast Hotel Co., 185 Wash. 581, 55 P.2d 1083. The case is here on appeal. The appellant relies upon the decision of this Court in Adkins v. Children's Hospital, 261 U. S. 525 , which held invalid the District of Columbia Minimum Wage Act, which was attacked under the due process clause of the Fifth Amendment. On the argument at bar, counsel for the appellees attempted to distinguish the Adkins case upon the ground that the appellee was employed in a hotel, and that the business of an innkeeper was affected with a public interest. That effort at distinction is obviously futile, as it appears that, in one of the cases ruled by the Adkins opinion, the employee was a woman employed as an elevator operator in a hotel. Adkins v. Lyons, 261 U. S. 525 , at p. 261 U. S. 542 . The recent case of Morehead v. New York ex rel. Tipaldo, 298 U. S. 587 , came here on certiorari to the New York court, which had held the New York minimum wage act for women to be invalid. A minority of this Court thought that the New York statute was distinguishable in a material feature from that involved in the Adkins case, and, that for that and other reasons, the New Page 300 U. S. 389 York statute should be sustained. But the Court of Appeals of New York had said that it found no material difference between the two statutes, and this Court held that the "meaning of the statute" as fixed by the decision of the state court "must be accepted here as if the meaning had been specifically expressed in the enactment." Id., p. 298 U. S. 609 . That view led the affirmance by this Court of the judgment in the Morehead case, as the Court considered that the only question before it was whether the Adkins case was distinguishable, and that reconsideration of that decision had not been sought. Upon that point, the Court said: "The petition for the writ sought review upon the ground that this case [ Morehead ] is distinguishable from that one [ Adkins ]. No application has been made for reconsideration of the constitutional question there decided. The validity of the principles upon which that decision rests is not challenged. This court confines itself to the ground upon which the writ was asked or granted. . . . Here, the review granted was no broader than that sought by the petitioner. . . . He is not entitled, and does not ask, to be heard upon the question whether the Adkins case should be overruled. He maintains that it may be distinguished on the ground that the statutes are vitally dissimilar." Id. pp. 298 U. S. 604 , 298 U. S. 605 . We think that the question which was not deemed to be open in the Morehead case is open and is necessarily presented here. The Supreme Court of Washington has upheld the minimum wage statute of that State. It has decided that the statute is a reasonable exercise of the police power of the State. In reaching that conclusion, the state court has invoked principles long established by this Court in the application of the Fourteenth Amendment. The state court has refused to regard the decision in the Adkins case as determinative, and has pointed to our decisions both before and since that case as justifying its position. We are of the opinion that this ruling of Page 300 U. S. 390 the state court demands on our part a reexamination of the Adkins case. The importance of the question, in which many States having similar laws are concerned, the close division by which the decision in the Adkins case was reached, and the economic conditions which have supervened, and in the light of which the reasonableness of the exercise of the protective power of the State must be considered, make it not only appropriate, but we think imperative, that, in deciding the present case, the subject should receive fresh consideration. The history of the litigation of this question may be briefly stated. The minimum wage statute of Washington was enacted over twenty-three years ago. Prior to the decision in the instant case, it had twice been held valid by the Supreme Court of the State. Larsen v. Rice, 100 Wash. 642, 171 Pac. 1037; Spokane Hotel Co. v. Younger, 113 Wash. 359, 194 Pac. 595. The Washington statute is essentially the same as that enacted in Oregon in the same year. Laws of 1913 (Oregon) chap. 62. The validity of the latter act was sustained by the Supreme Court of Oregon in Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743, and Simpson v. O'Hara, 70 Ore. 261, 141 Pac. 158. These cases, after reargument, were affirmed here by an equally divided court, in 1917. 243 U.S. 629. The law of Oregon thus continued in effect. The District of Columbia Minimum Wage Law (40 Stat. 960) was enacted in 1918. The statute was sustained by the Supreme Court of the District in the Adkins case. Upon appeal, the Court of Appeals of the District first affirmed that ruling, but, on rehearing, reversed it, and the case came before this Court in 1923. The judgment of the Court of Appeals holding the Act invalid was affirmed, but with Chief Justice Taft, Mr. Justice Holmes and Mr. Justice Sanford dissenting, and Mr. Justice Brandeis taking no part. The dissenting opinions took the ground that the decision was at variance with the Page 300 U. S. 391 principles which this Court had frequently announced and applied. In 1925 and 1927, the similar minimum wage statutes of Arizona and Arkansas were held invalid upon the authority of the Adkins case. The Justices who had dissented in that case bowed to the ruling, and Mr. Justice Brandeis dissented. Murphy v. Sardell, 269 U.S. 530; Donham v. West-Nelson Co., 273 U.S. 657. The question did not come before us again until the last term in the Morehead case, as already noted. In that case, briefs supporting the New York statute were submitted by the States of Ohio, Connecticut, Illinois, Massachusetts, New Hampshire, New Jersey and Rhode Island. 298 U.S. p. 604, note. Throughout this entire period, the Washington statute now under consideration has been in force. The principle which must control our decision is not in doubt. The constitutional provision invoked is the due process clause of the Fourteenth Amendment, governing the States, as the due process clause invoked in the Adkins case governed Congress. In each case, the violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. Page 300 U. S. 392 This essential limitation of liberty in general governs freedom of contract in particular. More than twenty-five years ago, we set forth the applicable principle in these words, after referring to the cases where the liberty guaranteed by the Fourteenth Amendment had been broadly described: [ Footnote 1 ] "But it was recognized in the cases cited, as in many others, that freedom of contract is a qualified, and not an absolute, right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community." Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549 , 219 U. S. 567 . This power under the Constitution to restrict freedom of contract has had many illustrations. [ Footnote 2 ] That it may be exercised in the public interest with respect to contracts Page 300 U. S. 393 between employer and employee is undeniable. Thus, statutes have been sustained limiting employment in underground mines and smelters to eight hours a day ( Holden v. Hardy, 169 U. S. 366 ); in requiring redemption in cash of store orders or other evidences of indebtedness issued in the payment of wages ( Knoxville Iron Co. v. Harbison, 183 U. S. 13 ); in forbidding the payment of seamen's wages in advance ( Patterson v. Bark Eudora, 190 U. S. 169 ); in making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal instead of the weight of the coal as originally produced in the mine ( McLean v. Arkansas, 211 U. S. 539 ); in prohibiting contracts limiting liability for injuries to employees ( Chicago, B. & Q. R. Co. v. McGuire, supra ); in limiting hours of work of employees in manufacturing establishments ( Bunting v. Oregon, 243 U. S. 426 ), and in maintaining workmen's compensation laws ( New York Central R. Co. v. White, 243 U. S. 188 ; Mountain Timber Co. v. Washington, 243 U. S. 219 ). In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure wholesome conditions of work and freedom from oppression. Chicago, B. & Q. R. Co. v. McGuire, supra, p. 219 U. S. 570 . The point that has been strongly stressed that adult employees should be deemed competent to make their own contracts was decisively met nearly forty years ago in Holden v. Hardy, supra, where we pointed out the inequality in the footing of the parties. We said ( Id. 169 U. S. 397 ): "The legislature has also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that Page 300 U. S. 394 their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases, self-interest is often an unsafe guide, and the legislature may properly interpose its authority." And we added that the fact "that both parties are of full age and competent to contract does not necessarily deprive the State of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself." "The State still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety and welfare are sacrificed or neglected, the State must suffer." It is manifest that this established principle is peculiarly applicable in relation to the employment of women, in whose protection the State has a special interest. That phase of the subject received elaborate consideration in Muller v. Oregon (1908), 208 U. S. 412 , where the constitutional authority of the State to limit the working hours of women was sustained. We emphasized the consideration that "woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence," and that her physical wellbeing "becomes an object of public interest and care in order to preserve the strength and vigor of the race." We emphasized the need of protecting women against oppression despite her possession of contractual rights. We said that, "though limitations upon personal and contractual rights may be removed by legislation, there is that in her Page 300 U. S. 395 disposition and habits of life which will operate against a full assertion of those rights. She will still be where some legislation to protect her seems necessary to secure a real equality of right." Hence, she was "properly placed in a class by herself, and legislation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained." We concluded that the limitations which the statute there in question "placed upon her contractual powers, upon her right to agree with her employer as to the time she shall labor," were "not imposed solely for her benefit, but also largely for the benefit of all." Again, in Quong Wing v. Kirkendall, 223 U. S. 59 , 223 U. S. 63 , in referring to a differentiation with respect to the employment of women, we said that the Fourteenth Amendment did not interfere with state power by creating a "fictitious equality." We referred to recognized classifications on the basis of sex with regard to hours of work and in other matters, and we observed that the particular points at which that difference shall be enforced by legislation were largely in the power of the State. In later rulings, this Court sustained the regulation of hours of work of women employees in Riley v. Massachusetts, 232 U. S. 671 (factories), Miller v. Wilson, 236 U. S. 373 (hotels), and Bosley v. McLaughlin, 236 U. S. 385 (hospitals). This array of precedents and the principles they applied were thought by the dissenting Justices in the Adkins case to demand that the minimum wage statute be sustained. The validity of the distinction made by the Court between a minimum wage and a maximum of hours in limiting liberty of contract was especially challenged. 261 U.S. p. 261 U. S. 564 . That challenge persists, and is without any satisfactory answer. As Chief Justice Taft observed: "In absolute freedom of contract, the one term is as important as the other, for both enter equally into the consideration given and received, a restriction as to Page 300 U. S. 396 the one is not greater, in essence, than the other, and is of the same kind. One is the multiplier, and the other the multiplicand." And Mr. Justice Holmes, while recognizing that "the distinctions of the law are distinctions of degree," could "perceive no difference in the kind or degree of interference with liberty, the only matter with which we have any concern, between the one case and the other. The bargain is equally affected whichever half you regulate." Id., p. 261 U. S. 569 . One of the points which was pressed by the Court in supporting its ruling in the Adkins case was that the standard set up by the District of Columbia Act did not take appropriate account of the value of the services rendered. In the Morehead case, the minority thought that the New York statute had met that point in its definition of a "fair wage," and that it accordingly presented a distinguishable feature which the Court could recognize within the limits which the Morehead petition for certiorari was deemed to present. The Court, however, did not take that view, and the New York Act was held to be essentially the same as that for the District of Columbia. The statute now before us is like the latter, but we are unable to conclude that, in its minimum wage requirement, the State has passed beyond the boundary of its broad protective power. The minimum wage to be paid under the Washington statute is fixed after full consideration by representatives of employers, employees and the public. It may be assumed that the minimum wage is fixed in consideration of the services that are performed in the particular occupations under normal conditions. Provision is made for special licenses at less wages in the case of women who are incapable of full service. The statement of Mr. Justice Holmes in the Adkins case is pertinent: "This statute does not compel anybody to pay anything. It simply forbids employment at rates below those fixed as Page 300 U. S. 397 the minimum requirement of health and right living. It is safe to assume that women will not be employed at even the lowest wages allowed unless they earn them, or unless the employer's business can sustain the burden. In short the law, in its character and operation, is like hundreds of so-called police laws that have been upheld." 261 U.S. p. 261 U. S. 570 . And Chief Justice Taft forcibly pointed out the consideration which is basic in a statute of this character: "Legislatures which adopt a requirement of maximum hours or minimum wages may be presumed to believe that, when sweating employers are prevented from paying unduly low wages by positive law, they will continue their business, abating that part of their profits which were wrung from the necessities of their employees, and will concede the better terms required by the law, and that, while in individual cases hardship may result, the restriction will enure to the benefit of the general class of employees in whose interest the law is passed, and so to that of the community at large." Id., p. 261 U. S. 563 . We think that the views thus expressed are sound, and that the decision in the Adkins case was a departure from the true application of the principles governing the regulation by the State of the relation of employer and employed. Those principles have been reenforced by our subsequent decisions. Thus, in Radice v. New York, 264 U. S. 292 , we sustained the New York statute which restricted the employment of women in restaurants at night. In O'Gorman & Young v. Hartford Fire Insurance Co., 282 U. S. 251 , which upheld an act regulating the commissions of insurance agents, we pointed to the presumption of the constitutionality of a statute dealing with a subject within the scope of the police power and to the absence of any factual foundation of record for deciding that the limits of power had been transcended. In Nebbia v. New York, 291 U. S. 502 , dealing Page 300 U. S. 398 with the New York statute providing for minimum prices for milk, the general subject of the regulation of the use of private property and of the making of private contracts received an exhaustive examination, and we again declared that, if such laws "have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied;" that "with the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal;" that "times without number, we have said that the legislature is primarily the judge of the necessity of such an enactment, that every possible presumption is in favor of its validity, and that, though the court may hold views inconsistent with the wisdom of the law, it may not be annulled unless palpably in excess of legislative power." Id. pp. 291 U. S. 537 , 291 U. S. 538 . With full recognition of the earnestness and vigor which characterize the prevailing opinion in the Adkins case, we find it impossible to reconcile that ruling with these well considered declarations. What can be closer to the public interest than the health of women and their protection from unscrupulous and overreaching employers? And if the protection of women is a legitimate end of the exercise of state power, how can it be said that the requirement of the payment of a minimum wage fairly fixed in order to meet the very necessities of existence is not an admissible means to that end? The legislature of the State was clearly entitled to consider the situation of women in employment, the fact that they are in the class receiving the least pay, that their bargaining power is relatively weak, and that they are the ready victims of those who would take advantage of their necessitous circumstances. The legislature was entitled to adopt measures to reduce the evils of the "sweating system," Page 300 U. S. 399 the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living, thus making their very helplessness the occasion of a most injurious competition. The legislature had the right to consider that its minimum wage requirements would be an important aid in carrying out its policy of protection. The adoption of similar requirements by many States evidences a deep-seated conviction both as to the presence of the evil and as to the means adapted to check it. Legislative response to that conviction cannot be regarded as arbitrary or capricious, and that is all we have to decide. Even if the wisdom of the policy be regarded as debatable and its effects uncertain, still the legislature is entitled to its judgment. There is an additional and compelling consideration which recent economic experience has brought into a strong light. The exploitation of a class of workers who are in an unequal position with respect to bargaining power, and are thus relatively defenceless against the denial of a living wage, is not only detrimental to their health and wellbeing, but casts a direct burden for their support upon the community. What these workers lose in wages, the taxpayers are called upon to pay. The bare cost of living must be met. We may take judicial notice of the unparalleled demands for relief which arose during the recent period of depression and still continue to an alarming extent despite the degree of economic recovery which has been achieved. It is unnecessary to cite official statistics to establish what is of common knowledge through the length and breadth of the land. While, in the instant case, no factual brief has been presented, there is no reason to doubt that the State of Washington has encountered the same social problem that is present elsewhere. The community is not bound to provide what is, in effect, a subsidy for unconscionable employers. The Page 300 U. S. 400 community may direct its lawmaking power to correct the abuse which springs from their selfish disregard of the public interest. The argument that the legislation in question constitutes an arbitrary discrimination, because it does not extend to men, is unavailing. This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature "is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest." If "the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied." There is no "doctrinaire requirement" that the legislation should be couched in all embracing terms. Carroll v. Greenwich Insurance Co., 199 U. S. 401 , 199 U. S. 411 ; Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 ; Keokee Coke Co. v. Taylor, 234 U. S. 224 , 234 U. S. 227 ; Sproles v. Binford, 286 U. S. 374 , 286 U. S. 396 ; Semler v. Oregon Board, 294 U. S. 608 , 294 U. S. 610 , 294 U. S. 611 . This familiar principle has repeatedly been applied to legislation which singles out women, and particular classes of women, in the exercise of the State's protective power. Miller v. Wilson, supra, p. 236 U. S. 384 ; Bosley v. McLaughlin, supra, pp. 236 U. S. 394 , 236 U. S. 395 ; Radice v. New York, supra, pp. 264 U. S. 295 -298. Their relative need in the presence of the evil, no less than the existence of the evil itself, is a matter for the legislative judgment. Our conclusion is that the case of Adkins v. Children's Hospital, supra, should be, and it is, overruled. The judgment of the Supreme Court of the State of Washington is Affirmed. [ Footnote 1 ] Allgeyer v. Louisiana, 165 U. S. 578 ; Lochner v. New York, 198 U. S. 45 ; Adair v. United States, 208 U. S. 161 . [ Footnote 2 ] Munn v. Illinois, 94 U. S. 113 ; Railroad Commission Cases, 116 U. S. 307 ; Willcox v. Consolidated Gas Co., 212 U. S. 19 ; Atkin v. Kansas, 191 U. S. 207 ; Mugler v. Kansas, 123 U. S. 623 ; Crowley v. Christensen, 137 U. S. 86 ; Gundling v. Chicago, 177 U. S. 183 ; Booth v. Illinois, 184 U. S. 425 ; Schmidinger v. Chicago, 226 U. S. 578 ; Armour & Co. v. North Dakota, 240 U. S. 510 ; National Fire Insurance Co. v. Wanberg, 260 U. S. 71 ; Radice v. New York, 264 U. S. 292 ; Yeiser v. Dysart, 267 U. S. 540 ; Liberty Warehouse Co. v. Burley Tobacco Growers' Assn., 276 U. S. 71 , 276 U. S. 97 ; Highland v. Russell Car Co., 279 U. S. 253 , 279 U. S. 261 ; O'Gorman & Young v. Hartford Insurance Co., 282 U. S. 249 , 282 U. S. 251 ; Hardware Dealers Insurance Co. v. Glidden Co., 284 U. S. 151 , 281 U. S. 157 ; Packer Corp. v. Utah, 285 U. S. 95 , 285 U. S. 111 ; Stephenson v. Binford, 287 U. S. 251 , 287 U. S. 274 ; Hartford Accident Co. v. Nelson Mfg. Co., 291 U. S. 352 , 291 U. S. 360 ; Petersen Baking Co. v. Bryan, 290 U. S. 570 ; Nebbia v. New York, 291 U. S. 502 , 291 U. S. 527 -529. MR. JUSTICE SUTHERLAND, dissenting: MR. JUSTICE VAN DEVANTER, MR. JUSTICE MCREYNOLDS, MR. JUSTICE BUTLER and I think the judgment of the court below should be reversed. Page 300 U. S. 401 The principles and authorities relied upon to sustain the judgment were considered in Adkins v. Children's Hospital, 261 U. S. 525 , and Morehead v. New York ex rel. Tipaldo, 298 U. S. 587 , and their lack of application to cases like the one in hand was pointed out. A sufficient answer to all that is now said will be found in the opinions of the court in those cases. Nevertheless, in the circumstances, it seems well to restate our reasons and conclusions. Under our form of government, where the written Constitution, by its own terms, is the supreme law, some agency, of necessity, must have the power to say the final word as to the validity of a statute assailed as unconstitutional. The Constitution makes it clear that the power has been intrusted to this court when the question arises in a controversy within its jurisdiction, and, so long as the power remains there, its exercise cannot be avoided without betrayal of the trust. It has been pointed out many times, as in the Adkins case, that this judicial duty is one of gravity and delicacy, and that rational doubts must be resolved in favor of the constitutionality of the statute. But whose doubts, and by whom resolved? Undoubtedly it is the duty of a member of the court, in the process of reaching a right conclusion, to give due weight to the opposing views of his associates; but, in the end, the question which he must answer is not whether such views seem sound to those who entertain them, but whether they convince him that the statute is constitutional or engender in his mind a rational doubt upon that issue. The oath which he takes as a judge is not a composite oath, but an individual one. And, in passing upon the validity of a statute, he discharges a duty imposed upon him, which cannot be consummated justly by an automatic acceptance of the views of others which have neither convinced, nor created a reasonable doubt in, his mind. If upon a question so Page 300 U. S. 402 important he thus surrender his deliberate judgment, he stands forsworn. He cannot subordinate his convictions to that extent and keep faith with his oath or retain his judicial and moral independence. The suggestion that the only check upon the exercise of the judicial power, when properly invoked to declare a constitutional right superior to an unconstitutional statute, is the judge's own faculty of self-restraint is both ill-considered and mischievous. Self-restraint belongs in the domain of will, and not of judgment. The check upon the judge is that imposed by his oath of office, by the Constitution, and by his own conscientious and informed convictions, and since he has the duty to make up his own mind and adjudge accordingly, it is hard to see how there could be any other restraint. This court acts as a unit. It cannot act in any other way, and the majority (whether a bare majority or a majority of all but one of its members) therefore establishes the controlling rule as the decision of the court, binding, so long as it remains unchanged, equally upon those who disagree and upon those who subscribe to it. Otherwise, orderly administration of justice would cease. But it is the right of those in the minority to disagree, and sometimes, in matters of grave importance, their imperative duty to voice their disagreement at such length as the occasion demands -- always, of course, in terms which, however forceful, do not offend the proprieties or impugn the good faith of those who think otherwise. It is urged that the question involved should now receive fresh consideration, among other reasons, because of "the economic conditions which have supervened"; but the meaning of the Constitution does not change with the ebb and flow of economic events. We frequently are told in more general words that the Constitution must be construed in the light of the present. If by that it is meant that the Constitution is made up of Page 300 U. S. 403 living words that apply to every new condition which they include, the statement is quite true. But to say, if that be intended, that the words of the Constitution mean today what they did not mean when written -- that is, that they do not apply to a situation now to which they would have applied then -- is to rob that instrument of the essential element which continues it in force as the people have made it until they, and not their official agents, have made it otherwise. The words of Judge Campbell in Twitchell v. Blodgett, 13 Mich. 127, 139-140, apply with peculiar force. "But it may easily happen," he said, "that specific provisions may, in unforeseen emergencies, turn out to have been inexpedient. This does not make these provisions any less binding. Constitutions cannot be changed by events alone. They remain binding as the acts of the people in their sovereign capacity, as the framers of Government, until they are amended or abrogated by the action prescribed by the authority which created them. It is not competent for any department of the Government to change a constitution, or declare it changed, simply because it appears ill-adapted to a new state of things." ". . . Restrictions have, it is true, been found more likely than grants to be unsuited to unforeseen circumstances . . . But, where evils arise from the application of such regulations, their force cannot be denied or evaded, and the remedy consists in repeal or amendment, and not in false construction." The principle is reflected in many decisions of this court. See South Carolina v. United States, 199 U. S. 437 , 199 U. S. 448 -449; Lake County v. Rollins, 130 U. S. 662 , 130 U. S. 670 ; Knowlton v. Moore, 178 U. S. 41 , 178 U. S. 95 ; Rhode Island v. Massachusetts , 12 Pet. 657, 37 U. S. 723 ; Craig v. Missouri , 4 Pet. 410, 431-432; Ex parte Bain, 121 U. S. 1 , 121 U. S. 12 ; Maxwell v. Dow, 176 U. S. 581 , 176 U. S. 602 ; Jarrolt v. Moberly, 103 U. S. 580 , 103 U. S. 586 . Page 300 U. S. 404 The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to miss all that the phrase "supreme law of the land" stands for, and to convert what was intended as inescapable and enduring mandates into mere moral reflections. If the Constitution, intelligently and reasonably construed in the light of these principles, stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation -- and the only true remedy -- is to amend the Constitution. Judge Cooley, in the first volume of his Constitutional Limitations (8th ed.), p. 124, very clearly pointed out that much of the benefit expected from written constitutions would be lost if their provisions were to be bent to circumstances or modified by public opinion. He pointed out that the common law, unlike a constitution, was subject to modification by public sentiment and action which the courts might recognize, but that "a court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders would be justly chargeable with reckless disregard of official oath and public duty, and if its course could become a precedent, these instruments would be of little avail. . . . What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it." The Adkins case dealt with an act of Congress which had passed the scrutiny both of the legislative and executive branches of the government. We recognized that Page 300 U. S. 405 thereby these departments had affirmed the validity of the statute, and properly declared that their determination must be given great weight, but we then concluded, after thorough consideration, that their view could not be sustained. We think it not inappropriate now to add a word on that subject before coming to the question immediately under review. The people, by their Constitution, created three separate, distinct, independent and coequal departments of government. The governmental structure rests, and was intended to rest, not upon any one or upon any two, but upon all three of these fundamental pillars. It seems unnecessary to repeat what so often has been said, that the powers of these departments are different, and are to be exercised independently. The differences clearly and definitely appear in the Constitution. Each of the departments is an agent of its creator, and one department is not and cannot be the agent of another. Each is answerable to its creator for what it does, and not to another agent. The view, therefore, of the Executive and of Congress that an act is constitutional is persuasive in a high degree; but it is not controlling. Coming, then, to a consideration of the Washington statute, it first is to be observed that it is in every substantial respect identical with the statute involved in the Adkins case. Such vices as existed in the latter are present in the former. And if the Adkins case was properly decided, as we who join in this opinion think it was, it necessarily follows that the Washington statute is invalid. In support of minimum wage legislation it has been urged, on the one hand, that great benefits will result in favor of underpaid labor, and, on the other hand, that the danger of such legislation is that the minimum will tend to become the maximum, and thus bring down the Page 300 U. S. 406 earnings of the more efficient toward the level of the less efficient employees. But with these speculations we have nothing to do. We are concerned only with the question of constitutionality. That the clause of the Fourteenth Amendment which forbids a state to deprive any person of life, liberty or property without due process of law includes freedom of contract is so well settled as to be no longer open to question. Nor reasonably can it be disputed that contracts of employment of labor are included in the rule. Adair v. United States, 208 U. S. 161 , 208 U. S. 174 -175; Coppage v. Kansas, 236 U. S. 1 , 236 U. S. 10 , 236 U. S. 14 . In the first of these cases, Mr. Justice Harlan, speaking for the court, said, "The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell. . . . In all such particulars, the employer and employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land." In the Adkins case, we referred to this language, and said that, while there was no such thing as absolute freedom of contract, but that it was subject to a great variety of restraints, nevertheless, freedom of contract was the general rule, and restraint the exception, and that the power to abridge that freedom could only be justified by the existence of exceptional circumstances. This statement of the rule has been many times affirmed, and we do not understand that it is questioned by the present decision. We further pointed out four distinct classes of cases in which this court from time to time had upheld statutory interferences with the liberty of contract. They were, in brief, (1) statutes fixing rates and charges to be Page 300 U. S. 407 exacted by businesses impressed with a public interest; (2) statutes relating to contracts for the performance of public work; (3) statutes prescribing the character, methods and time for payment of wages, and (4) statutes fixing hours of labor. It is the last class that has been most relied upon as affording support for minimum wage legislation, and much of the opinion in the Adkins case (261 U.S. 261 U. S. 547 -553) is devoted to pointing out the essential distinction between fixing hours of labor and fixing wages. What is there said need not be repeated. It is enough for present purposes to say that statutes of the former class deal with an incident of the employment having no necessary effect upon wages. The parties are left free to contract about wages, and thereby equalize such additional burdens as may be imposed upon the employer as a result of the restrictions as to hours by an adjustment in respect of the amount of wages. This court, wherever the question is adverted to, has been careful to disclaim any purpose to uphold such legislation as fixing wages, and has recognized an essential difference between the two. E.g., Bunting v. Oregon, 243 U. S. 426 ; Wilson v. New, 243 U. S. 332 , 243 U. S. 345 -346, 243 U. S. 353 -354, and see Freund, Police Power, § 318. We then pointed out that minimum wage legislation such as that here involved does not deal with any business charged with a public interest, or with public work, or with a temporary emergency, or with the character, methods or periods of wage payments, or with hours of labor, or with the protection of persons under legal disability, or with the prevention of fraud. It is, simply and exclusively, a law fixing wages for adult women who are legally as capable of contracting for themselves as men, and cannot be sustained unless upon principles apart from those involved in cases already decided by the court. Two cases were involved in the Adkins decision. In one of them, it appeared that a woman 21 years of age, Page 300 U. S. 408 who brought the suit, was employed as an elevator operator at a fixed salary. Her services were satisfactory, and she was anxious to retain her position, and her employer, while willing to retain her, was obliged to dispense with her services on account of the penalties prescribed by the act. The wages received by her were the best she was able to obtain for any work she was capable of performing, and the enforcement of the order deprived her, as she alleged, not only of that employment, but left her unable to secure any position at which she could make a living with as good physical and moral surroundings and as good wages as she was receiving and was willing to take. The Washington statute, of course, admits of the same situation and result, and, for aught that appears to the contrary, the situation in the present case may have been the same as that just described. Certainly, to the extent that the statute applies to such cases, it cannot be justified as a reasonable restraint upon the freedom of contract. On the contrary, it is essentially arbitrary. Neither the statute involved in the Adkins case nor the Washington statute, so far as it is involved here, has the slightest relation to the capacity or earning power of the employee, to the number of hours which constitute the day's work, the character of the place where the work is to be done, or the circumstances or surroundings of ,he employment. The sole basis upon which the question of validity rests is the assumption that the employee is entitled to receive a sum of money sufficient to provide a living for her, keep her in health, and preserve her morals. And, as we pointed out at some length in that case (pp. 261 U. S. 555 -557), the question thus presented for the determination of the board cannot be solved by any general formula prescribed by a statutory bureau, since it is not a composite, but an individual, question to be answered for each individual, considered by herself. Page 300 U. S. 409 What we said further in that case (pp. 261 U. S. 557 -559), is equally applicable here: "The law takes account of the necessities of only one party to the contract. It ignores the necessities of the employer by compelling him to pay not less than a certain sum not only whether the employee is capable of earning it, but irrespective of the ability of his business to sustain the burden, generously leaving him, of course, the privilege of abandoning his business as an alternative for going on at a loss. Within the limits of the minimum sum, he is precluded, under penalty of fine and imprisonment, from adjusting compensation to the differing merits of his employees. It compels him to pay at least the sum fixed in any event, because the employee needs it, but requires no service of equivalent value from the employee. It therefore undertakes to solve but one-half of the problem. The other half is the establishment of a corresponding standard of efficiency, and this forms no part of the policy of the legislation, although in practice the former half without the latter must lead to ultimate failure, in accordance with the inexorable law that no one can continue indefinitely to take out more than he puts in without ultimately exhausting the supply. The law is not confined to the great and powerful employers, but embraces those whose bargaining power may be as weak as that of the employee. It takes no account of periods of stress and business depression, of crippling losses which may leave the employer himself without adequate means of livelihood. To the extent that the sum fixed exceeds the fair value of the services rendered, it amounts to a compulsory exaction from the employer for the support of a partially indigent person, for whose condition there rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody, belongs to society as a whole." "The feature of this statute which, perhaps more than any other, puts upon it the stamp of invalidity is that it Page 300 U. S. 410 exacts from the employer an arbitrary payment for a purpose and upon a basis having no causal connection with his business, or the contract, or the work the employee engages to do. The declared basis, as already pointed out, is not the value of the service rendered, but the extraneous circumstance that the employee needs to get a prescribed sum of money to insure her subsistence, health and morals. The ethical right of every worker, man or woman, to a living wage may be conceded. One of the declared and important purposes of trade organizations is to secure it. And with that principle and with every legitimate effort to realize it, in fact, no one can quarrel; but the fallacy of the proposed method of attaining it is that it assumes that every employer is bound at all events to furnish it. The moral requirement implicit in every contract of employment, viz., that the amount to be paid and the service to be rendered shall bear to each other some relation of just equivalence, is completely ignored. The necessities of the employee are alone considered, and these arise outside of the employment, are the same when there is no employment, and as great in one occupation as in another. Certainly the employer, by paying a fair equivalent for the service rendered, though not sufficient to support the employee, has neither caused nor contributed to her poverty. On the contrary, to the extent of what he pays, he has relieved it. In principle, there can be no difference between the case of selling labor and the case of selling goods. If one goes to the butcher, the baker or grocer to buy food, he is morally entitled to obtain the worth of his money, but he is not entitled to more. If what he gets is worth what he pays, he is not justified in demanding more simply because he needs more, and the shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in any peculiar sense with the question of his customer's necessities. Should a statute undertake to vest in a commission Page 300 U. S. 411 power to determine the quantity of food necessary for individual support and require the shopkeeper, if he sell to the individual at all, to furnish that quantity at not more than a fixed maximum, it would undoubtedly fall before the constitutional test. The fallacy of any argument in support of the validity of such a statute would be quickly exposed. The argument in support of that now being considered is equally fallacious, though the weakness of it may not be so plain. A statute requiring an employer to pay in money, to pay at prescribed and regular intervals, to pay the value of the services rendered, even to pay with fair relation to the extent of the benefit obtained from the service, would be understandable. But a statute which prescribes payment without regard to any of these things, and solely with relation to circumstances apart from the contract of employment, the business affected by it and the work done under it, is so clearly the product of a naked, arbitrary exercise of power that it cannot be allowed to stand under the Constitution of the United States." Whether this would be equally or at all true in respect of the statutes of some of the states we are not called upon to say. They are not now before us, and it is enough that it applies in every particular to the Washington statute now under consideration. The Washington statute, like the one for the District of Columbia, fixes minimum wages for adult women. Adult men and their employers are left free to bargain as they please, and it is a significant and an important fact that all state statutes to which our attention has been called are of like character. The common law rules restricting the power of women to make contracts have, under our system, long since practically disappeared. Women today stand upon a legal and political equality with men. There is no longer any reason why they should be put in different classes in respect of their legal Page 300 U. S. 412 right to make contracts; nor should they be denied, in effect, the right to compete with men for work paying lower wages which men may be willing to accept. And it is an arbitrary exercise of the legislative power to do so. In the Tipaldo case, 298 U. S. 587 , 298 U. S. 615 , it appeared that the New York legislature had passed two minimum wage measures -- one dealing with women alone, the other with both men and women. The act which included men was vetoed by the governor. The other, applying to women alone, was approved. The "factual background" in respect of both measures was substantially the same. In pointing out the arbitrary discrimination which resulted (pp. 298 U. S. 615 -617) we said: "These legislative declarations, in form of findings or recitals of fact, serve well to illustrate why any measure that deprives employers and adult women of freedom to agree upon wages, leaving employers and men employees free so to do, is necessarily arbitrary. Much, if not all, that in them is said in justification of the regulations that the Act imposes in respect of women's wages applies with equal force in support of the same regulation of men's wages. While men are left free to fix their wages by agreement with employers, it would be fanciful to suppose that the regulation of women's wages would be useful to prevent or lessen the evils listed in the first section of the Act. Men in need of work are as likely as women to accept the low wages offered by unscrupulous employers. Men in greater number than women support themselves and dependents, and, because of need, will work for whatever wages they can get, and that without regard to the value of the service, and even though the pay is less than minima prescribed in accordance with this Act. It is plain that, under circumstances such as those portrayed in the 'Factual background,' prescribing of minimum wages for women alone would unreasonably restrain them Page 300 U. S. 413 in competition with men and tend arbitrarily to deprive them of employment and a fair chance to find work." An appeal to the principle that the legislature is free to recognize degrees of harm, and confine its restrictions accordingly, is but to beg the question, which is, since the contractual rights of men and women are the same, does the legislation here involved, by restricting only the rights of women to make contracts as to wages, create an arbitrary discrimination? We think it does. Difference of sex affords no reasonable ground for making a restriction applicable to the wage contracts of all working women from which like contracts of all working men are left free. Certainly a suggestion that the bargaining ability of the average woman is not equal to that of the average man would lack substance. The ability to make a fair bargain, as everyone knows, does not depend upon sex. If, in the light of the facts, the state legislation, without reason or for reasons of mere expediency, excluded men from the provisions of the legislation, the power was exercised arbitrarily. On the other hand, if such legislation in respect of men was properly omitted on the ground that it would be unconstitutional, the same conclusion of unconstitutionality is inescapable in respect of similar legislative restraint in the case of women, 261 U.S. 261 U. S. 553 . Finally, it may be said that a statute absolutely fixing wages in the various industries at definite sums and forbidding employers and employees from contracting for any other than those designated would probably not be thought to be constitutional. It is hard to see why the power to fix minimum wages does not connote a like power in respect of maximum wages. And yet, if both powers be exercised in such a way that the minimum and the maximum so nearly approach each other as to Page 300 U. S. 414 become substantially the same, the right to make any contract in respect of wages will have been completely abrogated. A more complete discussion may be found in the Adkins and Tipaldo cases cited supra.

In West Coast Hotel Co. v. Parrish, the U.S. Supreme Court upheld a Washington state law establishing minimum wages for women, overturning a previous decision (Adkins v. Children's Hospital) that deemed such laws unconstitutional. The Court recognized the state's interest in protecting women from poor working conditions and low wages, which could lead to inadequate support and health issues, impacting not just the women but also the community at large. The Court also noted the exceptional demands for relief during the Great Depression. The ruling validated state power to regulate wages for the well-being of society, setting a precedent for future labor laws and minimum wage legislation.

Labor & Employment

J.I. Case Co. v. NLRB

https://supreme.justia.com/cases/federal/us/321/332/

U.S. Supreme Court J. I. Case Co. v. Labor Board, 321 U.S. 332 (1944) J. I. Case Co. v. National Labor Relations Board No. 67 Argued January 3, 1944 Decided February 28, 1944 321 U.S. 332 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus 1. In view of the continuing character of the obligation imposed on the employer by the order of the National Labor Relations Board, the subsequent expiration of the contracts in question and the employer's entry into a collective bargaining agreement did not render the case moot. P. 321 U. S. 334 . 2. That an employer has individual contracts of employment, covering wages, hours and working conditions, with a majority of his employees, which contracts were valid when made and are unexpired, does not preclude exercise by the employees of their right under the National Labor Relations Act to choose a representative for collective bargaining, nor warrant refusal by the employer to bargain with such representative in respect of terms covered by the individual contracts. P. 321 U. S. 339 . The relation in general of individual contracts to collective bargaining is discussed. 3. The Board has no power to adjudicate the validity or effect of the contracts here in question, except as to their effect on matters within its jurisdiction. P. 321 U. S. 340 . 4. Since the desist order literally goes beyond what the Board intended, its language is modified accordingly. P. 321 U. S. 341 . 134 F.2d 70 modified and affirmed. Certiorari, 320 U.S. 210, to review a decree which granted enforcement of an order of the National Labor Relations Board, 42 N.L.R.B. 85. Page 321 U. S. 333 MR. JUSTICE JACKSON delivered the opinion of the Court. This cause was heard by the National Labor Relations Board on stipulated facts which, so far as concern present issues, are as follows: The petitioner, J. I. Case Company, at its Rock Island, Illinois, plant, from 1937, offered each employee an individual contract of employment. The contracts were uniform, and for a term of one year. The Company agreed to furnish employment as steadily as conditions permitted, to pay a specified rate, which the Company might redetermine if the job changed, and to maintain certain hospital facilities. The employee agreed to accept the provisions, to serve faithfully and honestly for the term, to comply with factory rules, and that defective work should not be paid for. About 75% of the employees accepted and worked under these agreements. According to the Board's stipulation and finding, the execution of the contracts was not a condition of employment, nor was the status of individual employees affected by reason of signing or failing to sign the contracts. It is not found or contended that the agreements were coerced, obtained by any unfair labor practice, or that they were not valid under the circumstances in which they were made. While the individual contracts executed August 1, 1941, were in effect, a CIO union petitioned the Board for certification as the exclusive bargaining representative of the production and maintenance employees. On December 17, 1941, a hearing was held at which the Company urged the individual contracts as a bar to representation proceedings. The Board, however, directed an election, which was won by the union. The union was thereupon certified as the exclusive bargaining representative of the employees in question in respect to wages, hours, and other conditions of employment. Page 321 U. S. 334 The union then asked the Company to bargain. It refused, declaring that it could not deal with the union in any manner affecting rights and obligations under the individual contracts while they remained in effect. It offered to negotiate on matters which did not affect rights under the individual contracts, and said that, upon the expiration of the contracts, it would bargain as to all matters. Twice the Company sent circulars to its employees asserting the validity of the individual contracts and stating the position that it took before the Board in reference to them. The Board held that the Company had refused to bargain collectively, in violation of § 8(5) of the National Labor Relations Act, and that the contracts had been utilized, by means of the circulars, to impede employees in the exercise of rights guaranteed by § 7 of the Act, with the result that the Company had engaged in unfair labor practices within the meaning of § 8(1) of the Act. It ordered the Company to cease and desist from giving effect to the contracts, from extending them or entering into new ones, from refusing to bargain and from interfering with the employees, and it required the Company to give notice accordingly and to bargain upon request. The Circuit Court of Appeals, with modification not in issue here, granted an order of enforcement. The issues are unsettled ones important in the administration of the Act, and we granted certiorari. In doing so, we asked counsel, in view of the expiration of the individual contracts and the negotiation of a collective contract, to discuss whether the case was moot. In view of the continuing character of the obligation imposed by the order, we think it is not, and will examine the merits. Contract, in labor law, is a term the implications of which must be determined from the connection in which it appears. Collective bargaining between employer and the representatives of a unit, usually a union, results in an Page 321 U. S. 335 accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it, and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than in a contract of employment. Without pushing the analogy too far, the agreement may be likened to the tariffs established by a carrier, to standard provisions prescribed by supervising authorities for insurance policies, or to utility schedules of rates and rules for service, which do not of themselves establish any relationships, but which do govern the terms of the shipper or insurer or customer relationship whenever and with whomever it may be established. Indeed, in some European countries, contrary to American practice, the terms of a collectively negotiated trade agreement are submitted to a government department, and, if approved, become a governmental regulation ruling employment in the unit. [ Footnote 1 ] After the collective trade agreement is made, the individuals who shall benefit by it are identified by individual hirings. The employer, except as restricted by the collective agreement itself and except that he must engage in no unfair labor practice or discrimination, is free to select those he will employ or discharge. But the terms of the employment already have been traded out. There is little left to individual agreement except the act of hiring. This hiring may be by writing or by word of mouth or may be implied from conduct. In the sense of contracts of hiring, individual contracts between the employer and employee Page 321 U. S. 336 are not forbidden, but indeed are necessitated by the collective bargaining procedure. But, however engaged, an employee becomes entitled by virtue of the Labor Relations Act somewhat as a third party beneficiary to all benefits of the collective trade agreement, even if on his own he would yield to less favorable terms. The individual hiring contract is subsidiary to the terms of the trade agreement, and may not waive any of its benefits, any more than a shipper can contract away the benefit of filed tariffs, the insurer the benefit of standard provisions, or the utility customer the benefit of legally established rates. Concurrent existence of these two types of agreement raises problems as to which the National Labor Relations Act makes no express provision. We have, however, held that individual contracts obtained as the result of an unfair labor practice may not be the basis of advantage to the violator of the Act nor of disadvantage to employees. National Licorice Co. v. Labor Board, 309 U. S. 350 . But it is urged that where, as here, the contracts were not unfairly or unlawfully obtained, the court indicated a contrary rule in Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 301 U. S. 44 -45, and Virginian R. Co. v. System Federation, 300 U. S. 515 . Without reviewing those cases in detail, it may be said that their decision called for nothing and their opinions contain nothing which may be properly read to rule the case before us. The Court in those cases recognized the existence of some scope for individual contracts, but it did not undertake to define it or to consider the relations between lawful individual and collective agreements, which is the problem now before us. Care has been taken in the opinions of the Court to reserve a field for the individual contract, even in industries covered by the National Labor Relations Act, not merely as an act or evidence of hiring, but also in the sense of a completely individually bargained contract setting out Page 321 U. S. 337 terms of employment, because there are circumstances in which it may legally be used -- in fact in which there is no alternative. Without limiting the possibilities, instances such as the following will occur: men may continue work after a collective agreement expires and, despite negotiation in good faith, the negotiation may be deadlocked or delayed; in the interim, express or implied individual agreements may be held to govern. The conditions for collective bargaining may not exist; thus, a majority of the employees may refuse to join a union or to agree upon or designate bargaining representatives, or the majority may not be demonstrable by the means prescribed by the statute, or a previously existent majority may have been lost without unlawful interference by the employer and no new majority have been formed. As the employer in these circumstances may be under no legal obligation to bargain collectively, he may be free to enter into individual contracts. [ Footnote 2 ] Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to exclude the contracting employee from a duly ascertained bargaining unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective agreement. "The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices." National Licorice Co. v. Labor Board, 309 U. S. 350 , 309 U. S. 364 . Wherever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility. Page 321 U. S. 338 It is equally clear, since the collective trade agreement is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled under the trade agreement. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his preexisting contract of employment. But it is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group, and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining looks with suspicion on such individual advantages. Of course, where there is great variation in circumstances of employment or capacity of employees, it is possible for the collective bargain to prescribe only minimum rates or maximum hours or expressly to leave certain areas open to individual bargaining. But, except as so provided, advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way of interfering with organization and choice of representatives; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being Page 321 U. S. 339 paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices. The workman is free, if he values his own bargaining position more than that of the group, to vote against representation, but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. We cannot except individual contracts generally from the operation of collective ones because some may be more individually advantageous. Individual contracts cannot subtract from collective ones, and whether, under some circumstances, they may add to them in matters covered by the collective bargain we leave to be determined by appropriate forums under the laws of contracts applicable, and to the Labor Board if they constitute unfair labor practices. It also is urged that such individual contracts may embody matters that are not necessarily included within the statutory scope of collective bargaining, such as stock purchase, group insurance, hospitalization, or medical attention. We know of nothing to prevent the employee's, because he is an employee, making any contract provided it is not inconsistent with a collective agreement or does not amount to or result from or is not part of an unfair labor practice. But, in so doing, the employer may not incidentally exact or obtain any diminution of his own obligation or any increase of those of employees in the matters covered by collective agreement. Hence, we find that the contentions of the Company that the individual contracts precluded a choice of representatives and warranted refusal to bargain during their duration were properly overruled. It follows that representation to the employees by circular letter that they had such legal effect was improper, and could properly be prohibited by the Board. Page 321 U. S. 340 One minor matter remains for consideration. The literal terms of the Board's order require the Company to "cease and desist from (a) giving effect to the individual contracts of employment or any modification, continuation, extension or renewal thereof, or entering into any similar form of contract with its employees for any period subsequent to the date of this decision," and to give written notice to each to that effect and that "such contract will not in any manner be enforced or attempted to be enforced," and that "such discontinuance of the contract is without prejudice to the assertion of any legal rights the employee may have acquired under such contract." These provisions, it has been argued, go beyond the Board's power, leave employees free to bring, but the Company powerless to defend, actions on the contract, and prohibit making future contracts even when not obnoxious to the law or to any collective agreement. The Board, of course, has no power to adjudicate the validity or effect of such contracts except as to their effect on matters within its jurisdiction. National Licorice Co. v. Labor Board, supra. The Board, however, would construe the order more narrowly than its terms suggest. It says, "The provision in question, as we have seen, is based upon the finding that the contracts were utilized as a means of interfering with rights guaranteed by the Act, and constituted an obstacle to collective bargaining. Read in the context of this finding, the requirement of the cease and desist provisions enjoins petitioner only from continuing to derive benefits from the contracts heretofore utilized to forestall collective bargaining and deter self-organization, and from entering into new contracts either for the purpose of again thus utilizing them or under circumstances in which similar infringement of the collective bargaining process would be a probable consequence. The paragraph does not prevent petitioner from contracting with individual employees under circumstances which negative any Page 321 U. S. 341 intent to interfere with the employees' right under the Act. . . . Thus, construed, the challenged requirement is but a reasonable safeguard. . . ." We agree, but the literal language of the order may well be read in quite different meaning, especially when separated from findings and standing alone in the Court's enforcement order. It then becomes the language of the Court, and the Court would not be bound to look upon the Board's construction as its own. Questions of construction had better be ironed out before enforcement orders issue than upon contempt proceedings. A party is entitled to a definition as exact as the circumstances permit of the acts which he can perform only on pain of contempt of court. Nor should he be ordered to desist from more on the theory that he may violate the literal language and then defend by resort to the Board's construction of it. Courts' orders are not to be trifled with, nor should they invite litigation as to their meaning. It will occur often enough when every reasonable effort is made to avoid it. Where, as here, the literal language of the order goes beyond what the Board admits was intended, correction should be made. Paragraphs 1(a) and 2(a) of the decree of the court below are hereby modified, by adding the words in italics, to read as follows: "1. Cease and desist from:" "(a) Giving effect to the individual contracts of employment or any modification, continuation, extension, or renewal thereof to forestall collective bargaining or deter self-organization, or entering into any similar form of contract with its employees for any period subsequent to the date of this Decree for such purpose or with such effect. " "2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:" "(a) Give separate written notice to each of its employees who signed an individual contract of employment or any modification, continuation, extension, or renewal Page 321 U. S. 342 thereof, or any similar form of contract for any period subsequent to the date of this Decree, that such contract will not in any manner be enforced or attempted to be enforced to forestall collective bargaining or deter self-organization, that the employee is not required or expected by virtue of such contract to deal with respondent individually in respect to rates of pay, wages, hours of employment, or other conditions of employment, and that such discontinuance of the contract is without prejudice to the assertion of any legal rights the employee may have acquired under such contract or to any defenses thereto by the employer. " As so modified the decree is Affirmed. MR. JUSTICE ROBERTS is of opinion that the judgment should be reversed. [ Footnote 1 ] See Hamburger, "The Extension of Collective Agreements to Cover Entire Trade and Industries" (1939) 40 International Labor Review 153; Methods of Collaboration between Public Authorities, Workers' Organizations, and Employers' Organizations (International Labour Conference, 1940) p. 112. [ Footnote 2 ] Cf. Labor Board v. Sands Mfg. Co., 306 U. S. 332 ; Labor Board v. Columbian Enameling & Stamping Co., 306 U. S. 292 , 306 U. S. 297 -298; Labor Board v. Brashear Freight Lines, Inc., 119 F.2d 379; Hoeniger, "The Individual Employment Contract and Individual Bargain," 10 Fordham L.Rev. 14, 22-25.

The case of J. I. Case Co. v. Labor Board (1944) concerned an employer's attempt to avoid collective bargaining with its employees by implementing individual contracts of employment. The National Labor Relations Board and the Court of Appeals for the Seventh Circuit ruled against the employer, and the Supreme Court affirmed this decision. The Court held that the employer's individual contracts with employees, covering wages, hours, and working conditions, did not preclude the employees' right to choose a representative for collective bargaining under the National Labor Relations Act. The Court also clarified the Board's power to adjudicate the validity of such contracts, stating that it extends only to matters within the Board's jurisdiction. While the employer's subsequent entry into a collective bargaining agreement could have rendered the case moot, the Court emphasized the continuing nature of the obligation imposed by the Board's order. The Court modified the Board's order to more precisely define the acts the employer was required to refrain from, emphasizing the importance of clear and exact language in court orders.

Labor & Employment

McDonnell Douglas Corp. v. Green

https://supreme.justia.com/cases/federal/us/411/792/

U.S. Supreme Court McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) McDonnell Douglas Corp. v. Green No. 72-490 Argued March 28, 1973 Decided May 14, 1973 411 U.S. 792 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Respondent, a black civil rights activist, engaged in disruptive and illegal activity against petitioner as part of his protest that his discharge as an employee of petitioner's and the firm's general hiring practices were racially motivated. When petitioner, who subsequently advertised for qualified personnel, rejected respondent's reemployment application on the ground of the illegal conduct, respondent filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging violation of Title VII of the Civil Rights Act of 1964. The EEOC found that there was reasonable cause to believe that petitioner's rejection of respondent violated § 704(a) of the Act, which forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory employment conditions, but made no finding on respondent's allegation that petitioner had also violated § 703(a)(1), which prohibits discrimination in any employment decision. Following unsuccessful EEOC conciliation efforts, respondent brought suit in the District Court, which ruled that respondent's illegal activity was not protected by § 704(a) and dismissed the § 703(a)(1) claim because the EEOC had made no finding with respect thereto. The Court of Appeals affirmed the § 704(a) ruling, but reversed with respect to § 703(a)(1), holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to claiming a violation of that provision in federal court. Held: 1. A complainant's right to bring suit under the Civil Rights Act of 1964 is not confined to charges as to which the EEOC has made a reasonable cause finding, and the District Court's error in holding to the contrary was not harmless, since the issues raised with respect to § 703(a)(1) were not identical to those with respect to § 704(a), and the dismissal of the former charge may have prejudiced respondent's efforts at trial. Pp. 411 U. S. 798 -800. 2. In a private, non-class action complaint under Title VII charging racial employment discrimination, the complainant has the burden of establishing a prima facie case, which he can satisfy by showing that (i) he belongs to a racial minority; (ii) he Page 411 U. S. 793 applied and was qualified for a job the employer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafter the employer continued to seek applicants with complainant's qualifications. P. 411 U. S. 802 . 3. Here, the Court of Appeals, though correctly holding that respondent proved a prima facie case, erred in holding that petitioner had not discharged its burden of proof in rebuttal by showing that its stated reason for the rehiring refusal was based on respondent's illegal activity. But on remand, respondent must be afforded a fair opportunity of proving that petitioner's stated reason was just a pretext for a racially discriminatory decision, such as by showing that whites engaging in similar illegal activity were retained or hired by petitioner. Other evidence that may be relevant, depending on the circumstances, could include facts that petitioner had discriminated against respondent when he was an employee or followed a discriminatory policy toward minority employees. Pp. 411 U. S. 802 -805. 463 F.2d 337, vacated and remanded. POWELL, J., delivered the opinion for a unanimous Court. MR. JUSTICE POWELL delivered the opinion of the Court. The case before us raises significant questions as to the proper order and nature of proof in actions under Title Page 411 U. S. 794 VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. Petitioner, McDonnell Douglas Cop., is an aerospace and aircraft manufacturer headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until August 28, 1964, [ Footnote 1 ] when he was laid off in the course of a general reduction in petitioner's workforce. Respondent, a long-time activist in the civil rights movement, protested vigorously that his discharge and the general hiring practices of petitioner were racially motivated. [ Footnote 2 ] As part of this protest, respondent and other members of the Congress on Racial Equality illegally stalled their cars on the main roads leading to petitioner's plant for the purpose of blocking access to it at the time of the morning shift change. The District Judge described the plan for, and respondent's participation in, the "stall-in" as follows: "[F]ive teams, each consisting of four cars would 'tie up' five main access roads into McDonnell at the time of the morning rush hour. The drivers of the cars were instructed to line up next to each other completely blocking the intersections or roads. The drivers were also instructed to stop their cars, turn off the engines, pull the emergency brake, raise all windows, lock the doors, and remain in their cars until the police arrived. The plan was to have the cars remain in position for one hour. " Page 411 U. S. 795 "Acting under the 'stall-in' plan, plaintiff [respondent in the present action] drove his car onto Brown Road, a McDonnell access road, at approximately 7:00 a.m., at the start of the morning rush hour. Plaintiff was aware of the traffic problems that would result. He stopped his car with the intent to block traffic. The police arrived shortly, and requested plaintiff to move his car. He refused to move his car voluntarily. Plaintiff's car was towed away by the police, and he was arrested for obstructing traffic. Plaintiff pleaded guilty to the charge of obstructing traffic, and was fined." 318 F. Supp. 846 , 849. On July 2, 1965, a "lock-in" took place wherein a chain and padlock were placed on the front door of a building to prevent the occupants, certain of petitioner's employees, from leaving. Though respondent apparently knew beforehand of the "lock-in," the full extent of his involvement remains uncertain. [ Footnote 3 ] Page 411 U. S. 796 Some three weeks following the "lock-in," on July 25, 1965, petitioner publicly advertised for qualified mechanics, respondent's trade, and respondent promptly applied for reemployment. Petitioner turned down respondent, basing its rejection on respondent's participation in the "stall-in" and "lock-in." Shortly thereafter, respondent filed a formal complaint with the Equal Employment Opportunity Commission, claiming that petitioner had refused to rehire him because of his race and persistent involvement in the civil rights movement, in violation of §§ 703(a)(1) and 704(a) of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a). [ Footnote 4 ] The former section generally prohibits racial discrimination in any employment decision, while the latter forbids discrimination against applicants or employees for attempting to protest or correct allegedly discriminatory conditions of employment. Page 411 U. S. 797 The Commission made no finding on respondent's allegation of racial bias under § 703(a)(1), but it did find reasonable cause to believe petitioner had violated § 704(a) by refusing to rehire respondent because of his civil rights activity. After the Commission unsuccessfully attempted to conciliate the dispute, it advised respondent in March, 1968, of his right to institute a civil action in federal court within 30 days. On April 15, 1968, respondent brought the present action, claiming initially a violation of § 704(a) and, in an amended complaint, a violation of § 703(a)(1) a well. [ Footnote 5 ] The District Court dismissed the latter claim of racial discrimination in petitioner's hiring procedures on the ground that the Commission had failed to make a determination of reasonable cause to believe that a violation of that section had been committed. The District Court also found that petitioner's refusal to rehire respondent was based solely on his participation in the illegal demonstrations, and not on his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected "such activity as employed by the plaintiff in the "stall-in" and "lock-in" demonstrations." 318 F. Supp. at 850. On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities under § 704(a), [ Footnote 6 ] but reversed the dismissal of respondent's § 703(a)(1) claim relating to racially discriminatory hiring practices, holding that a prior Commission determination of reasonable cause was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court Page 411 U. S. 798 ordered the case remanded for trial of respondent's claim under § 703(a)(1). In remanding, the Court of Appeals attempted to set forth standards to govern the consideration of respondent's claim. The majority noted that respondent had established a prima facie case of racial discrimination; that petitioner's refusal to rehire respondent rested on "subjective" criteria which carried little weight in rebutting charges of discrimination; that, though respondent's participation in the unlawful demonstrations might indicate a lack of a responsible attitude toward performing work for that employer, respondent should be given the opportunity to demonstrate that petitioner's reasons for refusing to rehire him were mere pretext. [ Footnote 7 ] In order to clarify the standards governing the disposition of an action challenging employment discrimination, we granted certiorari, 409 U.S. 1036 (1972). I We agree with the Court of Appeals that absence of a Commission finding of reasonable cause cannot bar suit under an appropriate section of Title VII, and that the District Judge erred in dismissing respondent's claim of racial discrimination under § 703(a)(1). Respondent satisfied the jurisdictional prerequisites to a federal action (i) by filing timely charges of employment discrimination with the Commission and (ii) by receiving and acting upon the Commission's statutory notice of the right to sue, 42 U.S.C. §§ 2000e-5(a) and 2000e-5(e). The Act does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the review of Page 411 U. S. 799 claims of employment discrimination in the federal courts. The Commission itself does not consider the absence of a "reasonable cause" determination as providing employer immunity from similar charges in a federal court, 29 CFR § 1601.30, and the courts of appeal have held that, in view of the large volume of complaints before the Commission and the nonadversary character of many of its proceedings, "court actions under Title VII are de novo proceedings, and . . . a Commission 'no reasonable cause' finding does not bar a lawsuit in the case." Robinson v. Lorillard Corp., 444 F.2d 791, 800 (CA4 1971); Beverly v. Lone Star Lead Construction Corp., 437 F.2d 1136 (CA5 1971); Flowers v. Local 6, Laborers International Union of North America, 431 F.2d 205 (CA7 1970); Fekete v. U.S. Steel Corp., 424 F.2d 331 (CA3 1970). Petitioner argues, as it did below, that respondent sustained no prejudice from the trial court's erroneous ruling, because, in fact, the issue of racial discrimination in the refusal to reemploy "was tried thoroughly" in a trial lasting four days, with "at least 80%" of the questions relating to the issue of "race." [ Footnote 8 ] Petitioner therefore requests that the judgment below be vacated and the cause remanded with instructions that the judgment of the District Court be affirmed. [ Footnote 9 ] We cannot agree that the dismissal of respondent's § 703(a)(1) claim was harmless error. It is not clear that the District Court's findings as to respondent's § 704(a) contentions involved the identical issues raised by his claim under § 703(a)(1). The former section relates solely to discrimination against an applicant or employee on account of his participation in legitimate civil rights activities or protests, while the latter section deals with the broader and centrally Page 411 U. S. 800 important question under the Act of whether, for any reason, a racially discriminatory employment decision has been made. Moreover, respondent should have been accorded the right to prepare his case and plan the strategy of trial with the knowledge that the § 703(a)(1) cause of action was properly before the District Court. [ Footnote 10 ] Accordingly, we remand the case for trial of respondent' claim of racial discrimination consistent with the views set forth below. II The critical issue before us concerns the order and allocation of proof in a private, non-class action challenging employment discrimination. The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens. Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 429 (1971); Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va.1968). As noted in Griggs, supra: "Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. Page 411 U. S. 801 What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." Id. at 401 U. S. 430 -431. There are societal, as well as personal, interests on both sides of this equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise. In this case, respondent, the complainant below, charges that he was denied employment "because of his involvement in civil rights activities" and "because of his race and color." [ Footnote 11 ] Petitioner denied discrimination of any kind, asserting that its failure to reemploy respondent was based upon and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on remand is framed by those opposing factual contentions. The two opinions of the Court of Appeals and the several opinions of the three judges of that court attempted, with a notable lack of harmony, to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case. [ Footnote 12 ] We now address this problem. Page 411 U. S. 802 The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. [ Footnote 13 ] In the instant case, we agree with the Court of Appeals that respondent proved a prima facie case. 463 F.2d 337, 363. Petitioner sought mechanics, respondent's trade, and continued to do so after respondent's rejection. Petitioner, moreover, does not dispute respondent's qualifications, [ Footnote 14 ] and acknowledges that his past work performance in petitioner's employ was "satisfactory." [ Footnote 15 ] The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. We need not attempt in the instant case to detail every matter which fairly could be Page 411 U. S. 803 recognized as a reasonable basis for a refusal to hire. Here petitioner has assigned respondent's participation in unlawful conduct against it as the cause for his rejection. We think that this suffices to discharge petitioner's burden of proof at this stage, and to meet respondent's prima facie case of discrimination. The Court of Appeals intimated, however, that petitioner's stated reason for refusing to rehire respondent was a "subjective," rather than objective, criterion which "carr[ies] little weight in rebutting charges of discrimination," 463 F.2d at 352. This was among the statements which caused the dissenting judge to read the opinion as taking "the position that such unlawful acts as Green committed against McDonnell would not legally entitle McDonnell to refuse to hire him, even though no racial motivation was involved. . . ." Id. at 355. Regardless of whether this was the intended import of the opinion, we think the court below seriously underestimated the rebuttal weight to which petitioner's reasons were entitled. Respondent admittedly had taken part in a carefully planned "stall-in," designed to tie up access to and egress from petitioner's plant at a peak traffic hour. [ Footnote 16 ] Nothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it. [ Footnote 17 ] In upholding, under the National Labor Relations Act, the discharge of employees who had seized and forcibly retained Page 411 U. S. 804 an employer's factory buildings in an illegal sit-down strike, the Court noted pertinently: "We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct, -- to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property. . . . Apart from the question of the constitutional validity of an enactment of that sort, it is enough to say that such a legislative intention should be found in some definite and unmistakable expression." NLRB v. Fansteel Corp., 306 U. S. 240 , 306 U. S. 255 (1939). Petitioner's reason for rejection thus suffices to meet the prima facie case, but the inquiry must not end here. While Title VII does not, without more, compel rehiring of respondent, neither does it permit petitioner to use respondent's conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1). On remand, respondent must, as the Court of Appeals recognized, be afforded a fair opportunity to show that petitioner's stated reason for respondent's rejection was in fact, pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against petitioner of comparable seriousness to the "stall-in" were nevertheless retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races. Other evidence that may be relevant to any showing of pretext includes facts as to the petitioner's treatment of respondent during his prior term of employment; petitioner's reaction, if any, to respondent's legitimate civil rights activities; and petitioner's general policy and Page 411 U. S. 805 practice with respect to minority employment. [ Footnote 18 ] On the latter point, statistics as to petitioner's employment policy and practice may be helpful to a determination of whether petitioner's refusal to rehire respondent in this case conformed to a general pattern of discrimination against blacks. Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (CA10 1970); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59, 91-94 (1972). [ Footnote 19 ] In short, on the retrial, respondent must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were, in fact, a coverup for a racially discriminatory decision. The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the Court stated: "If an employment practice which operates to exclude Negroes cannot Page 411 U. S. 806 be shown to be related to job performance, the practice is prohibited." 401 U.S. at 401 U. S. 431 . [ Footnote 20 ] But Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Id. at 401 U. S. 430 . Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant's personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it, and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of "artificial, arbitrary, and unnecessary barriers to employment" which the Court found to be the intention of Congress to remove. Id. at 401 U. S. 431 . [ Footnote 21 ] Page 411 U. S. 807 III In sum, respondent should have been allowed to pursue his claim under § 703(a)(1). If the evidence on retrial is substantially in accord with that before us in this case, we think that respondent carried his burden of establishing a prima facie case of racial discrimination, and that petitioner successfully rebutted that case. But this does not end the matter. On retrial, respondent must be afforded a fair opportunity to demonstrate that petitioner's assigned reason for refusing to reemploy was a pretext or discriminatory in its application. If the District Judge so finds, he must order a prompt and appropriate remedy. In the absence of such a finding, petitioner's refusal to rehire must stand. The judgment is vacated, and the cause is hereby remanded to the District Court for further proceedings consistent with this opinion. So ordered. [ Footnote 1 ] His employment during these years was continuous except for 21 months of service in the military. [ Footnote 2 ] The Court of Appeals noted that respondent then "filed formal complaints of discrimination with the President's Commission on Civil Rights, the Justice Department, the Department of the Navy, the Defense Department, and the Missouri Commission on Human Rights." 463 F.2d 337, 339 (1972). [ Footnote 3 ] The "lock-in" occurred during a picketing demonstration by ACTION, a civil rights organization, at the entrance to a downtown office building which housed a part of petitioner's offices and in which certain of petitioner's employees were working at the time. A chain and padlock were placed on the front door of the building to prevent ingress and egress. Although respondent acknowledges that he was chairman of ACTION at the time, that the demonstration was planned and staged by his group, that he participated in and indeed was in charge of the picket line in front of the building, that he was told in advance by a member of ACTION "that he was planning to chain the front door," and that he "approved of" chaining the door, there is no evidence that respondent personally took part in the actual "lock-in," and he was not arrested. App. 132-133. The Court of Appeals majority, however, found that the record did "not support the trial court's conclusion that Green 'actively cooperated' in chaining the doors of the downtown St. Louis building during the 'lock-in' demonstration." 463 F.2d at 341. See also concurring opinion of Judge Lay. Id. at 345. Judge Johnsen, in dissent, agreed with the District Court that the "chaining and padlocking [were] carried out as planned, [and that] Green had in fact, given it . . . approval and authorization." Id. at 348. In view of respondent's admitted participation in the unlawful "stall-in," we find it unnecessary to resolve the contradictory contentions surrounding this "lock-in." [ Footnote 4 ] Section 703(a)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), in pertinent part provides: "It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), in pertinent part provides: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter. . . ." [ Footnote 5 ] Respondent also contested the legality of his 1964 discharge by petitioner, but both courts held this claim barred by the statute of limitations. Respondent does not challenge those rulings here. [ Footnote 6 ] Respondent has not sought review of this issue. [ Footnote 7 ] All references here are to Part V of the revised opinion of the Court of Appeals, 463 F.2d at 352, which superseded Part V of the court's initial opinion with respect to the order and nature of proof. [ Footnote 8 ] Tr. of Oral Arg. 11. [ Footnote 9 ] Brief for Petitioner 40. [ Footnote 10 ] The trial court did not discuss respondent's § 703(a)(1) claim in its opinion, and denied requests for discovery of statistical materials which may have been relevant to that claim. [ Footnote 11 ] The respondent initially charged petitioner in his complaint filed April 15, 1968, with discrimination because of his "involvement in civil rights activities." App. 8. In his amended complaint, filed March 20, 1969, plaintiff broadened his charge to include denial of employment because of race in violation of § 703(a)(1). App. 27. [ Footnote 12 ] See original opinion of the majority of the panel which heard the case, 463 F.2d at 338; the concurring opinion of Judge Lay, id. at 344; the first opinion of Judge Johnsen, dissenting in part, id. at 346; the revised opinion of the majority, id. at 352; and the supplemental dissent of Judge Johnsen, id. at 353. A petition for rehearing en banc was denied by an evenly divided Court of Appeals. [ Footnote 13 ] The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations. [ Footnote 14 ] We note that the issue of what may properly be used to test qualifications for employment is not present in this case. Where employers have instituted employment tests and qualifications with an exclusionary effect on minority applicants, such requirements must be "shown to bear a demonstrable relationship to successful performance of the jobs" for which they were used, Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 431 (1971). Castro v. Beecher, 459 F.2d 725 (CA1 1972); Chance v. Board of Examiners, 458 F.2d 1167 (CA2 1972). [ Footnote 15 ] Tr. of Oral Arg. 3; 463 F.2d at 353. [ Footnote 16 ] The trial judge noted that no personal injury or property damage resulted from the "stall-in" due "solely to the fact that law enforcement officials had obtained notice in advance of plaintiff's [here respondent's] demonstration, and were at the scene to remove plaintiff's car from the highway." 318 F. Supp. 846 , 851. [ Footnote 17 ] The unlawful activity in this case was directed specifically against petitioner. We need not consider or decide here whether, or under what circumstances, unlawful activity not directed against the particular employer may be a legitimate justification for refusing to hire. [ Footnote 18 ] We are aware that some of the above factors were, indeed, considered by the District Judge in finding, under § 704(a), that "defendant's [here petitioner's] reasons for refusing to rehire the plaintiff were motivated solely and simply by the plaintiff's participation in the 'stall-in' and 'lock-in' demonstrations." 318 F. Supp. at 850. We do not intimate that this finding must be overturned after consideration on remand of respondent's § 703(a)(1) claim. We do, however, insist that respondent, under § 703(a)(1), must be given a full and fair opportunity to demonstrate by competent evidence that, whatever the stated reasons for his rejection, the decision was, in reality, racially premised. [ Footnote 19 ] The District Court may, for example, determine, after reasonable discovery, that "the [racial] composition of defendant's labor force is itself reflective of restrictive or exclusionary practices." See Blumrosen, supra, at 92. We caution that such general determinations, while helpful, may not be, in and of themselves, controlling as to an individualized hiring decision, particularly in the presence of an otherwise justifiable reason for refusing to rehire. See generally United States v. Bethlehem Steel Corp., 312 F. Supp. 977 , 992 (WDNY 1970), order modified, 446 F.2d 652 (CA2 1971). Blumrosen, supra, n 19, at 93. [ Footnote 20 ] See 463 F.2d at 352. [ Footnote 21 ] It is, of course, a predictive evaluation, resistant to empirical proof, whether "an applicant's past participation in unlawful conduct directed at his prospective employer might indicate the applicant's lack of a responsible attitude toward performing work for that employer." 463 F.2d at 353. But in this case, given the seriousness and harmful potential of respondent's participation in the "stall-in" and the accompanying inconvenience to other employees, it cannot be said that petitioner's refusal to employ lacked a rational and neutral business justification. As the Court has noted elsewhere: "Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship to present and future trust." Garner v. Los Angeles Board, 341 U. S. 716 , 341 U. S. 720 (1951).

Here is a summary of the Supreme Court case McDonnell Douglas Corp. v. Green (1973): Issue: Whether a complainant can bring a lawsuit under the Civil Rights Act of 1964 for charges beyond those the Equal Employment Opportunity Commission (EEOC) has found reasonable cause for, and who bears the burden of proof in a private, non-class action complaint under Title VII charging racial employment discrimination. Rule: 1. A complainant's right to bring suit under the Civil Rights Act is not limited to charges for which the EEOC has found reasonable cause. 2. In a private, non-class action complaint under Title VII, the complainant must first establish a prima facie case by showing they are part of a racial minority, applied and were qualified for a job, were rejected despite qualifications, and the employer continued to seek applicants with similar qualifications. Analysis: The Court held that a complainant can bring suit under the Civil Rights Act for charges beyond those the EEOC has found reasonable cause for, and that the lower court's error in this regard was not harmless as the issues under § 703(a)(1) and § 704(a) were not identical. On the burden of proof, the Court agreed that the respondent had proven a prima facie case but disagreed with the lower court's holding that the petitioner had not sufficiently rebutted this case. The Court remanded the case for further consideration. Conclusion: The Court remanded the case to the lower court for further consideration, emphasizing the need to give the respondent a full and fair opportunity to demonstrate that the decision not to rehire was racially premised, despite the petitioner's stated reasons.

Labor & Employment

Griggs v. Duke Power Co.

https://supreme.justia.com/cases/federal/us/401/424/

U.S. Supreme Court Griggs v. Duke Power Co., 401 U.S. 424 (1971) Griggs v. Duke Power Co. No. 124 Argued December 14, 1970 Decided March 8, 1971 401 U.S. 424 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus Negro employees at respondent's generating plant brought this action, pursuant to Title VII of the Civil Rights Act of 1964, challenging respondent's requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant. These requirements were not directed at or intended to measure ability to learn to perform a particular job or category of jobs. While § 703(a) of the Act makes it an unlawful employment practice for an employer to limit, segregate, or classify employees to deprive them of employment opportunities or adversely to affect their status because of race, color, religion, sex, or national origin, § 703(h) authorizes the use of any professionally developed ability test, provided that it is not designed, intended, or used to discriminate. The District Court found that respondent's former policy of racial discrimination had ended, and that Title VII, being prospective only, did not reach the prior inequities. The Court of Appeals reversed in part, rejecting the holding that residual discrimination arising from prior practices was insulated from remedial action, but agreed with the lower court that there was no showing of discriminatory purpose in the adoption of the diploma and test requirements. It held that, absent such discriminatory purpose, use of the requirements was permitted, and rejected the claim that, because a disproportionate number of Negroes was rendered ineligible for promotion, transfer, or employment, the requirements were unlawful unless shown to be job-related. Held: 1. The Act requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race, and if, as here, an employment practice that operates to exclude Negroes cannot be shown to be related to job performance, it is prohibited, notwithstanding the employer's lack of discriminatory intent. Pp. 401 U. S. 429 -433. 2. The Act does not preclude the use of testing or measuring procedures, but it does proscribe giving them controlling force unless Page 401 U. S. 425 they are demonstrably a reasonable measure of job performance. Pp. 401 U. S. 433 -436. 420 F.2d 1225, reversed in part. BURGER, C.J., delivered the opinion of the Court, in which all members joined except BRENNAN, J., who took no part in the consideration or decision of the case. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to resolve the question whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education Page 401 U. S. 426 or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites. [ Footnote 1 ] Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions for enforcement of provisions of the Act, and this proceeding was brought by a group of incumbent Negro employees against Duke Power Company. All the petitioners are employed at the Company's Dan River Steam Station, a power generating facility located at Draper, North Carolina. At the time this action was instituted, the Company had 95 employees at the Dan River Station, 14 of whom were Negroes; 13 of these are petitioners here. The District Court found that, prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, the Page 401 U. S. 427 Company openly discriminated on the basis of race in the hiring and assigning of employees at its Dan River plant. The plant was organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and Test. Negroes were employed only in the Labor Department, where the highest paying jobs paid less than the lowest paying jobs in the other four "operating" departments, in which only whites were employed. [ Footnote 2 ] Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position. In 1955, the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any "inside" department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the "operating" departments. Findings on this score are not challenged. The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department, it became necessary to register satisfactory scores on two professionally prepared aptitude Page 401 U. S. 428 tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September, 1965, the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an "inside" job by passing two tests -- the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates. [ Footnote 3 ] The District Court had found that, while the Company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only, and, consequently, the impact of prior inequities was beyond the reach of corrective action authorized by the Act. The Court of Appeals was confronted with a question of first impression, as are we, concerning the meaning of Title VII. After careful analysis, a majority of that court concluded that a subjective test of the employer's intent should govern, particularly in a close case, and that, in this case, there was no showing of a discriminatory purpose in the adoption of the diploma and test requirements. On this basis, the Court of Appeals concluded there was no violation of the Act. Page 401 U. S. 429 The Court of Appeals reversed the District Court in part, rejecting the holding that residual discrimination arising from prior employment practices was insulated from remedial action. [ Footnote 4 ] The Court of Appeals noted, however, that the District Court was correct in its conclusion that there was no showing of a racial purpose or invidious intent in the adoption of the high school diploma requirement or general intelligence test, and that these standards had been applied fairly to whites and Negroes alike. It held that, in the absence of a discriminatory purpose, use of such requirements was permitted by the Act. In so doing, the Court of Appeals rejected the claim that, because these two requirements operated to render ineligible a markedly disproportionate number of Negroes, they were unlawful under Title VII unless shown to be job-related. [ Footnote 5 ] We granted the writ on these claims. 399 U.S. 926. The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove Page 401 U. S. 430 barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices. The Court of Appeals' opinion, and the partial dissent, agreed that, on the record in the present case, "whites register far better on the Company's alternative requirements" than Negroes. [ Footnote 6 ] 420 F.2d 1225, 1239 n. 6. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools, and this Court expressly recognized these differences in Gaston County v. United States, 395 U. S. 285 (1969). There, because of the inferior education received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any Page 401 U. S. 431 person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job seeker be taken into account. It has -- to resort again to the fable -- provided that the vessel in which the milk is proffered be one all seekers can use. The Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job performance ability. Rather, a vice-president of the Company testified, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the workforce. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily, and make progress in departments for which the high school and test criteria Page 401 U. S. 432 are now used. [ Footnote 7 ] The promotion record of present employees who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. In the context of this case, it is unnecessary to reach the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine business need. In the present case, the Company has made no such showing. The Court of Appeals held that the Company had adopted the diploma and test requirements without any "intention to discriminate against Negro employees." 420 F.2d at 1232. We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as "built-in headwinds" for minority groups and are unrelated to measuring job capability. The Company's lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. Page 401 U. S. 433 The facts of this case demonstrate the inadequacy of broad and general testing devices, as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the common sense proposition that they are not to become masters of reality. The Company contends that its general intelligence tests are specifically permitted by § 703(h) of the Act. [ Footnote 8 ] That section authorizes the use of "any professionally developed ability test" that is not "designed, intended or used to discriminate because of race. . . ." (Emphasis added.) The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting § 703(h) to permit only the use of job-related tests. [ Footnote 9 ] The administrative interpretation of the Page 401 U. S. 434 Act by the enforcing agency is entitled to great deference. See, e.g., United States v. City of Chicago, 400 U. S. 8 (1970); Udall v. Tallman, 380 U. S. 1 (1965); Power Reactor Co. v. Electricians, 367 U. S. 396 (1961). Since the Act and its legislative history support the Commission's construction, this affords good reason to treat the guidelines as expressing the will of Congress. Section 703(h) was not contained in the House version of the Civil Rights Act, but was added in the Senate during extended debate. For a period, debate revolved around claims that the bill, as proposed, would prohibit all testing and force employers to hire unqualified persons simply because they were part of a group formerly subject to job discrimination. [ Footnote 10 ] Proponents of Title VII sought throughout the debate to assure the critics that the Act would have no effect on job-related tests. Senators Case of New Jersey and Clark of Pennsylvania, comanagers of the bill on the Senate floor, issued a memorandum explaining that the proposed Title VII "expressly protects the employer's right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color." 110 Cong.Rec. 7247. [ Footnote 11 ] (Emphasis added.) Despite Page 401 U. S. 435 these assurances, Senator Tower of Texas introduced an amendment authorizing "professionally developed ability tests." Proponents of Title VII opposed the amendment because, as written, it would permit an employer to give any test "whether it was a good test or not, so long as it was professionally designed. Discrimination could actually exist under the guise of compliance with the statute." 110 Cong.Rec. 13504 (remarks of Sen. Case). The amendment was defeated, and, two days later, Senator Tower offered a substitute amendment which was adopted verbatim, and is now the testing provision of § 703(h). Speaking for the supporters of Title VII, Senator Humphrey, who had vigorously opposed the first amendment, endorsed the substitute amendment, stating: "Senators on both sides of the aisle who were deeply interested in title VII have examined the text of this Page 401 U. S. 436 amendment, and have found it to be in accord with the intent and purpose of that title." 110 Cong.Rec. 13724. The amendment was then adopted. [ Footnote 12 ] From the sum of the legislative history relevant in this case, the conclusion is inescapable that the EEOC's construction of § 703(h) to require that employment tests be job-related comports with congressional intent. Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job, and not the person in the abstract. The judgment of the Court of Appeals is, as to that portion of the judgment appealed from, reversed. MR. JUSTICE BRENNAN took no part in the consideration or decision of this case. [ Footnote 1 ] The Act provides: "Sec. 703. (a) It shall be an unlawful employment practice for an employer -- " " * * * *" "(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's race, color, religion, sex, or national origin." " * * * *" "(h) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. . . ." 78 Stat. 255, 42 U.S.C. § 2000e-2. [ Footnote 2 ] A Negro was first assigned to a job in an operating department in August, 1966, five months after charges had been filed with the Equal Employment Opportunity Commission. The employee, a high school graduate who had begun in the Labor Department in 1953, was promoted to a job in the Coal Handling Department. [ Footnote 3 ] The test standards are thus more stringent than the high school requirement, since they would screen out approximately half of all high school graduates. [ Footnote 4 ] The Court of Appeals ruled that Negroes employed in the Labor Department at a time when there was no high school or test requirement for entrance into the higher paying departments could not now be made subject to those requirements, since whites hired contemporaneously into those departments were never subject to them. The Court of Appeals also required that the seniority rights of those Negroes be measured on a plant-wide, rather than a departmental, basis. However, the Court of Appeals denied relief to the Negro employees without a high school education or its equivalent who were hired into the Labor Department after institution of the educational requirement. [ Footnote 5 ] One member of that court disagreed with this aspect of the decision, maintaining, as do the petitioners in this Court, that Title VII prohibits the use of employment criteria that operate in a racially exclusionary fashion and do not measure skills or abilities necessary to performance of the jobs for which those criteria are used. [ Footnote 6 ] In North Carolina, 1960 census statistics show that, while 34% of white males had completed high school, only 12% of Negro males had done so. U.S. Bureau of the Census, U.S. Census of Population: 1960, Vol. 1, Characteristics of the Population, pt. 35, Table 47. Similarly, with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks. Decision of EEOC, CCH Empl.Prac. Guide, � 17,304.53 (Dec. 2, 1966). See also Decision of EEOC 70-552, CCH Empl.Prac. Guide, � 6139 (Feb.19, 1970). [ Footnote 7 ] For example, between July 2, 1965, and November 14, 1966, the percentage of white employees who were promoted but who were not high school graduates was nearly identical to the percentage of nongraduates in the entire white workforce. [ Footnote 8 ] Section 703(h) applies only to tests. It has no applicability to the high school diploma requirement. [ Footnote 9 ] EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: "The Commission accordingly interprets 'professionally developed ability test' to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant's ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII." The EEOC position has been elaborated in the new Guidelines on Employee Selection Procedures, 29 CFR § 1607, 35 Fed.Reg. 12333 (Aug. 1, 1970). These guidelines demand that employers using tests have available "data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Id. at § 1607.4(c). [ Footnote 10 ] The congressional discussion was prompted by the decision of a hearing examiner for the Illinois Fair Employment Commission in Myart v. Motorola Co. (The decision is reprinted at 110 Cong.Rec. 5662.) That case suggested that standardized tests on which whites performed better than Negroes could never be used. The decision was taken to mean that such tests could never be justified even if the needs of the business required them. A number of Senators feared that Title VII might produce a similar result. See remarks of Senators Ervin, 110 Cong.Rec. 5614-5616; Smathers, id. at 5999-6000; Holland, id. at 7012-7013; Hill, id. at 8447; Tower, id. at 9024; Talmadge, id. at 9025-9026; Fulbright, id. at 9599-9600; and Ellender, id. at 9600. [ Footnote 11 ] The Court of Appeals majority, in finding no requirement in Title VII that employment tests be job-related, relied in part on a quotation from an earlier Clark-Case interpretative memorandum addressed to the question of the constitutionality of Title VII. The Senators said in that memorandum: "There is no requirement in title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance." 110 Cong.Rec. 7213. However, nothing there stated conflicts with the later memorandum dealing specifically with the debate over employer testing, 110 Cong.Rec. 7247 (quoted from in the text above), in which Senators Clark and Case explained that tests which measure "applicable job qualifications" are permissible under Title VII. In the earlier memorandum, Clark and Case assured the Senate that employers were not to be prohibited from using tests that determine qualifications. Certainly a reasonable interpretation of what the Senators meant, in light of the subsequent memorandum directed specifically at employer testing, was that nothing in the Act prevents employers from requiring that applicants be fit for the job. [ Footnote 12 ] Senator Tower's original amendment provided in part that a test would be permissible "if, . . . in the case of any individual who is seeking employment with such employer, such test is designed to determine or predict whether such individual is suitable or trainable with respect to his employment in the particular business or enterprise involved. . . ." 110 Cong.Rec. 13492. This language indicates that Senator Tower's aim was simply to make certain that job-related tests would be permitted. The opposition to the amendment was based on its loose wording which the proponents of Title VII feared would be susceptible of misinterpretation. The final amendment, which was acceptable to all sides, could hardly have required less of a job relation than the first.

In Griggs v. Duke Power Co., the Supreme Court held that an employer's use of employment practices that disproportionately exclude Black applicants and are not related to job performance is prohibited under Title VII of the Civil Rights Act of 1964, regardless of the employer's intent. The case challenged Duke Power Co.'s requirement of a high school diploma or passing intelligence tests for employment, which disproportionately impacted Black employees. The Court found that while Title VII allows for professionally developed ability tests, they must be related to job performance and not be used to discriminate. The Court also clarified that Title VII requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that discriminate based on race.

Labor & Employment

Alexander v. Gardner-Denver Co.

https://supreme.justia.com/cases/federal/us/415/36/

U.S. Supreme Court Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) Alexander v. Gardner-Denver Co. No. 72-5847 Argued November 5, 1973 Decided February 19, 1974 415 U.S. 36 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Syllabus Following discharge by his employer, respondent company, petitioner, a black, filed a grievance under the collective bargaining agreement between respondent and petitioner's union, which contained a broad arbitration clause, petitioner ultimately claiming that his discharge resulted from racial discrimination. Upon rejection by the company of petitioner's claims, an arbitration hearing was held, prior to which petitioner filed with the Colorado Civil Rights Commission a racial discrimination complaint which was referred to the Equal Employment Opportunity Commission (EEOC). The arbitrator ruled that petitioner's discharge was for cause. Following the EEOC's subsequent determination that there was not reasonable ground to believe that a violation of Title VII of the Civil Rights Act of 1964 had occurred, petitioner brought this action in District Court, alleging that his discharge resulted from a racially discriminatory employment practice in violation of the Act. The District Court granted respondent's motion for summary judgment, holding that petitioner was bound by the prior arbitral decision, and had no right to sue under Title VII. The Court of Appeals affirmed. Held: An employee's statutory right to trial de novo under Title VII of the Civil Rights Act of 1964 is not foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective bargaining agreement. Pp. 415 U. S. 44 -60. (a) Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination, as may be inferred from the legislative history of Title VII, which manifests a congressional intent to allow an individual to pursue rights under Title VII and other applicable state and federal statutes. Pp. 415 U. S. 47 -49. (b) The doctrine of election of remedies is inapplicable in the present context, which involves statutory rights distinctly separate from the employee's contractual rights, regardless of the fact that violation of both rights may have resulted from the same factual occurrence. Pp. 415 U. S. 49 -51. Page 415 U. S. 37 (c) By merely resorting to the arbitral forum, petitioner did not waive his cause of action under Title VII; the rights conferred thereby cannot be prospectively waived, and form no part of the collective bargaining process. Pp. 415 U. S. 51 -52. (d) The arbitrator's authority is confined to resolution of questions of contractual rights, regardless of whether they resemble or duplicate Title VII rights. Pp. 415 U. S. 52 -54. (e) In instituting a Title VII action, the employee is not seeking review of the arbitrator's decision, and thus getting (as the District Court put it) "two strings to his bow when the employer has only one," but is asserting a right independent of the arbitration process that the statute gives to employees, the only possible victims of discriminatory employment practices. P. 415 U. S. 54 . (f) Permitting an employee to resort to the judicial forum after arbitration procedures have been followed does not undermine the employer's incentive to arbitrate, as most employers will regard the benefits from a no-strike pledge in the arbitration agreement as outweighing any costs resulting from giving employees an arbitral antidiscrimination remedy in addition to their Title VII judicial remedy. Pp. 415 U. S. 54 -55. (g) A policy of deferral by federal courts to arbitral decisions (as opposed to adoption of a preclusion rule) would not comport with the congressional objective that federal courts should exercise the final responsibility for enforcement of Title VII and would lead to: the arbitrator's emphasis on the law of the shop, rather than the law of the land; factfinding and other procedures less complete than those followed in a judicial forum; and perhaps employees bypassing arbitration in favor of litigation. Pp. 415 U. S. 55 -59. (h) In considering an employee's claim, the federal court may admit the arbitral decision as evidence and accord it such weight as may be appropriate under the facts and circumstances of each case. Pp. 415 U. S. 59 -60. 466 F.2d 1209, reversed. POWELL, J., delivered the opinion for a unanimous Court. Page 415 U. S. 38 MR. JUSTICE POWELL delivered the opinion of the Court. This case concerns the proper relationship between federal courts and the grievance arbitration machinery of collective bargaining agreements in the resolution and enforcement of an individual's rights to equal employment opportunities under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq. Specifically, we must decide under what circumstances, if any, an employee's statutory right to a trial de novo under Title VII may be foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective bargaining agreement. I In May, 1966, petitioner Harrell Alexander, Sr., a black, was hired by respondent Gardner-Denver Co. (the company) to perform maintenance work at the company's plant in Denver, Colorado. In June, 1968, petitioner was awarded a trainee position as a drill operator He remained at that job until his discharge from employment on September 29, 1969. The company informed petitioner that he was being discharged for producing too many defective or unusable parts that had to be scrapped. Page 415 U. S. 39 On October 1, 1969, petitioner filed a grievance under the collective bargaining agreement in force between the company and petitioner's union, Local No. 3029 of the United Steelworkers of America (the union). The grievance stated: "I feel I have been unjustly discharged, and ask that I be reinstated with full seniority and pay." No explicit claim of racial discrimination was made. Under Art. 4 of the collective bargaining agreement, the company retained "the right to hire, suspend or discharge [employees] for proper cause." [ Footnote 1 ] Article 5, § 2, provided, however, that "there shall be no discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry," [ Footnote 2 ] and Art. 23, § 6(a), stated that "[n]o employee will be discharged, suspended or given a written warning notice except for just cause." Page 415 U. S. 40 The agreement also contained a broad arbitration clause covering "differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement" and "any trouble aris[ing] in the plant." [ Footnote 3 ] Disputes were to be submitted to a multi-step Page 415 U. S. 41 grievance procedure, the first four steps of which involved negotiations between the company and the union. If the dispute remained unresolved, it was to be remitted to compulsory arbitration. The company and the union were to select and pay the arbitrator, and Page 415 U. S. 42 his decision was to be "final and binding upon the Company, the Union, and any employee or employees involved." The agreement further provided that "[t]he arbitrator shall not amend, take away, add to, or change any of the provisions of this Agreement, and the arbitrator's decision must be based solely upon an interpretation of the provisions of this Agreement." The parties also agreed that there "shall be no suspension of work" over disputes covered by the grievance arbitration clause. The union processed petitioner's grievance through the above machinery. In the final pre-arbitration step, petitioner raised, apparently for the first time, the claim that his discharge resulted from racial discrimination. The company rejected all of petitioner's claims, and the grievance proceeded to arbitration. Prior to the arbitration hearing, however, petitioner filed a charge of racial discrimination with the Colorado Civil Rights Commission, which referred the complaint to the Equal Employment Opportunity Commission on November 5, 1969. At the arbitration hearing on November 20, 1969, petitioner testified that his discharge was the result of racial discrimination and informed the arbitrator that he had filed a charge with the Colorado Commission because he "could not rely on the union." The union introduced a letter in which petitioner stated that he was "knowledgeable that, in the same plant, others have scrapped an equal amount and sometimes in excess, but by all logical reasoning I . . . have been the target of preferential discriminatory treatment." The union representative also testified that the company's usual practice was to transfer unsatisfactory trainee drill operators back to their former positions. On December 30, 1969, the arbitrator ruled that petitioner had been "discharged for just cause." He made no reference to petitioner's claim of racial discrimination. Page 415 U. S. 43 The arbitrator stated that the union had failed to produce evidence of a practice of transferring, rather than discharging trainee drill operators who accumulated excessive scrap, but he suggested that the company and the union confer on whether such an arrangement was feasible in the present case. On July 25, 1970, the Equal Employment Opportunity Commission determined that there was not reasonable cause to believe that a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., had occurred. The Commission later notified petitioner of his right to institute a civil action in federal court within 30 days. Petitioner then filed the present action in the United States District Court for the District of Colorado, alleging that his discharge resulted from a racially discriminatory employment practice in violation of § 703(a)(1) of the Act, 42 U.S.C. § 2000e-2(a)(1). The District Court granted respondent's motion for summary judgment and dismissed the action. 346 F. Supp. 1012 (1971). The court found that the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to petitioner. [ Footnote 4 ] It then held that petitioner, having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective bargaining agreement, was bound by the arbitral decision, and thereby precluded from suing his employer under Title VII. The Court of Appeals for the Tenth Circuit affirmed per curiam on the basis of the District Court's opinion. 466 F.2d 1209 (1972). We granted petitioner's application for certiorari. 410 U.S. 925 (1973). We reverse. Page 415 U. S. 44 II Congress enacted Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin. McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 800 (1973); Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 429 -430 (1971). Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. In the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, Congress amended Title VII to provide the Commission with further authority to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge. Even in its amended form, however, Title VII does not provide the Commission with direct powers of enforcement. The Commission cannot adjudicate claims or impose administrative sanctions. Rather, final responsibility for enforcement of Title VII is vested with federal courts. The Act authorizes courts to issue injunctive relief and to order such affirmative action as may be appropriate to remedy the effects of unlawful employment practices. 42 U.S.C. §§ 2000e-5(f) and (g) (1970 ed., Supp. II). Courts retain these broad remedial powers despite a Commission finding of no reasonable cause to believe that the Act has been violated. McDonnell-Douglas Page 415 U. S. 45 Corp. v. Green, supra, at 411 U. S. 798 -799. Taken together, these provisions make plain that federal courts have been assigned plenary powers to secure compliance with Title VII. In addition to reposing ultimate authority in federal courts, Congress gave private individuals a significant role in the enforcement process of Title VII. Individual grievants usually initiate the Commission's investigatory and conciliatory procedures. And although the 1972 amendment to Title VII empowers the Commission to bring its own actions, the private right of action remains an essential means of obtaining judicial enforcement of Title VII. 42 U.S.C. § 2000e-5(f)(1) (1970 ed., Supp. II). In such cases, the private litigant not only redresses his own injury, but also vindicates the important congressional policy against discriminatory employment practices. Hutchins v. United States Industries, 428 F.2d 303, 310 (CA5 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 715 (CA7 1969); Jenkins v. United Gas Corp., 400 F.2d 28, 33 (CA5 1968). See also Newman v. Piggie Park Enterprises, 390 U. S. 400 , 390 U. S. 402 (1968). Pursuant to this statutory scheme, petitioner initiated the present action for judicial consideration of his rights under Title VII. The District Court and the Court of Appeals held, however, that petitioner was bound by the prior arbitral decision, and had no right to sue under Title VII. [ Footnote 5 ] Both courts evidently thought that this result was Page 415 U. S. 46 dictated by notions of election of remedies and waiver and by the federal policy favoring arbitration of labor dispute, as enunciated by this Court in Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), and the Steelworkers trilogy. [ Footnote 6 ] See also Boys Markets v. Page 415 U. S. 47 Retail Clerks Union, 398 U. S. 235 (1970); Gateway Coal Co. v. United Mine Workers of America, 414 U. S. 368 (1974). We disagree. III Title VII does not speak expressly to the relationship between federal courts and the grievance arbitration machinery of collective bargaining agreements. It does, however, vest federal courts with plenary powers to enforce the statutory requirements, and it specifies with precision the jurisdictional prerequisites that an individual must satisfy before he is entitled to institute a lawsuit. In the present case, these prerequisites were met when petitioner (1) filed timely a charge of employment discrimination with the Commission, and (2) received and acted upon the Commission's statutory notice of the right to sue. 42 U.S.C. §§ 2000e-5(b), (e), and (f). See McDonnell Douglas Corp. v. Green, supra, at 411 U. S. 798 . There is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual's right to sue or divests federal courts of jurisdiction. In addition, legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. [ Footnote 7 ] In the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., Congress indicated that it considered the policy against discrimination to be of the "highest priority." Newman v. Piggie Park Enterprises, supra, at 390 U. S. 402 . Consistent with this view, Title VII provides for consideration of employment discrimination claims in several forums. See 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. II) (EEOC); 42 U.S.C. § 2000e-5(c) (1970 ed., Supp. II) (state and local agencies); 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. II) (federal courts). And, in general, submission of a Page 415 U. S. 48 claim to one forum does not preclude a later submission to another. [ Footnote 8 ] Moreover, the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes. [ Footnote 9 ] The clear inference is that Title VII was designed to supplement, rather than supplant, existing laws and institutions relating Page 415 U. S. 49 to employment discrimination. In sum, Title VII's purpose and procedures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective bargaining agreement. In reaching the opposite conclusion, the District Court relied in part on the doctrine of election of remedies. [ Footnote 10 ] That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent, [ Footnote 11 ] has no application in the present context. In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory Page 415 U. S. 50 rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. The resulting scheme is somewhat analogous to the procedure under the National Labor Relations Act, as amended, [ Footnote 12 ] where disputed transactions may implicate both contractual and statutory rights. Where the statutory right underlying a particular claim may not be abridged by contractual agreement, the Court has recognized that consideration of the claim by the arbitrator as a contractual dispute under the collective bargaining agreement does not preclude subsequent consideration of the claim by the National Labor Relations Board as an unfair labor practice charge or as a petition for clarification of the union's representation certificate under the Act. Carey v. Westinghouse Corp., 375 U. S. 261 (1964). [ Footnote 13 ] Cf. Smith v. Evening News Assn., 371 U. S. 195 (1962). There, as here, the relationship between the forums is complementary, since consideration of the claim by both forums may promote the policies underlying Page 415 U. S. 51 each. Thus, the rationale behind the election of remedies doctrine cannot support the decision below. [ Footnote 14 ] We are also unable to accept the proposition that petitioner waived his cause of action under Title VII. To begin, we think it clear that there can be no prospective waiver of an employee's rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. Mastro Plastics Corp. v. NLRB, 350 U. S. 270 (1956); Boys Markets v. Retail Clerks Union, 398 U. S. 235 (1970). These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual's right to equal employment opportunities. Title VII's strictures are absolute, and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective bargaining process, since waiver of these rights would defeat the paramount congressional purpose behind Title VII. In these circumstances, an employee's rights under Title VII are not susceptible of Page 415 U. S. 52 prospective waiver. See Wilko v. Swan, 346 U. S. 427 (1953). The actual submission of petitioner's grievance to arbitration in the present case does not alter the situation. Although presumably an employee may waive his cause of action under Title VII as part of a voluntary settlement, [ Footnote 15 ] mere resort to the arbitral forum to enforce contractual rights constitutes no such waiver. Since an employee's rights under Title VII may not be waived prospectively, existing contractual rights and remedies against discrimination must result from other concessions already made by the union as part of the economic bargain struck with the employer. It is settled law that no additional concession may be exacted from any employee as the price for enforcing those rights. J. I. Case Co. v. NLRB, 321 U. S. 332 , 321 U. S. 338 -339 (1944). Moreover, a contractual right to submit a claim to arbitration is not displaced simply because Congress also has provided a statutory right against discrimination. Both rights have legally independent origins, and are equally available to the aggrieved employee. This point becomes apparent through consideration of the role of the arbitrator in the system of industrial self-government. [ Footnote 16 ] Page 415 U. S. 53 As the proctor of the bargain, the arbitrator's task is to effectuate the intent of the parties. His source of authority is the collective bargaining agreement, and he must interpret and apply that agreement in accordance with the "industrial common law of the shop" and the various needs and desires of the parties. The arbitrator, however, has no general authority to invoke public laws that conflict with the bargain between the parties: "[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593 , 363 U. S. 597 (1960). If an arbitral decision is based "solely upon the arbitrator's view of the requirements of enacted legislation," rather than on an interpretation of the collective bargaining agreement, the arbitrator has "exceeded the scope of the submission," and the award will not be enforced. Ibid. Thus, the arbitrator has authority to resolve only questions Page 415 U. S. 54 of contractual rights, and this authority remains regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII. IV The District Court and the Court of Appeals reasoned that to permit an employee to have his claim considered in both the arbitral and judicial forums would be unfair, since this would mean that the employer, but not the employee, was bound by the arbitral award. In the District Court's words, it could not "accept a philosophy which gives the employee two strings to his bow when the employer has only one." 346 F. Supp. at 1019 . This argument mistakes the effect of Title VII. Under the Steelworkers trilogy, an arbitral decision is final and binding on the employer and employee, and judicial review is limited as to both. But in instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process. An employer does not have "two strings to his bow" with respect to an arbitral decision for the simple reason that Title VII does not provide employers with a cause of action against employees. An employer cannot be the victim of discriminatory employment practices. Oubichon v. North American Rockwell Corp., 482 F.2d 569, 573 (CA9 1973). The District Court and the Court of Appeals also thought that to permit a later resort to the judicial forum would undermine substantially the employer's incentive to arbitrate, and would "sound the death knell for arbitration clauses in labor contracts." 346 F. Supp. at 1019 . Again, we disagree. The primary incentive for an employer to enter into an arbitration agreement is the union's reciprocal promise not to strike. As the Page 415 U. S. 55 Court stated in Boys Markets v. Retail Clerks Union, 398 U.S. at 398 U. S. 248 , "a no-strike obligation, express or implied, is the quid pro quo for an undertaking by the employer to submit grievance disputes to the process of arbitration." It is not unreasonable to assume that most employers will regard the benefits derived from a no-strike pledge as outweighing whatever costs may result from according employees an arbitral remedy against discrimination in addition to their judicial remedy under Title VII. Indeed, the severe consequences of a strike may make an arbitration clause almost essential from both the employees' and the employer's perspective. Moreover, the grievance arbitration machinery of the collective bargaining agreement remains a relatively inexpensive and expeditious means for resolving a wide range of disputes, including claims of discriminatory employment practices. Where the collective bargaining agreement contains a nondiscrimination clause similar to Title VII, and where arbitral procedures are fair and regular, arbitration may well produce a settlement satisfactory to both employer and employee. An employer thus has an incentive to make available the conciliatory and therapeutic processes of arbitration which may satisfy an employee's perceived need to resort to the judicial forum, thus saving the employer the expense and aggravation associated with a lawsuit. For similar reasons, the employee also has a strong incentive to arbitrate grievances, and arbitration may often eliminate those misunderstandings or discriminatory practices that might otherwise precipitate resort to the judicial forum. V Respondent contends that, even if a preclusion rule is not adopted, federal courts should defer to arbitral decisions on discrimination claims where: (i) the claim Page 415 U. S. 56 was before the arbitrator; (ii) the collective bargaining agreement prohibited the form of discrimination charged in the suit under Title VII; and (iii) the arbitrator has authority to rule on the claim and to fashion a remedy. [ Footnote 17 ] Under respondent's proposed rule, a court would grant summary judgment and dismiss the employee's action if the above conditions were met. The rule's obvious consequence in the present case would be to deprive the petitioner of his statutory right to attempt to establish his claim in a federal court. At the outset, it is apparent that a deferral rule would be subject to many of the objections applicable to a preclusion rule. The purpose and procedures of Title VII indicate that Congress intended federal courts to exercise final responsibility for enforcement of Title VII; deferral to arbitral decisions would be inconsistent with that goal. Furthermore, we have long recognized that "the choice of forums inevitably affects the scope of the substantive right to be vindicated." U.S. Bulk Carriers v. Arguelles , 400 U. S. 351 , 400 U. S. 359 -360 (1971) (Harlan, J., concurring). Respondent's deferral rule is necessarily premised on the assumption that arbitral processes are commensurate with judicial processes and that Congress impliedly intended federal courts to defer to arbitral decisions on Title VII issues. We deem this supposition unlikely. Arbitral procedures, while well suited to the resolution of contractual disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. This conclusion rests first on the special role of the arbitrator, whose task is to effectuate the intent of the parties, rather than the Page 415 U. S. 57 requirements of enacted legislation. Where the collective bargaining agreement conflicts with Title VII, the arbitrator must follow the agreement. To be sue, the tension between contractual and statutory objectives may be mitigated where a collective bargaining agreement contains provisions facially similar to those of Title VII. But other facts may still render arbitral processes comparatively inferior to judicial processes in the protection of Title VII rights. Among these is the fact that the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574 , 363 U. S. 581 -583 (1960). [ Footnote 18 ] Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts. Moreover, the factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under Page 415 U. S. 58 oath, are often severely limited or unavailable. See Bernhardt v. Polygraphic Co., 350 U. S. 198 , 350 U. S. 203 (1956); Wilko v. Swan, 346 U.S. at 346 U. S. 435 -437. And as this Court has recognized, "[a]rbitrators have no obligation to the court to give their reasons for all award." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 363 U. S. 598 . Indeed, it is the informality of arbitral procedure that enables it to function as an efficient, inexpensive, and expeditious means for dispute resolution. This same characteristic, however, makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts. [ Footnote 19 ] It is evident that respondent's proposed rule would not allay these concerns. Nor are we convinced that the solution lies in applying a more demanding deferral standard, such as that adopted by the Fifth Circuit in Rios v. Reynolds Metals Co., 467 F.2d 54 (1972). [ Footnote 20 ] As Page 415 U. S. 59 respondent points out, a standard that adequately insured effectuation of Title VII rights in the arbitral forum would tend to make arbitration a procedurally complex, expensive, and time-consuming process. And judicial enforcement of such a standard would almost require courts to make de novo determinations of the employees' claims. It is uncertain whether any minimal savings in judicial time and expense would justify the risk to vindication of Title VII rights. A deferral rule also might adversely affect the arbitration system, as well as the enforcement scheme of Title VII. Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less. We think, therefore, that the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance arbitration clause Page 415 U. S. 60 of a collective bargaining agreement and his cause of action under Title VII. The federal court should consider the employee's claim de novo. The arbitral decision may be admitted as evidence and accorded such weight as the court deems appropriate. [ Footnote 21 ] The judgment of the Court of Appeals is Reversed. [ Footnote 1 ] Article 4 of the agreement provided: " MANAGEMENT" "The Union recognizes that all rights to manage the Plant, to determine the products to be manufactured, the methods of manufacturing or assembling, the scheduling of production, the control of raw materials, and to direct the working forces, including the right to hire, suspend or discharge for proper cause, and the right to relieve employees from duty because of lack of work or other legitimate reasons, and the right to maintain order and efficiency are vested exclusively in the Company." "It is understood by the parties that all rights recognized in this Article are subject to the terms of this Agreement." [ Footnote 2 ] Article 5 of the agreement provided: " MUTUAL RESPONSIBILITY" " Section 1. The parties agree that, during the term of this Agreement, there shall be no strike, slow-down or other interruption of production, and that, for the same period there shall be no lockout, subject to the provisions of Article 26, Term of Agreement." " Section 2. The Company and the Union agree that there shall be no discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry. The Company further states and the Union approves that no such discrimination shall be practiced against any applicant for employment." [ Footnote 3 ] Article 23, containing the grievance arbitration procedures of the agreement, provided in relevant part: " * * * *" " Section 5. Should differences arise between the Company and the Union as to the meaning and application of the provisions of this Agreement, or should any trouble arise in the plant, there shall be no suspension of work, but an earnest effort shall be made by both the Company and the Union to settle such differences promptly. Grievances must be presented within five (5) working days after the date of the occurrence giving rise to the grievance or they shall be considered waived. Grievances shall be taken up in the following manner; except that any grievance filed by the Local Union shall be submitted in writing at Step 3 of the grievance procedure as set forth herein:" " Step 1. An attempt shall first be made by the employee with or without his assistant grievance committeeman (at the employee's option), and the employee's foreman to settle the grievance. The foreman shall submit his answer within one (1) working day and if the grievance is not settled, it shall be reduced to writing, signed by the employee and his assistant grievance committeeman, and the foreman shall submit his signed answer of such grievance." " Step 2. If the grievance is not settled in Step 1, it shall be presented to the Superintendent, or his representative, within two (2) working days after the Union has received the Foreman's answer in Step 1. The Superintendent or his representative shall submit his signed answer two (2) working days after receiving the grievance." " Step 3. If the grievance is not settled in Step 2, it shall be presented to the manager of Manufacturing or his representative within five (5) working days after the Union has received the Superintendent's answer in Step 2. The Manager of Manufacturing or his representative shall meet with the representatives of the Union to attempt to resolve the grievance within five (5) working days following the presentation of the grievance. The Manager of Manufacturing or his representative shall submit his signed answer within three (3) working days after the date of such meeting." " Step 4. If the grievance is not settled in Step 3, it shall be referred to the Personnel Manager, and/or his representatives, and the International representative and chairman of the grievance committee within five (5) working days after the Union has received the Step 3 answer. Within ten (10) working days after the grievance has been referred to Step 4, the above mentioned parties shall meet for the purpose of discussing such grievance. Within five (5) working days following the meeting, the Company representatives shall submit their signed answer to the Union. The Union representatives shall signify their concurrence or non-concurrence and affix their signatures to the grievance." " Step 5. Grievances which have not been settled under the foregoing procedure may be referred to arbitration by notice in writing within ten (10) calendar days after the date of the Company's final answer in Step 4. Within five (5) days after receipt of referral to arbitration the parties shall select an impartial arbitrator." "Should the parties be unable to agree upon an arbitrator, the selection shall be made by the Senior Judge of the U.S. Circuit Court of Appeals for the Tenth Circuit. The decision of the arbitrator shall be final and binding upon the Company, the Union, and any employee or employees involved. The expenses and fee of the arbitrator shall be divided equally between the Company and the Union. The arbitrator shall not amend, take away, add to, or change any of the provisions of this Agreement, and the arbitrator's decision must be based solely upon an interpretation of the provisions of this Agreement." " Section 6. (a) No employee will be discharged, suspended or given a written warning notice except for just cause." " * * * *" "(g) Should it be determined that the employee has been unjustly suspended or discharged the Company shall reinstate the employee and pay full compensation at the employee's basic hourly rate or earned rate, whichever is the higher, for the time lost." [ Footnote 4 ] In reaching this conclusion, the District Court relied on petitioner's deposition acknowledging that he had raised the racial discrimination claim during the arbitration hearing. 346 F. Supp. at 1014. [ Footnote 5 ] The District Court recognized that a conflict of authorities existed on this issue, but chose to rely on Dewey v. Reynolds Metals Co., 429 F.2d 324, 332 (CA6 1970), affirmed by an equally divided Court, 402 U. S. 689 (1971). There, the Sixth Circuit held that, prior submission of an employee's claim to arbitration under a collective bargaining agreement precluded a later suit under Title VII. The Sixth Circuit appears to have since retreated in part from Dewey by suggesting that there is no preclusion where both arbitration and "court or agency processes" are pursued simultaneously. See Spann v. Kaywood Division, Joanna Western Mills Co., 446 F.2d 120, 122 (1971). The Fifth, Seventh, and Ninth Circuits have squarely rejected a preclusion rule. See Hutchins v United States Industries, 428 F.2d 303 (CA5 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA7 1969); Oubichon v. North American Rockwell Corp., 482 F.2d 569 (CA9 1973). [ Footnote 6 ] United Steelworkers of America v. American Mfg. Co., 363 U. S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U. S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U. S. 593 (1960). In Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957), this Court held that a grievance arbitration provision of a collective bargaining agreement could be enforced against unions and employers under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185. The Court noted that the congressional policy, as embodied in § 203(d) of the LMRA, 61 Stat. 154, 29 U.S.C. § 173(d), was to promote industrial peace, and that the grievance arbitration provision of a collective agreement was a major factor in achieving this goal. 353 U.S. at 353 U. S. 455 . In the Steelworkers trilogy, the Court further advanced this policy by declaring that an order to arbitrate will not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, at 363 U. S. 582 -583. The Court also stated that, "so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." United Steelworkers of America v. Enterprise Wheel & Car Corp., supra, at 363 U. S. 599 . And in Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965), the Court held that grievance arbitration procedures of a collective bargaining agreement must be exhausted before an employee may file suit to enforce contractual rights. For the reasons stated in Parts III, IV, and V of this opinion, we hold that the federal policy favoring arbitration does not establish that an arbitrator's resolution of a contractual claim is dispositive of a statutory claim under Title VII. [ Footnote 7 ] See, e.g., 42 U.S.C. § 1981 (Civil Rights Act of 1866); 42 U.S.C. § 1983 (Civil Rights Act of 1871). [ Footnote 8 ] For example, Commission action is not barred by "findings and orders" of state or local agencies. See 42 U.S.C. § 2000e-5(b) (1970 ed., Supp. II). Similarly, an individual's cause of action is not barred by a Commission finding of no reasonable cause to believe that the Act has been violated. See 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. II); McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). [ Footnote 9 ] For example, Senator Joseph Clark, one of the sponsors of the hill, introduced an interpretive memorandum which stated: "Nothing in title VII or anywhere else in this bill affects rights and obligations under the NLRA and the Railway Labor Act. . . . [T]itle VII is not intended to, and does not, deny to any individual rights and remedies which he may pursue under other Federal and State statutes. If a given action should violate both title VII and the National Labor Relations Act, the National Labor Relations Board would not be deprived of jurisdiction." 110 Cong Rec. 7207 (1964). Moreover, the Senate defeated an amendment which would have made Title VII the exclusive federal remedy for most unlawful employment practices. 110 Cong.Rec. 13650-13652 (1964). And a similar amendment was rejected in connection with the Equal Employment Opportunity ct of 1972. See H.R. 9247, 92d Cong., 1st Sess. (1971); H.R.Rep. No. 92-238 (1971). See also 2 U.S.Code Cong. & Ad. News, 92d Cong., 2d Sess., 2137, 2179, 2181-2182 (1972). The report of the Senate Committee responsible for the 1972 Act explained that neither the "provisions regarding the individual's right to sue under title VII, nor any of the other provisions of this bill, are meant to affect existing rights granted under other laws." S.Rep. No. 92-415, p. 24 (1971). For a detailed discussion of the legislative history of the 1972 Act, see Sape & Har, Title VII Reconsidered: The Equal Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972). [ Footnote 10 ] The District Court adopted the reasoning of the Sixth Circuit in Dewey v. Reynolds Metals Co., 429 F.2d at 332, affirmed by an equally divided Court, 402 U. S. 689 (1971), which was apparently based in part on the doctrine of election of remedies. See n 5, supra. The Sixth Circuit, however, later described Dewey as resting instead on the doctrine of equitable estoppel and on "themes of res judicata and collateral estoppel." Newman v. Avco Corp., 451 F.2d 743, 747 n. 1 (1971). Whatever doctrinal label is used, the essence of these holdings remains the same. The policy reasons for rejecting the doctrines of election of remedies and waiver in the context of Title VII are equally applicable to the doctrines of res judicata and collateral estoppel. [ Footnote 11 ] See generally 5A A. Corbin, Contracts §§ 1214-1227 (1964 ed. and Supp. 1971). Most courts have recognized that the doctrine of election of remedies does not apply to suits under Title VII. See, e.g., Bowe v. Colgate-Palmolive Co., 416 F.2d at 714-715; Hutchings v. United States Industries, 428 F.2d at 314; Macklin v. Spector Freight Systems, 156 U.S.App.D.C. 69, 80-81, 478 F.2d 979, 990-991 (1973); Voutsis v. Union Carbide Corp., 452 F.2d 889, 893-894 (CA2 1971), cert. denied, 406 U.S. 918 (1972); Newman v. Avco Corp., supra, at 746 n. 1; Oubichon v. North American Rockwell Corp., 482 F.2d at 572-573. [ Footnote 12 ] 61 Stat. 136, 29 U.S.C. § 151 et seq. [ Footnote 13 ] As the Court noted in Carey: "By allowing the dispute to go to arbitration . . . , those conciliatory measures which Congress deemed vital to 'industrial peace' . . . , and which may be dispositive of the entire dispute, are encouraged. The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area." 375 U.S. at 375 U. S. 272 . Should disagreements arise between the Board and the arbitrator, the Board's ruling would, of course, take precedence as to those issues within its jurisdiction. Ibid. [ Footnote 14 ] Nor can it be maintained that election of remedies is required by the possibility of unjust enrichment through duplicative recoveries. Where, as here, the employer has prevailed at arbitration, there, of course, can be no duplicative recovery. But even in cases where the employee has first prevailed, judicial relief can be structured to avoid such windfall gains. See, e.g., Oubichon v. North American Rockwell Corp., supra; Bowe v. Colgate-Palmolive Co., supra. Furthermore, if the relief obtained by the employee at arbitration were fully equivalent to that obtainable under Title VII, there would be no further relief for the court to grant and hence no need for the employee to institute suit. [ Footnote 15 ] In this case, petitioner and respondent did not enter into a voluntary settlement expressly conditioned on a waiver of petitioner's cause of action under Title VII. In determining the effectiveness of any such waiver, a court would have to determine at the outset that the employee's consent to the settlement was voluntary and knowing. In no event can the submission to arbitration of a claim under the nondiscrimination clause of a collective bargaining agreement constitute a binding waiver with respect to an employee's rights under Title VII. [ Footnote 16 ] See Meltzer, Labor Arbitration and Overlapping and Conflicting Remedies for Employment Discrimination, 39 U.Chi.L.Rev. 30, 32-35 (971); Meltzer, Ruminations About Ideology, Law, and Labor Arbitration, 34 U.Chi.L.Rev. 545 (1967). As the late Dean Shulman stated: "A proper conception of the arbitrator's function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. He serves their pleasure only, to administer the rule of law established by their collective agreement." Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv.L.Rev. 999, 1016 (1955). [ Footnote 17 ] Brief for Respondent 37. Respondent's proposed rule is analogous to the NLRB's policy of deferring to arbitral decisions on statutory issues in certain cases. See Spielberg Mfg. Co., 112 N.L.R.B. 1080, 1082 (1955). [ Footnote 18 ] See also Gould, Labor Arbitration of Grievances Involving Racial Discrimination, 118 U.Pa.L.Rev. 40, 47-48 (1969); Platt, The Relationship between Arbitration and Title VII of the Civil Rights Act of 1964, 3 Ga.L.Rev. 398 (1969). Significantly, a substantial proportion of labor arbitrators are not lawyers. See Note, The NLRB and Deference to Arbitration, 77 Yale L.J. 1191, 1194 n. 28 (1968). This is not to suggest, of course, that arbitrators do not possess a high degree of competence with respect to the vital role in implementing the federal policy favoring arbitration of labor disputes. [ Footnote 19 ] A further concern is the union's exclusive control over the manner and extent to which an individual grievance is presented. See Vaca v. Sipes, 386 U. S. 171 (1967); Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965). In arbitration, as in the collective bargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit. See J. I. Case Co. v. NLRB, 321 U. S. 332 (1944). Moreover, harmony of interest between the union and the individual employee cannot always be presumed, especially where a claim of racial discrimination is made. See, e.g., Steele v. Louisville & N. R. Co., 323 U. S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U. S. 210 (1944). And a breach of the union's duty of fair representation may prove difficult to establish. See Vaca v. Sipes, supra; Humphrey v. Moore, 375 U. S. 335 , 375 U. S. 342 , 375 U. S. 348 -351 (1964). In this respect, it is noteworthy that Congress thought it necessary to afford the protections of Title VII against unions, as well as employers. See 42 U.S.C. § 20002(c). [ Footnote 20 ] In Rios, the court set forth the following deferral standard: "First, there may be no deference to the decision of the arbitrator unless the contractual right coincides with rights under Title VII. Second, it must be plain that the arbitrator's decision is in no way violative of the private rights guaranteed by Title VII, nor of the public policy which inheres in Title VII. In addition, before deferring, the district court must be satisfied that (1) the factual issues before it are identical to those decided by the arbitrator; (2) the arbitrator had power under the collective agreement to decide the ultimate issue of discrimination; (3) the evidence presented at the arbitral hearing dealt adequately with all factual issues; (4) the arbitrator actually decided the factual issues presented to the court; (5) the arbitration proceeding was fair and regular and free of procedural infirmities. The burden of proof in establishing these conditions of limitation will be upon the respondent, as distinguished from the claimant." 467 F.2d at 58. For a discussion of the problems posed by application of the Rios standard, see Note, Judicial Deference to Arbitrators' Decisions in Title VII Cases, 26 Stan.L.Rev. 421 (1974). [ Footnote 21 ] We adopt no standards as to the weight to be accorded an arbitral decision, since this must be determined in the court's discretion with regard to the facts and circumstances of each case. Relevant factors include the existence of provisions in the collective bargaining agreement that conform substantially with Title VII, the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators. Where an arbitral determination gives full consideration to an employee's Title VII rights, a court may properly accord it great weight. This is especially true where the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record. But courts should ever be mindful that Congress, in enacting Title VII, thought it necessary to provide a judicial forum for the ultimate resolution of discriminatory employment claims. It is the duty of courts to assure the full availability of this forum.

Here is a summary of the Supreme Court case Alexander v. Gardner-Denver Co. (1974): The case centered around an employee's right to trial under Title VII of the Civil Rights Act of 1964, specifically addressing whether prior arbitration under a collective bargaining agreement's nondiscrimination clause prevents an employee from filing a Title VII claim. The Court held that an employee's right to a trial under Title VII is not foreclosed by prior submission to arbitration. This decision was based on the understanding that Title VII was designed to supplement existing laws and institutions relating to employment discrimination. The Court also highlighted the distinct nature of statutory rights under Title VII and contractual rights under a collective bargaining agreement, even if both violations arise from the same factual occurrence. Additionally, the Court emphasized that an arbitrator's authority is limited to resolving contractual rights issues and that an employee does not waive their cause of action under Title VII by participating in arbitration. The Court also noted the importance of providing a judicial forum for the ultimate resolution of discriminatory employment claims, as intended by Congress in enacting Title VII.

Labor & Employment

Dothard v. Rawlinson

https://supreme.justia.com/cases/federal/us/433/321/

U.S. Supreme Court Dothard v. Rawlinson, 433 U.S. 321 (1977) Dothard v. Rawlinson No. 76-422 Argued April 19, 1977 Decided June 27, 1977 433 U.S. 321 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA Syllabus After her application for employment as a "correctional counselor" (prison guard) in Alabama was rejected because she failed to meet the minimum 120-pound weight requirement of an Alabama statute, which also establishes a height minimum of 5 feet 2 inches, appellee Rawlinson (hereafter appellee) filed a charge with the Equal Employment Opportunity Commission and ultimately brought a class action against appellant corrections officials challenging the statutory height and weight requirements and a regulation establishing gender criteria for assigning correctional counselors to "contact" positions (positions requiring close physical proximity to inmates) as violative of Title VII of the Civil Rights Act of 1964, inter alia. A three-judge District Court decided in appellee's favor. On the basis of national statistics as to the comparative height and weight of men and women indicating that Alabama's statutory standards would exclude over 4% of the female population but less than 1% of the male population, the court found that, with respect to such standards, appellee had made out a prima facie case of unlawful sex discrimination, which appellants had failed to rebut. The court also found the challenged regulation impermissible under Title VII as being based on stereotyped characterizations of the sexes, and, rejecting appellants' "bona fide occupational qualification" defense under § 703(e) of Title VII, ruled that being male was not such a qualification for the job of correctional counselor in a "contact" position in an Alabama male maximum security penitentiary. Held: 1. The District Court did not err in holding that Title VII prohibited application of the statutory height and weight requirements to appellee and the class she represents. Pp. 433 U. S. 328 -332. (a) To establish a prima facie case of employment discrimination, a plaintiff need only show that the facially neutral standards in question, such as Alabama's height and weight standards, select applicants for hire in a significantly discriminatory pattern, and here the showing of the disproportionate impact of the height and weight standards on women based on national statistics, rather than on comparative statistics Page 433 U. S. 332 of actual applicants, sufficed to make out a prima facie case. Pp. 433 U. S. 328 -331. (b) Appellants failed to rebut the prima facie case of discrimination on the basis that the height and weight requirements are job-related in that they have a relationship to the strength essential to efficient job performance as a correctional counselor, where appellants produced no evidence correlating such requirements with the requisite amount of strength thought essential to good job performance, and in fact failed to offer evidence of any kind in specific justification of the statutory standards. P. 433 U. S. 331 . 2. In the particular circumstances of this case, the District Court erred in rejecting appellants' contention that the regulation in question falls within the narrow ambit of the "bona fide occupational qualification" exception of § 703(e), it appearing from the evidence that Alabama maintains a prison system where violence is the order of the day, inmate access to guards is facilitated by dormitory living arrangements, every correctional institution is understaffed, and a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, and that therefore the use of women guards in "contact" positions in the maximum security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. Pp. 433 U. S. 332 -337. 418 F. Supp. 1169 , affirmed in part, reversed in part, and remanded. STEWART, J., delivered the opinion of the Court, in which POWELL and STEVENS, JJ., joined; in all but Part II of which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined; and in all but Part III of which BRENNAN and MARSHALL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the result and concurring in part, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 433 U. S. 337 . MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 433 U. S. 340 . WHITE, J., filed a dissenting opinion, post, p. 433 U. S. 347 . Page 433 U. S. 323 MR. JUSTICE STEWART delivered the opinion of the Court. Appellee Dianne Rawlinson sought employment with the Alabama Board of Corrections as a prison guard, called in Alabama a "correctional counselor." After her application was rejected, she brought this class suit under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 20OOe et seq. (1970 ed. and Supp. V), and under 42 U.S.C. § 1983, alleging that she had been denied employment because of her sex in violation of federal law. A three-judge Federal District Court for the Middle District of Alabama decided in her favor. Mieth v. Dothard, 418 F. Supp. 1169 . We noted probable jurisdiction of this appeal from the District Court's judgment. 429 U.S. 976. [ Footnote 1 ] I At the time she applied for a position as correctional counselor trainee, Rawlinson was a 22-year-old college graduate whose major course of study had been correctional psychology. She was refused employment because she failed to meet the minimum 120-pound weight requirement established Page 433 U. S. 324 by an Alabama statute. The statute also establishes a height minimum of 5 feet 2 inches. [ Footnote 2 ] After her application was rejected because of her weight, Rawlinson filed a charge with the Equal Employment Opportunity Commission, and ultimately received a right-to-sue letter. [ Footnote 3 ] She then filed a complaint in the District Court on behalf of herself and other similarly situated women, challenging the statutory height and weight minima as violative of Title VII and the Equal Protection Clause of the Fourteenth Amendment. [ Footnote 4 ] A three-judge court was convened. [ Footnote 5 ] While the suit was pending, the Alabama Board of Corrections Page 433 U. S. 325 adopted Administrative Regulation 204, establishing gender criteria for assigning correctional counselors to maximum security institutions for "contact positions," that is, positions requiring continual close physical proximity to inmates of the institution. [ Footnote 6 ] Rawlinson amended her class action Page 433 U. S. 326 complaint by adding a challenge to Regulation 204 as also violative of Title VII and the Fourteenth Amendment. Like most correctional facilities in the United States, [ Footnote 7 ] Alabama's prisons are segregated on the basis of sex. Currently, the Alabama Board of Corrections operates four major all-male penitentiaries -- Holman Prison, Kilby Corrections Facility, G. K. Fountain Correction Center, and Draper Correctional Center. The Board also operates the Julia Tutwiler Prison for Women, the Frank Lee Youth Center, the Number Four Honor Camp, the State Cattle Ranch, and nine Work Release Centers, one of which is for women. The Julia Tutwiler Prison for Women and the four male penitentiaries are maximum security institutions. Their inmate living quarters are, for the most part, large dormitories, with communal showers and toilets that are open to the dormitories and hallways. The Draper and Fountain penitentiaries carry on extensive farming operations, making necessary a large number of strip searches for contraband when prisoners reenter the prison buildings. A correctional counselor's primary duty within these institutions is to maintain security and control of the inmates Page 433 U. S. 327 by continually supervising and observing their activities. [ Footnote 8 ] To be eligible for consideration as a correctional counselor, an applicant must possess a valid Alabama driver's license, have a high school education or its equivalent, be free from physical defects, be between the ages of 20 1/2 years and 45 years at the time of appointment, and fall between the minimum height and weight requirements of 5 feet 2 inches, and 120 pounds, and the maximum of 6 feet 10 inches, and 300 pounds. Appointment is by merit, with a grade assigned each applicant based on experience and education. No written examination is given. At the time this litigation was in the District Court, the Board of Corrections employed a total of 435 people in various correctional counselor positions, 56 of whom were women. Of those 56 women, 21 were employed at the Julia Tutwiler Prison for Women, 13 were employed in non-contact positions at the four male maximum security institutions, and the remaining 22 were employed at the other institutions operated by the Alabama Board of Corrections. Because most of Alabama's prisoners are held at the four maximum security male penitentiaries, 336 of the 435 correctional counselor jobs were in those institutions, a majority of them concededly in the "contact" classification. [ Footnote 9 ] Thus, even though meeting the statutory height and weight requirements, women applicants could, under Regulation 204, compete Page 433 U. S. 328 equally with men for only about 25% of the correctional counselor jobs available in the Alabama prison system. II In enacting Title VII, Congress required "the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 431 . The District Court found that the minimum statutory height and weight requirements that applicants for employment as correctional counselors must meet constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids. [ Footnote 10 ] The appellants assert that the District Court erred both in finding that the height and weight standards discriminate against women and in its refusal to find that, even if they do, these standards are justified as "job-related." A The gist of the claim that the statutory height and weight requirements discriminate against women does not involve an assertion of purposeful discriminatory motive. [ Footnote 11 ] It is asserted, Page 433 U. S. 329 rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligibility for employment by the Alabama Board of Corrections. We dealt in Griggs v. Duke Power Co., supra, and Albemarle Paper Co. v. Moody, 422 U. S. 405 , with similar allegations that facially neutral employment standards disproportionately excluded Negroes from employment, and those cases guide our approach here. Those cases make clear that, to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet "the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question." Griggs v. Duke Power Co., supra at 401 U. S. 432 . If the employer proves that the challenged requirements are job-related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also "serve the employer's legitimate interest in efficient and trustworthy workmanship.'" Albemarle Paper Co. v. Moody, supra at 422 U. S. 425 , quoting McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 801 . Although women 14 years of age or older compose 52.75% of the Alabama population and 36.89% of its total labor force, they hold only 12.9% of its correctional counselor positions. In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between the sexes, the District Court found that the 5'2" requirement would operate to exclude 33.29% of the women in the United States between the ages of 18-79, while excluding only 1.28% of men between the same ages. The 120-pound weight restriction would exclude 22.29% of the women and 2.35% of the men in this age group. When the height and weight restrictions are combined, Alabama's statutory standards would exclude 41.13% of the female population, Page 433 U. S. 330 while excluding less than 1% of the male population. [ Footnote 12 ] Accordingly, the District Court found that Rawlinson had made out a prima facie case of unlawful sex discrimination. The appellants argue that a showing of disproportionate impact on women based on generalized national statistics should not suffice to establish a prima facie case. They point in particular to Rawlinson's failure to adduce comparative statistics concerning actual applicants for correctional counselor positions in Alabama. There is no requirement, however, that a statistical showing of disproportionate impact must always be based on analysis of the characteristics of actual applicants. See Griggs v. Duke Power Co., supra at 401 U. S. 430 . The application process itself might not adequately reflect the actual potential applicant pool, since, otherwise, qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory. See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 365 -367. A potential applicant could easily determine her height and weight and conclude that to make an application would be futile. Moreover, reliance on general population demographic data was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population. Page 433 U. S. 331 For these reasons, we cannot say that the District Court was wrong in holding that the statutory height and weight standards had a discriminatory impact on women applicants. The plaintiffs in a case such as this are not required to exhaust every possible source of evidence, if the evidence actually presented on its face conspicuously demonstrates a job requirement's grossly discriminatory impact. If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own. In this case no such effort was made. [ Footnote 13 ] B We turn, therefore, to the appellants' argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job-related. These requirements, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. In the District Court, however, the appellants produced no evidence correlating the height and weight requirements with the requisite amount of strength thought essential to good job performance. Indeed, they failed to offer evidence of any kind in specific justification of the statutory standards. [ Footnote 14 ] Page 433 U. S. 332 If the job-related quality that the appellants identify is bona fide, their purpose could be achieved by adopting and validating a test for applicants that measures strength directly. [ Footnote 15 ] Such a test, fairly administered, would fully satisfy the standards of Title VII, because it would be one that "measure[s] the person for the job, and not the person in the abstract." Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 436 . But nothing in the present record even approaches such a measurement. For the reasons we have discussed, the District Court was not in error in holding that Title VII of the Civil Rights Act of 1964, as amended, prohibits application of the statutory height and weight requirements to Rawlinson and the class she represents. III Unlike the statutory height and weight requirements, Regulation 204 explicitly discriminates against women on the basis of their sex. [ Footnote 16 ] In defense of this overt discrimination, Page 433 U. S. 333 the appellants rely on § 703(e) of Title VII, 42 U.S.C. § 2000e-2(e), which permits sex-based discrimination "in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." The District Court rejected the " bona fide occupational qualification" (bfoq) defense, relying on the virtually uniform view of the federal courts that § 703(e) provides only the narrowest of exceptions to the general rule requiring equality of employment opportunities. This view has been variously formulated. In Diaz v. Pan American World Airways, 442 F.2d 385, 388, the Court of Appeals for the Fifth Circuit held that "discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively." (Emphasis in original.) In an earlier case, Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235, the same court said that an employer could rely on the bfoq exception only by proving "that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved." See also Phillips v. Martin Marietta Corp., 400 U. S. 542 . But whatever the verbal formulation, the federal courts have agreed that it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes, [ Footnote 17 ] and the District Page 433 U. S. 334 Court in the present case held, in effect, that Regulation 204 is based on just such stereotypical assumptions. We are persuaded -- by the restrictive language of § 703(e), the relevant legislative history, [ Footnote 18 ] and the consistent interpretation of the Equal Employment Opportunity Commission [ Footnote 19 ] -- that the bfoq exception was, in fact, meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex. [ Footnote 20 ] In the particular factual circumstances of this case, however, we conclude that the District Court erred in rejecting the State's contention that Regulation 204 falls within the narrow ambit of the bfoq exception. The environment in Alabama's penitentiaries is a peculiarly inhospitable one for human beings of whatever sex. Indeed, a Federal District Court has held that the conditions of confinement in the prisons of the State, characterized by "rampant violence" and a "jungle atmosphere," are constitutionally intolerable. Pugh v. Locke, 406 F. Supp. 318 , 325 (MD Ala.). The record in the present case shows that, Page 433 U. S. 335 because of inadequate staff and facilities, no attempt is made in the four maximum security male penitentiaries to classify or segregate inmates according to their offense or level of dangerousness -- a procedure that, according to expert testimony, is essential to effective penological administration. Consequently, the estimated 20% of the male prisoners who are sex offenders are scattered throughout the penitentiaries' dormitory facilities. In this environment of violence and disorganization, it would be an oversimplification to characterize Regulation 204 as an exercise in "romantic paternalism." Cf. Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 684 . In the usual case, the argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of Title VII to allow the individual woman to make that choice for herself. [ Footnote 21 ] More is at stake in this case, however, than an individual woman's decision to weigh and accept the risks of employment in a "contact" position in a maximum security male prison. The essence of a correctional counselor's job is to maintain prison security. A woman's relative ability to maintain order in a male, maximum security, unclassified penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. There would also be a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women. [ Footnote 22 ] In a prison system where violence is the order Page 433 U. S. 336 of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians. Appellee Rawlinson's own expert testified that dormitory housing for aggressive inmates poses a greater security problem than single-cell lockups, and further testified that it would be unwise to use women as guards in a prison where even 10% of the inmates had been convicted of sex crimes and were not segregated from the other prisoners. [ Footnote 23 ] The likelihood that inmates would assault a woman because she was a woman would pose a real threat not only to the victim of the assault, but also to the basic control of the penitentiary and protection of its inmates and the other security personnel. The employee's very womanhood would thus directly undermine her capacity to provide the security that is the essence of a correctional counselor's responsibility. There was substantial testimony from experts on both sides of this litigation that the use of women as guards in "contact" positions under the existing conditions in Alabama maximum security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. On the basis of that evidence, we conclude that the District Court was in error in ruling that being male is not a bona fide occupational qualification for the job of Page 433 U. S. 337 correctional counselor in a "contact" position in an Alabama male maximum security penitentiary. [ Footnote 24 ] The judgment is accordingly affirmed in part and reversed in part, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the result and concurring in part. I agree with, and join, Parts I and III of the Court's opinion in this case, and with its judgment. While I also agree with the Court's conclusion in Part II of its opinion, holding that the District Court was "not in error" in holding the statutory height and weight requirements in this case to be invalidated by Title VII, ante at 433 U. S. 332 , the issues with which that Part deals are bound to arise so frequently that I feel obliged to separately state the reasons for my agreement with its result. I view affirmance of the District Court in this respect as essentially dictated by the peculiarly limited factual and legal justifications offered below by appellants on behalf of the statutory requirements. For that reason, I do not believe -- and do not read the Court's opinion as holding -- that all or even many of the height and weight requirements imposed by States on applicants for a multitude of law enforcement agency jobs are pretermitted by today's decision. I agree that the statistics relied upon in this case are sufficient, absent rebuttal, to sustain a finding of a prima Page 433 U. S. 338 facie violation of § 703(a)(2), in that they reveal a significant discrepancy between the numbers of men, as opposed to women, who are automatically disqualified by reason of the height and weight requirements. The fact that these statistics are national figures of height and weight, as opposed to state-wide or "pool of labor-force" statistics, does not seem to me to require us to hold that the District Court erred as a matter of law in admitting them into evidence. See Hamling v. United States, 418 U. S. 87 , 418 U. S. 108 , 418 U. S. 124 -125 (1974); cf. Zenith Corp. v. Hazeltine, 395 U. S. 100 , 395 U. S. 123 -125 (1969). It is for the District Court, in the first instance, to determine whether these statistics appear sufficiently probative of the ultimate fact in issue -- whether a given job qualification requirement has a disparate impact on some group protected by Title VII. Hazelwood School Dist. v. United States, ante at 433 U. S. 312 -313; see Hamling v. United States, supra, at 418 U. S. 108 , 418 U. S. 124 -125; Mayor v. Educational Equality League, 415 U. S. 605 , 415 U. S. 621 n. 20 (1974); see also McAllister v. United States, 348 U. S. 19 (1954); United States v. Yellow Cab Co., 338 U. S. 338 , 338 U. S. 340 -342 (1949). In making this determination, such statistics are to be considered in light of all other relevant facts and circumstances. Cf. Teamsters v. United States, 431 U. S. 324 , 431 U. S. 340 (1977). The statistics relied on here do not suffer from the obvious lack of relevancy of the statistics relied on by the District Court in Hazelwood School Dist. v. United States, ante at 433 U. S. 308 . A reviewing court cannot say as a matter of law that they are irrelevant to the contested issue or so lacking in reliability as to be inadmissible. If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants, just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which Page 433 U. S. 339 the plaintiffs' evidence should be accorded. Since I agree with the Court that appellants made virtually no such effort, ante at 433 U. S. 331 , I also agree with it that the District Court cannot be said to have erred as a matter of law in finding that a prima facie case had been made out in the instant case. While the District Court's conclusion is by no means required by the proffered evidence, I am unable to conclude that the District Court's finding in that respect was clearly erroneous. In other cases, there could be different evidence which could lead a district court to conclude that height and weight are, in fact, an accurate enough predictor of strength to justify, under all the circumstances, such minima. Should the height and weight requirements be found to advance the job-related qualification of strength sufficiently to rebut the prima facie case, then, under our cases, the burden would shift back to appellee Rawlinson to demonstrate that other tests, without such disparate effect, would also meet that concern. Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 (1975). But, here, the District Court permissibly concluded that appellants had not shown enough of a nexus even to rebut the inference. Appellants, in order to rebut the prima facie case under the statute, had the burden placed on them to advance job-related reasons for the qualification. McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 (1973). This burden could be shouldered by offering evidence or by making legal arguments not dependent on any new evidence. The District Court was confronted, however, with only one suggested job-related reason for the qualification -- that of strength. Appellants argued only the job-relatedness of actual physical strength; they did not urge that an equally job-related qualification for prison guards is the appearance of strength. As the Court notes, the primary job of correctional counselor in Alabama prisons "is to maintain security and control of the inmates . . . ," ante at 433 U. S. 326 , a function that I at least would Page 433 U. S. 340 imagine is aided by the psychological impact on prisoners of the presence of tall and heavy guards. If the appearance of strength had been urged upon the District Court here as a reason for the height and weight minima, I think that the District Court would surely have been entitled to reach a different result than it did. For, even if not perfectly correlated, I would think that Title VII would not preclude a State from saying that anyone under 5'2" or 120 pounds, no matter how strong in fact, does not have a sufficient appearance of strength to be a prison guard. But once the burden has been placed on the defendant, it is then up to the defendant to articulate the asserted job-related reasons underlying the use of the minima. McDonnell Douglas Corp. v. Green, supra at 411 U. S. 802 ; Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 431 (1971); Albemarle Paper Co. v. Moody, supra, at 422 U. S. 425 . Because of this burden, a reviewing court is not ordinarily justified in relying on arguments in favor of a job qualification that were not first presented to the trial court. Cf. United States v. Arnold, Schwinn & Co., 388 U. S. 365 , 388 U. S. 374 n. 5 (1967); Thomas v. Taylor, 224 U. S. 73 , 224 U. S. 84 (1912); Bell v. Bruen , 1 How. 169, 42 U. S. 187 (1843). As appellants did not even present the "appearance of strength" contention to the District Court as an asserted job-related reason for the qualification requirements, I agree that their burden was not met. The District Court's holding thus did not deal with the question of whether such an assertion could or did rebut appellee Rawlinson's prima facie case. [ Footnote 1 ] The appellants sought to raise for the first time in their brief on the merits the claim that Congress acted unconstitutionally in extending Title VII's coverage to state governments. See the Equal Employment Opportunity Act of 1972, 86 Stat. 103, effective date, Mar. 24, 1972, 42 U.S.C. §§ 2000e(a), (b), (f), (h) (1970 ed., Supp. V). Not having been raised in the District Court, that issue is not before us. See Adickes v. Kress & Co., 398 U. S. 144 , 398 U. S. 147 n. 2; Irvine v. California, 347 U. S. 128 , 347 U. S. 129 . [ Footnote 2 ] The statute establishes minimum physical standards for all law enforcement officers. In pertinent part, it provides: "(d) Physical qualifications . -- The applicant shall be not less than five feet two inches nor more than six feet ten inches in height, shall weigh not less than 120 pounds nor more than 300 pounds, and shall be certified by a licensed physician designated as satisfactory by the appointing authority as in good health and physically fit for the performance of his duties as a law enforcement officer. The commission may for good cause shown permit variances from the physical qualifications prescribed in this subdivision." Ala.Code, Tit. 55, § 373 (109) (Supp. 1973). [ Footnote 3 ] See 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. V). [ Footnote 4 ] A second plaintiff named in the complaint was Brenda Mieth, who, on behalf of herself and others similarly situated, challenged the 5'9" height and 160-pound weight requirements for the position of Alabama state trooper as violative of the Equal Protection Clause. The District Court upheld her challenge, and the defendants did not appeal from that aspect of the District Court's judgment. [ Footnote 5 ] Although a single-judge District Court could have considered Rawlinson's Title VII claims, her co-plaintiff's suit rested entirely on the Constitution. See n 4, supra. Given the similarity of the underlying issues in the two cases, it was not inappropriate to convene a three-judge court to deal with the constitutional and statutory issues presented in the complaint. When a properly convened three-judge court enjoins the operation of a state law on federal statutory grounds, an appeal to this Court from that judgment lies under 28 U.S.C. § 1253. See Engineers v. Chicago, R. 1. & P. R. Co., 382 U. S. 423 ; Philbrook v. Glodgett, 421 U. S. 707 . [ Footnote 6 ] Administrative Regulation 204 provides, in pertinent part, as follows: "I. GENERAL" "1. The purpose of this regulation is to establish policy and procedure for identifying and designating institutional Correctional Counselor I positions which require selective certification for appointment of either male or female employees from State Personnel Department registers." " * * * *" "II. POLICY" "4. All Correctional Counselor I positions will be evaluated to identify and designate those which require selective certification for appointment of either a male or female employee. Such positions must fall within a bona fide occupational qualification stated in Title 4[2]-2000c of the United States Code. . . . " " * * * *" "5. Selective certification from the Correctional Counselor Trainee register will be requested of the State Personnel Department whenever a position is being filled which has been designated for either a male or female employee only." " * * * *" "III. PROCEDURE" "8. Institutional Wardens and Directors will identify each institutional Correctional Counselor I position which they feel requires selective certification and will request that it be so designated in writing to the Associate Commissioner for Administration for his review, evaluation, and submission to the Commissioner for final decision." "9. The request will contain the exact duties and responsibilities of the position and will utilize and identify the following criteria to establish that selective certification is necessary;" "A. That the presence of the opposite sex would cause disruption of the orderly running and security of the institution." "B. That the position would require contact with the inmates of the opposite sex without the presence of others." "C. That the position would require patroling dormitories, restrooms, or showers while in use, frequently, during the day or night." "D. That the position would require search of inmates of the opposite sex on a regular basis." "E. That the position would require that the Correctional Counselor Trainee not be armed with a firearm." "10. All institutional Correctional Counselor I positions which are not approved for selective certification will be filled from Correctional Counselor Trainee registers without regard to sex." Although Regulation 204 is not limited, on its face, to contact positions in maximum security institutions, the District Court found that it did not "preclude . . . [women] from serving in contact positions in the all-male institutions other than the penitentiaries." 418 F. Supp. at 1176. Appellants similarly defended the regulation as applying only to maximum security facilities. [ Footnote 7 ] Note, The Sexual Segregation of American Prisons, 82 Yale L.J. 1229 (1973). [ Footnote 8 ] The official job description for a correctional counselor position emphasizes counseling as well as security duties; the District Court found: "[C]orrectional counselors are persons who are commonly referred to as prison guards. Their duties primarily involve security, rather than counseling." 418 F. Supp. 1169 , 1175. [ Footnote 9 ] At the time of the trial, the Board of Corrections had not yet classified all of its correctional counselor positions in the maximum security institutions according to the criteria established in Regulation 204; consequently, evidence of the exact number of "male only" jobs within the prison system was not available. [ Footnote 10 ] Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (1970 ed. and Supp. V), provides: "(a) Employer practices. It shall be an unlawful employment practice for an employer -- " "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or" "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." [ Footnote 11 ] See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 -336, n. 15. [ Footnote 12 ] Affirmatively stated, approximately 99.76% of the men and 58.87% of the women meet both these physical qualifications. From the separate statistics on height and weight of males, it would appear that, after adding the two together and allowing for some overlap, the result would be to exclude between 2.35% and 3.63% of males from meeting Alabama's statutory height and weight minima. None of the parties has challenged the accuracy of the District Court's computations on this score, however, and the discrepancy is, in any event, insignificant in light of the gross disparity between the female and male exclusions. Even under revised computations the disparity would greatly exceed the 34% to 12% disparity that served to invalidate the high school diploma requirement in the Griggs case. 401 U.S. at 401 U. S. 430 . [ Footnote 13 ] The height and weight statute contains a waiver provision that the appellants urge saves it from attack under Title VII. See n 2, supra. The District Court noted that a valid waiver provision might indeed have that effect, but found that applicants were not informed of the waiver provision, and that the Board of Corrections had never requested a waiver from the Alabama Peace Officers' Standards and Training Commission. The court therefore correctly concluded that the waiver provision, as administered, failed to overcome the discriminatory effect of the statute's basic provisions. [ Footnote 14 ] In what is perhaps a variation on their constitutional challenge to the validity of Title VII itself, see n 1, supra, the appellants contend that the establishment of the minimum height and weight standards by statute requires that they be given greater deference than is typically given private employer-established job qualifications. The relevant legislative history of the 1972 amendments extending Title VII to the States as employers does not, however, support such a result. Instead, Congress expressly indicated the intent that the same Title VII principles be applied to governmental and private employers alike. See H.R.Rep. No. 92-238, p. 17 (1971); S.Rep. No. 92-415, p. 10 (1971). See also Schaeffer v. San Diego Yellow Cabs, 462 F.2d 1002 (CA9). Thus, for both private and public employers, "[t]he touchstone is business necessity," Griggs, 401 U.S. at 401 U. S. 431 ; a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge. [ Footnote 15 ] Cf. EEOC Guidelines on Employee Selection Procedures, 29 CFR § 1607 (1976). See also Washington v. Davis, 426 U. S. 229 , 426 U. S. 246 -247; Albemarle Paper Co. v. Moody, 422 U. S. 405 ; Officers for Justice v. Civil Service Comm'n, 395 F. Supp. 378 (ND Cal.). [ Footnote 16 ] By its terms, Regulation 204 applies to contact positions in both male and female institutions. See n 6, supra. The District Court found, however, that "Regulation 204 is the administrative means by which the [Board of Corrections'] policy of not hiring women as correctional counselors in contact positions in all-male penitentiaries has been implemented." 418 F. Supp. at 1176. The Regulation excludes women from consideration for approximately 75% of the available correctional counselor jobs in the Alabama prison system. [ Footnote 17 ] See, e.g., Gillin v. Federal Paper Board Co., 479 F.2d 97 (CA2); Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (CA3); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (CA9); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA7); Meadows v. Ford Motor Co., 62 F.R.D. 98 (WD Ky.), modified on other grounds, 510 F.2d 939 (CA6). See also Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1; EEOC Guidelines on Discrimination Because of Sex, 29 CFR § 1604 (1976). [ Footnote 18 ] See Interpretative Memorandum of Senators Clark and Case, 110 Cong.Rec. 7213 (1964). [ Footnote 19 ] The EEOC issued guidelines on sex discrimination in 1965 reflecting its position that "the bona fide occupational qualification as to sex should be interpreted narrowly." 29 CFR § 1604.2(a). It has adhered to that principle consistently, and its construction of the statute can accordingly be given weight. See Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 434 ; McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 , 427 U. S. 279 -280. [ Footnote 20 ] In the case of a state employer, the bfoq exception would have to be interpreted, at the very least, so as to conform to the Equal Protection Clause of the Fourteenth Amendment. The parties do not suggest, however, that the Equal Protection Clause requires more rigorous scrutiny of a State's sexually discriminatory employment policy than does Title VII. There is thus no occasion to give independent consideration to the District Court's ruling that Regulation 204 violates the Fourteenth Amendment, as well as Title VII. [ Footnote 21 ] See, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232-236 (CA5); Bowe v. Colgate-Palmolive Co., supra at 717-718; Rosenfeld v. Southern Pacific Co., supra. [ Footnote 22 ] The record contains evidence of an attack on a female clerical worker in an Alabama prison, and of an incident involving a woman student who was taken hostage during a visit to one of the maximum security institutions. [ Footnote 23 ] Alabama's penitentiaries are evidently not typical. Appellee Rawlinson's two experts testified that, in a normal, relatively stable maximum security prison -- characterized by control over the inmates, reasonable living conditions, and segregation of dangerous offenders -- women guards could be used effectively and beneficially. Similarly, an amicus brief filed by the State of California attests to that State's success in using women guards in all-male penitentiaries. [ Footnote 24 ] The record shows, by contrast, that Alabama's minimum security facilities, such as work-release centers, are recognized by their inmates as privileged confinement situations not to be lightly jeopardized by disobeying applicable rules of conduct. Inmates assigned to these institutions are thought to be the "cream of the crop" of the Alabama prison population. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part. I agree entirely with the Court's analysis of Alabama's height and weight requirements for prison guards, and with its finding that these restrictions discriminate on the basis of sex in violation of Title VII. Accordingly, I join Parts I and II of the Court's opinion. I also agree with much of the Court's general discussion in Part III of the "bona fide occupational Page 433 U. S. 341 qualification" exception contained in § 703(e) of Title VII. [ Footnote 2/1 ] The Court is unquestionably correct when it holds "that the bfoq exception was, in fact, meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex." Ante at 433 U. S. 334 . See Phillips v. Martin Marietta Corp., 400 U. S. 542 , 400 U. S. 544 (1971) (MARSHALL, J., concurring). I must, however, respectfully disagree with the Court's application of the bfoq exception in this case. The Court properly rejects two proffered justifications for denying women jobs as prison guards. It is simply irrelevant here that a guard's occupation is dangerous, and that some women might be unable to protect themselves adequately. Those themes permeate the testimony of the state officials below, but, as the Court holds, "the argument that a particular job is too dangerous for women" is refuted by the "purpose of Title VII to allow the individual woman to make that choice for herself." Ante at 433 U. S. 335 . Some women, like some men, undoubtedly are not qualified, and do not wish, to serve as prison guards, but that does not justify the exclusion of all women from this employment opportunity. Thus, "[i]n the usual case," ibid., the Court's interpretation of the bfoq exception would mandate hiring qualified women for guard jobs in maximum security institutions. The highly successful experiences of other States allowing such job opportunities, see briefs for the States of California and Washington as amici curiae, confirm that absolute disqualification of women is not, in the words of Title VII, "reasonably necessary to the normal operation" of a maximum security prison. What would otherwise be considered unlawful discrimination against women is justified by the Court, however, on the Page 433 U. S. 342 basis of the "barbaric and inhumane" conditions in Alabama prisons, conditions so bad that state officials have conceded that they violate the Constitution. See Pugh v. Locke, 406 F. Supp. 318 , 329, 331 (MD Ala.1976). To me, this analysis sounds distressingly like saying two wrongs make a right. It is refuted by the plain words of § 703(e). The statute requires that a bfoq be "reasonably necessary to the normal operation of that particular business or enterprise." But no governmental "business" may operate "normally" in violation of the Constitution. Every action of government is constrained by constitutional limitations. While those limits may be violated more frequently than we would wish, no one disputes that the "normal operation" of all government functions takes place within them. A prison system operating in blatant violation of the Eighth Amendment is an exception that should be remedied with all possible speed, as Judge Johnson's comprehensive order in Pugh v. Locke, supra, is designed to do. In the meantime, the existence of such violations should not be legitimatized by calling them "normal." Nor should the Court accept them as justifying conduct that would otherwise violate a statute intended to remedy age-old discrimination. The Court's error in statutory construction is less objectionable, however, than the attitude it displays toward women. Though the Court recognizes that possible harm to women guards is an unacceptable reason for disqualifying women, it relies instead on an equally speculative threat to prison discipline supposedly generated by the sexuality of female guards. There is simply no evidence in the record to show that women guards would create any danger to security in Alabama prisons significantly greater than that which already exists. All of the dangers -- with one exception discussed below -- are inherent in a prison setting, whatever the gender of the guards. Page 433 U. S. 343 The Court first sees women guards as a threat to security because "there are few visible deterrents to inmate assaults on women custodians." Ante at 433 U. S. 336 . In fact, any prison guard is constantly subject to the threat of attack by inmates, and "invisible" deterrents are the guard's only real protection. No prison guard relies primarily on his or her ability to ward off an inmate attack to maintain order. Guards are typically unarmed, and sheer numbers of inmates could overcome the normal complement. Rather, like all other law enforcement officers, prison guards must rely primarily on the moral authority of their office and the threat of future punishment for miscreants. As one expert testified below, common sense, fairness, and mental and emotional stability are the qualities a guard needs to cope with the dangers of the job. App 81. Well qualified and properly trained women, no less than men, have these psychological weapons at their disposal. The particular severity of discipline problems in the Alabama maximum security prisons is also no justification for the discrimination sanctioned by the Court. The District Court found in Pugh v. Locke, supra, that guards "must spend all their time attempting to maintain control or to protect themselves." 406 F. Supp. at 325. If male guards face an impossible situation, it is difficult to see how women could make the problem worse, unless one relies on precisely the type of generalized bias against women that the Court agrees Title VII was intended to outlaw. For example, much of the testimony of appellants' witnesses ignores individual differences among members of each sex, and reads like "ancient canards about the proper role of women." Phillips v. Martin Marietta Corp., 400 U.S. at 400 U. S. 545 . The witnesses claimed that women guards are not strict disciplinarians; that they are physically less capable of protecting themselves and subduing unruly inmates; that inmates take advantage of them as they did their mothers, while male guards are strong father figures Page 433 U. S. 344 who easily maintain discipline, and so on. [ Footnote 2/2 ] Yet the record shows that the presence of women guards has not led to a single incident amounting to a serious breach of security in any Alabama institution. [ Footnote 2/3 ] And, in any event, "[g]uards rarely enter the cell blocks and dormitories," Pugh v. Locke, 406 F. Supp. at 325, where the danger of inmate attacks is the greatest. Page 433 U. S. 345 It appears that the real disqualifying factor in the Court's view is "[t]he employee's very womanhood." Ante at 433 U. S. 336 . The Court refers to the large number of sex offenders in Alabama prisons, and to "[t]he likelihood that inmates would assault a woman because she was a woman." Ibid. In short, the fundamental justification for the decision is that women, as guards, will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women -- that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, "[t]he pedestal upon which women have been placed has . . . , upon closer inspection, been revealed as a cage." Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1 , 20, 485 P.2d 529, 541 (1971). It is particularly ironic that the cage is erected here in response to feared misbehavior by imprisoned criminals. [ Footnote 2/4 ] The Court points to no evidence in the record to support the asserted "likelihood that inmates would assault a woman because she was a woman." Ante at 433 U. S. 336 . Perhaps the Court relies upon common sense, or "innate recognition," Brief for Appellants 51. But the danger in this emotionally laden context is that common sense will be used to mask the " romantic paternalism'" and persisting discriminatory attitudes Page 433 U. S. 346 that the Court properly eschews. Ante at 433 U. S. 335 . To me, the only matter of innate recognition is that the incidence of sexually motivated attacks on guards will be minute compared to the "likelihood that inmates will assault" a guard because he or she is a guard. The proper response to inevitable attacks on both female and male guards is not to limit the employment opportunities of law-abiding women who wish to contribute to their community, but to take swift and sure punitive action against the inmate offenders. Presumably, one of the goals of the Alabama prison system is the eradication of inmates' antisocial behavior patterns, so that prisoners will be able to live one day in free society. Sex offenders can begin this process by learning to relate to women guards in a socially acceptable manner. To deprive women of job opportunities because of the threatened behavior of convicted criminals is to turn our social priorities upside down. [ Footnote 2/5 ] Although I do not countenance the sex discrimination Page 433 U. S. 347 condoned by the majority, it is fortunate that the Court's decision is carefully limited to the facts before it. I trust the lower courts will recognize that the decision was impelled by the shockingly inhuman conditions in Alabama prisons, and thus that the "extremely narrow [bfoq] exception" recognized here, ante at 433 U. S. 334 , will not be allowed "to swallow the rule" against sex discrimination. See Phillips v. Martin Marietta Corp., 400 U.S. at 400 U. S. 545 . Expansion of today's decision beyond its narrow factual basis would erect a serious roadblock to economic equality for women. [ Footnote 2/1 ] Section 703(e), 42 U.S.C. § 2000e 2(e), provides in pertinent part: "(1) it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . . . in those certain instances where . . . sex . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. . . ." [ Footnote 2/2 ] See, e.g., App. 111-112, 117-118, 144, 147, 151-153, 263-264, 290-292, 301-302. The State Commissioner of Corrections summed up these prejudices in his testimony: "Q Would a male that is 5'6', 140 lbs., be able to perform the job of Correctional Counselor in an all male institution?" "A Well, if he qualifies otherwise, yes." "Q But a female 5'6', 140 lbs., would not be able to perform all the duties?" "A No." "Q What do you use as a basis for that opinion?" "A The innate intention between a male and a female. The physical capabilities, the emotions that go into the psychic make-up of a female vs. the psychic make-up of a male. The attitude of the rural type inmate we have vs. that of a woman. The superior feeling that a man has, historically, over that of a female." Id. at 153. Strikingly similar sentiments were expressed a century ago by a Justice of this Court in a case long since discredited: "I am not prepared to say that it is one of [women's] fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. . . . [I]n my opinion, in view of the particular characteristics, destiny, and mission of women, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex." Bradwell v. Illinois , 16 Wall. 130, 83 U. S. 139 , 83 U. S. 142 (1873) (Bradley, J., concurring). [ Footnote 2/3 ] The Court refers to two incidents involving potentially dangerous attacks on women in prisons. Ante at 433 U. S. 335 -336, n. 22. But these did not involve trained corrections officers; one victim was a clerical worker, and the other a student visiting on a tour. [ Footnote 2/4 ] The irony is multiplied by the fact that enormous staff increases are required by the District Court's order in Pugh v. Locke, 406 F. Supp. 318 (MD Ala.1976). This necessary hiring would be a perfect opportunity for appellants to remedy their past discrimination against women, but, instead, the Court's decision permits that policy to continue. Moreover, once conditions are improved in accordance with the Pugh order, the problems that the Court perceives with women guards will be substantially alleviated. [ Footnote 2/5 ] The appellants argue that restrictions on employment of women are also justified by consideration of inmates' privacy. It is strange indeed to hear state officials who have for years been violating the most basic principles of human decency in the operation of their prisons suddenly become concerned about inmate privacy. It is stranger still that these same officials allow women guards in contact positions in a number of non-maximum security institutions, but strive to protect inmates' privacy in the prisons where personal freedom is most severely restricted. I have no doubt, on this record, that appellants' professed concern is nothing but a feeble excuse for discrimination. As the District Court suggested, it may well be possible, once a constitutionally adequate staff is available, to rearrange work assignments so that legitimate inmate privacy concerns are respected without denying jobs to women. Finally, if women guards behave in a professional manner at all times, they will engender reciprocal respect from inmates, who will recognize that their privacy is being invaded no more than if a woman doctor examines them. The suggestion implicit in the privacy argument that such behavior is unlikely on either side is an insult to the professionalism of guards and the dignity of inmates. MR. JUSTICE WHITE, concurring in No. 76-255 and dissenting in No. 76-422. I join the Court's opinion in Hazelwood School Dist. v. United States, No. 76-255, ante p. 433 U. S. 299 , but with reservations with respect to the relative neglect of applicant pool data in finding a prima facie case of employment discrimination and heavy reliance on the disparity between the area-wide percentage of black public school teachers and the percentage of blacks on Hazelwood's teaching staff. Since the issue is whether Hazelwood discriminated against blacks in hiring after Title VII became applicable to it in 1972, perhaps the Government should have looked initially to Hazelwood's hiring practices in the 1972-1973 and 1973-1974 academic years with respect to the available applicant pool, rather than to history and to comparative workforce statistics from other school districts. Indeed, there is evidence in the record suggesting that Hazelwood, with a black enrollment of only 270, hired a higher percentage of black applicants than of white applicants for these two years. The Court's opinion, of course, permits Hazelwood to introduce applicant pool data on remand in order to rebut the prima facie case of a discriminatory pattern or practice. This may be the only fair and realistic allocation of the evidence burden, but arguably the United States should have been required to adduce evidence as to the applicant pool Page 433 U. S. 348 before it was entitled to its prima facie presumption. At least it might have been required to present some defensible ground for believing that the racial composition of Hazelwood's applicant pool was roughly the same as that for the school districts in the general area before relying on comparative workforce data to establish its prima facie case. In Dothard v. Rawlinson, No. 76-422, I have more trouble agreeing that a prima facie case of sex discrimination was made out by statistics showing that the Alabama height and weight requirements would exclude a larger percentage of women in the United States than of men. As in Hazelwood, the issue is whether there was discrimination in dealing with actual or potential applicants; but, in Hazelwood, there was at least a colorable argument that the racial composition of the area-wide teacher workforce was a reasonable proxy for the composition of the relevant applicant pool, and hence that a large divergence between the percentage of blacks on the teaching staff and the percentage in the teacher workforce raised a fair inference of racial discrimination in dealing with the applicant pool. In Dothard, however, I am unwilling to believe that the percentage of women applying or interested in applying for jobs as prison guards in Alabama approximates the percentage of women either in the national or state population. A plaintiff could, of course, show that the composition of the applicant pool was distorted by the exclusion of non-applicants who did not apply because of the allegedly discriminatory job requirement. But no such showing was made or even attempted here; and although I do not know what the actual fact is, I am not now convinced that a large percentage of the actual women applicants, or of those who are seriously interested in applying, for prison guard positions, would fail to satisfy the height and weight requirements. Without a more satisfactory record on this issue, I cannot conclude that appellee Rawlinson has either made out a prima facie case for the invalidity of the restrictions or otherwise proved that she was Page 433 U. S. 349 improperly denied employment as a prison guard. There being no showing of discrimination, I do not reach the question of justification; nor, since she does not meet the threshold requirements for becoming a prison guard, need I deal with the gender-based requirements for contact positions. I dissent from the Court's judgment in Dothard insofar as it affirms the judgment of the District Court.

The U.S. Supreme Court case of Dothard v. Rawlinson (1977) dealt with a female applicant, Rawlinson, who was denied a position as a correctional counselor in Alabama due to failing to meet the minimum weight requirement of 120 pounds, as mandated by state statute. Rawlinson filed a class action lawsuit, arguing that the height and weight requirements, as well as gender criteria for assigning positions, were discriminatory and violated Title VII of the Civil Rights Act of 1964. The Court ruled in Rawlinson's favor, finding that she had established a prima facie case of unlawful sex discrimination. It held that the height and weight standards disproportionately impacted women, as evidenced by national statistics, and that these requirements were not essential for the job. The Court also rejected the argument that being male was a necessary qualification for the job, especially in 'contact' positions requiring close proximity to inmates. Justice Rehnquist dissented, expressing skepticism about the statistical evidence and arguing that there was insufficient proof that the height and weight requirements disproportionately excluded female applicants or those interested in applying.

Labor & Employment

Teamsters v. U.S.

https://supreme.justia.com/cases/federal/us/431/324/

U.S. Supreme Court Teamsters v. United States, 431 U.S. 324 (1977) Teamsters v. United States No. 75-636 Argued January 10, 1977 Decided May 31, 1977 431 U.S. 324 ast|>* 431 U.S. 324 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus The United States instituted this litigation under Title VII of the Civil Rights Act of 1964 against petitioners, a nationwide common carrier of motor freight, and a union representing a large group of the company's employees. The Government alleged that the company had engaged in a pattern or practice of discriminating against Negroes and Spanish-surnamed persons (hereinafter sometimes collectively "minority members") who were hired as servicemen or local city drivers, which were lower paying, less desirable jobs than the positions of line drivers (over-the-road, long-distance drivers), which went to whites, and that the seniority system in the collective bargaining agreements between petitioners perpetuated ("locked in") the effects of past racial and ethnic discrimination because, under that system, a city driver or serviceman who transferred to a line driver job had to forfeit all the competitive seniority he had accumulated in his previous bargaining unit and start at the bottom of the line drivers' "board." The Government sought a general injunctive remedy and specific "make whole" relief for individual discriminatees, which would allow them an opportunity to transfer to line driver jobs with full company seniority. Section 703(a) of Title VII makes it an unlawful employment practice, inter alia, for an employer to fail or refuse to hire any individual or otherwise discriminate against him with regard to his employment because of his race or national origin. Section 703(h) provides in part that, notwithstanding other provisions, it shall not be an unlawful employment practice for an employer to apply different employment standards "pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate. . . ." The District Court after trial, with respect to both the employment discrimination and the seniority system in the collective bargaining agreements, held that petitioners had violated Title VII and enjoined both the company and the union from committing further violations thereof. With respect to individual relief, the court determined that Page 431 U. S. 325 the "affected class" of discriminatees included all minority members who had been hired as city drivers or servicemen at every company terminal with a line driver operation, whether they were hired before or after Title VII's effective date. The discriminatees thereby became entitled to preference over all other line driver applicants in the future. Finding that members of the affected class had been injured in varying degrees, the court created three subclasses, and applied to each a different formula for filling line driver jobs and for establishment of seniority, giving retroactive seniority to the effective date of the Act to those who suffered "severe injury." The right of any class member to a line driver vacancy was made subject to the prior recall rights under the collective bargaining agreement of line drivers who had been on layoff for not more than three years. Although agreeing with the District Court's basic conclusions, the Court of Appeals rejected the affected-class trisection, holding that the minority members could bid for future line driver jobs on the basis of their company seniority, and that, once a class member became a line driver, he could use his full company seniority even if it antedated Title VII's effective date, limited only by a "qualification date" formula, under which seniority could not be awarded for periods prior to the date when (1) a line driver job was vacant, and (2) the class member met (or, given the opportunity, would have met) the line driver qualifications. Holding that the three-year priority in favor of laid-off workers "would unduly impede the eradication of past discrimination," the Court of Appeals directed that, when a not purely temporary line driver vacancy arose, a class member might compete against any line driver on layoff on the basis of the member's retroactive seniority. Held: 1. The Government sustained its burden of proving that the company engaged in a systemwide pattern or practice of employment discrimination against minority members in violation of Title VII by regularly and purposefully treating such members less favorably than white persons. The evidence, showing pervasive statistical disparities in line driver positions between employment of the minority members and whites, and bolstered by considerable testimony of specific instances of discrimination, was not adequately rebutted by the company, and supported the findings of the courts below. Pp. 431 U. S. 334 -343. 2. Since the Government proved that the company engaged in a post-Act pattern of discriminatory employment policies, retroactive seniority may be awarded as relief for post-Act discriminatees even if the seniority system agreement makes no provision for such relief. Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 778 -779. Pp. 431 U. S. 347 -348. Page 431 U. S. 326 3. The seniority system was protected by § 703(h), and therefore the union's conduct in agreeing to and maintaining the system did not violate Title VII. Employees who suffered only pre-Act discrimination are not entitled to relief, and no person may be given retroactive seniority to a date earlier than the Act's effective date. The District Court's injunction against the union must consequently be vacated. Pp. 431 U. S. 348 -356. (a) By virtue of § 703(h) a bona fide seniority system does not become unlawful simply because it may perpetuate pre-Title VII discrimination, for Congress (as is manifest from the language and legislative history of the Act) did not intend to make it illegal for employees with vested seniority rights to continue to exercise those rights, even at the expense of pre-Act discriminatees. Thus, here, because of the company's intentional pre-Act discrimination, the disproportionate advantage given by the seniority system to the white line drivers with the longest tenure over the minority member employees who might by now have enjoyed those advantages were it not for the pre-Act discrimination is sanctioned by § 703(h). Pp. 431 U. S. 348 -355. (b) The seniority system at issue here is entirely bona fide, applying to all races and ethnic groups, and was negotiated and is maintained free from any discriminatory purpose. Pp. 431 U. S. 355 -356. 4. Every post-Act minority member applicant for a line driver position is presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant in a line driver job was not based on its policy of discrimination. Cf. Franks, supra at 424 U. S. 773 n. 32. Pp. 431 U. S. 357 -362. 5. An incumbent employee's failure to apply for a job does not inexorably bar an award of retroactive seniority, and individual nonapplicants must be afforded an opportunity to undertake their difficult task of proving that they should be treated as applicants, and therefore are presumptively entitled to relief accordingly. Pp. 431 U. S. 362 -371. (a) Congress' purpose in vesting broad equitable powers in Title VII courts was "to make possible the fashion[ing] [of] the most complete relief possible,'" Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 421 . Measured against the broad prophylactic purposes of Title VII, the company's assertion that a person who has not actually applied for a job can never be awarded seniority relief cannot prevail, for a consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. Pp. 431 U. S. 364 -367. (b) However, a nonapplicant must still show that he was a potential Page 431 U. S. 327 victim of unlawful discrimination and that he would have applied for a line driver job but for the company's discriminatory practices. The known prospect of discriminatory rejection shows only that employees who wanted line driving jobs may have been deterred from applying for them but does not show which of the nonapplicants actually wanted such jobs or were qualified. Consequently, the Government has the burden of proving at a remedial hearing to be conducted by the District Court which specific nonapplicants would have applied for line driver jobs but for their knowledge of the company's discriminatory policies. Pp. 431 U. S. 367 -371. 6. At such hearing on remand, the District Court will have to identify which of the minority members were actual victims of discrimination and, by application of the basic principles of equity, to balance their interest against the legitimate expectations of other employees innocent of wrongdoing. Pp. 431 U. S. 371 -376. 517 F.2d 299, vacated and remanded. STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 431 U. S. 377 . Page 431 U. S. 328 MR. JUSTICE STEWART delivered the opinion of the Court. This litigation brings here several important questions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). The issues grow out of alleged unlawful employment practices engaged in by an employer and a union. The employer is a common carrier of motor freight with nationwide operations, and the union represents a large group of its employees. The District Court and the Court of Appeals held that the employer had violated Title VII by engaging in a pattern and practice of employment discrimination against Negroes and Spanish-surnamed Americans, and that the union had violated the Act by agreeing with the employer to create and maintain a seniority system that perpetuated the effects of past racial and ethnic discrimination. In addition to the basic questions presented by these two rulings, other subsidiary issues must be resolved if violations of Title VII occurred -- issues concerning the nature of the relief to which aggrieved individuals may be entitled. I The United States brought an action in a Tennessee federal court against the petitioner T.I.M.E.-D.C. Inc. (company), pursuant to § 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a). [ Footnote 1 ] The complaint charged that the Page 431 U. S. 329 company had followed discriminatory hiring, assignment, and promotion policies against Negroes at its terminal in Nashville, Tenn. [ Footnote 2 ] The Government brought a second action against the company almost three years later in a Federal District Court in Texas, charging a pattern and practice of employment discrimination against Negroes and Spanish-surnamed persons throughout the company's transportation system. The petitioner International Brotherhood of Teamsters (union) was joined as a defendant in that suit. The two actions were consolidated for trial in the Northern District of Texas. The central claim in both lawsuits was that the company had engaged in a pattern or practice of discriminating against minorities in hiring so-called line drivers. Those Negroes and Spanish-surnamed persons who had been hired, the Government alleged, were given lower paying, less desirable jobs as servicemen or local city drivers, and were thereafter discriminated against with respect to promotions and transfers. [ Footnote 3 ] In Page 431 U. S. 330 this connection, the complaint also challenged the seniority system established by the collective bargaining agreements between the employer and the union. The Government sought a general injunctive remedy and specific "make whole" relief for all individual discriminatees, which would allow them an opportunity to transfer to line driver jobs with full company seniority for all purposes. The cases went to trial [ Footnote 4 ] and the District Court found that Page 431 U. S. 331 the Government had shown "by a preponderance of the evidence that T.I.M.E.-D.C. and its predecessor companies were engaged in a plan and practice of discrimination in violation of Title VII. . . . [ Footnote 5 ]" The court further found that the seniority system contained in the collective bargaining contracts between the company and the union violated Title VII because it "operate[d] to impede the free transfer of minority groups into and within the company." Both the company and the union were enjoined from committing further violations of Title VII. With respect to individual relief, the court accepted the Government's basic contention that the "affected class" of discriminatees included all Negro and Spanish-surnamed incumbent employees who had been hired to fill city operations or serviceman jobs at every terminal that had a line driver operation. [ Footnote 6 ] All of these employees, whether hired before or after the effective date of Title VII, thereby became entitled to preference over all other applicants with respect to consideration for future vacancies in line driver jobs. [ Footnote 7 ] Finding that members of the affected class had been injured in different degrees, the court created three subclasses. Thirty persons who had produced "the most convincing evidence of discrimination and harm" were found to have suffered "severe injury." The court ordered that they be offered the opportunity to fill line driver jobs with competitive seniority dating back to July 2, Page 431 U. S. 332 1965, the effective date of Title VII. [ Footnote 8 ] A second subclass included four persons who were "very possibly the objects of discrimination" and who "were likely harmed," but as to whom there had been no specific evidence of discrimination and injury. The court decreed that these persons were entitled to fill vacancies in line driving jobs with competitive seniority as of January 14, 1971, the date on which the Government had filed its systemwide lawsuit. Finally, there were over 300 remaining members of the affected class as to whom there was "no evidence to show that these individuals were either harmed or not harmed individually." The court ordered that they be considered for line driver jobs [ Footnote 9 ] ahead of any applicants from the general public, but behind the two other subclasses. Those in the third subclass received no retroactive seniority; their competitive seniority as line drivers would begin with the date they were hired as line drivers. The court further decreed that the right of any class member to fill a line driver vacancy was subject to the prior recall rights of laid-off line drivers, which under the collective bargaining agreements then in effect extended for three years. [ Footnote 10 ] Page 431 U. S. 333 The Court of Appeals for the Fifth Circuit agreed with the basic conclusions of the District Court: that the company had engaged in a pattern or practice of employment discrimination and that the seniority system in the collective bargaining agreements violated Title VII as applied to victims of prior discrimination. 517 F.2d 299. The appellate court held, however, that the relief ordered by the District Court was inadequate. Rejecting the District Court's attempt to trisect the affected class, the Court of Appeals held that all Negro and Spanish-surnamed incumbent employees were entitled to bid for future line driver jobs on the basis of their company seniority, and that' once a class member had filled a job, he could use his full company seniority -- even if it predated the effective date of Title VII-for all purposes, including bidding and layoff. This award of retroactive seniority was to be limited only by a "qualification date" formula, under which seniority could not be awarded for periods prior to the date when (1) a line driving position was vacant, [ Footnote 11 ] and (2) the class member met (or would have met, given the opportunity) the qualifications for employment as a line driver. [ Footnote 12 ] Finally, Page 431 U. S. 334 the Court of Appeals modified that part of the District Court's decree that had subjected the rights of class members to fill future vacancies to the recall rights of laid-off employees. Holding that the three-year priority in favor of laid-off workers "would unduly impede the eradication of past discrimination," id. at 322, the Court of Appeals ordered that class members be allowed to compete for vacancies with laid-off employees on the basis of the class members' retroactive seniority. Laid-off line drivers would retain their prior recall rights with respect only to "purely temporary" vacancies. Ibid. [ Footnote 13 ] The Court of Appeals remanded the case to the District Court to hold the evidentiary hearings necessary to apply these remedial principles. We granted both the company's and the union's petitions for certiorari to consider the significant questions presented under the Civil Rights Act of 1964, 425 U.S. 990. II In this Court, the company and the union contend that their conduct did not violate Title VII in any respect, asserting first that the evidence introduced at trial was insufficient to show that the company engaged in a "pattern or practice" of employment discrimination. The union further contends that the seniority system contained in the collective bargaining agreements in no way violated Title VII. If these contentions are correct, it is unnecessary, of course, to reach any of the issues concerning remedies that so occupied the attention of the Court of Appeals. A Consideration of the question whether the company engaged in a pattern or practice of discriminatory hiring practices Page 431 U. S. 335 involves controlling legal principles that are relatively clear. The Government's theory of discrimination was simply that the company, in violation of § 703(a) of Title VII, [ Footnote 14 ] regularly and purposefully treated Negroes and Spanish-surnamed Americans less favorably than white persons. The disparity in treatment allegedly involved the refusal to recruit, hire, transfer, or promote minority group members on an equal basis with white people, particularly with respect to line driving positions. The ultimate factual issues are thus simply whether there was a pattern or practice of such disparate treatment and, if so, whether the differences were "racially premised." McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 805 n. 18. [ Footnote 15 ] Page 431 U. S. 336 As the plaintiff, the Government bore the initial burden of making out a prima facie case of discrimination. Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 ; McDonnell Douglas Corp. v. Green, supra at 411 U. S. 802 . And, because it alleged a systemwide pattern or practice of resistance to the full enjoyment of Title VII rights, the Government ultimately had to prove more than the mere occurrence of isolated or "accidental" or sporadic discriminatory acts. It had to establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure -- the regular, rather than the unusual, practice. [ Footnote 16 ] Page 431 U. S. 337 We agree with the District Court and the Court of Appeals that the Government carried its burden of proof. As of March 31, 1971, shortly after the Government filed its complaint alleging systemwide discrimination, the company had 6,472 employees. Of these, 314 (5%) were Negroes and 257 (4%) were Spanish-surnamed Americans. Of the 1,828 line drivers, however, there were only 8 (0.4%) Negroes and 5 (0.3%) Spanish-surnamed persons, and all of the Negroes had been hired after the litigation had commenced. With one exception -- a man who worked as a line driver at the Chicago terminal from 1950 to 1959 -- the company and its predecessors did not employ a Negro on a regular basis as a line driver until 1969. And, as the Government showed, even in 1971, there were terminals in areas of substantial Negro population where all of the company's line drivers were white. [ Footnote 17 ] A great majority of the Negroes (83%) and Spanish-surnamed Americans Page 431 U. S. 338 (78%) who did work for the company held the lower paying city operations and serviceman jobs, [ Footnote 18 ] whereas only 39% of the nonminority employees held jobs in those categories. The Government bolstered its statistical evidence with the testimony of individuals who recounted over 40 specific instances of discrimination. Upon the basis of this testimony, the District Court found that "[n]umerous qualified black and Spanish-surnamed American applicants who sought line driving jobs at the company over the years, either had their requests ignored, were given false or misleading information about requirements, opportunities, and application procedures, or were not considered and hired on the same basis that whites were considered and hired." Minority employees who wanted to transfer to line driver jobs met with similar difficulties. [ Footnote 19 ] Page 431 U. S. 339 The company's principal response to this evidence is that statistics can never, in and of themselves, prove the existence of a pattern or practice of discrimination, or even establish a prima facie case shifting to the employer the burden of rebutting the inference raised by the figures. But, as even our brief summary of the evidence shows, this was not a case in which the Government relied on "statistics alone." The individuals who testified about their personal experiences with the company brought the cold numbers convincingly to life. In any event, our cases make it unmistakably clear that "[s]tatistical analyses have served and will continue to serve an important role" in cases in which the existence of discrimination is a disputed issue. Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605 , 415 U. S. 620 . See also McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S. 805 . Cf. Washington v. Davis, 426 U. S. 229 , 426 U. S. 241 -242. We have repeatedly approved the use of statistical proof, where it reached proportions comparable to those in this case, to establish a prima facie case of racial discrimination in jury selection cases, see, e.g., Turner v. Fouche, 396 U. S. 346 ; Hernandez v. Texas, 347 U. S. 475 ; Norris v. Alabama, 294 U. S. 587 . Statistics are equally competent in proving employment discrimination. [ Footnote 20 ] Page 431 U. S. 340 We caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. See, e.g., Hester v. Southern R. Co., 497 F.2d 1374, 1379-1381 (CA5). In addition to its general protest against the use of statistics in Title VII cases, the company claims that, in this case, the statistics revealing racial imbalance are misleading because they fail to take into account the company's particular business Page 431 U. S. 341 situation as of the effective date of Title VII. The company concedes that its line drivers were virtually all white in July, 1965, but it claims that, thereafter, business conditions were such that its workforce dropped. Its argument is that low personnel turnover, rather than post-Act discrimination, accounts for more recent statistical disparities. It points to substantial minority hiring in later years, especially after 1971, as showing that any pre-Act patterns of discrimination were broken. The argument would be a forceful one if this were an employer who, at the time of suit, had done virtually no new hiring since the effective date of Title VII. But it is not. Although the company's total number of employees apparently dropped somewhat during the late 1960's, the record shows that many line drivers continued to be hired throughout this period, and that almost all of them were white. [ Footnote 21 ] To be sure, there were improvements in the company's hiring practices. The Court of Appeals commented that "T.I.M.E.-D.C.'s recent minority hiring progress stands as a laudable good faith effort to eradicate the effects of past discrimination in the area of hiring and initial assignment. [ Footnote 22 ]" 517 F.2d at 316. But the District Court and the Court of Appeals found upon substantial evidence that the company had engaged in a course of discrimination that continued well after the effective date of Title VII. The company's later changes in its hiring and Page 431 U. S. 342 promotion policies could be of little comfort to the victims of the earlier post-Act discrimination, and could not erase its previous illegal conduct or its obligation to afford relief to those who suffered because of it. Cf. Albemarle Paper Co. v. Mood, 422 U.S. at 422 U. S. 413 -423. [ Footnote 23 ] The District Court and the Court of Appeals, on the basis of substantial evidence, held that the Government had proved a prima facie case of systematic and purposeful employment discrimination, continuing well beyond the effective date of Title VII. The company's attempts to rebut that conclusion were held to be inadequate. [ Footnote 24 ] For the reasons we have summarized, Page 431 U. S. 343 there is no warrant for this Court to disturb the findings of the District Court and the Court of Appeals on this basic issue. See Blau v. Lehman, 368 U. S. 403 , 368 U. S. 408 -409; Faulkner v. Gibbs, 338 U. S. 267 , 338 U. S. 268 ; United States v. Dickinson, 331 U. S. 745 , 331 U. S. 751 ; United States v. Commercial Credit Co., 286 U. S. 63 , 286 U. S. 67 ; United States v. Chemical Foundation, Inc., 272 U. S. 1 , 272 U. S. 14 ; Baker v. Schofield, 243 U. S. 114 , 243 U. S. 118 ; Towson v. Moore, 173 U. S. 17 , 173 U. S. 24 . B The District Court and the Court of Appeals also found that the seniority system contained in the collective bargaining agreements between the company and the union operated to violate Title VII of the Act. For purposes of calculating benefits, such as vacations, pensions, and other fringe benefits, an employee's seniority under this system runs from the date he joins the company, and takes into account his total service in all jobs and bargaining units. For competitive purposes, however, such as determining the order in which employees may bid for particular jobs, are laid off, or are recalled from layoff, it is bargaining unit seniority that controls. Thus, a line driver's seniority, Page 431 U. S. 344 for purposes of bidding for particular runs [ Footnote 25 ] and protection against layoff, takes into account only the length of time he has been a line driver at a particular terminal. [ Footnote 26 ] The practical effect is that a city driver or serviceman who transfers to a line driver job must forfeit all the competitive seniority he has accumulated in his previous bargaining unit and start at the bottom of the line drivers' "board." The vice of this arrangement, as found by the District Court and the Court of Appeals, was that it "locked" minority workers into inferior jobs and perpetuated prior discrimination by discouraging transfers to jobs as line drivers. While the disincentive applied to all workers, including whites, it was Negroes and Spanish-surnamed persons who, those courts found, suffered the most because many of them had been denied the equal opportunity to become line drivers when they were initially hired, whereas whites either had not sought or were refused line driver positions for reasons unrelated to their race or national origin. The linchpin of the theory embraced by the District Court and the Court of Appeals was that a discriminatee who must forfeit his competitive seniority in order finally to obtain a line driver job will never be able to "catch up" to the seniority level of his contemporary who was not subject to discrimination. [ Footnote 27 ] Accordingly, this continued, built-in disadvantage to Page 431 U. S. 345 the prior discriminatee who transfers to a line driver job was held to constitute a continuing violation of Title VII, for which both the employer and the union who jointly created and maintain the seniority system were liable. The union, while acknowledging that the seniority system may in some sense perpetuate the effects of prior discrimination, asserts that the system is immunized from a finding of illegality by reason of § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), which provides in part: "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system, . . . provided that such differences are not the result of an intention to discriminate because of race . . . or national origin. . . ." It argues that the seniority system in this case is "bona fide" within the meaning of § 703(h) when judged in light of its history, intent, application, and all of the circumstances under which it was created and is maintained. More specifically, the union claims that the central purpose of § 703(h) is to ensure that mere perpetuation of pre-Act discrimination is not unlawful under Title VII. And, whether or not § 703(h) immunizes the perpetuation of post-Act discrimination, the union claims that the seniority system in this litigation has no such effect. Its position in this Court, as has been its position throughout this litigation, is that the seniority system presents no hurdle to post-Act discriminatees Page 431 U. S. 346 who seek retroactive seniority to the date they would have become line drivers but for the company's discrimination. Indeed, the union asserts that, under its collective bargaining agreements, the union will itself take up the cause of the post-Act victim and attempt, through grievance procedures, to gain for him full "make whole" relief, including appropriate seniority. The Government responds that a seniority system that perpetuates the effects of prior discrimination -- pre-Act or post-Act -- can never be "bona fide" under § 703(h); at a minimum, Title VII prohibits those applications of a seniority system that perpetuate the effects on incumbent employees of prior discriminatory job assignments. The issues thus joined are open ones in this Court. [ Footnote 28 ] We considered § 703(h) in Franks v. Bowman Transportation Co., 424 U. S. 747 , but there decided only that § 703(h) does not bar the award of retroactive seniority to job applicants who seek relief from an employer's post-Act hiring discrimination. We stated that "the thrust of [§ 703(h)] is directed toward Page 431 U. S. 347 defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act." 424 U.S. at 424 U. S. 761 . Beyond noting the general purpose of the statute, however, we did not undertake the task of statutory construction required in this litigation. (1) Because the company discriminated both before and after the enactment of Title VII, the seniority system is said to have operated to perpetuate the effects of both pre- and post-Act discrimination. Post-Act discriminatees, however, may obtain full "make whole" relief, including retroactive seniority under Franks v. Bowman, supra, without attacking the legality of the seniority system as applied to them. Franks made clear, and the union acknowledges, that retroactive seniority may be awarded as relief from an employer's discriminatory hiring and assignment policies even if the seniority system agreement itself makes no provision for such relief. [ Footnote 29 ] 424 U.S. at 424 U. S. 778 -779. Here the Government has proved that the company engaged in a post-Act pattern of discriminatory hiring, assignment, transfer, and promotion policies. Any Negro or Spanish-surnamed American injured by those policies Page 431 U. S. 348 may receive all appropriate relief as a direct remedy for this discrimination. [ Footnote 30 ] (2) What remains for review is the judgment that the seniority system unlawfully perpetuated the effects of pre-Act discrimination. We must decide, in short, whether § 703(h) validates otherwise bona fide seniority systems that afford no constructive seniority to victims discriminated against prior to the effective date of Title VII, and it is to that issue that we now turn. The primary purpose of Title VII was "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S. 800 . [ Footnote 31 ] See also Albemarle Paper Co. v. Moody, 422 U.S. at Page 431 U. S. 349 422 U. S. 417 -418; Alexander v. Gardner-Denver Co., 415 U. S. 36 , 415 U. S. 44 ; Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 429 -431. To achieve this purpose, Congress "proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id. at 401 U. S. 431 . Thus, the Court has repeatedly held that a prima facie Title VII violation may be established by policies or practices that are neutral on their face and in intent but that nonetheless discriminate in effect against a particular group. General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 137 ; Washington v. Davis, 426 U.S. at 426 U. S. 246 -247; Albemarle Paper Co. v. Moody, supra at 422 U. S. 422 , 422 U. S. 425 ; McDonnell Douglas Corp v. Green, supra at 411 U. S. 802 n. 14; Griggs v. Duke Power Co., supra. One kind of practice "fair in form but discriminatory in operation" is that which perpetuates the effects of prior discrimination. [ Footnote 32 ] As the Court held in Griggs: "Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." 401 U.S. at 401 U. S. 430 . Were it not for § 703(h), the seniority system in this case would seem to fall under the Griggs rationale. The heart of the system is its allocation of the choicest jobs, the greatest protection against layoffs, and other advantages to those employees who have been line drivers for the longest time. Where, because of the employer's prior intentional discrimination, Page 431 U. S. 350 the line drivers with the longest tenure are, without exception, white, the advantages of the seniority system flow disproportionately to them and away from Negro and Spanish-surnamed employees who might by now have enjoyed those advantages had not the employer discriminated before the passage of the Act. This disproportionate distribution of advantages does, in a very real sense, "operate to freeze' the status quo of prior discriminatory employment practices." But both the literal terms of § 703(h) and the legislative history of Title VII demonstrate that Congress considered this very effect of many seniority systems and extended a measure of immunity to them. Throughout the initial consideration of H.R. 7152, later enacted as the Civil Rights Act of 1964, critics of the bill charged that it would destroy existing seniority rights. [ Footnote 33 ] The consistent response of Title VII's congressional proponents and of the Justice Department was that seniority rights would not be affected, even where the employer had discriminated prior to the Act. [ Footnote 34 ] An interpretive memorandum placed in the Congressional Record by Senators Clark and Case stated: "Title VII would have no effect on established seniority rights. Its effect is prospective, and not retrospective. Thus, for example, if a business has been discriminating in the past and, as a result, has an all-white working force, when the title comes into effect, the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged -- or indeed, Page 431 U. S. 351 permitted -- to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier." 110 Cong.Rec. 7213 (1964) (emphasis added). [ Footnote 35 ] A Justice Department statement concerning Title VII, placed in the Congressional Record by Senator Clark, voiced the same conclusion: "Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example, a collective bargaining contract provides that, in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected in the least by title VII. This would be true even in the case where, owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes. " Id. at 7207 (emphasis added). [ Footnote 36 ] Page 431 U. S. 352 While these statements were made before § 703(h) was added to Title VII, they are authoritative indicators of that section's purpose. Section 703(h) was enacted as part of the Mansfield-Dirksen compromise substitute bill that cleared the way for the passage of Title VII. [ Footnote 37 ] The drafters of the compromise bill stated that one of its principal goals was to resolve the ambiguities in the House-passed version of H.R. 7152. See, e.g., 110 Cong.Rec. 11935-11937 (1964) (remarks of Sen. Dirksen); id. at 12707 (remarks of Sen. Humphrey). As the debates indicate, one of those ambiguities concerned Title VII's impact on existing collectively bargained seniority rights. It is apparent that § 703(h) was drafted with an eye toward meeting the earlier criticism on this issue with an explicit provision embodying the understanding and assurances of the Act's proponents, namely, that Title VII would not outlaw such differences in treatment among employees as flowed from a bona fide seniority system that allowed for full exercise of seniority accumulated before the effective date of the Act. It is inconceivable that § 703(h), as part of a compromise bill, was intended to vitiate the earlier representations of the Act's supporters by increasing Title VII's impact on seniority systems. The statement of Senator Humphrey, noted in Franks, 424 U.S. at 424 U. S. 761 , confirms that the addition of § 703(h) "merely clarifies [Title VII's] present intent and effect." 110 Cong.Rec. 12723 (1964). In sum, the unmistakable purpose of § 703(h) was to make clear that the routine application of a bona fide seniority system would not be unlawful under Title VII. As the legislative history shows, this was the intended result even where the employer's pre-Act discrimination resulted in whites having greater existing seniority rights than Negroes. Although a seniority system inevitably tends to perpetuate the effects of Page 431 U. S. 353 pre-Act discrimination in such cases, the congressional judgment was that Title VII should not outlaw the use of existing seniority lists, and thereby destroy or water down the vested seniority rights of employees simply because their employer had engaged in discrimination prior to the passage of the Act. To be sure, § 703(h) does not immunize all seniority systems. It refers only to "bona fide" systems, and a proviso requires that any differences in treatment not be "the result of an intention to discriminate because of race . . . or national origin. . . ." But our reading of the legislative history compels us to reject the Government's broad argument that no seniority system that tends to perpetuate pre-Act discrimination can be "bona fide." To accept the argument would require us to hold that a seniority system becomes illegal simply because it allows the full exercise of the pre-Act seniority rights of employees of a company that discriminated before Title VII was enacted. It would place an affirmative obligation on the parties to the seniority agreement to subordinate those rights in favor of the claims of pre-Act discriminatees without seniority. The consequence would be a perversion of the congressional purpose. We cannot accept the invitation to disembowel § 703(h) by reading the words "bona fide" as the Government would have us do. [ Footnote 38 ] Accordingly, we hold that an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate Page 431 U. S. 354 pre-Act discrimination. Congress did not intend to make it illegal for employees with vested seniority rights to continue to exercise those rights, even at the expense of pre-Act discriminatees. [ Footnote 39 ] That conclusion is inescapable even in a case, such as this one, where the pre-Act discriminatees are incumbent employees who accumulated seniority in other bargaining units. Although there seems to be no explicit reference in the legislative history to pre-Act discriminatees already employed in less desirable jobs, there can be no rational basis for distinguishing their claims from those of persons initially denied any job but hired later with less seniority than they might have had in the absence of pre-Act discrimination. [ Footnote 40 ] We rejected any such Page 431 U. S. 355 distinction in Franks, finding that it had "no support anywhere in Title VII or its legislative history," 424 U.S. at 424 U. S. 768 . As discussed above, Congress, in 1964, made clear that a seniority system is not unlawful because it honors employees' existing rights, even where the employer has engaged in pre-Act discriminatory hiring or promotion practices. It would be as contrary to that mandate to forbid the exercise of seniority rights with respect to discriminatees who held inferior jobs as with respect to later hired minority employees who previously were denied any job. If anything, the latter group is the more disadvantaged. As in Franks, " it would indeed be surprising if Congress gave a remedy for the one [group] which it denied for the other.'" Ibid., quoting Phelps Dodge Corp. v. NLRB, 313 U. S. 177 , 313 U. S. 187 . [ Footnote 41 ] (3) The seniority system in this litigation is entirely bona fide. It applies equally to all races and ethnic groups. To the extent that it "locks" employees into non-line driver jobs, it Page 431 U. S. 356 does so for all. The city drivers and servicemen who are discouraged from transferring to line driver jobs are not all Negroes or Spanish-surnamed Americans; to the contrary, the overwhelming majority are white. The placing of line drivers in a separate bargaining unit from other employees is rational, in accord with the industry practice, and consistent with National Labor Relation Board precedents. [ Footnote 42 ] It is conceded that the seniority system did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose. In these circumstances, the single fact that the system extends no retroactive seniority to pre-Act discriminatees does not make it unlawful. Because the seniority system was protected by § 703(h), the union's conduct in agreeing to and maintaining the system did not violate Title VII. On remand, the District Court's injunction against the union must be vacated. [ Footnote 43 ] III Our conclusion that the seniority system does not violate Title VII will necessarily affect the remedy granted to individual employees on remand of this litigation to the District Court. Those employees who suffered only pre-Act discrimination are not entitled to relief, and no person may Page 431 U. S. 357 be given retroactive seniority to a date earlier than the effective date of the Act. Several other questions relating to the appropriate measure of individual relief remain, however, for our consideration. The petitioners argue generally that the trial court did not err in tailoring the remedy to the "degree of injury" suffered by each individual employee, and that the Court of Appeals' "qualification date" formula sweeps with too broad a brush by granting a remedy to employees who were not shown to be actual victims of unlawful discrimination. Specifically, the petitioners assert that no employee should be entitled to relief until the Government demonstrates that he was an actual victim of the company's discriminatory practices; that no employee who did not apply for a line driver job should be granted retroactive competitive seniority; and that no employee should be elevated to a line driver job ahead of any current line driver on layoff status. We consider each of these contentions separately. A The petitioners' first contention is in substance that the Government's burden of proof in a "pattern or practice" case must be equivalent to that outlined in McDonnell Douglas v. Green. Since the Government introduced specific evidence of company discrimination against only some 40 employees, they argue that the District Court properly refused to award retroactive seniority to the remainder of the class of minority incumbent employees. In McDonnell Douglas the Court considered "the order and allocation of proof in a private, non-class action challenging employment discrimination." 411 U.S. at 411 U. S. 800 . We held that an individual Title VII complainant must carry the initial burden of proof by establishing a prima facie case of racial discrimination. On the specific facts there involved, we concluded that this burden was met by showing that a Page 431 U. S. 358 qualified applicant, who was a member of a racial minority group, had unsuccessfully sought a job for which there was a vacancy and for which the employer continued thereafter to seek applicants with similar qualifications. This initial showing justified the inference that the minority applicant was denied an employment opportunity for reasons prohibited by Title VII, and therefore shifted the burden to the employer to rebut that inference by offering some legitimate, nondiscriminatory reason for the rejection. Id. at 802. The company and union seize upon the McDonnell Douglas pattern as the only means of establishing a prima facie case of individual discrimination. Our decision in that case, however, did not purport to create an inflexible formulation. We expressly noted that "[t]he facts necessarily will vary in Title VII cases, and the specification . . . of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations." Id. at 802 n. 13. The importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act. [ Footnote 44 ] In Franks v. Bowman Transportation Co., the Court applied Page 431 U. S. 359 this principle in the context of a class action. The Franks plaintiffs proved, to the satisfaction of a District Court, that Bowman Transportation Co "had engaged in a pattern of racial discrimination in various company policies, including the hiring, transfer, and discharge of employees." 424 U.S. at 424 U. S. 751 . Despite this showing, the trial court denied seniority relief to certain members of the class of discriminatees because not every individual had shown that he was qualified for the job he sought and that a vacancy had been available. We held that the trial court had erred in placing this burden on the individual plaintiffs. By "demonstrating the existence of a discriminatory hiring pattern and practice," the plaintiffs had made out a prima facie case of discrimination against the individual class members; the burden therefore shifted to the employer "to prove that individuals who reapply were not in fact victims of previous hiring discrimination." Id. at 424 U. S. 772 . The Franks case thus illustrates another means by which a Title VII plaintiff's initial burden of proof can be met. The class there alleged a broad-based policy of employment discrimination; upon proof of that allegation, there were reasonable grounds to infer that individual hiring decisions were made in pursuit of the discriminatory policy, and to require the employer to come forth with evidence dispelling that inference. [ Footnote 45 ] Page 431 U. S. 360 Although not all class actions will necessarily follow the Franks model, the nature of a "pattern or practice" suit brings it squarely within our holding in Franks. The plaintiff in a "pattern or practice" action is the Government, and its initial burden is to demonstrate that unlawful discrimination has been a regular procedure or policy followed by an employer or group of employers. See supra at 431 U. S. 336 , and n. 16. At the initial, "liability" stage of a "pattern or practice" suit the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant. An employer might show, for example, that the claimed discriminatory pattern is a product of pre-Act hiring rather, than unlawful post-Act discrimination, or that, during the period, it is alleged to have pursued a discriminatory policy it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination. [ Footnote 46 ] Page 431 U. S. 361 If an employer fails to rebut the inference that arises from the Government's prima facie case, a trial court may then conclude that a violation has occurred and determine the appropriate remedy. Without any further evidence from the Government, a court's finding of a pattern or practice justifies an award of prospective relief. Such relief might take the form of an injunctive order against continuation of the discriminatory practice, an order that the employer keep records of its future employment decisions and file periodic reports with the court, or any other order "necessary to ensure the full enjoyment of the rights" protected by Title VII. [ Footnote 47 ] When the Government seeks individual relief for the victims of the discriminatory practice, a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief. The petitioners' contention in this case is that, if the Government has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, "remedial" stage of trial. That basic contention was rejected in the Franks case. As was true of the particular facts in Franks, and as is typical of Title VII "pattern or practice" suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage Page 431 U. S. 362 of the trial. The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decisionmaking. The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The Government need only show that an alleged individual discriminatee unsuccessfully applied for a job, [ Footnote 48 ] and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons. See 424 U.S. at 424 U. S. 773 n. 32. In 431 U. S. supra, we have held that the District Court and Court of Appeals were not in error in finding that the Government had proved a systemwide pattern and practice of racial and ethnic discrimination on the part of the company. On remand, therefore, every post-Act minority group applicant [ Footnote 49 ] for a line driver position will be presumptively entitled to relief, subject to a showing by the company that its earlier refusal to place the applicant in a line driver job was not based on its policy of discrimination. [ Footnote 50 ] B The Court of Appeals' "qualification date" formula for relief did not distinguish between incumbent employees who Page 431 U. S. 363 had applied for line driver jobs and those who had not. The appellate court held that, where there has been a showing of classwide discriminatory practices coupled with a seniority system that perpetuates the effects of that discrimination, an individual member of the class need not show that he unsuccessfully applied for the position from which the class had been excluded. In support of its award of relief to all nonapplicants, the Court suggested that, "as a practical matter . . . , a member of the affected class may well have concluded that an application for transfer to an all-White position such as [line driver] was not worth the candle." 517 F.2d at 320. The company contends that a grant of retroactive seniority to these nonapplicants is inconsistent with the make-whole purpose of a Title VII remedy, and impermissibly will require the company to give preferential treatment to employees solely because of their race. The thrust of the company's contention is that, unless a minority group employee actually applied for a line driver job, either for initial hire or for transfer, he has suffered no injury from whatever discrimination might have been involved in the refusal of such jobs to those who actually applied for them. The Government argues in response that there should be no "immutable rule" that nonapplicants are nonvictims, and contends that a determination whether nonapplicants have suffered from unlawful discrimination will necessarily vary depending on the circumstances of each particular case. The Government further asserts that, under the specific facts of this case, the Court of Appeals correctly determined that all qualified nonapplicants were likely victims, and were therefore presumptively entitled to relief. The question whether seniority relief may be awarded to nonapplicants was left open by our decision in Franks, since the class at issue in that case was limited to "identifiable applicants who were denied employment . . . after the effective date . . . of Title VII." 424 U.S. at 431 U. S. 750 . We now Page 431 U. S. 364 decide that an incumbent employee's failure to apply for a job is not an inexorable bar to an award of retroactive seniority. Individual nonapplicants must be given an opportunity to undertake their difficult task of proving that they should be treated as applicants, and therefore are presumptively entitled to relief accordingly. (1) Analysis of this problem must begin with the premise that the scope of a district court's remedial powers under Title VII is determined by the purposes of the Act. Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 417 . In Griggs v. Duke Power Co., and again in Albemarle, the Court noted that a primary objective of Title VII is prophylactic: to achieve equal employment opportunity and to remove the barriers that have operated to favor white male employees over other employees. 401 U.S. at 401 U. S. 429 -430; 422 U.S. at 422 U. S. 417 . The prospect of retroactive relief for victims of discrimination serves this purpose by providing the "'spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges'" of their discriminatory practices. Id. at 422 U. S. 417 -418. An equally important purpose of the Act is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id. at 422 U. S. 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." Franks, 424 U.S. at 424 U. S. 764 . Thus, the Court has held that the purpose of Congress in vesting broad equitable powers in Title VII courts was "to make possible the fashion[ing] [of] the most complete relief possible,'" and that the district courts have "'not merely the power, but the duty, to render a decree which will, so far as possible, eliminate the discriminatory effects of the past, as well as bar like discrimination in the future.'" Albemarle, Page 431 U. S. 365 supra at 422 U. S. 421 , 422 U. S. 418 . More specifically, in Franks, we decided that a court must ordinarily award a seniority remedy unless there exist reasons for denying relief "'which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination . . . and making persons whole for injuries suffered.'" 424 U.S. at 424 U. S. 771 , quoting Albemarle, supra, at 422 U. S. 421 . Measured against these standards, the company's assertion that a person who has not actually applied for a job can never be awarded seniority relief cannot prevail. The effects of and the injuries suffered from discriminatory employment practices are not always confined to those who were expressly denied a requested employment opportunity. A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain rejection. If an employer should announce his policy of discrimination by a sign reading "Whites only" on the hiring office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly, but just as clearly, by an employer's actual practice by his consistent discriminatory treatment of actual applicants, by the manner in which he publicizes vacancies, his recruitment techniques, his responses to casual or tentative inquiries, and even by the racial or ethnic composition of that part of his workforce from which he has discriminatorily excluded members of minority groups. [ Footnote 51 ] When a person's Page 431 U. S. 366 desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture, he is as much a victim of discrimination as he who goes through the motions of submitting an application. In cases decided under the National Labor Relations Act, the model for Title VII's remedial provisions, Albemarle, supra at 422 U. S. 419 ; Franks, supra at 424 U. S. 769 , the National Labor Relations Board, and the courts in enforcing its orders, have recognized that the failure to submit a futile application does not bar an award of relief to a person claiming that he was denied employment because of union affiliation or activity. In NLRB v. Nevada Consolidated Copper Corp., 316 U. S. 105 , this Court enforced an order of the Board directing an employer to hire, with retroactive benefits, former employees who had not applied for newly available jobs because of the employer's well known policy of refusing to hire union members. See In re Nevada Consolidated Copper Corp., 26 N.L.R.B. 1182, 1208, 1231. Similarly, when an application would have been no more than a vain gesture in light of employer discrimination, the Courts of Appeals have enforced Board orders reinstating striking workers despite the failure of individual strikers to apply for reinstatement when the strike ended. E.g., NLRB v. Park Edge Sheridan Meats, Inc., 323 F.2d 956 (CA2); NLRB v. Valley Die Cast Corp., 303 F.2d 64 (CA6); Eagle-Picher Mining & Smelting Co. v. NLRB, 119 F.2d 03 (CA8). See also Piasecki Aircraft Corp. v. NLRB, 280 F.2d 575 (CA3); NLRB v. Anchor Rome Mills, Page 431 U. S. 367 228 F.2d 775 (CA5); NLRB v. Lummus Co., 210 F.2d 377 (CA5). Consistent with the NLRA model, several Courts of Appeals have held in Title VII cases that a nonapplicant can be a victim of unlawful discrimination entitled to make-whole relief when an application would have been a useless act serving only to confirm a discriminatee's knowledge that the job he wanted was unavailable to him. Acha v. Beame, 531 F.2d 648, 656 (CA2); Hairston v. McLean Trucking Co., 520 F.2d 226, 231-233 (CA4); Bing v. Roadway Express, Inc., 485 F.2d 441, 451 (CA5); United States v. N. L. Industries, Inc., 479 F.2d 354, 369 (CA8). The denial of Title VII relief on the ground that the claimant had not formally applied for the job could exclude from the Act's coverage the victims of the most entrenched forms of discrimination. Victims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful as totally to deter job applications from members of minority groups. A per se prohibition of relief to nonapplicants could thus put beyond the reach of equity the most invidious effects of employment discrimination -- those that extend to the very hope of self-realization. Such a per se limitation on the equitable powers granted to courts by Title VII would be manifestly inconsistent with the "historic purpose of equity to secur[e] complete justice'" and with the duty of courts in Title VII cases "`to render a decree which will so far as possible eliminate the discriminatory effects of the past.'" Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 418 . (2) To conclude that a person's failure to submit an application for a job does not inevitably and forever foreclose his entitlement to seniority relief under Title VII is a far cry, however, from holding that nonapplicants are always entitled to such relief. A nonapplicant must show that he was a potential victim of unlawful discrimination. Because he is necessarily Page 431 U. S. 368 claiming that he was deterred from applying for the job by the employer's discriminatory practices, his is the not always easy burden of proving that he would have applied for the job had it not been for those practices. Cf. Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274 . When this burden is met, the nonapplicant is in a position analogous to that of an applicant and is entitled to the presumption discussed in 431 U. S. supra. The Government contends that the evidence it presented in this case at the liability stage of the trial identified all nonapplicants as victims of unlawful discrimination "with a fair degree of specificity," and that the Court of Appeals' determination that qualified nonapplicants are presumptively entitled to an award of seniority should accordingly be affirmed. In support of this contention, the Government cites its proof of an extended pattern and practice of discrimination as evidence that an application from a minority employee for a line driver job would have been a vain and useless act. It further argues that, since the class of nonapplicant discriminatees is limited to incumbent employees, it is likely that every class member was aware of the futility of seeking a line driver job, and was therefore deterred from filing both an initial and a followup application. [ Footnote 52 ] Page 431 U. S. 369 We cannot agree. While the scope and duration of the company's discriminatory policy can leave little doubt that the futility of seeking line driver jobs was communicated to the company's minority employees, that in itself is insufficient. The known prospect of discriminatory rejection shows only that employees who wanted line driving jobs may have been deterred from applying for them. It does not show which of the nonapplicants actually wanted such jobs, or which possessed the requisite qualifications. [ Footnote 53 ] There are differences between city and line driving jobs. [ Footnote 54 ] for example, but the desirability of the latter is not so self-evident as to warrant a conclusion that all employees would prefer to be line drivers if given a free choice. [ Footnote 55 ] Indeed, a substantial number of white Page 431 U. S. 370 city drivers who were not subjected to the company's discriminatory practices were apparently content to retain their city jobs. [ Footnote 56 ] In order to fill this evidentiary gap, the Government argues that a nonapplicant's current willingness to transfer into a line driver position confirms his past desire for the job. An employee's response to the court-ordered notice of his entitlement to relief [ Footnote 57 ] demonstrates, according to this argument, that Page 431 U. S. 371 the employee would have sought a line driver job when he first became qualified to fill one, but for his knowledge of the company's discriminatory policy. This assumption falls short of satisfying the appropriate burden of proof. An employee who transfers into a line driver unit is normally placed at the bottom of the seniority "board." He is thus in jeopardy of being laid off, and must, at best, suffer through an initial period of bidding on only the least desirable runs. See supra at 431 U. S. 343 -344, and n. 25. Nonapplicants who chose to accept the appellate court's post hoc invitation, however, would enter the line driving unit with retroactive seniority dating from the time they were first qualified. A willingness to accept the job security and bidding power afforded by retroactive seniority says little about what choice an employee would have made had he previously been given the opportunity freely to choose a starting line driver job. While it may be true that many of the nonapplicant employees desired and would have applied for line driver jobs but.for their knowledge of the company's policy of discrimination, the Government must carry its burden of proof, with respect to each specific individual, at the remedial hearings to be conducted by the District Court on remand. [ Footnote 58 ] C The task remaining for the District Court on remand will not be a simple one. Initially, the court will have to make a substantial number of individual determinations in deciding which of the minority employees were actual victims Page 431 U. S. 372 of the company's discriminatory practices. After the victims have been identified, the court must, as nearly as possible, " recreate the conditions and relationships that would have been had there been no'" unlawful discrimination. Franks, 424 U.S. at 424 U. S. 769 . This process of recreating the past will necessarily involve a degree of approximation and imprecision. Because the class of victims may include some who did not apply for line driver jobs as well as those who did, and because more than one minority employee may have been denied each line driver vacancy, the court will be required to balance the equities of each minority employee's situation in allocating the limited number of vacancies that were discriminatorily refused to class members. Moreover, after the victims have been identified and their rightful place determined, the District Court will again be faced with the delicate task of adjusting the remedial interests of discriminatees and the legitimate expectations of other employees innocent of any wrongdoing. In the prejudgment consent decree, see n 4, supra, the company and the Government agreed that minority employees would assume line driver positions that had been discriminatorily denied to them by exercising a first-priority right to job vacancies at the company's terminals. The decree did not determine what constituted a vacancy, but, in its final order, the trial court defined "vacancy" to exclude any position that became available while there were laid-off employees awaiting an opportunity to return to work. Employees on layoff were given a preference to fill whatever openings might occur at their terminals during a three-year period after they were laid off. [ Footnote 59 ] Page 431 U. S. 373 The Court of Appeals rejected the preference and held that all but "purely temporary" vacancies were to be filled according to an employee's seniority, whether as a member of the class Page 431 U. S. 374 discriminated against or as an incumbent line driver on layoff. 517 F.2d at 322-323. As their final contention concerning the remedy, the company and the union argue that the trial court correctly made the adjustment between the competing interests of discriminatees and other employees by granting a preference to laid-off employees, and that the Court of Appeals erred in disturbing it. The petitioners therefore urge the reinstatement of that part of the trial court's final order pertaining to the rate at which victims will assume their rightful places in the line driver hierarchy. [ Footnote 60 ] Although not directly controlled by the Act, [ Footnote 61 ] the extent to Page 431 U. S. 375 which the legitimate expectations of nonvictim employees should determine when victims are restored to their rightful place is limited by basic principles of equity. In devising and implementing remedies under Title VII, no less than in formulating any equitable decree, a court must draw on the "qualities of mercy and practicality [that] have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs, as well as between competing private claims." Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 329 -330. Cf. Phelps Dodge Corp. v. NLRB, 313 U.S. at 313 U. S. 195 -196, modifying 113 F.2d 202 (CA2); 19 N.L.R.B. 547, 600; Franks, 424 U.S. at 424 U. S. 798 -799 (POWELL, J., concurring in part and dissenting in part). Especially when immediate implementation of an equitable remedy threatens to impinge upon the expectations of innocent parties, the courts must "look to the practical realities and necessities inescapably involved in reconciling competing interests," in order to determine the "special blend of what is necessary, what is fair, and what is workable." Lemon v. Kurtzman, 411 U. S. 192 , 411 U. S. 200 -201 (opinion of BURGER, C.J.). Because of the limited facts now in the record, we decline to strike the balance in this Court. The District Court did not explain why it subordinated the interests of class members to the contractual recall expectations of other employees on layoff. When it made that determination, however, it was considering a class of more than 400 minority employees, all of whom had been granted some preference in filling line driver vacancies. The overwhelming majority of these were in the District Court's subclass three, composed of those employees with respect to whom neither the Government nor the company had presented any specific evidence on the question of unlawful discrimination. Thus, when the court considered the problem of what constituted a line driver "vacancy" Page 431 U. S. 376 to be offered to class members, it may have been influenced by the relatively small number of proved victims and the large number of minority employees about whom it had no information. On the other hand, the Court of Appeals redefined "vacancy" in the context of what it believed to be a class of more than 400 employees who had actually suffered from discrimination at the behest of both the company and the union, and its determination may well have been influenced by that understanding. For the reasons discussed in this opinion, neither court's concept was completely valid. After the evidentiary hearings to be conducted on remand, both the size and the composition of the class of minority employees entitled to relief may be altered substantially. Until those hearings have been conducted and both the number of identifiable victims and the consequent extent of necessary relief have been determined, it is not possible to evaluate abstract claims concerning the equitable balance that should be struck between the statutory rights of victims and the contractual rights of nonvictim employees. That determination is best left, in the first instance, to the sound equitable discretion of the trial court. [ Footnote 62 ] See Franks v. Bowman Transportation Co., supra at 424 U. S. 779 ; Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 416 . We observe only that, when the court exercises its discretion in dealing with the problem of laid-off employees in light of the facts developed at the hearings on remand, it should clearly state its reasons so that meaningful review may be had on appeal. See Franks, supra at 424 U. S. 774 ; Albemarle Paper Co. v. Moody, supra at 422 U. S. 421 n. 14. For all the reasons we have discussed, the judgment of the Court of Appeals is vacated, and the cases are remanded to the Page 431 U. S. 377 District Court for further proceedings consistent with this opinion, It is so ordered. * Together with No. 75-672, T.I.M. E.-D.C. Inc., v. United States, et al., also on certiorari to the same court. [ Footnote 1 ] At the time of suit the statute provided as follows: "(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States by filing with it a complaint (1) signed by him (or in his absence the Acting Attorney General), (2) setting forth facts pertaining to such pattern or practice, and (3) requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as he deems necessary to insure the full enjoyment of the rights herein described." Section 707 was amended by § 5 of the Equal Employment Opportunity Act of 1972, 86 Stat. 107, 42 U.S.C. § 2000e-6(c) (1970 ed., Supp. V), to give the Equal Employment Opportunity Commission, rather than the Attorney General, the authority to bring "pattern or practice" suits under that section against private sector employers. In 1974, an order was entered in this action substituting the EEOC for the United States but retaining the United States as a party for purposes of jurisdiction, appealability, and related matters. See 42 U.S.C. § 2000e-6(d) (1970 ed., Supp. V). [ Footnote 2 ] The named defendant in this suit was T.I.M.E. Freight, Inc., a predecessor of T.I.M.E.-D.C. Inc. T.I.M.E.-D.C. Inc., is a nationwide system produced by 10 mergers over a 17-year period. See United States v. T.I.M.E.-D.C. Inc., 517 F.2d 299, 304, and n. 6 (CA5). It currently has 51 terminals and operates in 26 States and thee Canadian Provinces. [ Footnote 3 ] Line drivers, also known as over-the-road drivers, engage in long-distance hauling between company terminals. They compose a separate bargaining unit at the company. Other distinct bargaining units include servicemen, who service trucks, unhook tractors and trailers, and perform similar tasks; and city operations, composed of dockmen, hostlers, and city drivers who pick up and deliver freight within the immediate area of a particular terminal. All of these employees were represented by the petitioner union. [ Footnote 4 ] Following the receipt of evidence, but before decision, the Government and the company consented to the entry of a Decree in Partial Resolution of Suit. The consent decree did not constitute an adjudication on the merits. The company agreed, however, to undertake a minority recruiting program; to accept applications from all Negroes and Spanish-surnamed Americans who inquired about employment, whether or not vacancies existed, and to keep such applications on file and notify applicants of job openings; to keep specific employment and recruiting records open to inspection by the Government and to submit quarterly reports to the District Court; and to adhere to certain uniform employment qualifications respecting hiring and promotion to line driver and other jobs. The decree further provided that future job vacancies at any company terminal would be filled first "[b]y those persons who may be found by the Court, if any, to be individual or class discriminatees suffering the present effects of past discrimination because of race or national origin prohibited by Title VII of the Civil Rights Act of 1964." Any remaining vacancies could be filled by "any other persons," but the company obligated itself to hire one Negro or Spanish-surnamed person for every white person hired at any terminal until the percentage of minority workers at that terminal equaled the percentage of minority group members in the population of the metropolitan area surrounding the terminal. Finally, the company agreed to pay $89,500 in full settlement of any backpay obligations. Of this sum, individual payments not exceeding $1,500 were to be paid to "alleged individual and class discriminatees" identified by the Government. The Decree in Partial Resolution of Suit narrowed the scope of the litigation, but the District Court still had to determine whether unlawful discrimination had occurred. If so, the court had to identify the actual discriminatees entitled to fill future job vacancies under the decree. The validity of the collective bargaining contracts seniority system also remained for decision, as did the question whether any discriminatees should be awarded additional equitable relief such as retroactive seniority. [ Footnote 5 ] The District Court's memorandum decision is reported at 6 FEP Cases 690 (1974) and 6 EPD � 8979 (1973-1974). [ Footnote 6 ] The Government did not seek relief for Negroes and Spanish-surnamed Americans hired at a particular terminal after the date on which that terminal first employed a minority group member as a line driver. [ Footnote 7 ] See n 4, supra. [ Footnote 8 ] If an employee in this class had joined the company after July 2, 1965, then the date of his initial employment, rather than the effective date of Title VII was to determine his competitive seniority. [ Footnote 9 ] As with the other subclasses, there were a few individuals in the third group who were found to have been discriminated against with respect to jobs other than line driver. There is no need to discuss them separately in this opinion. [ Footnote 10 ] This provision of the decree was qualified in one significant respect. Under the Southern Conference Area Over-the-Road Supplemental Agreement between the employer and the union, line drivers employed at terminals in certain Southern States work under a "modified" seniority system. Under the modified system, an employee's seniority is not confined strictly to his home terminal. If he is laid off at his Home terminal, he can move to another terminal covered by the Agreement and retain his seniority, either by filling a vacancy at the other terminal or by "bumping" a junior line driver out of his job if there is no vacancy. The modified system also requires that any new vacancy at a covered terminal be offered to laid-off line drivers at all other covered terminals before it is filled by any other person. The District Court's final decree, as amended slightly by the Court of Appeals, 517 F.2d 299, 323, altered this system by requiring that any vacancy be offered to all members of all three subclasses before it may be filled by laid-off line drivers from other terminals. [ Footnote 11 ] Although the opinion of the Court of Appeals in this case did not specifically mention the requirement that a vacancy exist, it is clear from earlier and later opinions of that court that this requirement is a part of the Fifth Circuit's "qualification date" formula. See, e.g., Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 63 n. 29, rev'd on other grounds, post, p. 431 U. S. 395 , cited in 517 F.2d at 318 n. 35; Sagers v. Yellow Freight System, Inc., 529 F.2d 721, 731-734. [ Footnote 12 ] For example, if a class member began his tenure with the company on January 1, 1966, at which time he was qualified as a line driver and a line driving vacancy existed, his competitive seniority upon becoming a line driver would date back to January 1, 1966. If he became qualified or if a vacancy opened up only at a later date, then that later date would be used. [ Footnote 13 ] The Court of Appeals also approved (with slight modification) the part of the District Court's order that allowed class members to fill vacancies at a particular terminal ahead of line drivers laid off at other terminals. See n 10, supra. [ Footnote 14 ] Section 703(a) of Title VII, 42 U.S.C. § 2000e 2(a) (1970 ed. and Supp. V), provides: "(a) It shall be an unlawful employment practice for an employer -- " "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or" "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." [ Footnote 15 ] "Disparate treatment" such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 265 -266. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. See, e.g., 110 Cong.Rec. 13088 (1964) (remarks of Sen. Humphrey) ("What the bill does . . . is simply to make it an illegal practice to use race as a factor in denying employment. It provides that men and women shall be employed on the basis of their qualifications, not as Catholic citizens, not as Protestant citizens, not as Jewish citizens, not as colored citizens, but as citizens of the United States"). Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involve employment practices that are facially neutral in their treatment of different groups, but that, in fact, fall more harshly on one group than another, and cannot be justified by business necessity. See infra at 431 U. S. 349 . Proof of discriminatory motive, we have held, is not required under a disparate impact theory. Compare, e.g., Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 430 -432, with McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 -806. See generally B. Schlei & P. Grossman, Employment Discrimination Law 1-12 (1976); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59 (1972). Either theory may, of course, be applied to a particular set of facts. [ Footnote 16 ] The "pattern or practice" language in § 707(a) of Title VII, supra at 328 n 1, was not intended as a term of art, and the words reflect only their usual meaning. Senator Humphrey explained: "[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated, if a chain of motels or restaurants practiced racial discrimination throughout all or a significant part of its system, or if a company repeatedly and regularly engaged in acts prohibited by the statute." " * * * *" "The point is that single, insignificant, isolated acts of discrimination by a single business would not justify a finding of a pattern or practice. . . ." 110 Cong.Rec. 14270 (1964). This interpretation of "pattern or practice" appears throughout the legislative history of § 707(a), and is consistent with the understanding of the identical words as used in similar federal legislation. See 110 Cong.Rec. 12946 (1964) (remarks of Sen. Magnuson) (referring to § 206(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-5); 110 Cong.Rec. 13081 (1964) (remarks of Sen. Case); id. at 14239 (remarks of Sen. Humphrey); id. at 15895 (remarks of Rep. Celler). See also United States v. Jacksonville Terminal Co., 451 F.2d 418, 438, 441 (CA5); United States v. Ironworkers Local 86, 443 F.2d 544, 552 (CA9); United States v. West Peachtree Tenth Corp., 437 F.2d 221, 227 (CA5); United States v. Mayton, 335 F.2d 153, 158-159 (CA5). [ Footnote 17 ] In Atlanta, for instance, Negroes composed 22.35% of the population in the surrounding metropolitan area and 51.31% of the population in the city proper. The company's Atlanta terminal employed 57 line drivers. All were white. In Los Angeles, 10.84% of the greater metropolitan population and 17.88% of the city population were Negro. But at the company's two Los Angeles terminals, there was not a single Negro among the 374 line drivers. The proof showed similar disparities in San Francisco, Denver, Nashville, Chicago, Dallas, and at several other terminals. [ Footnote 18 ] Although line driver jobs pay more than other jobs, and the District Court found them to be "considered the most desirable of the driving jobs," it is by no means clear that all employees, even driver employees, would prefer to be line drivers. See infra at 431 U. S. 369 -370, and n. 55. Of course, Title VII provides for equal opportunity to compete for any job, whether it is thought better or worse than another. See, e.g., United States v. Hayes Int'l Corp., 456 F.2d 112, 118 (CA5); United States v. National Lead Co., 438 F.2d 935, 939 (CA8). [ Footnote 19 ] Two examples are illustrative: George Taylor, a Negro, worked for the company as a city driver in Los Angeles, beginning late in 1966. In 1968, after hearing that a white city driver had transferred to a line driver job, he told the terminal manager that he also would like to consider line driving. The manager replied that there would be "a lot of problems on the road . . . with different people, Caucasian, et cetera, " and stated: "I don't feel that the company is ready for this right now. . . . Give us a little time. It will come around, you know." Mr. Taylor made similar requests some months later and got similar responses. He was never offered a line driving job or an application. Feliberto Trujillo worked as a dockman at the company's Denver terminal. When he applied for a line driver job in 1967, he was told by a personnel officer that he had one strike against him. He asked what that was and was told: "You're a Chicano, and as far as we know, there isn't a Chicano driver in the system." [ Footnote 20 ] Petitioners argue that statistics, at least those comparing the racial composition of an employer's workforce to the composition of the population at large, should never be given decisive weight in a Title VII case because to do so would conflict with § 703(j) of the Act, 42 U.S.C. § 2000e 2(j). That section provides: "Nothing contained in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race . . . or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race . . . or national origin employed by any employer . . . in comparison with, the total number or percentage of persons of such race . . . or national origin in any community, State, section, or other area, or in the available workforce in any community, State, section, or other area." The argument fails in this case because the statistical evidence was not offered or used to support an erroneous theory that Title VII requires an employer's workforce to be racially balanced. Statistics showing racial or ethnic imbalance are probative in a case such as this one only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will, in time, result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of long-lasting and gross disparity between the composition of a workforce and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a workforce mirror the general population. See, e.g., United States v. Sheet Metal Workers Local 36, 416 F.2d 123, 127 n. 7 (CA8). Considerations such as small sample size may, of course, detract from the value of such evidence, see, e.g., Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605 , 415 U. S. 620 -621, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant. Ibid. See generally Schlei & Grossman, supra, n 15, at 1161-1193. "Since the passage of the Civil Rights Act of 1964, the courts have frequently relied upon statistical evidence to prove a violation. . . . In many cases, the only available avenue of proof is the use of racial statistics to uncover clandestine and covert discrimination by the employer or union involved." United States v. Ironworkers local 86, 443 F.2d at 551. See also, e.g., Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 225 n. 34 (CA5); Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377, 1382 (CA4); United States v. Jacksonville Terminal Co., 451 F.2d at 442; Parham v. Southwestern Bell Tel. Co., 433 F.2d 421, 426 (CA8); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (CA10). [ Footnote 21 ] Between July 2, 1965, and January 1, 1969, hundreds of line drivers were hired systemwide, either from the outside or from the ranks of employees filling other jobs within the company. None was a Negro. Government Exhibit 204. [ Footnote 22 ] For example, in 1971, the company hired 116 new line drivers, of whom 16 were Negro or Spanish-surnamed Americans. Minority employees composed 7.1% of the company's systemwide workforce in 1967 and 10.5% in 1972. Minority hiring increased greatly in 1972 and 1973, presumably due at least in part to the existence of the consent decree. See 517 F.2d at 316 n.31. [ Footnote 23 ] The company's narrower attacks upon the statistical evidence -- that there was no precise delineation of the areas referred to in the general population statistics, that the Government did not demonstrate that minority populations were located close to terminals or that transportation was available, that the statistics failed to show what portion of the minority population was suited by age, health, or other qualifications to hold trucking jobs, etc. -- are equally lacking in force. At best, these attacks go only to the accuracy of the comparison between the composition of the company's workforce at various terminals and the general population of the surrounding communities. They detract little from the Government's further showing that Negroes and Spanish-surnamed Americans who were hired were overwhelmingly excluded from line driver jobs. Such employees were willing to work, had access to the terminal, were healthy and of working age, and often were at least sufficiently qualified to hold city driver jobs. Yet they became line drivers with far less frequency than whites. See, e.g., Pretrial Stipulation 14, summarized in 517 F.2d at 312 n. 24 (of 2,919 whites who held driving jobs in 1971, 1,802 (62%) were line drivers and 1,117 (38%) were city drivers; of 180 Negroes and Spanish-surnamed Americans who held driving jobs, 13 (7%) were line drivers and 167 (93%) were city drivers). In any event, fine tuning of the statistics could not have obscured the glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero." Id. at 315. [ Footnote 24 ] The company's evidence, apart from the showing of recent changes in hiring and promotion policies, consisted mainly of general statements that it hired only the best qualified applicants. But "affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion." Alexander v. Louisiana, 405 U. S. 625 , 405 U. S. 632 . The company also attempted to show that all of the witnesses who testified to specific instances of discrimination either were not discriminated against or suffered no injury. The Court of Appeals correctly ruled that the trial judge was not bound to accept this testimony and that it committed no error by relying instead on the other overpowering evidence in the case. 517 F.2d at 315. The Court of Appeals was also correct in the view that individual proof concerning each class member's specific injury was appropriately left to proceedings to determine individual relief. In a suit brought by the Government under § 707(a) of the Act the District Court's initial concern is in deciding whether the Government has proved that the defendant has engaged m a pattern or practice of discriminatory conduct. See infra at 431 U. S. 360 -362. [ Footnote 25 ] Certain long-distance runs, for a variety of reasons, are more desirable than others. The best runs are chosen by the line drivers at the top of the "board" -- a list of drivers arranged in order of their bargaining unit seniority. [ Footnote 26 ] Both bargaining unit seniority and company seniority rights are generally limited to service at one particular terminal, except as modified by the Southern Conference Area Over-the-Road Supplemental Agreement. See n 10, supra. [ Footnote 27 ] An example would be a Negro who was qualified to be a line driver in 1958 but who, because of his race, was assigned instead a job as a city driver, and is allowed to become a line driver only in 1971. Because he loses his competitive seniority when he transfers jobs, he is forever junior to white line drivers hired between 1958 and 1970. The whites, rather than the Negro, will henceforth enjoy the preferable' runs and the greater protection against layoff. Although the original discrimination occurred in 1958 -- before the effective date of Title VII -- the seniority system operates to carry the effects of the earlier discrimination into the present. [ Footnote 28 ] Concededly, the view that § 703(h) does not immunize seniority systems that perpetuate the effects of prior discrimination has much support. It was apparently first adopted in Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va.). The court there held that "a departmental seniority system that has its genesis in racial discrimination is not a bona fide seniority system." Id. at 517 (first emphasis added). The Quarles view has since enjoyed wholesale adoption in the Courts of Appeals. See, e.g., Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 987-988 (CA5); United States v. Sheet Metal Workers Local 6, 416 F.2d at 133-134, n. 20; United States v. Bethlehem Steel Corp., 446 F.2d 652, 658-659 (CA2); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582, 587-588 (CA4). Insofar as the result in Quarles and in the cases that followed it depended upon findings that the seniority systems were themselves "racially discriminatory" or had their "genesis in racial discrimination," 279 F. Supp. at 517, the decisions can be viewed as resting upon the proposition that a seniority system that perpetuates the effects of pre-Act discrimination cannot be bona fide if an intent to discriminate entered into its very adoption. [ Footnote 29 ] Article 38 of the National Master Freight Agreement between the company and the union in effect as of the date of the systemwide lawsuit provided: "The Employer and the Union agree not to discriminate against any individual with respect to his hiring, compensation, terms or conditions of employment because of such individual's race, color, religion, sex, or national origin, nor will they limit, segregate or classify employees in any way to deprive any individual employee of employment opportunities because of his race, color, religion, sex, or national origin." Any discrimination by the company would apparently be a "grievable" breach of this provision of the contract. [ Footnote 30 ] The legality of the seniority system insofar as it perpetuates post-Act discrimination nonetheless remains at issue in this case, in light of the injunction entered against the union. See supra at 431 U. S. 331 . Our decision today in United Air Lines, Inc. v. Evans, post, p. 431 U. S. 553 , is largely dispositive of this issue. Evans holds that the operation of a seniority system is not unlawful under Title VII even though it perpetuates post-Act discrimination that has not been the subject of a timely charge by the discriminatee. Here, of course, the government has sued to remedy the post-Act discrimination directly, and there is no claim that any relief would be time-barred. But this is simply an additional reason not to hold the seniority system unlawful, since such a holding would in no way enlarge the relief to be awarded. See Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 778 -779. Section 703(h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act discrimination. [ Footnote 31 ] We also noted in McDonnell Douglas: "There are societal as well as personal interests on both sides of this [employer employee] equation. The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise." 411 U.S. at 411 U. S. 801 . [ Footnote 32 ] Asbestos Workers Local 5 v. Vogler, 407 F.2d 1047 (CA5), provides an apt illustration. There a union had a policy of excluding persons not related to present members by blood or marriage. When, in 1966, suit was brought to challenge this policy, all of the union's members were white, largely as a result of pre-Act intentional racial discrimination. The court observed: "While the nepotism requirement is applicable to black and white alike and is not, on its face, discriminatory, in a completely white union, the present effect of its continued application is to forever deny to negroes and Mexican-Americans any real opportunity for membership." Id. at 1054. [ Footnote 33 ] E.g., H.R.Rep. No. 914, 88th Cong., 1st Sess., 65-66, 71 (1963) (minority report); 110 Cong. Rec. 48688 (1964) (remarks of Sen. Hill); id. at 2726 (remarks of Rep. Dowdy); id. at 7091 (remarks of Sen. Stennis). [ Footnote 34 ] In addition to the material cited in Franks v. Bowman Transportation Co., 424 U.S. at 424 U. S. 759 -762, see 110 Cong.Rec. 1518 (1964) (remarks of Rep. Celler); id. at 6549 (remarks of Sen. Humphrey); id. at 6564 (remarks of Sen. Kuchel). [ Footnote 35 ] Senators Clark and Case were the "bipartisan captains" responsible for Title VII during the Senate debate. Bipartisan captains were selected for each title of the Civil Rights Act by the leading proponents of the Act in both parties. They were responsible for explaining their title in detail, defending it, and leading discussion on it. See id. at 6528 (remarks of Sen. Humphrey); Vaas, Title VII: Legislative History, 7 B. C. Ind. & Com.L.Rev. 431, 444-445 (1966). [ Footnote 36 ] The full text of the statement is set out in Franks v. Bowman Transportation Co., supra at 424 U. S. 760 n. 16. Senator Clark also introduced a set of answers to questions propounded by Senator Dirksen, which included the following exchange: "Question. Would the same situation prevail in respect to promotions, when that management function is governed by a labor contract calling for promotions on the basis of seniority? What of dismissals? Normally, labor contracts call for 'last hired, first fired.' If the last hired are Negroes, is the employer discriminating if his contract requires they be first fired and the remaining employees are white?" "Answer. Seniority rights are in no way affected by the bill. If, under a 'last hired, first fired' agreement a Negro happens to be the 'last hired,' he can still be 'first fired' as long as it is done because of his status as 'last hired,' and not because of his race." 110 Cong.Rec. 7217 (1964). See Franks, supra, at 424 U. S. 760 n. 16. [ Footnote 37 ] See Franks v. Bowman Transportation Co., supra at 424 U. S. 761 ; Vaas, supra, n 35, at 435. [ Footnote 38 ] For the same reason, we reject the contention that the proviso in § 703(h), which bars differences in treatment resulting from "an intention to discriminate," applies to any application of a seniority system that may perpetuate past discrimination. In this regard the language of the Justice Department memorandum introduced at the legislative hearings, see supra at 431 U. S. 351 , is especially pertinent: "It is perfectly clear that, when a worker is laid off or denied a chance for promotion because under established seniority rules he is 'low man on the totem pole' he is not being discriminated against because of his race. . . . Any differences in treatment based on established seniority rights would not be based on race and would not be forbidden by the title." 110 Cong.Rec. 7207 (1964). [ Footnote 39 ] The legislative history of the 1972 amendments to Title VII, summarized and discussed in Franks, 424 U.S. at 424 U. S. 764 -765, n. 21; id. at 424 U. S. 796 -797, n. 18 (POWELL, J., concurring in part and dissenting in part), in no way points to a different result. As the discussion in Franks indicates, that history is itself susceptible of different readings. The few broad references to perpetuation of pre-Act discrimination or " de facto segregated job ladders," see, e.g., S.Rep. No. 92-415, pp. 5, 9 (1971); H.R.Rep. No. 92-238, pp. 8, 17 (1971), did not address the specific issue presented by this case. And the assumption of the authors of the Conference Report that "the present case law as developed by the courts would continue to govern the applicability and construction of Title VII," see Franks, supra at 424 U. S. 765 n. 21, of course does not foreclose our consideration of that issue. More importantly, the section of Title VII that we construe here, § 703(h), was enacted in 1964, not 1972. The views of members of a later Congress, concerning different sections of Title VII, enacted after this litigation was commenced, are entitled to little if any weight. It is the intent of the Congress that enacted § 703(h) in 1964, unmistakable in this case, that controls. [ Footnote 40 ] That Title VII did not proscribe the denial of fictional seniority to pre-Act discriminatees who got no job was recognized even in Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va.), and its progeny. Quarles stressed the fact that the references in the legislative history were to employment seniority, rather than departmental seniority. Id. at 516. In Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (CA5), another leading case in this area, the court observed: "No doubt, Congress, to prevent 'reverse discrimination' meant to protect certain seniority rights that could not have existed but for previous racial discrimination. For example a Negro who had been rejected by an employer on racial grounds before passage of the Act could not, after being hired, claim to outrank whites who had been hired before him but after his original rejection, even though the Negro might have had senior status but for the past discrimination." Id. at 994. [ Footnote 41 ] In addition, there is no reason to suppose that Congress intended in 1964 to extend less protection to legitimate departmental seniority systems than to plant-wide seniority systems. Then, as now, seniority was measured in a number of ways, including length of time with the employer, in a particular plant, in a department, in a job, or in a line of progression. See Aaron, Reflections on the Legal Nature and Enforceability of seniority Rights, 75 Harv.L.Rev. 1532, 1534 (1962); Cooper & Sobol, seniority and Testing under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598, 1602 (1969). The legislative history contains no suggestion that any one system was preferred. [ Footnote 42 ] See Georgia Highway Express, 150 N.L.R.B. 1649, 1651: "The Board has long held that local drivers and over-the-road drivers constitute separate appropriate units where they are shown to be clearly defined, homogeneous, and functionally distinct groups with separate interests which can effectively be represented separately for bargaining purposes. . . . In view of the different duties and functions, separate supervision, and different bases of payment, it is clear that the over-the-road drivers have divergent interests from those of the employees in the [city operations] unit . . . and should not be included in that unit." [ Footnote 43 ] The union will properly remain in this litigation as a defendant so that full relief may be awarded the victims of the employer's post-Act discrimination. Fed.Rule Civ.Proc.19(a). See EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1095 (CA6). [ Footnote 44 ] The McDonnell Douglas case involved an individual complainant seeking to prove one instance of unlawful discrimination. An employer's isolated decision to reject an applicant who belongs to a racial minority does not show that the rejection was racially based. Although the McDonnell Douglas formula does not require direct proof of discrimination, it does demand that the alleged discriminatee demonstrate at least that his rejection did not result from the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought. Elimination of these reasons for the refusal to hire is sufficient, absent other explanation, to create an inference that the decision was a discriminatory one. [ Footnote 45 ] The holding in Franks that proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of individual relief is consistent with the manner in which presumptions are created generally. Presumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party's superior access to the proof. See C. McCormick, Law of Evidence §§ 337, 343 (2d ed 1972); James, Burdens of Proof, 47 Va.L.Rev. 51, 61 (1961). See also Keyes v. School Dist. No. 1, 413 U. S. 189 , 413 U. S. 208 -209. These factors were present in Franks. Although the prima facie case did not conclusively demonstrate that all of the employer's decisions were part of the proved discriminatory pattern and practice, it did create a greater likelihood that any single decision was a component of the overall pattern. Moreover, the finding of a pattern or practice changed the position of the employer to that of a proved wrongdoer. Finally, the employer was in the best position to show why any individual employee was denied an employment opportunity. Insofar as the reasons related to available vacancies or the employer's evaluation of the applicant's qualifications, the company's records were the most relevant items of proof. If the refusal to hire was based on other factors, the employer and its agents knew best what those factors were and the extent to which they influenced the decisionmaking process. [ Footnote 46 ] The employer's defense must, of course, be designed to meet the prima facie case of the Government. We do not mean to suggest that there are any particular limits on the type of evidence a employer may use. The point is that, at the liability stage of a "pattern or practice" trial, the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking. While a pattern might be demonstrated by examining the discrete decisions of which it is composed, the Government's suits have more commonly involved proof of the expected result of a regularly followed discriminatory policy. In such cases, the employer's burden is to provide a nondiscriminatory explanation for the apparently discriminatory result. See n 20, supra, and cases cited therein. [ Footnote 47 ] The federal courts have freely exercised their broad equitable discretion to devise prospective relief designed to assure that employers found to be in violation of § 707(a) eliminate their discriminatory practices and the effects therefrom. See, e.g., cases cited in n 51, infra. In this case, prospective relief was incorporated in the parties' consent decree. See n 4, supra. [ Footnote 48 ] Nonapplicants are discussed in 431 U. S. infra. [ Footnote 49 ] Employees who initially applied for line driver jobs and were hired in other jobs before the effective date of the Act, and who did not later apply for transfer to line driver jobs, are part of the group of nonapplicants discussed infra. [ Footnote 50 ] Any nondiscriminatory justification offered by the company will be subject to further evidence by the Government that the purported reason for an applicant's rejection was in fact a pretext for unlawful discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S. 804 -806. [ Footnote 51 ] The far-ranging effects of subtle discriminatory practices have not escaped the scrutiny of the federal courts, which have provided relief from practices designed to discourage job applications from minority group members. See, e.g., Franks v. Bowman Transportation Co., 495 F.2d 398, 418-419 (CA5) (public recruitment and advertising), rev'd on other grounds, 424 U. S. 424 U.S. 747; Carter v. Gallagher, 452 F.2d 315, 319 (CA8) (recruitment); United States v. Jacksonville Terminal Co., 451 F.2d at 458 (posting of job vacancies and job qualification requirements); United States v. Local No. 86, Ironworkers, 315 F. Supp. 1202 , 1238, 1245-1246 (WD Wash.) (dissemination of information), aff'd, 443 F.2d 544 (CA9). While these measures may be effective in preventing the deterrence of future applicants, they afford no relief to those persons who in the past desired jobs but were intimidated and discouraged by employment discrimination. [ Footnote 52 ] The limitation to incumbent employees is also said to serve the same function that actual job applications served in Franks: providing a means of distinguishing members of the excluded minority group from minority members of the public at large. While it is true that incumbency in this case and actual applications in Franks both serve to narrow what might otherwise be an impossible task, the statuses of nonincumbent applicant and nonapplicant incumbent differ substantially. The refused applicants in Franks had been denied an opportunity they clearly sought, and the only issue to be resolved was whether the denial was pursuant to a proved discriminatory practice. Resolution of the' nonapplicant's claim, however, requires two distinct determinations: that he would have applied but for discrimination and that he would have been discriminatorily rejected had he applied. The mere fact of incumbency does not resolve the first issue, although it may tend to support a nonapplicant's claim to the extent that it shows he was willing and competent to work as a driver, that he was familiar with the tasks of line drivers, etc. An incumbent's claim that he would have applied for a line driver job would certainly be more superficially plausible than a similar claim by a member of the general public who may never have worked in the trucking industry or heard of the company prior to suit. [ Footnote 53 ] Inasmuch as the purpose of the nonapplicant's burden of proof will be to establish that his status is similar to that of the applicant, he must bear the burden of coming forward with the basic information about his qualifications that he would have presented in an application. As in Franks, and in accord with 431 U. S. supra, the burden then will be on the employer to show that the nonapplicant was nevertheless not a victim of discrimination. For example, the employer might show that there were other, more qualified persons who would have been chosen for a particular vacancy, or that the nonapplicant's stated qualifications were insufficient. See Franks, 424 U.S. at 424 U. S. 773 n. 32. [ Footnote 54 ] Of the employees for whom the Government sought transfer to line driving jobs, nearly one-third held city driver positions [ Footnote 55 ] The company's line drivers generally earned more annually than its city drivers, but the difference varied from under $1,000 to more than $5,000 depending on the terminal and the year. In 1971, city drivers at two California terminals, "LOS" and San Francisco, earned substantially more than the line drivers at those terminals. In addition to earnings, line drivers have the advantage of not being required to load and unload their trucks. City drivers, however, have regular working hours, are not required to spend extended periods away from home and family, and do not face the hazards of long distance driving at high speeds. As the Government acknowledged at argument, the jobs are in some sense "parallel" -- some may prefer one job and some may prefer another. The District Court found generally that line driver jobs "are considered the most desirable of the driving jobs." That finding is not challenged here, and we see no reason to disturb it. We observe only that the differences between city and line driving were not such that it can be said with confidence that all minority employees free from the threat of discriminatory treatment would have chosen to give up city for line driving. [ Footnote 56 ] In addition to the futility of application, the Court of Appeals seems to have relied on the minority employees' accumulated seniority in non-line driver positions in concluding that nonapplicants had been unlawfully deterred from applying. See 517 F.2d at 318, 320. The Government adopts that theory here, arguing that a nonapplicant who has accrued time at the company would be unlikely to have applied for transfer because he would have had to forfeit all of his competitive seniority and the job security that went with it. In view of our conclusion in 431 U. S. supra, this argument detracts from, rather than supports, a nonapplicant's entitlement to relief. To the extent that an incumbent was deterred from applying by his desire to retain his competitive seniority, he simply did not want a line driver job requiring him to start at the bottom of the "board." Those nonapplicants who did not apply for transfer because they were unwilling to give up their previously acquired seniority suffered only from a lawful deterrent imposed on all employees regardless of race or ethnicity. The nonapplicant's remedy in such cases is limited solely to the relief, if any, to which he may be entitled because of the discrimination he encountered at a time when he wanted to take a starting line driver job. [ Footnote 57 ] The District Court's final order required that the company notify each minority employee of the relief he was entitled to claim. The employee was then required to indicate, within 60 days, his willingness to accept the relief. Under the decision of the Court of Appeals, the relief would be qualification date seniority. [ Footnote 58 ] While the most convincing proof would be some overt act, such as a pre-Act application for a line driver job, the District Court may find evidence of an employee's informal inquiry, expression of interest, or even unexpressed desire credible and convincing. The question is a factual one for determination by the trial judge. [ Footnote 59 ] Paragraph 9(a) of the trial court's final order provided: "A 'vacancy,' as used in this Order, shall include any opening which is caused by the transfer or promotion to a position outside the bargaining unit, death, resignation or final discharge of an incumbent, or by an increase in operations or business where, ordinarily, additional employees would be put to work. A vacancy shall not exist where there are laid off employees on the seniority roster where the opening occurs. Such laid-off employees shall have a preference to fill such laid off positions when these again become open without competition from the individuals granted relief in this case. However, if such layoff continues for three consecutive years the position will be deemed as 'vacant' with the right of all concerned to compete for the position, using their respective seniority dates, including those provided for in this Order." The trial court's use of a three-year recall right is apparently derived from provisions in the collective bargaining agreements. Article 5 of the National Master Freight Agreement (NMFA) establishes the seniority rights of employees covered by the Agreement. Under Art. 5, "[s]eniority rights for employees shall prevail. . . . Seniority shall only be broken by discharge, voluntary quit, [or] more than a three(3) year layoff." § 1. As is evident, the three-year layoff provision in the NMFA determines only when an employee shall lose all of his accumulated seniority; it does not determine either the order of layoff or the order of recall. Subject to other terms of the NMFA, Art. 2, § 2, "[t]he extent to which seniority shall be applied as well as the methods and procedures of such application" are left to the Supplemental Agreements. Art. 5, § 1. The Southern Conference Area Over-the-Road Supplemental Agreement, covering line drivers in the Southern Conference, also provides for a complete loss of seniority rights after a three-year layoff, Art. 42, § 1, and further provides that, in the event of a reduction in force, "the last employee hired shall be laid off first and when the force is again increased, the employees are to be returned to work in the reverse order in which they were laid off," Art. 42, § 3. This order of layoff and recall, however, is limited by the NMFA in at least two situations involving an influx of employees from outside a terminal. Art. 5, § 3(a)(1) (merger with a solvent company), § 5(b)(2) (branch closing with transfer of operations to another branch). In these cases the NMFA provides for "dovetailing" the seniority rights of active and laid-off employees at the two facilities involved. Ibid.; see also NMFA, Art 15 (honoring Military Selective Service Act of 1967). The NMFA also recognizes that "questions of accrual, interpretation or application of seniority rights may arise which are not covered by the general rules set forth," and provides a procedure for resolution of unforeseen seniority problems. Art. 5, § 7. Presumably § 7 applies to persons claiming discriminatory denial of jobs and seniority in violation of Art. 38, which prohibits discrimination in hiring as well as classification of employees so as to deprive them of employment opportunities on account of race or national origin. See n 29, supra. The District Court apparently did not consider these provisions when it determined the recall rights of employees on layoff. [ Footnote 60 ] In their briefs, the petitioners also challenge the trial court's modification of the inter-terminal transfer rights of line drivers in the Southern Conference. See n 10, supra. This question was not presented in either petition for certiorari, and therefore is not properly before us. This Court's Rule 23(1)(c). Our disposition of the claim that is presented, however, will permit the trial court to reconsider any part of the balance it struck in dealing with this issue. [ Footnote 61 ] The petitioners argue that to permit a victim of discrimination to use his rightful place seniority to bid on a line driver job before the recall of all employees on layoff would amount to a racial or ethnic preference in violation of § 703(j) of the Act. Section 703(j) provides no support for this argument. It provides only that Title VII does not require an employer to grant preferential treatment to any group in order to rectify an imbalance between the composition of the employer's workforce and the makeup of the population at large. See n 20, supra. To allow identifiable victims of unlawful discrimination to participate in a layoff recall is not the kind of "preference" prohibited by § 703(j). If a discriminatee is ultimately allowed to secure a position before a laid-off line driver, a question we do not now decide, he will do so because of the bidding power inherent in his rightful place seniority, and not because of a preference based on race. See Franks, 424 U.S. at 424 U. S. 792 (POWELL, J., concurring in part and dissenting in part). [ Footnote 62 ] Other factors, such as the number of victims, the number of nonvictim employees affected and the alternatives available to them, and the economic circumstances of the industry may also be relevant in the exercise of the District Court's discretion. See Franks, supra at 424 U. S. 796 n. 17 (POWELL, J., concurring in part and dissenting in part). MR. JUSTICE MARSHALL, with whom MR, JUSTICE BRENNAN joins, concurring in part and dissenting in part. I agree with the Court that the United States proved that petitioner T.I.M.E.-D. C, was guilty of a pattern or practice of discriminating against blacks and Spanish-surnamed Americans in hiring line drivers. I also agree that incumbent minority group employees who show that they applied for a line driving job or that they would have applied but for the company's unlawful acts are presumptively entitled to the full measure of relief set forth in our decision last Term in Franks v. Bowman Transportation Co., 424 U. S. 747 (1976). [ Footnote 2/1 ] But I do not agree that Title VII permits petitioners to treat Negro and Spanish-surnamed line drivers differently from other drivers who were hired by the company at the same time simply because the former drivers were prevented by the company from acquiring seniority over the road. I therefore dissent Page 431 U. S. 378 from that aspect of the Court's holding, and from the limitations on the scope of the remedy that follow from it. As the Court quite properly acknowledges, ante at 431 U. S. 349 -350, the seniority provision at issue here clearly would violate Title VII absent § 703(h), 42 U.S.C. § 2000e-2(h), which exempts at least some seniority systems from the reach of the Act. Title VII prohibits an employer from "classify[ing] his employees . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V). "Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices. " Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 430 (1971) (emphasis added). Petitioners' seniority system does precisely that: it awards the choicest jobs and other benefits to those possessing a credential -- seniority -- which, due to past discrimination, blacks and Spanish-surnamed employees were prevented from acquiring. Consequently, "[e]very time a Negro worker hired under the old segregated system bids against a white worker in his job slot, the old racial classification reasserts itself, and the Negro suffers anew for his employer's previous bias." Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980, 988 (CA5 1969) (Wisdom, J.), cert. denied, 397 U.S. 919 (1970). As the Court also concedes, with a touch of understatement, "the view that § 703(h) does not immunize seniority systems that perpetuate the effects of prior discrimination has much support." Ante at 431 U. S. 346 n. 28. Without a single dissent, six Courts of Appeals have so held in over 30 cases, [ Footnote 2/2 ] and two Page 431 U. S. 379 other Courts of Appeals have indicated their agreement, also without dissent. [ Footnote 2/3 ] In an unbroken line of cases, the Equal Employment Opportunity Commission has reached the same Page 431 U. S. 380 conclusion. [ Footnote 2/4 ] And the overwhelming weight of scholarly opinion is in accord. [ Footnote 2/5 ] Yet for the second time this Term, see General Electric Co. v. Gilbert, 429 U. S. 125 (1976), a majority of this Court overturns the unanimous conclusion of the Courts of Appeals and the EEOC concerning the scope of Title VII. Once again, I respectfully disagree. Page 431 U. S. 381 I Initially, it is important to bear in mind that Title VII is a remedial statute designed to eradicate certain invidious employment practices. The evils against which it is aimed are defined broadly: "to fail . . . to hire or to discharge . . . or otherwise to discriminate . . . with respect to . . . compensation, terms, conditions, or privileges of employment," and "to limit, segregate, or classify . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status. " 42 U.S.C. § 2000e-2(a) (1970 ed., Supp. V) (emphasis added). Section 703(h) carves out an exemption from these broad prohibitions. Accordingly, under longstanding principles of statutory construction, the Act should "be given a liberal interpretation . . . [and] exemptions from its sweep should be narrowed and limited to effect the remedy intended." Piedmont & Northern R. Co. v. ICC, 286 U. S. 299 , 286 U. S. 311 -312 (1932); see also Spokane & Inland R. Co. v. United States, 241 U. S. 344 , 241 U. S. 350 (1916); United States v. Dickson , 15 Pet. 141, 40 U. S. 165 (1841) (Story, J.). Unless a seniority system that perpetuates discrimination falls "plainly and unmistakably within [the] terms and spirit" of § 703(h), A. H. Phillips, Inc. v. Walling, 324 U. S. 490 , 324 U. S. 493 (1945), the system should be deemed unprotected. I submit that whatever else may be true of the section, its applicability to systems that perpetuate past discrimination is not "plainly and unmistakably" clear. The language of § 703(h) provides anything but clear support for the Court's holding. That section provides, in pertinent part: "[I]t shall not be an unlawful employment practice for an employer to apply different standards, of compensation, or different terms, conditions or privileges of employment pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to Page 431 U. S. 382 discriminate because of race, color, religion, sex, or national origin. . . . " (Emphasis added.) In this case, however, the different "privileges of employment" for Negroes and Spanish-surnamed Americans, on the one hand, and for all others, on the other hand, produced by petitioners' seniority system are precisely the result of prior, intentional discrimination in assigning jobs; but for that discrimination, Negroes and Spanish-surnamed Americans would not be disadvantaged by the system. Thus, if the proviso is read literally, the instant case falls squarely within it, thereby rendering § 703(h) inapplicable. To avoid this result, the Court is compelled to reconstruct the proviso to read: provided that such a seniority system "did not have its genesis in racial discrimination, and that it was negotiated and has been maintained free from any illegal purpose." Ante at 431 U. S. 356 . There are no explicit statements in the legislative history of Title VII that warrant this radical reconstruction of the proviso. The three documents placed in the Congressional Record by Senator Clark concerning seniority all were written many weeks before the Mansfield-Dirksen amendment containing § 703(h) was introduced. Accordingly, they do not specifically discuss the meaning of the proviso. [ Footnote 2/6 ] More importantly, Page 431 U. S. 383 none of the documents addresses the general problem of seniority systems that perpetuate discrimination. Not surprisingly, Congress simply did not think of such subtleties in enacting a comprehensive, pathbreaking Civil Rights Act. [ Footnote 2/7 ] To my mind, this is dispositive. Absent unambiguous statutory language or an authoritative statement in the legislative history legalizing seniority systems that continue past wrongs, I do not see how it can be said that the § 703(h) exemption "plainly and unmistakably" applies. II Even if I were to agree that this case properly can be decided on the basis of inferences as to Congress' intent, I still could not accept the Court's holding. In my view, the legislative history of the 1964 Civil Rights Act does not support the conclusion that Congress intended to legalize seniority systems that perpetuate discrimination, and administrative, and legislative developments since 1964 positively refute that conclusion. A The Court's decision to uphold seniority systems that perpetuate post-Act discrimination -- that is, seniority systems that treat Negroes and Spanish-surnamed Americans who become line drivers as new employees even though, after the effective date of Title VII, these persons were discriminatorily assigned to city driver jobs where they accumulated seniority -- is explained in a single footnote. Ante at 431 U. S. 348 n. 30. That footnote relies almost entirely on United Air Lines, Inc. Page 431 U. S. 384 v. Evans, post, p. 431 U. S. 553 . But like the instant decision, Evans is devoid of any analysis of the legislative history of § 703(h); it simply asserts its conclusion in a single paragraph. For the Court to base its decision here on the strength of Evans is sheer bootstrapping. Had the Court objectively examined the legislative history, it would have been compelled to reach the opposite conclusion. As we stated just last Term, "it is apparent that the thrust of [§ 703(h)] is directed toward defining what is and what is not an illegal discriminatory practice in instances in which the post-Act operation of a seniority system is challenged as perpetuating the effects of discrimination occurring prior to the effective date of the Act. " [ Footnote 2/8 ] Franks v. Bowman Transportation Co., 424 U.S. at 424 U. S. 761 (emphasis added). Congress was concerned with seniority expectations that had developed prior to the enactment of Title VII, not with expectations arising thereafter to the extent that those expectations were dependent on whites benefiting from unlawful discrimination. Thus, the paragraph of the Clark-Case Interpretive Memorandum dealing with seniority systems begins: "Title VII would have no effect on established seniority rights. Its effect is prospective, and not retrospective. " 110 Cong.Rec. 7213 (1964) (emphasis added). Similarly, the Justice Department memorandum that Senator Clark introduced explains: "Title VII would have no effect on seniority rights existing at the time it takes effect. If, for example a collective bargaining contract provides that, in the event of layoffs, those who were hired last must be laid off first, such a provision would not be affected . . . by title VII. This Page 431 U. S. 385 would be true even in the case where, owing to discrimination prior to the effective date of the title, white workers had more seniority than Negroes . . . Any differences in treatment based on established seniority rights would not be based on race, and would not be forbidden by the title." Id. at 7207 (emphasis added). Finally, Senator Clark's prepared answers to questions propounded by Senator Dirksen stated: "Question. If an employer is directed to abolish his employment list because of discrimination what happens to seniority?" "Answer. The bill is not retroactive, and it will not require an employer to change existing seniority lists." Id. at 7217 (emphasis added). For the Court to ignore this history while reaching a conclusion contrary to it is little short of remarkable. B The legislative history of § 703(h) admittedly affords somewhat stronger support for the Court's conclusion with respect to seniority systems that perpetuate pre-Act discrimination -- that is, seniority systems that treat Negroes and Spanish-surnamed Americans who become line drivers as new employees even though these persons were discriminatorily assigned to city driver jobs where they accumulated seniority before the effective date of Title VII. In enacting § 703(h), Congress intended to extend at least some protection to seniority expectations that had developed prior to the effective date of the Act. But the legislative history is very clear that the only threat to these expectations that Congress was seeking to avert was nonremedial, fictional seniority. Congress did not want minority group members who were hired after the effective date of the Act to be given superseniority simply because they were members of minority groups, nor did it want the use of seniority to be invalidated whenever it had a disparate Page 431 U. S. 386 impact on newly hired minority employees. These are the evils -- and the only evils -- that the opponents of Title VII raised [ Footnote 2/9 ] and that the Clark-Case Interpretive Memorandum addressed. [ Footnote 2/10 ] As the Court acknowledges, "there seems to be no explicit reference in the legislative history to pre-Act discriminatees already employed in less desirable jobs." Ante at 431 U. S. 354 . Our task, then, assuming still that the case properly can be decided on the basis of imputed legislative intent, is "to put to ourselves the question, which choice is it the more likely that Congress would have made," Burnet v. Gugenheim , 288 Page 431 U. S. 387 U.S. 280, 288 U. S. 285 (1933) (Cardozo, J.), had it focused on the problem: would it have validated or invalidated seniority systems that perpetuate pre-Act discrimination? To answer that question, the devastating impact of today's holding validating such systems must be fully understood. Prior to 1965, blacks and Spanish-surnamed Americans who were able to find employment were assigned the lowest paid, most menial jobs in many industries throughout the Nation, but especially in the South. In many factories, blacks were hired as laborers while whites were trained and given skilled positions; [ Footnote 2/11 ] in the transportation industry blacks could only become porters; [ Footnote 2/12 ] and in steel plants blacks were assigned to the coke ovens and blasting furnaces, "the hotter and dirtier" places of employment. [ Footnote 2/13 ] The Court holds, in essence, that while after 1965 these incumbent employees are entitled to an equal opportunity to advance to more desirable jobs, to take advantage of that opportunity they must pay a price: they must surrender the seniority they have accumulated in their old jobs. For many, the price will be too high, and they will be locked into their previous positions. [ Footnote 2/14 ] Even those willing to pay the price will Page 431 U. S. 388 have to reconcile themselves to being forever behind subsequently hired whites who were not discriminatorily assigned. Thus equal opportunity will remain a distant dream for all incumbent employees. I am aware of nothing in the legislative history of the 1964 Civil Rights Act to suggest that, if Congress had focused on this fact it nonetheless would have decided to write off an entire generation of minority group employees. Nor can I believe that the Congress that enacted Title VII would have agreed to postpone for one generation the achievement of economic equality. The backers of that Title viewed economic equality as both a practical necessity and a moral imperative. [ Footnote 2/15 ] They were well aware of the corrosive impact employment discrimination has on its victims, and on society generally. [ Footnote 2/16 ] They sought, therefore, "to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens;" McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 800 (1973); see also Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 429 -431; Alexander v. Gardner-Denver Co., 415 U. S. 36 , 415 U. S. 44 (1974); and "to make persons whole for injuries suffered on account of unlawful employment discrimination," Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 418 (1975). In Page 431 U. S. 389 short, Congress wanted to enable black workers to assume their rightful place in society. It is, of course, true that Congress was not willing to invalidate seniority systems on a wholesale basis in pursuit of that goal. [ Footnote 2/17 ] But the United States, as the plaintiff suing on behalf of the incumbent minority group employees here, does not seek to overturn petitioners' seniority system. It seeks only to have the "time actually worked in [minority group] jobs [recognized] as the equal of [the majority group's] time," Local 189, United Papermakers Paperworkers v. United States, 416 F.2d at 995, within the existing seniority system. Admittedly, such recognition would impinge on the seniority expectations white employees had developed prior to the effective date of the Act. But in enacting Title VII, Congress manifested a willingness to do precisely that. For example, the Clark-Case Interpretive Memorandum, see 431 U.S. 324 fn2/6|>n. 6, supra, makes clear that Title VII prohibits unions and employers from using discriminatory waiting lists, developed prior to the effective date of the Title, in making selections for jobs or training programs after that date. 110 Cong Rec. 7213 (1964). Such a prohibition necessarily would disrupt the expectations of those on the lists. More generally, the very fact that Congress made Title VII effective shortly after its enactment demonstrates that expectations developed prior to passage of the Act were not considered sacrosanct, since Title VII's general ban on employment discrimination inevitably interfered with the preexisting expectations of whites who anticipated benefiting from continued discrimination. Thus, I am in complete agreement with Judge Butzner's conclusion Page 431 U. S. 390 in his seminal decision in Quarles v. Philip Morris, Inc., 279 F. Supp. 505 , 516 (ED Va.1968): "It is . . . apparent that Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the Act. [ Footnote 2/18 ]" C If the legislative history of § 703(h) leaves any doubt concerning the section's applicability to seniority systems that perpetuate either pre- or post-Act discrimination, that doubt is entirely dispelled by two subsequent developments. The Court all but ignores both developments; I submit they are critical. First, in more than a score of decisions beginning at least as early as 1969, the Equal Employment Opportunity Commission has consistently held that seniority systems that perpetuate prior discrimination are unlawful. [ Footnote 2/19 ] While the Court may have retreated, see General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 141 -142 (1976), from its prior view that the interpretations of the EEOC are " entitled to great deference,'" Albemarle Paper Co. v. Moody, supra at 422 U. S. 431 , quoting Griggs Page 431 U. S. 391 v. Duke Power Co., supra at 401 U. S. 434 , I have not. Before I would sweep aside the EEOC's consistent interpretation of the statute it administers, I would require "`compelling indications that it is wrong.'" Espinoza v. Farah Mfg. Co., 414 U. S. 86 , 414 U. S. 94 -95 (1973), quoting Red Lion Broadcasting Co v. FCC, 395 U. S. 367 , 395 U. S. 381 (1969). I find no such indications in the Court's opinion. Second, in 1972, Congress enacted the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, amending Title VII. In so doing, Congress made very clear that it approved of the lower court decisions invalidating seniority systems that perpetuate discrimination. That Congress was aware of such cases is evident from the Senate and House Committee Reports which cite the two leading decisions, as well as several prominent law review articles. S.Rep. No. 92-415, p. 5 n. 1 (1971); H.R.Rep. No. 92-238, p. 8 n. 2 (1971). Although Congress took action with respect to other lower court opinions with which it was dissatisfied, [ Footnote 2/20 ] it made no attempt to overrule the seniority cases. To the contrary, both the Senate and House Reports expressed approval of the "perpetuation principle" as applied to seniority systems [ Footnote 2/21 ] and Page 431 U. S. 392 invoked the principle to justify the Committees' recommendations to extend Title VII's coverage to state and local government employees, [ Footnote 2/22 ] and to expand the' powers of the EEOC. [ Footnote 2/23 ] Moreover, the Section-by-Section Analysis of the Page 431 U. S. 393 Conference Committee bill, which was prepared and placed in the Congressional Record by the floor managers of the bill, stated in "language that could hardly be more explicit," Franks v. Bowman Transportation Co., 424 U.S. at 424 U. S. 765 n. 21, that, "in any areas where a specific contrary intention is not indicated, it was assume that the present case law . . . would continue to govern the applicability and construction of Title VII." 118 Cong.Rec. 7166, 7564 (1972). And, perhaps most important, in explaining the section of the 1972 Act that empowers the EEOC "to prevent any person from engaging in any unlawful employment practice as set forth in section 2000e-2 or 2000e-3," 42 U.S.C. § 2000e-5(a) (1970 ed., Supp. V), the Section-by-Section Analysis declared: "The unlawful employment practices encompassed by sections 703 and 704 which were enumerated in 1964 by the original Act, and as defined and expanded by the courts, remain in effect." 118 Cong.Rec. 7167, 7564 (1972) (emphasis added). [ Footnote 2/24 ] We have repeatedly held: "When several acts of Congress are passed touching the same subject matter, subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject." Tiger v. Western Investment Co., 221 U. S. 286 , 221 U. S. 309 (1911); see NLRB v. Bell Aerospace Co., 416 U. S. 267 , 416 U. S. 275 (1974) (subsequent legislation Page 431 U. S. 394 entitled to "significant weight"); Red lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 380 ; United States v. Stafoff, 260 U. S. 477 , 260 U. S. 480 (1923) (Holmes, J.); New York & Norfolk R. Co. v. Peninsula Produce Exchange, 240 U. S. 34 , 240 U. S. 39 (1916) (Hughes, J.); United States v. Weeks , 5 Cranch 1, 9 U. S. 8 (1809). Earlier this Term, we implicitly followed this canon in using a statute passed in 1976 to conclude that the Administrative Procedure Act, 5 U.S.C. §§ 701-706, enacted in 1946, was not intended as an independent grant of jurisdiction to the federal courts. Califano v. Sanders, 430 U. S. 99 (1977). The canon is particularly applicable here for two reasons. First, because there is no explicit legislative history discussing seniority systems that perpetuate discrimination, we are required to " [seize] every thing from which aid can be derived . . . ,'" Brown v. GSA, 425 U. S. 820 , 425 U. S. 825 (1976), quoting, United States v. Fisher , 2 Cranch 358, 6 U. S. 386 (1805), if we are to reconstruct congressional intent. Second, because petitioners' seniority system was readopted in collective bargaining agreements signed after the 1972 Act took effect, any retroactivity problems that ordinarily inhere in using a later Act to interpret an earlier one are not present here. Cf. 87 U. S. Insurance Cos., 20 Wall. 323, 87 U. S. 331 -332 (1874). Thus, the Court's bald assertion that the intent of the Congress that enacted the 1972 Act is "entitled to little if any weight," ante at 431 U. S. 354 n. 39, in construing § 703(h) is contrary to both principle and precedent. Only last Term, we concluded that the legislative materials reviewed above "completely [answer] the argument that Congress somehow intended seniority relief to be less available" than backpay as a remedy for discrimination. Franks v. Bowman Transportation Co., supra at 424 U. S. 765 n. 21. If anything, the materials provide an even more complete answer to the argument that Congress somehow intended to immunize seniority systems that perpetuate past discrimination. To the extent that today's decision grants immunity to such systems, I respectfully dissent. [ Footnote 2/1 ] In stating that the task nonapplicants face in proving that they should be treated like applicants is "difficult," ante at 431 U. S. 364 , I understand the Court simply to be addressing the facts of this case. There may well be cases in which the jobs that the nonapplicants seek are so clearly more desirable than their present jobs that proving that, but for the employer's discrimination, the nonapplicants previously would have applied will be anything but difficult. Even in the present case, however, I believe the Court unnecessarily adds to the nonapplicants' burden. While I agree that proof of a nonapplicant's current willingness to accept a line driver job is not dispositive of the question of whether the company's discrimination deterred the nonapplicant from applying in the past, I do not agree that current willingness "says little," see ante at 431 U. S. 371 , about past willingness. In my view, we would do well to leave questions of this sort concerning the weight to be given particular pieces of evidence to the district courts, rather than attempting to resolve them through overly broad and ultimately meaningless generalizations. [ Footnote 2/2 ] Acha v. Beame, 531 F.2d 648 (CA2 1976); United States v. Bethlehem Steel Corp., 446 F.2d 652 (CA2 1971); Nance v. Union Carbide Corp., 540 F.2d 718 (CA4 1976), cert. pending, Nos. 76-824, 76-838; Patterson v. American Tobacco Co., 535 F.2d 257 (CA4), cert. denied, 429 U.S. 920 (1976); Russell v. American Tobacco Co., 528 F.2d 357 (CA4 1975), cert. denied, 425 U.S. 935 (1976); Hairston v. McLean Trucking Co., 520 F.2d 226 (CA4 1975); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582 (CA4 1972), cert. denied sub nom. Railroad Trainmen v. United States, 411 U.S. 939 (1973); Robinson v. Lorillard Corp., 444 F.2d 791 (CA4), cert. dismissed, 404 U.S. 1006 (1971); Griggs v. Duke Power Co., 420 F.2d 1225 (CA4 1970), rev'd on other grounds, 401 U. S. 401 U.S. 424 (1971); Swint v. Pullman-Standard, 539 F.2d 77 (CA5 1976); Sagers v. Yellow Freight System, 529 F.2d 721 (CA5 1976); Sabala v. Western Gillette, Inc., 516 F.2d 1251 (CA5 1975), cert. pending, Nos. 75-788, 76-1060; Gamble v. Birmingham Southern R. Co., 514 F.2d 678 (CA5 1975); Resendis v. Lee Way Motor Freight, Inc., 505 F.2d 69 (CA5 1974); Herrera v. Yellow Freight System, Inc., 505 F.2d 66 (CA5 1974); Carey v. Greyhound Bus Co., 500 F.2d 1372 (CA5 1974); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (CA5 1974); Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (CA5 1974); Bing v. Roadway Express, Inc., 485 F.2d 441 (CA5 1973); United States v. Georgia Power Co., 474 F.2d 906 (CA5 1973); United States v. Jacksonville Terminal Co., 451 F.2d 418 (CA5 1971), cert. denied, 406 U.S. 906 (1972); Long v. Georgia Kraft Co., 450 F.2d 557 (CA5 1971); Taylor v. Armco Steel Corp., 429 F.2d 498 (CA5 1970); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (CA5 1969), cert. denied, 397 U.S. 919 (1970); EEOC v. Detroit Edison Co., 515 F.2d 301 (CA6 1975), cert. pending, Nos. 75-220, 75-221, 75-239, 75-393; Palmer v. General Mills, Inc., 513 F.2d 1040 (CA6 1975); Head v. Timken Roller Bearing Co., 486 F.2d 870 (CA6 1973); Bailey v. American Tobacco Co., 462 F.2d 160 (CA6 1972); Rogers v. International Paper Co., 510 F.2d 1340 (CA8), summarily vacated and remanded, 423 U.S. 809 (1975); United States v. N. L. Industries, Inc., 479 F.2d 354 (CA8 1973); Gibson v. Longshoremen, 543 F.2d 1259 (CA9 1976); United States v. Navajo Freight Lines, Inc., 525 F.2d 1318 (CA9 1975). The leading case in this line is a District Court decision, Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (ED Va.1968). [ Footnote 2/3 ] Bowe v. Colgate, Palmolive Co., 489 F.2d 896 (CA7 1973); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (CA10 1970), cert. denied, 401 U.S. 954 (1971). I agree with the Court, ante at 431 U. S. 346 n. 28, that the results in a large number of the Quarles line of cases can survive today's decision. That the instant seniority system "is rational, in accord with the industry practice, . . . consistent with NLRB precedents[,] . . . did not have its genesis in racial discrimination, and . . . was negotiated and has been maintained free from any illegal purpose," ante at 431 U. S. 356 , distinguishes the facts of this case from those in many of the prior decisions. [ Footnote 2/4 ] CCH Empl.Prac.Guide (1976) �� 6481, 6448, 6441, 6400, 6399, 6395, 6382; CCH EEOC Decisions (1973) 6373, 6370, 6366, 6365, 6355, 6334, 6313, 6272, 6223, 6217, 6214, 6211, 6197, 6195, 6188, 6176, 6169, 6044. [ Footnote 2/5 ] Blumrosen, Seniority & Equal Employment Opportunity: A Glimmer of Hope, 23 Rutgers L.Rev. 268 (1969); Cooper & Sobol, Seniority and Testing Under Fair Employment Laws: A General Approach to Objective Criteria of Hiring and Promotion, 82 Harv.L.Rev. 1598 (1969); Fine: Plant Seniority and Minority Employees: Title VII's Effect on Layoffs, 47 U.Colo.L.Rev. 73 (1975); Gould, Seniority and the Black Worker: Reflections on Quarles and its Implications, 47 Texas L.Rev. 1039 (1969); Poplin, Fair Employment in a Depressed Economy: The Layoff Problem, 23 UCLA L.Rev. 177 (1975); S. Ross, Reconciling Plant Seniority with Affirmative Action and Anti-Discrimination, in New York University, Twenty-Eighth Annual Conference on Labor 231 (1976); Developments in the Law -- Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1157-1164 (1971); Comment, Last Hired, First Fired Seniority, Layoffs, and Title VII: Questions of Liability and Remedy, 11 Colum.J.Law & Soc.Prob. 343 (1975); Note, The Problem of Last Hired, First Fired: Retroactive Seniority as a Remedy Under Title VII, 9 Ga.L.Rev. 611 (1975); Note, Last Hired, First Fired Layoffs and Title VII, 88 Harv.L.Rev. 1544 (1975); Note, Title VII, Seniority Discrimination, and the Incumbent Negro, 80 Harv.L.Rev. 1260 (1967); Comment, Title VII and Seniority Systems:Back to the Foot of the Line? 64 Ky.L.Rev. 114 (1975); Comment, Layoffs and Title VII: The Conflict Between Seniority and Equal Employment Opportunities, 1975 Wis.L.Rev. 791; 1969 Duke L.J. 1091; 46 N.C.L.Rev. 891 (1968). [ Footnote 2/6 ] The three documents, quoted in full in Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 759 -761, nn. 15-16 (1976), and in substantial part in today's decision, ante at 431 U. S. 350 -351, and n. 36, are (1) the Clark-Case Interpretive Memorandum, 110 Cong.Rec. 7212-7215 (1964); (2) the Justice Department Reply to Arguments Made by Senator Hill, id. at 7207; and (3) Senator Clark's Response to the Dirksen Memorandum, id. at 7216-7218. They were all placed in the Congressional Record of April 8, 1964, but were not read aloud during the debates. The Mansfield-Dirksen amendment was presented by Senator Dirksen on May 26, 1964. Id. at 11926. A few general statements also were made during the course of the debates concerning Title VII's impact on seniority, but these statements add nothing to the analysis contained in the documents. See id. at 1518 (Rep. Cellar); id. at 6549, 11848 (Sen. Humphrey); id. at 6563-6564 (Sen. Kuchel); id. at 9113 (Sen. Keating); id. at 15893 (Rep. McCulloch). [ Footnote 2/7 ] In amending Title VII in 1972, Congress acknowledged its own prior naivete: "In 1964, employment discrimination tended to be viewed as a series of isolated and distinguishable events, for the most part due to ill-will on the part of some identifiable individual or organization. . . . Experience has shown this view to be false." S.Rep. No. 9215, p. 5 (1971). See H.R.Rep. No. 92-238, p. 8 (1971). [ Footnote 2/8 ] This understanding of § 703(h) underlies Franks' holding that constructive seniority is the presumptively correct remedy for discriminatory refusals to hire, even though awarding such seniority necessarily disrupts the expectations of other employees. [ Footnote 2/9 ] The most detailed attack on Title VII's effect on seniority rights was voiced in the minority report to the House Judiciary Committee Report, H.R.Rep. No. 914, 88th Cong., 1st Sess. (1963): " The provisions of this act grant the power to destroy union seniority. . . . [T]he extent of actions which would be taken to destroy the seniority system is unknown and unknowable. " ". . . Under the power granted in this bill, if a carpenters' hiring hall, say, had 20 men awaiting call, the first 10 in seniority being white carpenters, the union could be forced to pass them over in favor of carpenters beneath them in seniority, but of the stipulated race." Id. at 71 (emphasis in original). The Senate opponents of the bill who discussed its effects on workers generally followed this line, although the principal argument advanced in the Senate was that Title VII would require preferential hiring of minorities. See 110 Cong.Rec. 487 (1964) (Sen. Hill); id. at 7091 (Sen. Stennis); id. at 7878 (Sen. Russell). [ Footnote 2/10 ] The Clark-Case Memorandum states: "Title VII would have no effect on established seniority rights. . . . Thus, for example, if a business has been discriminating in the past and, as a result, has an all-white working force, when the title comes into effect, the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged -- or, indeed, permitted -- to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers." Id. at 7213. The remaining documents, see 431 U.S. 324 fn2/6|>n. 6, supra, while phrased more generally, are entirely consistent with the focus of Senators Clark and Case. [ Footnote 2/11 ] E.g., Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (CA5 1974); United States v. N. L Industries, Inc., 479 F.2d 354 (CA8 1973); Griggs v. Duke Power Co., 420 F.2d 1225 (CA4 1970). [ Footnote 2/12 ] E.g, Carey v. Greyhound Bus Co., 500 F.2d 1372 (CA5 1974); United States v. Jacksonville Terminal Co., 451 F.2d 418 (CA5 1971). [ Footnote 2/13 ] United States v. Bethlehem Steel Corp., 446 F.2d at 655. [ Footnote 2/14 ] This "lock-in" effect explains why, contrary to the Court's assertion, ante at 431 U. S. 354 , there is a "rational basis for distinguishing . . . claims [of persons already employed in less desirable jobs] from those of persons initially denied any job." Although denying constructive seniority to the latter group will prevent them from assuming the position they would have occupied but for the pre-Act discrimination, it will not deter them from moving into higher paying jobs. In comparing incumbent employees with pre-Act discriminatees who were refused jobs, however, the Court assumes that § 703(h) must mean that the latter group need not be given constructive seniority if they are later hired. The only clear effect of § 703(h), however, is to prevent persons who were not discriminated against from obtaining special seniority rights because they are members of minority groups. See supra at 431 U. S. 385 -386, and n. 10. Although it is true, as the Court notes, ante at 431 U. S. 354 -355, n. 40, that, in Quarles and United Papermakers, the courts concluded that persons refused jobs prior to the Act need not be given fictional seniority, the EEOC, CCH EEOC Decisions (1973) � 6217, and several commentators, e.g., Cooper & Sobol, supra, 431 U.S. 324 fn2/5|>n. 5; Note, supra, 431 U.S. 324 fn2/5|>n. 5, 88 Harv.L.Rev. at 1544, have rejected this conclusion, and more recent decisions have questioned it, e.g., Watkins v. Steel Workers, 516 F.2d 41 (CA5 1975). [ Footnote 2/15 ] See, e.g., 110 Cong.Rec. 6547 (1964) (remarks of Sen. Humphrey); id. at 6562 (remarks of Sen. Kuchel); id. at 7203-7204 (remarks of Sen. Clark); H.R.Rep. No. 914, Pt. 2, 88th Cong., 1st Sess., 26-29 (1963). [ Footnote 2/16 ] See sources cited in 431 U.S. 324 fn2/15|>n. 15, supra. [ Footnote 2/17 ] As one commentator has stated: "[T]he statute conflicts with itself. While, on the one hand, Congress did wish to protect established seniority rights, on the other it intended to expedite black integration into the economic mainstream and to end, once and for all, the de facto discrimination which replaced slavery at the end of the Civil War." Poplin, supra, 431 U.S. 324 fn2/5|>n. 5, at 191. [ Footnote 2/18 ] See also Gould, supra, 431 U.S. 324 fn2/5|>n. 5, at 1042: "If Congress intended to bring into being an integrated workforce, . . . and not merely to create a paper plan meaningless to Negro workers, the only acceptable legislative intent on past discrimination is one that requires unions and employers to root out the past discrimination embodied in presently nondiscriminatory seniority arrangements so that black and white workers have equal job advancement rights." [ Footnote 2/19 ] See cases cited in 431 U.S. 324 fn2/4|>n. 4, supra. The National Labor Relations Board has reached a similar conclusion in interpreting the National Labor Relations Act, 29 U.S.C. § 151 et seq. In Local 269, Electrical Workers, 149 N.L.R.B. 769 (1964), enforced, 357 F.2d 51 (CA3 1966), the Board held that a union hiring hall commits present acts of discrimination when it makes referrals based on experience if, in the past, the union has denied nonunion members the opportunity to develop experience. See also Houston Maritime Assn., 168 N.L.R.B. 615 (1967), enforcement denied, 426 F.2d 584 (CA5 1970). [ Footnote 2/20 ] For example, the 1972 Act added to the definitional section of Title VII, 42 U.S.C. § 2000e (1970 ed., Supp. V), a new subsection (j) defining "religion" to include "religious observance and practice, as well as belief." This subsection was added "to provide the statutory basis for EEOC to formulate guidelines on discrimination because of religion such as those challenged in Dewey v. Reynolds Metal Company, 429 F.2d [324] (6th Cir.1970), Affirmed by an equally divided court, 402 U. S. 69 (1971)." 118 Cong.Rec. 7167 (1972) (Section-by-Section Analysis of H.R. 1746, the Equal Employment Opportunity Act of 1972, prepared by Sens. Williams and Javits). Dewey had questioned the authority of the EEOC to define "religion" to encompass religious practices. Dewey v. Reynolds Metals Co., 429 F.2d 324, 331 n. 1, 334-335 (CA6 1970). [ Footnote 2/21 ] After acknowledging the naive assumptions of the 1964 Civil Rights Act, see 431 U.S. 324 fn2/7|>n. 7, supra, both Committee Reports went on to state: "Employment discrimination as viewed today is a far more complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of 'systems' and 'effects,' rather than simply intentional wrongs, and the literature on the subject is replete with discussions of, for example, the mechanics of seniority and lines of progression, [and] perpetuation of the present effect of pre-act discriminatory practices through various institutional devices. . . . In short, the problem is one whose resolution in many instances requires not only expert assistance, but also the technical perception that the problem exists in the first instance, and that the system complained of is unlawful." S.Rep. No. 92-415, p. 5 (1971). See H.R.Rep. No. 92-238, p. 8 (1971). In addition, in discussing "pattern or practice" suits and the recommendation to transfer the power to bring them to the EEOC, the House Report singled out several seniority cases, including United Papermakers, as examples of suits that "have contributed significantly to the Federal effort to combat employment discrimination." H.R.Rep. No. 92-238, supra at 13, and n. 4. It is difficult to imagine how Congress could have better "address[ed] the specific issue presented by this case," ante at 431 U. S. 354 n. 39, than by referring to "the mechanics of seniority . . . [and] perpetuation of the present effect of pre-act discriminatory practices" and by citing Quarles and United Papermakers. [ Footnote 2/22 ] Both Reports stated that state and local governments had discriminated in the past, and that "the existence of discrimination is perpetuated by both institutional and overt discriminatory practices . . . [such as] de facto segregated job ladders." S.Rep. No. 92-415, supra at 10; H.R.Rep. No. 92-238, supra at 17. The same points were made in the debate in the House and Senate. 118 Cong.Rec. 1815 (1972) (remarks of Sen. Williams); 117 Cong.Rec. 31961 (1971) (remarks of Rep. Perkins). [ Footnote 2/23 ] The Senate Report stated: "It is expected that, through the administrative process, the Commission will continue to define and develop the approaches to handling serious problems of discrimination that are involved in the area of employment . . . (including seniority systems)." S.Rep. No. 92-415, supra, at 19. The House Report argued: "Administrative tribunals are better equipped to handle the complicated issues involved in employment discrimination cases. . . . Issues that have perplexed courts include plant-wide restructuring of pay-scales and progression lines, seniority rosters and testing." H.R.Rep. No. 92-238, supra, at 10. [ Footnote 2/24 ] By enacting a new section defining the EEOC's powers with reference to §§ 703 and 704 of the 1964 Act, Congress in 1972 effectively reenacted those sections, and the judicial gloss that had been placed upon them. See 2A C. Sands, Sutherland's Statutes and Statutory Construction § 49.10 (1973) and cases cited; cf. Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 414 n. 8 (1975) (finding that reenactment in 1972 of backpay provision of 1964 Act "ratified" Courts of Appeals decisions awarding backpay to unnamed class members who had not filed charges with the EEOC).

In Teamsters v. United States, the Supreme Court addressed a case of alleged employment discrimination and the validity of a seniority system within collective bargaining agreements. The United States government filed a lawsuit against a motor freight company and a union, claiming that the company discriminated against African Americans and Spanish-surnamed individuals by hiring them for lower-paying and less desirable jobs as servicemen or city drivers, while more desirable line driver positions were given to whites. The seniority system in the collective bargaining agreements was also challenged as it required employees transferring to line driver jobs to forfeit their accumulated seniority. The District Court ruled in favor of the government, finding that the company and union had violated Title VII of the Civil Rights Act of 1964. The court ordered injunctive relief and created subclasses of affected individuals to determine appropriate remedies. The case discusses the interpretation of Title VII's provisions regarding employment discrimination and the role of administrative agencies in handling complex issues of employment discrimination, including seniority systems. The Supreme Court's decision provides guidance on the scope of Title VII and the powers of the Equal Employment Opportunity Commission (EEOC) in addressing discriminatory practices in employment.

Labor & Employment

Hazelwood School District v. U.S.

https://supreme.justia.com/cases/federal/us/433/299/

U.S. Supreme Court Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) Hazelwood School District v. United States, No. 76-255 Argued April 27, 1977 Decided June 27, 1977 433 U.S. 299 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus The United States brought this action against petitioners, the Hazelwood, Mo., School District, located in St. Louis County, and various officials, alleging that they were engaged in a "pattern or practice" of teacher employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, which became applicable to petitioners as public employers on March 24, 1972. The District Court, following trial, ruled that the Government had failed to establish a pattern or practice of discrimination. The Court of Appeals reversed, in part on the ground that the trial court's analysis of statistical data rested on an irrelevant comparison of Negro teachers to Negro pupils in Hazelwood, instead of a comparison of Negro teachers in Hazelwood to Negro teachers in the relevant labor market area, which it found to consist of St. Louis County and the city of St. Louis, where 15.4% of the teachers are Negro. In the 1972-1973 and 1973-1974 school years, only 1.4% and 1.8%, respectively, of Hazelwood's teachers were Negroes, and this statistical disparity, particularly when viewed against the background of Hazelwood's teacher hiring procedures, was held to constitute a prima facie case of a pattern or practice of racial discrimination. Petitioners contend that the statistical data on which the Court of Appeals relied cannot sustain a finding of a violation of Title VII. Held: The Court of Appeals erred in disregarding the statistical data in the record dealing with Hazelwood's hiring after it became subject to Title VII, and the court should have remanded the case to the District Court for further findings as to the relevant labor market area and for an ultimate determination whether Hazelwood has engaged in a pattern or practice of employment discrimination since March 24, 1972. Though the Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood's teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market, it erred in disregarding the possibility that the prima facie statistical proof in the record might, at the trial court level, be rebutted by statistics dealing with Hazelwood's post-Act hiring practices such as with respect to the number of Negroes hired compared Page 433 U. S. 300 to the total number of Negro applicants. For, once a prima facie case has been established by statistical work-force disparities, the employer must be given an opportunity to show that "the claimed discriminatory pattern is a product of pre-Act hiring, rather than unlawful post-Act discrimination," Teamsters v. United States, 431 U. S. 324 , 431 U. S. 360 . The record showed, but the Court of Appeals, in its conclusions, ignored, that, for the two-year period 1972-1974, 3.7% of the new teachers hired in Hazelwood were Negroes. The court accepted the Government's argument that the relevant labor market was St. Louis County and the city of St. Louis without considering petitioners' contention that St. Louis County alone (where the figure was 5.7%) was the proper area because the city of St. Louis attempts to maintain a 50% Negro teaching staff. The difference between the figures may well be significant, since the disparity between 3.7% and 5.7% may be sufficiently small to weaken the Government's other proof, while the disparity between 3.7% and 15.4% may be sufficiently large to reinforce it. In determining what figures provide the most accurate basis for comparison to the hiring figures at Hazelwood, numerous other factors, moreover, must also be evaluated by the trial court. Pp. 433 U. S. 306 -313. 534 F.2d 805, vacated and remanded. STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., post, p. 433 U. S. 313 , and WHITE, J., post, p. 433 U. S. 347 , filed concurring opinions. STEVENS, J., filed a dissenting opinion, post, p. 433 U. S. 314 . Page 433 U. S. 301 MR. JUSTICE STEWART delivered the opinion of the Court. The petitioner Hazelwood School District covers 78 square miles in the northern part of St. Louis County, Mo. In 1973, the Attorney General brought this lawsuit against Hazelwood and various of its officials, alleging that they were engaged in a "pattern or practice" of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). [ Footnote 1 ] The complaint asked for an injunction requiring Hazelwood to cease its discriminatory practices, to take affirmative steps to obtain qualified Negro faculty members, and to offer employment and give backpay to victims of past illegal discrimination. Hazelwood was formed from 13 rural school districts between 1949 and 1951 by a process of annexation. By the 1967-1968 school year, 17,550 students were enrolled in the district, of whom only 59 were Negro; the number of Negro pupils increased to 576 of 25,166 in 1972-1973, a total of just over 2%. From the beginning, Hazelwood followed relatively unstructured procedures in hiring its teachers. Every person requesting an application for a teaching position was sent one, and completed applications were submitted to a central personnel Page 433 U. S. 302 office, where they were kept on file. [ Footnote 2 ] During the early 1960's, the personnel office notified all applicants whenever a teaching position became available, but, as the number of applications on file increased in the late 1960's and early 1970's, this practice was no longer considered feasible. The personnel office thus began the practice of selecting anywhere from 3 to 10 applicants for interviews at the school where the vacancy existed. The personnel office did not substantively screen the applicants in determining which of them to send for interviews, other than to ascertain that each applicant, if selected, would be eligible for state certification by the time he began the job. Generally, those who had most recently submitted applications were most likely to be chosen for interviews. [ Footnote 3 ] Interviews were conducted by a department chairman, program coordinator, or the principal at the school where the teaching vacancy existed. Although those conducting the interviews did fill out forms rating the applicants in a number of respects, it is undisputed that each school principal possessed virtually unlimited discretion in hiring teachers for his school. The only general guidance given to the principals was to hire the "most competent" person available, and such intangibles as "personality, disposition, appearance, poise, voice, articulation, and ability to deal with people" counted heavily. The principal's choice was routinely honored by Hazelwood's Superintendent and the Board of Education. In the early 1960's Hazelwood found it necessary to recruit new teachers, and, for that purpose, members of its staff visited a number of colleges and universities in Missouri and bordering States. All the institutions visited were predominantly white, and Hazelwood did not seriously recruit at either of the Page 433 U. S. 303 two predominantly Negro four-year colleges in Missouri. [ Footnote 4 ] As a buyer's market began to develop for public school teachers, Hazelwood curtailed its recruiting efforts. For the 1971-1972 school year, 3,127 persons applied for only 234 teaching vacancies; for the 1972-1973 school year, there were 2,373 applications for 282 vacancies. A number of the applicants who were not hired were Negroes. [ Footnote 5 ] Hazelwood hired its first Negro teacher in 1969. The number of Negro faculty members gradually increased in successive years: 6 of 957 in the 1970 school year; 16 of 1,107 by the end of the 1972 school year; 22 of 1,231 in the 1973 school year. By comparison, according to 1970 census figures, of more than 19,000 teachers employed in that year in the St. Louis area, 15.4% were Negro. That percentage figure included the St. Louis City School District, which in recent years has followed a policy of attempting to maintain a 50% Negro teaching staff. Apart from that school district, 5.7% of the teachers in the county were Negro in 1970. Drawing upon these historic facts, the Government mounted its "pattern or practice" attack in the District Court upon four different fronts. It adduced evidence of (1) a history of alleged racially discriminatory practices, (2) statistical disparities in hiring, (3) the standardless and largely subjective hiring procedures, and (4) specific instances of alleged discrimination against 55 unsuccessful Negro applicants for teaching jobs. Hazelwood offered virtually no additional evidence in response, relying instead on evidence introduced by the Government, perceived deficiencies in the Government's case, and its own officially promulgated policy "to hire all Page 433 U. S. 304 teachers on the basis of training, preparation and recommendations, regardless of race, color or creed." [ Footnote 6 ] The District Court ruled that the Government had failed to establish a pattern or practice of discrimination. The court was unpersuaded by the alleged history of discrimination, noting that no dual school system had ever existed in Hazelwood. The statistics showing that relatively small numbers of Negroes were employed as teachers were found nonprobative, on the ground that the percentage of Negro pupils in Hazelwood was similarly small. The court found nothing illegal or suspect in the teacher hiring procedures that Hazelwood had followed. Finally, the court reviewed the evidence in the 55 cases of alleged individual discrimination, and after stating that the burden of proving intentional discrimination was on the Government, it found that this burden had not been sustained in a single instance. Hence, the court entered judgment for the defendants. 392 F. Supp. 1276 (ED Mo.). The Court of Appeals for the Eighth Circuit reversed. 534 F.2d 805. After suggesting that the District Court had assigned inadequate weight to evidence of discriminatory conduct on the part of Hazelwood before the effective date of Title VII, [ Footnote 7 ] the Court of Appeals rejected the trial court's Page 433 U. S. 305 analysis of the statistical data as resting on an irrelevant comparison of Negro teachers to Negro pupils in Hazelwood. The proper comparison, in the appellate court's view, was one between Negro teachers in Hazelwood and Negro teachers in the relevant labor market area. Selecting St. Louis County and St. Louis City as the relevant area, [ Footnote 8 ] the Court of Appeals compared the 1970 census figures, showing that 15.4% of teachers in that area were Negro, to the racial composition of Hazelwood's teaching staff. In the 1972-1973 and 1973-1974 school years, only 1.4% and 1.8%, respectively, of Hazelwood's teachers were Negroes. This statistical disparity, particularly when viewed against the background of the teacher hiring procedures that Hazelwood had followed, was held to constitute a prima facie case of a pattern or practice of racial discrimination. In addition, the Court of Appeals reasoned that the trial court had erred in failing to measure the 55 instances in which Negro applicants were denied jobs against the four-part standard for establishing a prima facie case of individual discrimination set out in this Court's opinion in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 . [ Footnote 9 ] Applying that Page 433 U. S. 306 standard, the appellate court found 16 cases of individual discrimination, [ Footnote 10 ] which "buttressed" the statistical proof. Because Hazelwood had not rebutted the Government's prima facie case of a pattern or practice of racial discrimination, the Court of Appeals directed judgment for the Government and prescribed the remedial order to be entered. [ Footnote 11 ] We granted certiorari, 429 U.S. 1037, to consider a substantial question affecting the enforcement of a pervasive federal law. The petitioners primarily attack the judgment of the Court of Appeals for its reliance on "undifferentiated workforce statistics to find an unrebutted prima facie case of employment discrimination." [ Footnote 12 ] The question they raise, in short, is Page 433 U. S. 307 whether a basic component in the Court of Appeals' finding of a pattern or practice of discrimination -- the comparatively small percentage of Negro employees on Hazelwood's teaching staff -- was lacking in probative force. This Court's recent consideration in Teamsters v. United States, 431 U. S. 324 , of the role of statistics in "pattern or practice" suits under Title VII provides substantial guidance in evaluating the arguments advanced by the petitioners. In that case, we stated that it is the Government's burden to "establish by a preponderance of the evidence that racial discrimination was the [employer's] standard operating procedure -- the regular, rather than the unusual, practice." Id. at 431 U. S. 336 . We also noted that statistics can be an important source of proof in employment discrimination cases, since, "absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will, in time, result in a workforce more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of long-lasting and gross disparity between the composition of a workforce and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a workforce mirror the general population." Id. at 431 U. S. 340 n. 20. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 266 ; Washington v. Davis, 426 U. S. 229 , 426 U. S. 241 -242. Where gross statistical disparities can be shown, they alone may, in a proper case, constitute prima facie proof Page 433 U. S. 308 of a pattern or practice of discrimination. Teamsters, supra at 431 U. S. 339 . There can be no doubt, in light of the Teamsters case, that the District Court's comparison of Hazelwood's teacher workforce to its student population fundamentally misconceived the role of statistics in employment discrimination cases. The Court of Appeals was correct in the view that a proper comparison was between the racial composition of Hazelwood's teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market. [ Footnote 13 ] See Teamsters, supra at 431 U. S. 337 -338, and n. 17. The percentage of Negroes on Hazelwood's teaching staff in 1972-1973 was 1.4%, and in 1973-1974 it was 1.8%. By contrast, the percentage of qualified Negro teachers in the area was, according to the 1970 census, at least 5.7%. [ Footnote 14 ] Although these differences Page 433 U. S. 309 were, on their face, substantial, the Court of Appeals erred in substituting its judgment for that of the District Court and holding that the Government had conclusively proved its "pattern or practice" lawsuit. The Court of Appeals totally disregarded the possibility that this prima facie statistical proof in the record might at the trial court level be rebutted by statistics dealing with Hazelwood's hiring after it became subject to Title VII. Racial discrimination by public employers was not made illegal under Title VII until March 24, 1972. A public employer who from that date forward made all its employment decisions in a wholly nondiscriminatory way would not violate Title VII even if it had formerly maintained an all-white workforce by purposefully excluding Negroes. [ Footnote 15 ] For this reason, Page 433 U. S. 310 the Court cautioned in the Teamsters opinion that, once a prima facie case has been established by statistical workforce disparities, the employer must be given an opportunity to show that "the claimed discriminatory pattern is a product of pre-Act hiring, rather than unlawful post-Act discrimination." 431 U.S. at 431 U. S. 360 . The record in this case showed that, for the 1972-1973 school year, Hazelwood hired 282 new teachers, 10 of whom (3.5%) were Negroes; for the following school year, it hired 123 new teachers, 5 of whom (4.1%) were Negroes. Over the two-year period, Negroes constituted a total of 15 of the 405 new teachers hired (3.7%). Although the Court of Appeals briefly mentioned these data in reciting the facts, it wholly ignored them in discussing whether the Government had shown a pattern or practice of discrimination. And it gave no consideration at all to the possibility that post-Act data as to the number of Negroes hired compared to the total number of Negro applicants might tell a totally different story. [ Footnote 16 ] What the hiring figures prove obviously depends upon the figures to which they are compared. The Court of Appeals accepted the Government's argument that the relevant comparison was to the labor market area of St. Louis County and the city of St. Louis, in which, according to the 1970 census, 15.4% of all teachers were Negro. The propriety of that comparison was vigorously disputed by the petitioners, who urged that, because the city of St. Louis has made special attempts to maintain a 50% Negro teaching staff, inclusion of Page 433 U. S. 311 that school district in the relevant market area distorts the comparison. Were that argument accepted, the percentage of Negro teachers in the relevant labor market area (St. Louis County alone) as shown in the 1970 census would be 5.7%, rather than 15.4%. The difference between these figures may well be important; the disparity between 3.7% (the percentage of Negro teachers hired by Hazelwood in 1972-1973 and 1973-1974) and 5.7% may be sufficiently small to weaken the Government's other proof, while the disparity between 3.7% and 15.4% may be sufficiently large to reinforce it. [ Footnote 17 ] In determining Page 433 U. S. 312 which of the two figures -- or, very possibly, what intermediate figure -- provides the most accurate basis for comparison to the hiring figures at Hazelwood, it will be necessary to evaluate such considerations as (i) whether the racially based hiring policies of the St. Louis City School District were in effect as far back as 1970, the year in which the census figures were taken; [ Footnote 18 ] (ii) to what extent those policies have changed the racial composition of that district's teaching staff from what it would otherwise have been; (iii) to what extent St. Louis' recruitment policies have diverted to the city, teachers who might otherwise have applied to Hazelwood; [ Footnote 19 ] (iv) to what extent Negro teachers employed by the city would prefer employment in other districts such as Hazelwood; and (v) what the experience in other school districts in St. Louis County indicates about the validity of excluding the City School District from the relevant labor market. It is thus clear that a determination of the appropriate comparative figures in this case will depend upon further evaluation by the trial court. As this Court admonished in Teamsters: "[S]tatistics . . . come in infinite variety. . . . [T]heir usefulness depends on all of the surrounding facts and circumstances." 431 U.S. at 431 U. S. 340 . Only the trial court is in a position to make the appropriate determination after further findings. And only after such a determination is made can a foundation be established for deciding whether or not Hazelwood engaged in a pattern or practice of racial Page 433 U. S. 313 discrimination in its employment practices in violation of the law. [ Footnote 20 ] We hold, therefore, that the Court of Appeals erred in disregarding the post-Act hiring statistics in the record, and that it should have remanded the case to the District Court for further findings as to the relevant labor market area and for an ultimate determination of whether Hazelwood engaged in a pattern or practice of employment discrimination after March 24, 1972. [ Footnote 21 ] Accordingly, the judgment is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. [For concurring opinion of MR. JUSTICE WHITE, see post, p 433 U. S. 347 .] [ Footnote 1 ] Under 42 U.S.C. § 2000e-6(a), the Attorney General was authorized to bring a civil action "[w]henever [he] has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII], and that the pattern or practice is of such a nature and is intended to deny the full exercise of [those rights]." "The 1972 amendments to Title VII directed that this function be transferred as of March 24, 1974, to the Equal Employment Opportunity Commission, at least with respect to private employers. § 2000e-6(c) (1970 ed., Supp. V); see also § 2000e-5(f)(1) (1970 ed., Supp. V). The present lawsuit was instituted more than seven months before that transfer." [ Footnote 2 ] Before 1954 Hazelwood's application forms required designation of race, and those forms were in use as late as the 1962-1963 school year. [ Footnote 3 ] Applicants with student or substitute teaching experience at Hazelwood were given preference if their performance had been satisfactory. [ Footnote 4 ] One of those two schools was never visited even though it was located in nearby St. Louis. The second was briefly visited on one occasion, but no potential applicant was interviewed. [ Footnote 5 ] The parties disagree whether it is possible to determine from the present record exactly how many of the job applicants in each of the school years were Negroes. [ Footnote 6 ] The defendants offered only one witness, who testified to the total number of teachers who had applied and were hired for jobs in the 1971-1972 and 1972-1973 school years. They introduced several exhibits consisting of a policy manual, policy book, staff handbook, and historical summary of Hazelwood's formation and relatively brief existence. [ Footnote 7 ] As originally enacted, Title VII of the Civil Rights Act of 1984 applied only to private employers. The Act was expanded to include state and local governmental employers by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, whose effective date was March 24, 1972. See 42 U.S.C. §§ 2000e(a), (b), (f), (h) (1970 ed., Supp. V). The evidence of pre-Act discrimination relied upon by the Court of Appeals included the failure to hire any Negro teachers until 1969, the failure to recruit at predominantly Negro colleges in Missouri, and somewhat inconclusive evidence that Hazelwood was responsible for a 1962 Mississippi newspaper advertisement for teacher applicants that specified "white only." [ Footnote 8 ] The city of St. Louis is surrounded by, but not included in, St. Louis County. Mo.Ann.Stat. § 46.145 (1966). [ Footnote 9 ] Under McDonnell Douglas, a prima facie case of illegal employment discrimination is established by showing "(i) that [an individual] belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 411 U. S. 802 . Upon proof of these four elements, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Ibid. [ Footnote 10 ] The Court of Appeals held that none of the 16 prima facie cases of individual discrimination had been rebutted by the petitioners. See 534 F.2d at 814. [ Footnote 11 ] The District Court was directed to order that the petitioners cease from discriminating on the basis of race or color in the hiring of teachers, promulgate accurate job descriptions and hiring criteria, recruit Negro and white applicants on an equal basis, give preference in filling vacancies to the 16 discriminatorily rejected applicants, make appropriate backpay awards, and submit periodic reports to the Government on its progress in hiring qualified Negro teachers. Id. at 819-820. [ Footnote 12 ] In their petition for certiorari and brief on the merits, the petitioners have phrased the question as follows: "Whether a court may disregard evidence that an employer has treated actual job applicants in a nondiscriminatory manner and rely on undifferentiated workforce statistics to find an unrebutted prima facie case of employment discrimination in violation of Title VII of the Civil Rights Act of 1964." Their petition for certiorari and brief on the merits did raise a second question: "Whether Congress has authority under Section 5 of the Fourteenth Amendment to prohibit by Title VII of the Civil Rights Act of 1964 employment practices of an agency of a state government in the absence of proof that the agency purposefully discriminated against applicants on the basis of race." That issue, however, is not presented by the facts in this case. The Government's opening statement in the trial court explained that its evidence was designed to show that the scarcity of Negro teachers at Hazelwood "is the result of purpose" and is attributable to "deliberately continued employment policies." Thus here, as in Teamsters v. United States, 431 U. S. 324 , "[t]he Government's theory of discrimination was simply that the [employer], in violation of § 703(a) of Title VII, regularly and purposefully treated Negroes . . . less favorably than white persons." Id. at 431 U. S. 335 (footnote omitted). [ Footnote 13 ] In Teamsters, the comparison between the percentage of Negroes on the employer's workforce and the percentage in the general area-wide population was highly probative, because the job skill there involved -- the ability to drive a truck -- is one that many persons possess or can fairly readily acquire. When special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value. The comparative statistics introduced by the Government in the District Court, however, were properly limited to public school teachers, and therefore this is not a case like Mayor v. Educational Equality League, 415 U. S. 605 , in which the racial composition comparisons failed to take into account special qualifications for the position in question. Id. at 415 U. S. 620 -621. Although the petitioners concede as a general matter the probative force of the comparative workforce statistics, they object to the Court of Appeals' heavy reliance on these data on the ground that applicant-flow data, showing the actual percentage of white and Negro applicants for teaching positions at Hazelwood, would be firmer proof. As we have noted, see n 5, supra, there was no clear evidence of such statistics. We leave it to the District Court on remand to determine whether competent proof of those data can be adduced. If so, it would, of course, be very relevant. Cf. Dothard v. Rawlinson, post at 433 U. S. 330 . [ Footnote 14 ] As is discussed below, the Government contends that a comparative figure of 15.4%, rather than 5.7%, is the appropriate one. See infra at 433 U. S. 310 -312. But even assuming, arguendo, that the 5.7% figure urged by the petitioners is correct, the disparity between that figure and the percentage of Negroes on Hazelwood's teaching staff would be more than four-fold for the 1972-1973 school year, and three-fold for the 1973-1974 school year. A precise method of measuring the significance of such statistical disparities was explained in Castaneda v. Partida, 430 U. S. 482 , 430 U. S. 496 -497, n. 17. It involves calculation of the "standard deviation" as a measure of predicted fluctuations from the expected value of a sample. Using the 5.7% figure as the basis for calculating the expected value, the expected number of Negroes on the Hazelwood teaching staff would be roughly 63 in 1972-1973 and 70 in 1973-1974. The observed number in those years was 16 and 22, respectively. The difference between the observed and expected values was more than six standard deviations in 1972-1973 and more than five standard deviations in 1973-1974. The Court in Castaneda noted that, "[a]s a general rule for such large samples, if the difference between the expected value and the observed number is greater than two or three standard deviations," then the hypothesis that teachers were hired without regard to race would be suspect. 430 U.S. at 430 U. S. 497 n. 17. [ Footnote 15 ] This is not to say that evidence of pre-Act discrimination can never have any probative force. Proof that an employer engaged in racial discrimination prior to the effective date of Title VII might, in some circumstances, support the inference that such discrimination continued, particularly where relevant aspects of the decisionmaking process had undergone little change. Cf. Fed.Rule Evid. 406; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 267 ; 1 J. Wigmore, Evidence § 92 (3d ed.1940); 2 id. §§ 302-305, 371, 375. And, of course, a public employer even before the extension of Title VII in 1972 was subject to the command of the Fourteenth Amendment not to engage in purposeful racial discrimination. [ Footnote 16 ] See n 13, supra, and n 21, infra. But cf. Teamsters, 431 U.S. at 431 U. S. 364 -367. [ Footnote 17 ] Indeed; under the statistical methodology explained in Castaneda v. Partida, supra at 430 U. S. 496 -497, n. 17, involving the calculation of the standard deviation as a measure of predicted fluctuations, the difference between using 15.4% and 5.7% as the area-wide figure would be significant. If the 15.4% figure is taken as the basis for comparison, the expected number of Negro teachers hired by Hazelwood in 1972-1973 would be 43 (rather than the actual figure of 10) of a total of 282, a difference of more than five standard deviations; the expected number in 1973-1974 would be 19 (rather than the actual figure 5) of a total of 123, a difference of more than three standard deviations. For the two years combined, the difference between the observed number of 15 Negro teachers hired (of a total of 405) would vary from the expected number of 62 by more than six standard deviations. Because a fluctuation of more than two or three standard deviations would undercut the hypothesis that decisions were being made randomly with respect to race, 430 U.S. at 430 U. S. 497 n. 17, each of these statistical comparisons would reinforce, rather than rebut, the Government's other proof. If, however, the 5.7% area-wide figure is used, the expected number of Negro teachers hired in 1972-1973 would be roughly 16, less than two standard deviations from the observed number of 10; for 1973-1974, the expected value would be roughly seven, less than one standard deviation from the observed value of 5; and, for the two years combined, the expected value of 23 would be less than two standard deviations from the observed total of 15. A more precise method of analyzing these statistics confirms the results of the standard deviation analysis. See F. Mosteller, R. Rourke, & G. Thomas, Probability with Statistical Applications 494 (2d ed.1970). These observations are not intended to suggest that precise calculations of statistical significance are necessary in employing statistical proof, but merely to highlight the importance of the choice of the relevant labor market area. [ Footnote 18 ] In 1970, Negroes constituted only 42% of the faculty in St. Louis city schools, which could indicate either that the city's policy was not yet in effect or simply that its goal had not yet been achieved. [ Footnote 19 ] The petitioners observe, for example, that Harris Teachers College in St. Louis, whose 1973 graduating class was 60% Negro, is operated by the city. It is the petitioners' contention that the city's public elementary and secondary schools occupy an advantageous position in the recruitment of Harris graduates. [ Footnote 20 ] Because the District Court focused on a comparison between the percentage of Negro teachers and Negro pupils in Hazelwood, it did not undertake an evaluation of the relevant labor market, and its casual dictum that the inclusion of the city of St. Louis "distorted" the labor market statistics was not based upon valid criteria. 392 F. Supp. 1276 , 1287 (ED Mo.). [ Footnote 21 ] It will also be open to the District Court on remand to determine whether sufficiently reliable applicant-flow data are available to permit consideration of the petitioners' argument that those data may undercut a statistical analysis dependent upon hirings alone. MR. JUSTICE BRENNAN, concurring. I join the Court's opinion. Similarly to our decision in Dayton Board of Education v. Brinkman, post, p 433 U. S. 406 , today's opinion revolves around the relative factfinding roles of district courts and courts of appeals. It should be plain, however, that the liberal substantive standards for establishing a Title VII violation, including the usefulness of statistical proof, are reconfirmed. In the present case, the District Court had adopted a wholly inappropriate legal standard of discrimination, and therefore Page 433 U. S. 314 did not evaluate the factual record before it in a meaningful way. This remand in effect orders it to do so. It is my understanding, as apparently it is MR. JUSTICE STEVENS, post at 433 U. S. 318 n. 5, that the statistical inquiry mentioned by the Court, ante at 433 U. S. 311 n. 17, and accompanying text, can be of no help to the Hazelwood School Board in rebutting the Government's evidence of discrimination. Indeed, even if the relative comparison market is found to be 5.7%, rather than 15.4% black, the applicable statistical analysis, at most, will not serve to bolster the Government's case. This obviously is of no aid to Hazelwood in meeting its burden of proof. Nonetheless, I think that the remand directed by the Court is appropriate, and will allow the parties to address these figures and calculations with greater care and precision. I also agree that, given the misapplication of governing legal principles by the District Court, Hazelwood reasonably should be given the opportunity to come forward with more focused and specific applicant-flow data in the hope of answering the Government's prima facie case. If, as presently seems likely, reliable applicant data are found to be lacking, the conclusion reached by my Brother STEVENS will inevitably be forthcoming. MR. JUSTICE STEVENS, dissenting. The basic framework in a pattern-or-practice suit brought by the Government under Title VII of the Civil Rights Act of 1964 is the same as that in any other lawsuit. The plaintiff has the burden of proving a prima facie case; if he does so, the burden of rebutting that case shifts to the defendant. [ Footnote 2/1 ] In this Page 433 U. S. 315 case, since neither party complains that any relevant evidence was excluded, our task is to decide (1) whether the Government's evidence established a prima facie case; and (2), if so, whether the remaining evidence is sufficient to carry Hazelwood's burden of rebutting that prima facie case. I The first question is clearly answered by the Government's statistical evidence, its historical evidence, and its evidence relating to specific acts of discrimination. One-third of the teachers hired by Hazelwood resided in the City of St. Louis at the time of their initial employment. As Mr. Justice Clark explained in his opinion for the Court of Appeals, it was therefore appropriate to treat the city, as well as the county, as part of the relevant labor market. [ Footnote 2/2 ] Page 433 U. S. 316 In that market, 15% of the teachers were black. In the Hazelwood District at the time of trial, less than 2% of the teachers were black. An even more telling statistic is that, after Title VII became applicable to it, only 3.7% of the new teachers hired by Hazelwood were black. Proof of these gross disparities was, in itself, sufficient to make out a prima facie case of discrimination. See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 339 ; Castaneda v. Partida, 430 U. S. 482 , 430 U. S. 494 -498. As a matter of history, Hazelwood employed no black teachers until 1969. Both before and after the 1972 amendment making the statute applicable to public school districts, Hazelwood used a standardless and largely subjective hiring procedure. Since "relevant aspects of the decisionmaking process had undergone little change," it is proper to infer that the pre-Act policy of preferring white teachers continued to influence Hazelwood's hiring practices. [ Footnote 2/3 ] The inference of discrimination was corroborated by post-Act evidence that Hazelwood had refused to hire 16 qualified black applicants for racial reasons. Taking the Government's evidence as a whole, there can be no doubt about the sufficiency of its prima facie case. Page 433 U. S. 317 II Hazelwood "offered virtually no additional evidence in response," ante at 433 U. S. 303 . It challenges the Government's statistical analysis by claiming that the city of St. Louis should be excluded from the relevant market and pointing out that only 5.7% of the teachers in the county (excluding the city) were black. It further argues that the city's policy of trying to maintain a 50% black teaching staff diverted teachers from the county to the city. There are two separate reasons why these arguments are insufficient: they are not supported by the evidence; even if true, they do not overcome the Government's case. The petitioners offered no evidence concerning wage differentials, commuting problems, or the relative advantages of teaching in an inner-city school as opposed to a suburban school. Without any such evidence in the record, it is difficult to understand why the simple fact that the city was the source of a third of Hazelwood's faculty should not be sufficient to demonstrate that it is a part of the relevant market. The city's policy of attempting to maintain a 50/50 ratio clearly does not undermine that conclusion, particularly when the record reveals no shortage of qualified black applicants in either Hazelwood or other suburban school districts. [ Footnote 2/4 ] Surely not all of the 2,000 black teachers employed by the city were unavailable for employment in Hazelwood at the time of their initial hire. But even if it were proper to exclude the city of St. Louis from the market, the statistical evidence would still tend to prove discrimination. With the city excluded, 5.7% of the teachers in the remaining market were black. On the basis of a random selection, one would therefore expect 5.7% of Page 433 U. S. 318 the 405 teachers hired by Hazelwood in the 1972-1973 and 1973-1974 school years to have been black. But instead of 23 black teachers, Hazelwood hired only 15, less than two-thirds of the expected number. Without the benefit of expert testimony, I would hesitate to infer that the disparity between 23 and 15 is great enough, in itself, to prove discrimination. [ Footnote 2/5 ] It is perfectly clear, however, that whatever probative force this disparity has, it tends to prove discrimination, and does absolutely nothing in the way of carrying Hazelwood's burden of overcoming the Government's prima facie case. Absolute precision in the analysis of market data is too much to expect. We may fairly assume that a nondiscriminatory selection process would have resulted in the hiring of somewhere between the 15% suggested by the Government and the 5.7% suggested by petitioners, or perhaps 30 or 40 black teachers, instead of the 15 actually hired. [ Footnote 2/6 ] On that assumption, the Court of Appeals' determination that there were 16 individual cases of discriminatory refusal to hire black applicants in the post-1972 period seems remarkably accurate. In sum, the Government is entitled to prevail on the present record. It proved a prima facie case, which Hazelwood failed to rebut. Why, then, should we burden a busy federal court with another trial? Hazelwood had an opportunity to offer evidence to dispute the 16 examples of racially motivated refusals to hire; but as the Court notes, the Court of Appeals has already "held that none of the 16 prima facie cases of Page 433 U. S. 319 individual discrimination had been rebutted by the petitioners. See 534 F.2d 805, 814 (CA8)." Ante at 433 U. S. 306 n. 10. Hazelwood also had an opportunity to offer any evidence it could muster to show a change in hiring practices or to contradict the fair inference to be drawn from the statistical evidence. Instead, it "offered virtually no additional evidence in response," ante at 433 U. S. 303 . Perhaps "a totally different story" might be told by other statistical evidence that was never presented, ante at 433 U. S. 310 . No lawsuit has ever been tried in which the losing party could not have pointed to a similar possibility. [ Footnote 2/7 ] It is always possible to imagine more evidence which could have been offered, but, at some point, litigation must come to an end. [ Footnote 2/8 ] Page 433 U. S. 320 Rather than depart from well established rules of procedure, I would affirm the judgment of the Court of Appeals.U [ Footnote 2/9 ] Since that judgment reflected a correct appraisal of the record, I see no reason to prolong this litigation with a remand neither side requested. [ Footnote 2/10 ] [ Footnote 2/1 ] "At the initial 'liability' stage of a pattern-or-practice suit, the Government is not required to offer evidence that each person for whom it will ultimately seek relief was a victim of the employer's discriminatory policy. Its burden is to establish a prima facie case that such a policy existed. The burden then shifts to the employer to defeat the prima facie showing of a pattern or practice by demonstrating that the Government's proof is either inaccurate or insignificant. An employer might show, for example, that the claimed discriminatory pattern is a product of pre-Act hiring, rather than unlawful post-Act discrimination, or that, during the period it is alleged to have pursued a discriminatory policy, it made too few employment decisions to justify the inference that it had engaged in a regular practice of discrimination." Teamsters v. United States, 431 U. S. 324 , 431 U. S. 360 . [ Footnote 2/2 ] "We accept the Government's contention that St. Louis City and County is the relevant labor market area for our consideration. The relevant labor market area is that area from which the employer draws its employees. United States v. Ironworkers Local 86, 443 F.2d 544, 551 n.19 (9th Cir.1971). Of the 176 teachers hired by Hazelwood between October, 1972, and September, 1973, approximately 80 percent resided in St. Louis City and County at the time of their initial employment. Approximately one-third of the teachers hired during this period resided in the City of St. Louis and 40 percent resided in areas of St. Louis County other than the Hazelwood District." 534 F.2d 805, 811-812, n. 7 (1976). It is noteworthy that, in the Court of Appeals, Chief Judge Gibson, in dissent, though urging -- as Hazelwood had in the District Court -- that the labor market was even broader than the Government contended, id. at 821, did not question the propriety of including the city in the same market as the county, see Defendants' Brief and Memorandum in Support of Its Proposed Findings of Fact and Conclusions of Law, filed on Aug. 21, 1974, in Civ.Act. No. 73-C-553(A) (ED Mo.), p. 24. In this Court, petitioners had abandoned any argument similar to that made below. [ Footnote 2/3 ] Proof that an employer engaged in racial discrimination prior to the effective date of the Act creates the inference that such discrimination continued "particularly where relevant aspects of the decisionmaking process [have] undergone little change. Cf. Fed.Rule Evid. 406; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 267 ; 1 J. Wigmore, Evidence § 92 (3d ed.1940); 2 id. §§ 302-305, 371, 375. And, of course, a public employer even before the extension of Title VII in 1972 was subject to the command of the Fourteenth Amendment not to engage in purposeful racial discrimination." Ante at 433 U. S. 309 -310, n. 15. Since Hazelwood's hiring before 1972 was so clearly discriminatory, there is some irony in its claim that "Hazelwood continued [after 1972] to select its teachers on the same careful basis that it had relied on before in staffing its growing system." Brief for Petitioners 29-30. [ Footnote 2/4 ] "Had there been evidence obtainable to contradict and disprove the testimony offered by [the Government], it cannot be assumed that the State would have refrained from introducing it." Pierre v. Louisiana, 306 U. S. 354 , 306 U. S. 361 -362. [ Footnote 2/5 ] After I had drafted this opinion, one of my law clerks advised me that, given the size of the two-year sample, there is only about a 5% likelihood that a disparity this large would be produced by a random selection from the labor pool. If his calculation (which was made using the method described in H. Blalock, Social Statistics 151-173 (1972)) is correct, it is easy to understand why Hazelwood offered no expert testimony. [ Footnote 2/6 ] Some of the other school districts in the county have a 10% ratio of blacks on their faculties. See Plaintiff's Exhibit 54 in Civ.Act. No. 73-C553(A) (ED Mo.1975); Brief for United States 30 n. 30. [ Footnote 2/7 ] Since Hazelwood failed to offer any "applicant-flow data" at the trial, and since it does not now claim to have any newly discovered evidence, I am puzzled by MR. JUSTICE BRENNAN's explanation of the justification for a remand. Indeed, after the first trial was concluded, Hazelwood emphasized the fact that no evidence of this kind had been presented; it introduced no such evidence itself. It stated: "There is absolutely no evidence in this case that provides any basis for making a comparison between black applicants and white applicants and their treatment by the Hazelwood School District relative to hiring or not being hired for a teaching position." Defendants' Brief and Memorandum in Support of Its Proposed Findings of Fact and Conclusions of Law, supra, 433 U.S. 299 fn2/2|>n. 2, at 22. [ Footnote 2/8 ] My analysis of this case is somewhat similar to MR. JUSTICE REHNQUIST's analysis in Dothard v. Rawlinson: "If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, they may disparage in arguments or in briefs the probative weight which the plaintiffs' evidence should be accorded. Since I agree with the Court that appellants made virtually no such effort, . . . I also agree with it that the District Court cannot be said to have erred as a matter of law in finding that a prima facie case had been made out in the instant case." Post at 433 U. S. 338 -339 (concurring opinion). [ Footnote 2/9 ] It is interesting to compare the disposition in this case with that in Castaneda v. Partida, 430 U. S. 482 . In Castaneda, as in this case, "[i]nexplicably, the State introduced practically no evidence," id. at 430 U. S. 498 . But in Castaneda, unlike the present case, the Court affirmed the finding of discrimination, rather than giving the State a second chance at trying its case. (It should be noted that the Castaneda Court expressly stated that it was possible that the statistical discrepancy could have been explained by the State. Id. at 430 U. S. 499 .) [ Footnote 2/10 ] Hazelwood's brief asks only for a remand "for reconsideration of the alleged individual cases of discrimination. . . ." Brief for Petitioners 78. Hazelwood explains: "[The question raised in its petition for certiorari is] a question of law. It is a question of what sort of evidentiary showing satisfies Title VII. . . . The question is whether, on the evidence of record, an unrebutted prima facie case was established." Reply Brief for Petitioners 2.

The United States sued the Hazelwood School District, alleging racial discrimination in teacher hiring practices, in violation of Title VII of the Civil Rights Act. The District Court ruled in favor of Hazelwood, but the Court of Appeals reversed, finding a prima facie case of discrimination based on statistical data. The Supreme Court disagreed with the Court of Appeals' analysis, holding that the relevant comparison should be between Hazelwood's teacher demographics and the qualified teacher population in the relevant labor market. The case was remanded to determine the relevant labor market area and whether Hazelwood engaged in discriminatory practices post-Title VII.

Labor & Employment

Texas Dept. of Community Affairs v. Burdine

https://supreme.justia.com/cases/federal/us/450/248/

U.S. Supreme Court Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981) Texas Department of Community Affairs v. Burdine No. 79-1764 Argued December 9, 1980 Decided March 4, 1981 450 U.S. 248 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Respondent filed suit in Federal District Court, alleging, inter alia, that her termination of employment with petitioner was predicated on gender discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court found that the testimony for petitioner sufficiently had rebutted respondent's allegation of gender discrimination in the decision to terminate her employment. The Court of Appeals reversed this finding, holding that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate, nondiscriminatory reasons for the employment action, and also must prove by objective evidence that those hired were better qualified than the plaintiff, and that the testimony for petitioner did not carry either of these burdens. Held: When the plaintiff in a Title VII case has proved a prima facie case of employment discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. Pp. 450 U. S. 252 -260. (a) As set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , the basic allocation of burdens and order of presentation of proof in a Title VII case, is as follows. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 411 U. S. 802 . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The defendant need not persuade the court that it was actually motivated by the proffered reasons, but it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. Pp. 450 U. S. 252 -256. Page 450 U. S. 249 (b) The Court of Appeals erred by requiring petitioner to prove by a preponderance of the evidence the existence of nondiscriminatory reasons for terminating respondent. By doing this, the court required much more than is required by McDonnell Douglas, supra. and its progeny: it placed on petitioner the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the respondent. Limiting the defendant's evidentiary obligation to a burden of production will not unduly hinder the plaintiff. Pp. 450 U. S. 256 -258. (c) The Court of Appeals also erred in requiring petitioner to prove by objective evidence that the person hired was more qualified than respondent. It is the plaintiff's task to demonstrate that similarly situated employees were not treated equally, but the Court of Appeals' rule would require the employer to show that the plaintiff's objective qualifications were inferior to those of the person selected, and, if it cannot, a court would, in effect, conclude that it has discriminated. The Court of Appeals' views can also be read as requiring the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. Pp. 450 U. S. 258 -259. 608 F.2d 563, vacated and remanded. POWELL, J., delivered the opinion for a unanimous Court. JUSTICE POWELL delivered the opinion of the Court. This case requires us to address again the nature of the evidentiary burden placed upon the defendant in an employment Page 450 U. S. 250 discrimination 450 U. S. 42 U.S.C. § 2000e et seq. The narrow question presented is whether, after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed. I Petitioner, the Texas Department of Community Affairs (TDCA), hired respondent, a female, in January, 1972, for the position of accounting clerk in the Public Service Careers Division (PSC). PSC provided training and employment opportunities in the public sector for unskilled workers. When hired, respondent possessed several years' experience in employment training. She was promoted to Field Services Coordinator in July, 1972. Her supervisor resigned in November of that year, and respondent was assigned additional duties. Although she applied for the supervisor's position of Project Director, the position remained vacant for six months. PSC was funded completely by the United States Department of Labor. The Department was seriously concerned about inefficiencies at PSC. [ Footnote 1 ] In February, 1973, the Department notified the Executive Director of TDCA, B.R. Fuller, that it would terminate PSC the following month. TDCA officials, assisted by respondent, persuaded the Department to continue funding the program, conditioned upon PSC's reforming its operations. Among the agreed conditions were the appointment of a permanent Project Director and a complete reorganization of the PSC staff. [ Footnote 2 ] After consulting with personnel within TDCA, Fuller hired Page 450 U. S. 251 a male from another division of the agency as Project Director. In reducing the PSC staff, he fired respondent, along with two other employees, and retained another male, Walz, as the only professional employee in the division. It is undisputed that respondent had maintained her application for the position of Project Director and had requested to remain with TDCA. Respondent soon was rehired by TDCA and assigned to another division of the agency. She received the exact salary paid to the Project Director at PSC, and the subsequent promotions she has received have kept her salary and responsibility commensurate with what she would have received had she been appointed Project Director. Respondent filed this suit in the United States District Court for the Western District of Texas. She alleged that the failure to promote and the subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII. After a bench trial, the District Court held that neither decision was based on gender discrimination. The court relied on the testimony of Fuller that the employment decisions necessitated by the commands of the Department of Labor were based on consultation among trusted advisers and a nondiscriminatory evaluation of the relative qualifications of the individuals involved. He testified that the three individuals terminated did not work well together, and that TDCA thought that eliminating this problem would improve PSC's efficiency. The court accepted this explanation as rational and, in effect, found no evidence that the decisions not to promote and to terminate respondent were prompted by gender discrimination. The Court of Appeals for the Fifth Circuit reversed in part. 608 F.2d 563 (1979). The court held that the District Court's "implicit evidentiary finding" that the male hired as Project Director was better qualified for that position than respondent was not clearly erroneous. Accordingly, the court affirmed the District Court's finding that respondent was not discriminated against when she was not promoted. The Page 450 U. S. 252 Court of Appeals, however, reversed the District Court's finding that Fuller's testimony sufficiently had rebutted respondent's prima facie case of gender discrimination in the decision to terminate her employment at PSC. The court reaffirmed its previously announced views that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate nondiscriminatory reasons for the employment action, and that the defendant also must prove by objective evidence that those hired or promoted were better qualified than the plaintiff. The court found that Fuller's testimony did not carry either of these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay. [ Footnote 3 ] Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals, [ Footnote 4 ] we granted certiorari. 447 U.S. 920 (1980). We now vacate the Fifth Circuit's decision and remand for application of the correct standard. II In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. [ Footnote 5 ] First, the plaintiff has the burden of proving by Page 450 U. S. 253 the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 411 U. S. 802 . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 411 U. S. 804 . The nature of the burden that shifts to the defendant should be understood in light of the plaintiff's ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24 , 439 U. S. 25 , n. 2 (1978); id. at 439 U. S. 29 (STEVENS, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed.1940) (the burden of persuasion "never shifts"). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question. The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. [ Footnote 6 ] The prima facie case serves an important Page 450 U. S. 254 function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 358 , and n. 44 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 577 (1978), the prima facie case "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff's evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case. [ Footnote 7 ] The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra at 439 U. S. 25 . It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. [ Footnote 8 ] Page 450 U. S. 255 To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. [ Footnote 9 ] The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, [ Footnote 10 ] and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the Page 450 U. S. 256 plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant's evidence should be evaluated by the extent to which it fulfills these functions. The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U.S. at 411 U. S. 804 -805. III In reversing the Judgment of the District Court that the discharge of respondent from PSC was unrelated to her sex, the Court of Appeals adhered to two rules it had developed to elaborate the defendant's burden of proof. First, the defendant must prove by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the discharge existed. 608 F.2d at 567. See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1255 (CA5 1977). Second, to satisfy this burden, the defendant "must prove that those he hired . . . were somehow better qualified than was plaintiff; in other words, comparative evidence is needed." 608 F.2d at 567 (emphasis in original). See East v. Romine, Inc., 518 F.2d 332, 339-340 (CA5 1975). A The Court of Appeals has misconstrued the nature of the burden that McDonnell Douglas and its progeny place on the defendant. See 450 U. S. supra. We stated in Sweeney that "the employer's burden is satisfied if he simply explains what he has done' or `produc[es] evidence of legitimate nondiscriminatory reasons.'" 439 U.S. at 439 U. S. 25 , n. 2, quoting id. at 439 U. S. 28 , 439 U. S. 29 (STEVENS, J., dissenting). It is plain that the Court Page 450 U. S. 257 of Appeals required much more: it placed on the defendant the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the plaintiff. [ Footnote 11 ] The Court of Appeals distinguished Sweeney on the ground that the case held only that the defendant did not have the burden of proving the absence of discriminatory intent. But this distinction slights the rationale of Sweeney and of our other cases. We have stated consistently that the employee's prima facie case of discrimination will he rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. The Court of Appeals would require the defendant to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the employment action was lawful. This exceeds what properly can be demanded to satisfy a burden of production. The court placed the burden of persuasion on the defendant apparently because it feared that, "[i]f an employer need Page 450 U. S. 258 only articulate -- not prove -- a legitimate, nondiscriminatory reason for his action, he may compose fictitious, but legitimate, reasons for his actions." Turner v. Texas Instruments, Inc., supra at 1255 (emphasis in original). We do not believe, however, that limiting the defendant's evidentiary obligation to a burden of production will unduly hinder the plaintiff. First, as noted above, the defendant's explanation of its legitimate reasons must be clear and reasonably specific. Supra at 450 U. S. 255 . See Loeb v. Textron, Inc., 600 F.2d 1003, 1011-1012, n. 5 (CA1 1979). This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie case and from the requirement that the plaintiff be afforded "a full and fair opportunity" to demonstrate pretext. Second, although the defendant does not bear a formal burden of persuasion, the defendant nevertheless retains an incentive to persuade the trier of fact that the employment decision was lawful. Thus, the defendant normally will attempt to prove the factual basis for its explanation. Third, the liberal discovery rules applicable to any civil suit in federal court are supplemented in a Title VII suit by the plaintiff's access to the Equal Employment Opportunity Commission's investigatory files concerning her complaint. See EEOC v. Associated Dry Goods Corp., 449 U. S. 590 (1981). Given these factors, we are unpersuaded that the plaintiff will find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext. We remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination. B The Court of Appeals also erred in requiring the defendant to prove by objective evidence that the person hired or promoted was more qualified than the plaintiff. McDonnell Douglas teaches that it is the plaintiff's task to demonstrate that similarly situated employees were not treated equally. 411 U.S. at 411 U. S. 804 . The Court of Appeals' rule would require Page 450 U. S. 259 the employer to show that the plaintiff's objective qualifications were inferior to those of the person selected. If it cannot, a court would, in effect, conclude that it has discriminated. The court's procedural rule harbors a substantive error. Title VII prohibits all discrimination in employment based upon race, sex, and national origin. "The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and . . . neutral employment and personnel decisions." McDonnell Douglas, supra at 411 U. S. 801 . Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U.S.C. § 2000e-2(j). See Steelworkers v. Weber, 443 U. S. 193 , 443 U. S. 205 -206 (1979). The statute was not intended to "diminish traditional management prerogatives." Id. at 443 U. S. 207 . It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 577 -578 (1978). The views of the Court of Appeals can be read, we think, as requiring the employer to hire the minority or female applicant whenever that person's objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not, in itself, expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination. Loeb v. Textron, Inc., supra at 1012, n. 6; see Lieberman v. Gant, 630 F.2d 60, 65 (CA2 1980). IV In summary, the Court of Appeals erred by requiring the defendant to prove by a preponderance of the evidence the Page 450 U. S. 260 existence of nondiscriminatory reasons for terminating the respondent, and that the person retained in her stead had superior objective qualifications for the position. [ Footnote 12 ] When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] Among the problems identified were overstaffing, lack of fiscal control, poor bookkeeping, lack of communication among PSC staff, and the lack of a full-time Project Director. Letter of March 20, 1973, from Charles Johnson to B.R. Fuller, reprinted in App. 38-40. [ Footnote 2 ] See id. at 39. [ Footnote 3 ] The Court of Appeals also vacated the District Court's judgment that petitioner did not violate Title VII's equal pay provision, 42 U.S.C. § 2000e-2(h), but that decision is not challenged here. [ Footnote 4 ] See, e.g., Lieberman v. Gant, 630 F.2d 60 (CA2 1980), Jackson v. U.S. Steel Corp., 624 F.2d 436 (CA3 1980); Ambush v. Montgomery County Government, 22 FEP Cases 1101 (CA4 1980); Loeb v. Textron, Inc., 600 F.2d 1003 (CA1 1979). But see Vaughn v. Westinghouse Elec. Corp., 620 F.2d 655 (CA8 1980), cert. pending, No. 80-276. [ Footnote 5 ] We have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes. See McDonnell Douglas, 411 U.S. at 411 U. S. 802 , n. 14; Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 -336, and n. 15 (1977). [ Footnote 6 ] In McDonnell Douglas, supra, we described an appropriate model for a prima facie case of racial discrimination. The plaintiff must show: "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 411 U. S. 802 . We added, however, that this standard is not inflexible, as "[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations." Id. at 411 U. S. 802 , n. 13. In the instant case, it is not seriously contested that respondent has proved a prima facie case. She showed that she was a qualified woman who sought an available position, but the position was left open for several months before she finally was rejected in favor of a male, Walz, who had been under her supervision. [ Footnote 7 ] The phrase " prima facie case" not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed.1940). McDonnell Douglas should have made it apparent that, in the Title VII context, we use " prima facie case" in the former sense. [ Footnote 8 ] This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. "The word presumption,' properly used, refers only to a device for allocating the production burden." F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed.1977) (footnote omitted). See Fed.Rule Evid. 301. See generally 9 J. Wigmore, Evidence § 2491 (3d ed.1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185-186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination. [ Footnote 9 ] An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel. [ Footnote 10 ] See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff's initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual. Indeed, there may be some cases where the plaintiff's initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant's explanation. [ Footnote 11 ] The court reviewed the defendant's evidence and explained its deficiency: "Defendant failed to introduce comparative factual data concerning Burdine and Walz. Fuller merely testified that he discharged and retained personnel in the spring shakeup at TDCA primarily on the recommendations of subordinates, and that he considered Walz qualified for the position he was retained to do. Fuller failed to specify any objective criteria on which he based the decision to discharge Burdine and retain Walz. He stated only that the action was in the best interest of the program, and that there had been some friction within the department that might be alleviated by Burdine's discharge. Nothing in the record indicates whether he examined Walz' ability to work well with others. This court, in East, found such unsubstantiated assertions of 'qualification' and 'prior work record' insufficient absent data that will allow a true comparison of the individuals hired and rejected." 608 F.2d at 568. [ Footnote 12 ] Because the Court of Appeals applied the wrong legal standard to the evidence, we have no occasion to decide whether it erred in not reviewing the District Court's finding of no intentional discrimination under the "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a). Addressing this issue in this case would be inappropriate, because the District Court made no findings on the intermediate questions posed by McDonnell Douglas.

In the case of Texas Department of Community Affairs v. Burdine, the U.S. Supreme Court ruled that when a plaintiff in a Title VII case proves a prima facie case of employment discrimination, the defendant only needs to provide a clear, nondiscriminatory reason for their actions. The Court of Appeals erred by requiring the defendant to prove the existence of these reasons with a preponderance of evidence, placing an unfairly high burden on them.

Labor & Employment

Givhan v. Western Line Consolidated School District

https://supreme.justia.com/cases/federal/us/439/410/

U.S. Supreme Court Givhan v. Western Line Cons. Sch. Dist., 439 U.S. 410 (1979) Givhan v. Western Line Consolidated School District No. 77-1051 Argued November 7, 1978 Decided January 9, 1979 439 U.S. 410 CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE FIFTH CIRCUIT Syllabus After petitioner was dismissed from her employment as a teacher, she intervened in a desegregation action against respondent School District, seeking reinstatement on the ground, inter alia, that her dismissal infringed her right of free speech under the First and Fourteenth Amendments. In an effort to justify the dismissal, the School District introduced evidence of, inter alia, a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." Concluding that the primary reason for the dismissal was petitioner's criticism of the School District's practices and policies, which she conceived to be racially discriminatory, the District Court held that the dismissal violated petitioner's First Amendment rights and ordered her reinstatement. The Court of Appeals reversed, holding that, under Pickering v. Board of Education, 391 U. S. 563 ; Perry v. Sindermann, 408 U. S. 593 ; and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 , petitioner's complaints and opinions were not protected by the First Amendment because they were expressed privately to the principal, and because there is no constitutional right to "press even good' ideas on an unwilling recipient." Held: A public employee does not forfeit his First Amendment protection against governmental abridgment of freedom of speech when he arranges to communicate privately with his employer, rather than to express his views publicly. Pp. 439 U. S. 413 -417. (a) Pickering, Perry, and Mt. Healthy do not support the Court of Appeals' conclusion that private expression is unprotected by the First Amendment. The fact that each of those cases involved public expression by the employee was not critical to the decision. Pp. 439 U. S. 414 -415. (b) Nor is the Court of Appeals' view supported by the "captive audience" rationale, since the principal, having opened his office door to petitioner, was hardly in a position to argue that he was the " unwilling recipient" of her views. P. 439 U. S. 415 . (c) Respondents' Mt. Healthy claim, rejected by the Court of Appeals, that the decision to terminate petitioner would have been made Page 439 U. S. 411 even if her encounters with the principal had never occurred called for a factual determination that could not, on the record, be resolved by that court, since it was not presented to the District Court, Mt. Healthy having been decided after the trial in this case. Pp. 439 U. S. 416 -417. 555 F.2d 1309, vacated in part and remanded. REHNQUIST, J., delivered the opinion for a unanimous Court. STEVENS, J., filed a concurring opinion, post, p. 439 U. S. 417 . MR. JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner Bessie Givhan was dismissed from her employment as a Junior high English teacher at the end of the 1970-1971 school year. [ Footnote 1 ] At the time of petitioner's termination, respondent Western Line Consolidated School District was the subject of a desegregation order entered by the United States District Court for the Northern District of Mississippi. Petitioner filed a complaint in intervention in the desegregation action, seeking reinstatement on the dual grounds that Page 439 U. S. 412 nonrenewal of her contract violated the rule laid down by the Court of Appeals for the Fifth Circuit in Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (1969), rev'd and remanded sub nom. Carter v. West Felician Parish School Board, 396 U. S. 290 (1970), on remand, 425 F.2d 1211 (1970), and infringed her right of free speech secured by the First and Fourteenth Amendments of the United States Constitution. In an effort to show that its decision was justified, respondent School District introduced evidence of, among other things, [ Footnote 2 ] a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." After a two-day bench trial, the District Court held that petitioner's termination had violated the First Amendment. Finding that petitioner had made "demands" on but two occasions, and that those demands Page 439 U. S. 413 "were neither 'petty' nor 'unreasonable,' insomuch as all the complaints in question involved employment policies and practices at [the] school which [petitioner] conceived to be racially discriminatory in purpose or effect," the District Court concluded that "the primary reason for the school district's failure to renew [petitioner's] contract was her criticism of the policies and practices of the school district, especially the school to which she was assigned to teach." App. to Pet. for Cert. 35a. Accordingly, the District Court held that the dismissal violated petitioner's First Amendment rights, as enunciated in Perry v. Sindermann, 408 U. S. 593 (1972), and Pickering v. Board of Education, 391 U. S. 563 (1968), and ordered her reinstatement. The Court of Appeals for the Fifth Circuit reversed. Ayers v. Western Line Consol. School Dist., 555 F.2d 1309 (1977). Although it found the District Court's findings not clearly erroneous, the Court of Appeals concluded that, because petitioner had privately expressed her complaints and opinions to the principal, her expression was not protected under the First Amendment. Support for this proposition was thought to be derived from Pickering, supra, Perry, supra, and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), which were found to contain "[t]he strong implication . . . that private expression by a public employee is not constitutionally protected." 555 F.2d at 1318. The Court of Appeals also concluded that there is no constitutional right to "press even good' ideas on an unwilling recipient," saying that to afford public employees the right to such private expression "would, in effect, force school principals to be ombudsmen, for damnable, as well as laudable, expressions." Id. at 1319. We are unable to agree that private expression of one's views is beyond constitutional protection, and therefore reverse the Court of Appeals' judgment and remand the case so that it may consider the contentions of the parties freed from this erroneous view of the First Amendment. Page 439 U. S. 414 This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately, rather than publicly. While those cases each arose in the context of a public employee's public expression, the rule to be derived from them is not dependent on that largely coincidental fact. In Pickering, a teacher was discharged for publicly criticizing, in a letter published in a local newspaper, the school board's handling of prior bond issue proposals and its subsequent allocation of financial resource between the schools' educational and athletic programs. Noting that the free speech rights of public employees are not absolute, the Court held that, in determining whether a government employee's speech is constitutionally protected, "the interests of the [employee], as a citizen, in commenting upon matters of public concern" must be balanced against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 391 U. S. 568 . The Court concluded that, under the circumstances of that case, "the interest of the school administration in limiting teachers' opportunities to contribute to public debate [was] not significantly greater than its interest in limiting a similar contribution by any member of the general public." Id. at 391 U. S. 573 . Here, the opinion of the Court of Appeals may be read to turn, in part, on its view that the working relationship between principal and teacher is significantly different from the relationship between the parties in Pickering, [ Footnote 3 ] as is evidenced by Page 439 U. S. 415 its reference to its own opinion in Abbott v. Thetford, 534 F.2d 1101 (1976) (en banc), cert. denied, 430 U. S. 54 (177). But we do not feel confident that the Court of Appeals' decision would have been placed on that ground notwithstanding its view that the First Amendment does not require the same sort of Pickering balancing for the private expression of a public employee as it does for public expression. [ Footnote 4 ] Perry and Mt. Healthy arose out of similar disputes between teachers and their public employers. As we have noted, however, the fact that each of these cases involved public expression by the employee was not critical to the decision. Nor is the Court of Appeals' view supported by the "captive audience" rationale. Having opened his office door to petitioner, the principal was hardly in a position to argue that he was the " unwilling recipient" of her views. The First Amendment forbids abridgment of the "freedom of speech." Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer, rather Page 439 U. S. 416 than to spread his views before the public. We decline to adopt such a view of the First Amendment. While this case was pending on appeal to the Court of Appeals, Mt. Healthy City Bd. of Ed. v. Doyle, supra, was decided. In that case, this Court rejected the view that a public employee must be reinstated whenever constitutionally protected conduct plays a "substantial" part in the employer's decision to terminate. Such a rule would require reinstatement of employees that the public employer would have dismissed even if the constitutionally protected conduct had not occurred and, consequently, "could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing." 429 U.S. at 429 U. S. 285 . Thus, the Court held that, once the employee has shown that his constitutionally protected conduct played a "substantial" role in the employer's decision not to rehire him, the employer is entitled to show "by a preponderance of the evidence that it would have reached the same decision as to [the employee's] reemployment even in the absence of the protected conduct." Id. at 429 U. S. 287 . The Court of Appeals in the instant case rejected respondents' Mt. Healthy claim that the decision to terminate petitioner would have been made even if her encounters with the principal had never occurred: "The [trial] court did not make an express finding as to whether the same decision would have been made, but, on this record, the [respondent] do not, and seriously cannot, argue that the same decision would have been made without regard to the 'demands.' Appellants seem to argue that the preponderance of the evidence shows that the same decision would have been justified, but that is not the same as proving that the same decision would have been made. . . . Therefore, [respondents] failed to make a successful 'same decision anyway' defense." 555 F.2d at 1315. Page 439 U. S. 417 Since this case was tried before Mt. Healthy was decided, it is not surprising that respondents did not attempt to prove in the District Court that t.he decision not to rehire petitioner would have been made even absent consideration of her "demands." Thus, the case came to the Court of Appeals in very much the same posture as Mt. Healthy was presented to this Court. And while the District Court found that petitioner's "criticism" was the "primary" reason for the School District's failure to rehire her, it did not find that she would have been rehired but for her criticism. Respondents' Mt. Healthy claim called for a factual determination which could not, on this record, be resolved by the Court of Appeals. [ Footnote 5 ] Accordingly, the judgment of the Court of Appeals is vacated insofar as it relates to petitioner, and the case is remanded for further proceedings consistent with this opinion. So ordered. [ Footnote 1 ] In a letter to petitioner, dated July 28, 1971, District Superintendent C. L. Morris gave the following reasons for the decision not to renew her contract: "(1) [A] flat refusal to administer standardized national tests to the pupils in your charge; (2) an announced intention not to cooperate with the administration of the Glen Allan Attendance Center; (3) and an antagonistic and hostile attitude to the administration of the Glen Allan Attendance Center demonstrated throughout the school year." [ Footnote 2 ] In addition to the reasons set out in the District Superintendent's termination letter to petitioner, n 1, supra, the School District advanced several other justifications for its decision not to rehire petitioner. The Court of Appeals dealt with these allegations in a footnote: "Appellants also sought to establish these other bases for the decision not to rehire: (1) that Givhan 'downgraded' the papers of white students; (2) that she was one of a number of teachers who walked out of a meeting about desegregation in the fall of 1969 and attempted to disrupt it by blowing automobile horns outside the gymnasium; (3) that the school district had received a threat by Givhan and other teachers not to return to work when schools reopened on a unitary basis in February, 1970; and (4) that Givhan had protected a student during a weapons shakedown at Riverside in March, 1970, by concealing a student's knife until completion of a search. The evidence on the first three of these points was inconclusive, and the district judge did not clearly err in rejecting or ignoring it. Givhan admitted the fourth incident, but the district judge properly rejected that as a justification for her not being rehired, as there was no evidence that [the principal] relied on it in making his recommendation." Ayers v. Western Line Consol. School Dist., 555 F.2d 1309, 1313 n. 7 (CA5 1977). [ Footnote 3 ] The Pickering Court's decision upholding a teacher's First Amendment claim was influenced by the fact that the teacher's public statements had not adversely affected his working relationship with the objects of his criticism: "The statements [were] in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus, no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationship with the Board and, to a somewhat lesser extent, with the superintendent, are not the kind of a close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning." 391 U.S. at 391 U. S. 569 -570. [ Footnote 4 ] Although the First Amendment's protection of government employees extends to private, as well as public, expression, striking the Pickering balance in each context may involve different considerations. When a teacher speaks publicly, it is generally the content of his statements that must be assessed to determine whether they "in any way either impeded the teacher's proper performance of his daily duties in the classroom or . . . interfered with the regular operation of the schools generally." Id. at 391 U. S. 572 -573. Private expression, however, may, in some situations, bring additional factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message, but also by the manner, time, and place in which it is delivered. [ Footnote 5 ] We cannot agree with the Court of Appeals that the record in this case does not admit of the argument that petitioner would have been terminated regardless of her "demands." Even absent consideration of petitioner's private encounters with the principal, a decision to terminate based on the reasons detailed at nn. 1 and | 1 and S. 410fn2|>2, supra, would hardly strike us as surprising. Additionally, in his letter to petitioner setting forth the reasons for her termination, District Superintendent Morris makes no mention of petitioner's "demands" and "criticism." See 1 and S. 410fn1|>n. 1, supra. MR. JUSTICE STEVENS, concurring. Because this Court's opinion in Mt. Healthy Cty Bd. of Ed. v. Doyle, 429 U. S. 274 , had not been announced when the District Court decided this case, it did not expressly find that respondents would have rehired petitioner if she had not engaged in constitutionally protected conduct. The District Court did find, however, that petitioner's protected conduct was the "primary" reason for respondents' decision. * The Page 439 U. S. 418 Court of Appeals regarded that finding as foreclosing respondents' Mt. Healthy claim. In essence, the Court of Appeals concluded that the District Court would have made an appropriate finding on the issue if it had had access to our Mt. Healthy opinion. My understanding of the District Court's finding is the same as the Court of Appeals'. Nevertheless, I agree that the District Court should have the opportunity to decide whether there is any need for further proceedings on the issue. If that court regards the present record as adequate to enable it to supplement its original findings without taking additional evidence, it is free to do so. On that understanding, I join the Court's opinion. * App. to Pet. for Cert. 35a. See also id. at 36a, where the District Court stated that petitioner's protected activity was "almost entirely" responsible for her termination.

The Supreme Court ruled that a public employee does not give up their First Amendment right to freedom of speech when they choose to communicate privately with their employer instead of expressing their views publicly. The case revolved around a teacher who was dismissed from her job and intervened in a desegregation action against the school district, claiming that her dismissal violated her First Amendment rights. The Court of Appeals had initially ruled that the teacher's private expression was not protected by the First Amendment, but the Supreme Court disagreed, stating that the manner, time, and place of private expression may be factors in determining whether the government's institutional efficiency is threatened. The case was sent back to the lower courts for further consideration.

Labor & Employment

Whirlpool Corp. v. Marshall

https://supreme.justia.com/cases/federal/us/445/1/

U.S. Supreme Court Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980) Whirlpool Corp. v. Marshall No. 78-1870 Argued January 9, 1980 Decided February 26, 1980 445 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus Section 11(c)(1) of the Occupational Safety and Health Act of 1970 (Act) prohibits an employer from discharging or discriminating against any employee who exercises "any right afforded by" the Act. Respondent Secretary of Labor promulgated a regulation providing that, among other rights protected by the Act, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. Claiming that a suspended wire mesh screen in petitioner's manufacturing plant used to protect employees from objects occasionally falling from an overhead conveyor was unsafe, two employees of petitioner refused to comply with their foreman's order to perform their usual maintenance duties on the screen. They were then ordered to punch out without working or being paid for the remainder of their shift, and subsequently received written reprimands, which were placed in their employment files. Thereafter, respondent brought suit in Federal District Court, alleging that petitioner's actions against the two employees constituted discrimination in violation of § 11(c)(1) of the Act, and seeking injunctive and other relief. While finding that the implementing regulation justified the employees' refusals to obey their foreman's order, the District Court Page 445 U. S. 2 nevertheless denied relief, holding that the regulation was inconsistent with the Act, and therefore invalid. The Court of Appeals reversed and remanded, agreeing that the employees' actions were justified under the regulation but disagreeing with the conclusion that the regulation was invalid. Held: The regulation in question was promulgated by respondent in the valid exercise of his authority under the Act, and constitutes a permissible gloss on the Act, in light of the Act's language, structure, and legislative history. Pp. 445 U. S. 8 -22. (a) The regulation clearly conforms to the Act's fundamental objective of preventing occupational deaths and serious injuries. Moreover, the regulation is an appropriate aid to the full effectuation of the Act's "general duty" clause, which requires an employer to furnish to each of his employees employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious injury to the employees. The regulation thus, on its face, appears to further the Act's overriding purpose and rationally complements its remedial scheme. Pp. 445 U. S. 11 -13. (b) The facts that Congress, at the time it was considering passage of the Act, rejected a so-called "strike with pay" provision (whereby an obligation would be imposed on employers to continue to pay employees who absented themselves from work for reasons of safety), and also rejected a provision that would have given the Labor Department, in imminent danger situations, the power temporarily to shut down all or part of an employer's plant, do not indicate a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue. In contrast to the "strike with pay" provision, the regulation does not require employers to pay workers who refuse to perform assigned tasks in face of imminent danger, but simply provides that, in such case, the employer may not "discriminate" against the employees involved. And in contrast to the "shutdown" provision, the regulation accords no authority to Government officials, but simply permits private employees to avoid workplace conditions that they believe pose grave dangers to their own safety, and does not empower such employees to order their employers to correct the hazardous condition. Pp. 445 U. S. 13 -21. 593 F.2d 716, affirmed. STEWART, J., delivered the opinion for a unanimous Court. Page 445 U. S. 3 MR. JUSTICE STEWART delivered the opinion of the Court. The Occupational Safety and Health Act of 1970 (Act) [ Footnote 1 ] prohibits an employer from discharging or discriminating against any employee who exercises "any right afforded by" the Act. [ Footnote 2 ] The Secretary of Labor (Secretary) has promulgated a regulation providing that, among the rights that the Act so protects, is the right of an employee to choose not to perform his assigned task because of a reasonable apprehension Page 445 U. S. 4 of death or serious injury coupled with a reasonable belief that no less drastic alternative is available. [ Footnote 3 ] The question presented in the case before us is whether this regulation is consistent with the Act. Page 445 U. S. 5 I The petitioner company maintains a manufacturing plant in Marion, Ohio, for the production of household appliances. Overhead conveyors transport appliance components throughout the plant. To protect employees from objects that occasionally fall from these conveyors, the petitioner has installed a horizontal wire-mesh guard screen approximately 20 feet above the plant floor. This mesh screen is welded to angle-iron frames suspended from the building's structural steel skeleton. Maintenance employees of the petitioner spend several hours each week removing objects from the screen, replacing paper spread on the screen to catch grease drippings from the material on the conveyors, and performing occasional maintenance work on the conveyors themselves. To perform these duties, maintenance employees usually are able to stand on the iron frames, but sometimes find it necessary to step onto the steel mesh screen itself. In 1973, the company began to install heavier wire in the screen because its safety had been drawn into question. Several employees had fallen partly through the old screen, and on one occasion an employee had fallen completely through to the plant floor below, but had survived. A number of maintenance employees had reacted to these incidents by bringing the unsafe screen conditions to the attention of their foremen. The petitioner company's contemporaneous safety instructions admonished employees to step only on the angle-iron frames. On June 28, 1974, a maintenance employee fell to his death through the guard screen in an area where the newer, stronger Page 445 U. S. 6 mesh had not yet been installed. [ Footnote 4 ] Following this incident, the petitioner effectuated some repairs and issued an order strictly forbidding maintenance employees from stepping on either the screens or the angle-iron supporting structure. An alternative, but somewhat more cumbersome and less satisfactory, method was developed for removing objects from the screen. This procedure required employees to stand on power-raised mobile platforms and use hooks to recover the material. On July 7, 1974, two of the petitioner's maintenance employees, Virgil Deemer and Thomas Cornwell, met with the plant maintenance superintendent to voice their concern about the safety of the screen. The superintendent disagreed with their view, but permitted the two men to inspect the screen with their foreman and to point out dangerous areas needing repair. Unsatisfied with the petitioner's response to the results of this inspection, Deemer and Cornwell met on July 9 with the plant safety director. At that meeting, they requested the name, address, and telephone number of a representative of the local office of the Occupational Safety and Health Administration (OSHA). Although the safety director told the men that they "had better stop and think about what [they] were doing," he furnished the men with the information they requested. Later that same day, Deemer contacted an official of the regional OSHA office and discussed the guard screen. [ Footnote 5 ] Page 445 U. S. 7 The next day, Deemer and Cornwell reported for the night shift at 10:45 p.m. Their foreman, after himself walking on some of the angle-iron frames, directed the two.men to perform their usual maintenance duties on a section of the old screen. [ Footnote 6 ] Claiming that the screen was unsafe, they refused to carry out this directive. The foreman then sent them to the personnel office, where they were ordered to punch out without working or being paid for the remaining six hours of the shift. [ Footnote 7 ] The two men subsequently received written reprimands, which were placed in their employment files. A little over a month later, the Secretary filed suit in the United States District Court for the Northern District of Ohio, alleging that the petitioner's actions against Deemer and Cornwell constituted discrimination in violation of § 11(c)(1) of the Act. [ Footnote 8 ] As relief, the complaint prayed, inter alia, that the petitioner be ordered to expunge from its personnel files all references to the reprimands issued to the two employees, and for a permanent injunction requiring the petitioner to compensate the two employees for the six hours of pay they had lost by reason of their disciplinary suspensions. Following a bench trial, the District Court found that the regulation in question [ Footnote 9 ] justified Deemer's and Cornwell's refusals to obey their foreman's order on July 10, 1974. The court found that the two employees had "refused to perform the cleaning operation because of a genuine fear of death or serious bodily harm," that the danger presented had been "real, and not something which [had] existed only in the minds of the employees," that the employees had acted in good faith, Page 445 U. S. 8 and that no reasonable alternative had realistically been open to them other than to refuse to work. The District Court nevertheless denied relief, holding that the Secretary's regulation was inconsistent with the Act, and therefore invalid. Usery v. Whirlpool Corp., 416 F. Supp. 30 , 32-34. The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. 593 F.2d 715. Finding ample support in the record for the District Court's factual determination that the actions of Deemer and Cornwell had been justified under the Secretary's regulation, id. at 719, n. 5, [ Footnote 10 ] the appellate court disagreed with the District Court's conclusion that the regulation is invalid. Id. at 721-736. It accordingly remanded the case to the District Court for further proceedings. Id. at 73. We granted certiorari, 444 U.S. 823, because the decision of the Court of Appeals in this case conflicts with those of two other Courts of Appeals on the important question in issue. See Marshall v. Daniel Construction Co., 563 F.2d 707 (CA5 1977); Marshall v. Certified Welding Corp., No. 77-2048 (CA10 Dec. 28, 1978). That question, as stated at the outset of this opinion, is whether the Secretary's regulation authorizing employee "self-help" in some circumstances, 29 CFR § 1977.12(b)(2) (1979), is permissible under the Act. II The Act itself creates an express mechanism for protecting workers from employment conditions believed to pose an emergent threat of death or serious injury. Upon receipt of an employee inspection request stating reasonable grounds to believe that an imminent danger is present in a workplace, Page 445 U. S. 9 OSHA must conduct an inspection. 29 U.S.C. § 657(f)(1). In the event this inspection reveals workplace conditions or practices that "could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by" the Act, [ Footnote 11 ] 29 U.S.C. § 662(a), the OSHA inspector must inform the affected employees and the employer of the danger and notify them that he is recommending to the Secretary that injunctive relief be sought. § 662(c). At this juncture, the Secretary can petition a federal court to restrain the conditions or practices giving rise to the imminent danger. By means of a temporary restraining order or preliminary injunction, the court may then require the employer to avoid, correct, or remove the danger or to prohibit employees from working in the area. § 662(a). [ Footnote 12 ] To ensure that this process functions effectively, the Act expressly accords to every employee several rights, the exercise of which may not subject him to discharge or discrimination. An employee is given the right to inform OSHA of an imminently dangerous workplace condition or practice and request that OSHA inspect that condition or practice. 29 U.S.C. Page 445 U. S. 10 § 657(f)(1). [ Footnote 13 ] He is given a limited right to assist the OSHA inspector in inspecting the workplace, §§ 657(a)(2), (e), and (f)(2), and the right to aid a court in determining whether or not a risk of imminent danger in fact exists. See § 660(c)(1). Finally, an affected employee is given the right to bring an action to compel the Secretary to seek injunctive relief if he believes the Secretary has wrongfully declined to do so. § 662(d). In the light of this detailed statutory scheme, the Secretary is obviously correct when he acknowledges in his regulation that, "as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. [ Footnote 14 ]" By providing for prompt notice to the employer of an inspector's intention to seek an injunction against an imminently dangerous condition, the legislation obviously contemplates that the employer will normally respond by voluntarily and speedily eliminating the danger. And in the few instances where this does not occur, the legislative provisions authorizing prompt judicial action are designed to give employees full protection in most situations from the risk of injury or death resulting from an imminently dangerous condition at the worksite. As this case illustrates, however, circumstances may sometimes exist in which the employee justifiably believes that the express statutory arrangement does not sufficiently protect him from death or serious injury. Such circumstances will probably not often occur, but such a situation may arise when (1) the employee is ordered by his employer to work under conditions that the employee reasonably believes pose an imminent risk of death or serious bodily injury, and (2) the employee has reason to believe that there is not sufficient time Page 445 U. S. 11 or opportunity either to seek effective redress from his employer or to apprise OSHA of the danger. Nothing in the Act suggests that those few employees who have to face this dilemma must rely exclusively on the remedies expressly set forth in the Act at the risk of their own safety. But nothing in the Act explicitly provides otherwise. Against this background of legislative silence, the Secretary has exercised his rulemaking power under 29 U.S.C. § 657(g)(2), and has determined that, when an employee, in good faith, finds himself in such a predicament, he may refuse to expose himself to the dangerous condition without being subjected to "subsequent discrimination" by the employer. The question before us is whether this interpretative regulation [ Footnote 15 ] constitutes a permissible gloss on the Act by the Secretary in light of the Act's language, structure, and legislative history. Our inquiry is informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act. Skidmore v. Swift & Co., 323 U. S. 134 , 323 U. S. 139 -140. See Ford Motor Credit Co. v. Milhollin, 444 U. S. 555 ; Mourning v. Family Publications Service, Inc., 411 U. S. 356 . A The regulation clearly conforms to the fundamental objective of the Act -- to prevent occupational deaths and serious injuries. [ Footnote 16 ] The Act, in its preamble, declares that its purpose Page 445 U. S. 12 and policy is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources; . . ." 29 U.S.C. § 651(b). (Emphasis added.) To accomplish this basic purpose, the legislation's remedial orientation is prophylactic in nature. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U. S. 442 , 430 U. S. 444 -445. The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths or injuries from ever occurring. It would seem anomalous to construe an Act so directed and constructed as prohibiting an employee, with no other reasonable alternative, the freedom to withdraw from a workplace environment that he reasonably believes is highly dangerous. Moreover, the Secretary's regulation can be viewed as an appropriate aid to the full effectuation of the Act's "general duty" clause. That clause provides that "[e]ach employer . . . Page 445 U. S. 13 shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 U.S.C. § 654(a)(1). As the legislative history of this provision reflects, [ Footnote 17 ] it was intended itself to deter the occurrence of occupational deaths and serious injuries by placing on employers a mandatory obligation independent of the specific health and safety standards to be promulgated by the Secretary. Since OSHA inspectors cannot be present around the clock in every workplace, the Secretary's regulation ensures that employees will, in all circumstances, enjoy the rights afforded them by the "general duty" clause. The regulation thus, on its face, appears to further the overriding purpose of the Act, and rationally to complement its remedial scheme. [ Footnote 18 ] In the absence of some contrary indication in the legislative history, the Secretary's regulation must, therefore, be upheld, particularly when it is remembered that safety legislation is to be liberally construed to effectuate the congressional purpose. United States v. Bacto-Unidisk, 394 U. S. 784 , 394 U. S. 798 ; Lilly v. Grand Trunk R. Co., 317 U. S. 481 , 317 U. S. 486 . B In urging reversal of the judgment before us, the petitioner relies primarily on two aspects of the Act's legislative history. Page 445 U. S. 14 1 Representative Daniels of New Jersey sponsored one of several House bills that led ultimately to the passage of the Act. [ Footnote 19 ] As reported to the House by the Committee on Education and Labor, the Daniels bill contained a section that was soon dubbed the "strike with pay" provision. [ Footnote 20 ] This section provided that employees could request an examination by Page 445 U. S. 15 the Department of Health, Education, and Welfare (HEW) of the toxicity of any materials in their workplace. If that examination revealed a workplace substance that had "potentially toxic or harmful effects in such concentration as used or found," the employer was given 60 days to correct the potentially dangerous condition. Following the expiration of that period, the employer could not require that an employee be exposed to toxic concentrations of the substance unless the employee was informed of the hazards and symptoms associated with the substance, the employee was instructed in the proper precautions for dealing with the substance, and the employee was furnished with personal protective equipment. If these conditions were not met, an employee could "absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period." This provision encountered stiff opposition in the House. Representative Steiger of Wisconsin introduced a substitute bill containing no "strike with pay" provision. [ Footnote 21 ] In response, Representative Daniels offered a floor amendment that, among other things, deleted his bill's "strike with pay" provision. [ Footnote 22 ] Page 445 U. S. 16 He suggested that employees instead be afforded the right to request an immediate OSHA inspection of the premises, a right which the Steiger bill did not provide. The House ultimately adopted the Steiger bill. [ Footnote 23 ] The bill that was reported to, and, with a few amendments, passed by, the Senate never contained a "strike with pay" provision. [ Footnote 24 ] It did, however, give employees the means by which they could request immediate Labor Department inspections. [ Footnote 25 ] These two characteristics of the bill were underscored on the floor of the Senate by Senator Williams, the bill's sponsor. [ Footnote 26 ] After passage of the Williams bill by the Senate, it and the Steiger bill were submitted to a Conference Committee. There, the House acceded to the Senate bill's inspection request provisions. [ Footnote 27 ] The petitioner reads into this legislative history a congressional intent incompatible with an administrative interpretation of the Act such as is embodied in the regulation at issue in this case. The petitioner argues that Congress' overriding Page 445 U. S. 17 concern in rejecting the "strike with pay" provision was to avoid giving employees a unilateral authority to walk off the job which they might abuse in order to intimidate or harass their employer. Congress deliberately chose instead, the petitioner maintains, to grant employees the power to request immediate administrative inspections of the workplace which could, in appropriate cases, lead to coercive judicial remedies. As the petitioner views the regulation, therefore, it gives to workers precisely what Congress determined to withhold from them We read the legislative history differently. Congress rejected a provision that did not concern itself at all with conditions posing real and immediate threats of death or severe injury. The remedy which the rejected provision furnished employees could have been invoked only after 60 days had passed following HEW's inspection and notification that improperly high levels of toxic substances were present in the workplace. Had that inspection revealed employment conditions posing a threat of imminent and grave harm, the Secretary of Labor would presumably have requested, long before expiration of the 60-day period, a court injunction pursuant to other provisions of the Daniels bill. [ Footnote 28 ] Consequently, in rejecting the Daniels bill's "strike with pay" provision, Congress was not rejecting a legislative provision dealing with the highly perilous and fast-moving situations covered by the regulation now before us. It is also important to emphasize that what primarily troubled Congress about the Daniels bill's "strike with pay" provision was its requirement that employees be paid their regular salary after having properly invoked their right to refuse to work under the section. [ Footnote 29 ] It is instructive that virtually Page 445 U. S. 18 every time the issue of an employee's right to absent himself from hazardous work was discussed in the legislative debates, it was in the context of the employee's right to continue to receive his usual compensation. [ Footnote 30 ] When it rejected the "strike with pay" concept, therefore, Congress very clearly meant to reject a law unconditionally imposing upon employers an obligation to continue to pay Page 445 U. S. 19 their employees their regular paychecks when they absented themselves from work for reasons of safety. But the regulation at issue here does not require employers to pay workers who refuse to perform their assigned tasks in the face of imminent danger. It simply provides that, in such cases, the employer may not "discriminate" against the employees involved. An employer "discriminates" against an employee only when he treats that employee less favorably than he treats others similarly situated. [ Footnote 31 ] 2 The second aspect of the Act's legislative history upon which the petitioner relies is the rejection by Congress of provisions contained in both the Daniels and the Williams bills that would have given Labor Department officials, in imminent danger situations, the power temporarily to shut down all or part of an employer's plant. [ Footnote 32 ] These provisions aroused considerable Page 445 U. S. 20 opposition in both Houses of Congress. The hostility engendered in the House of Representatives led Representative Daniels to delete his version of the provision in proposing amendments to his original bill. [ Footnote 33 ] The Steiger bill that ultimately passed the House gave the Labor Department no such authority. [ Footnote 34 ] The Williams bill, as approved by the Senate, did contain an administrative shutdown provision, but the Conference Committee rejected this aspect of the Senate bill. [ Footnote 35 ] The petitioner infers from these events a congressional will hostile to the regulation in question here. The regulation, the petitioner argues, provides employees with the very authority to shut down an employer's plant that was expressly denied a more expert and objective United States Department of Labor. As we read the pertinent legislative history, however, the petitioner misconceives the thrust of Congress' concern. Those in Congress who prevented passage of the administrative Page 445 U. S. 21 shutdown provisions in the Daniels and Williams bills were opposed to the unilateral authority those provisions gave to federal officials, without any judicial safeguards, drastically to impair the operation of an employer's business. [ Footnote 36 ] Congressional opponents also feared that the provisions might jeopardize the Government's otherwise neutral role in labor-management relations. [ Footnote 37 ] Neither of these congressional concerns is implicated by the regulation before us. The regulation accords no authority to Government officials. It simply permits private employees of a private employer to avoid workplace conditions that they believe pose grave dangers to their own safety. The employees have no power under the regulation to order their employer to correct the hazardous condition or to clear the dangerous workplace of others. Moreover, any employee who acts in reliance on the regulation runs the risk of discharge or reprimand in the event a court subsequently finds that he acted unreasonably or in bad faith. The regulation, therefore, does not remotely resemble the legislation that Congress rejected. Page 445 U. S. 22 C For these reasons we conclude that 29 CFR § 197712(b)(2) (1979) was promulgated by the Secretary in the valid exercise of his authority under the Act. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. [ Footnote 1 ] 84 Stat. 1590, as amended, 92 Stat. 183, 29 U.S.C. § 651 et seq. (1976 ed. and Supp. II). [ Footnote 2 ] Section 11(c)(1) of the Act, 84 Stat. 1603, 29 U.S.C. § 660(c)(1), provides in full: "No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act." [ Footnote 3 ] The regulation, 29 CFR § 1977.12 (1979), provides in full: "(a) In addition to protecting employees who file complaints, institute proceedings, or testify in proceedings under or related to the Act, section 11(c) also protects employees from discrimination occurring because of the exercise 'of any right afforded by this Act.' Certain rights are explicitly provided in the Act; for example, there is a right to participate as a party in enforcement proceedings (sec. 10). Certain other rights exist by necessary implication. For example, employees may request information from the Occupational Safety and Health Administration; such requests would constitute the exercise of a right afforded by t.he Act. Likewise, employees interviewed by agents of the Secretary in the course of inspections or investigations could not subsequently be discriminated against because of their cooperation." "(b)(1) On the other hand, review of the Act and examination of the legislative history discloses that, as a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about t.he existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards." "(2) However, occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination. The condition causing the employee's apprehension of death or injury must be of such a nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a real danger of death or serious injury and that there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels. In addition, in such circumstances, the employee, where possible, must also have sought from his employer, and been unable to obtain, a correction of the dangerous condition." [ Footnote 4 ] As a result of this fatality, the Secretary conducted an investigation that led to the issuance of a citation charging the company with maintaining an unsafe walking and working surface in violation of 29 U.S.C. § 654(a)(1). The citation required immediate abatement of the hazard and proposed a $600 penalty. Nearly five years following the accident, the Occupational Safety and Health Review Commission affirmed the citation, but decided to permit the petitioner six months in which to correct the unsafe condition. Whirlpool Corp., 1979 CCH OSHD 23,552. A petition to review that decision is pending in the United States Court of Appeals for the District of Columbia Circuit. [ Footnote 5 ] The record does not disclose the substance of this conversation beyond the fact that it concerned the safety of the guard screen. [ Footnote 6 ] This order appears to have been in direct violation of the outstanding company directive that maintenance work was to be accomplished without stepping on the screen apparatus. [ Footnote 7 ] Both employees apparently returned to work the following day without further incident. [ Footnote 8 ] See n 2, supra. [ Footnote 9 ] See n 3, supra. [ Footnote 10 ] In its petition for certiorari, the petitioner did not cite this aspect of the Court of Appeals' decision as raising a question for review. Accordingly, the issue of whether the regulation covers the particular circumstances of this case is not before the Court. This Court's Rule 23(1)(c); General Pictures Co. v. Electric Co., 304 U. S. 175 , 304 U. S. 177 -179. [ Footnote 11 ] These usual enforcement procedures involve the issuance of citations and imposition of penalties. When an OSHA inspection reveals a violation of 29 U.S.C. § 654 or of any standard promulgated under the Act, the Secretary may issue a citation for the alleged violation, fix a reasonable time for the dangerous condition's abatement, and propose a penalty. §§ 658(a), 659(a), 666. The employer may contest the citation and proposed penalty. §§ 659(a), (c). Should he do so, the effective date of the abatement order is postponed until the completion of all administrative proceedings initiated in good faith. §§ 659(b), 666(d). Such proceedings may include a hearing before an administrative law judge and review by the Occupational Safety and Health Review Commission. §§ 659(c), 661(i) . [ Footnote 12 ] Such an order may continue pending the consummation of the Act's normal enforcement proceedings. § 662(b). [ Footnote 13 ] Should the Secretary determine that "there are no reasonable grounds to believe that a violation or danger exists he shall notify the employe[e] . . . of such determination." § 657(f)(1). [ Footnote 14 ] See n 3, supra. [ Footnote 15 ] The petitioner has raised no issue concerning whether or not this regulation was promulgated in accordance with the procedural requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 553. Thus, we accept the Secretary's designation of the regulation as "interpretative," and do not consider whether it qualifies as an "interpretative rule" within the meaning of the APA, 5 U.S.C. § 553(b)(A). [ Footnote 16 ] The Act's legislative history contains numerous references to the Act's preventive purpose and to the tragedy of each individual death or accident. See, e.g., S.Rep. No. 91-1282, p. 2 (1970) (hereinafter S.Rep.), Leg.Hist. 142; 116 Cong.Rec. 37628 (1970), Leg.Hist. 516-517 (Sen. Nelson); 116 Cong.Rec. 37628, 37630 (1970), Leg.Hist. 518, 522 (Sen. Cranston); 116 Cong.Rec. 37630 (1970), Leg.Hist. 522-523 (Sen. Randolph); H.R.Rep. No. 91-1291, pp. 14, 23 (1970) (hereinafter H.R.Rep.), Leg.Hist. 844, 853; 116 Cong.Rec. 38366 (1970), Leg.Hist. 978 (Rep. Young); 116 Cong.Rec. 38367-38368 (1970), Leg.Hist. 981 (Rep. Anderson); 116 Cong.Rec. 38386 (1970), Leg.Hist. 1031, 1032 (Rep. Dent); 116 Cong.Rec. 42203 (1970), Leg.Hist. 1210 (Rep. Daniels). As stated by Senator Yarborough, a sponsor of the Senate bill: "We are talking about people's lives, not the indifference of some cost accountants. We are talking about assuring the men and women who work in our plants and factories that they will go home after a day's work with their bodies intact." 116 Cong.Rec. 37625 (1970), Leg.Hist. 510. House and Senate debates are reprinted, along with the House, Senate, and Conference Report.s, in a one-volume Committee Print entitled Legislative History of the Occupational Safety and Health Act of 1970, Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 1st Sess. (June 1971) (cited supra, and hereafter as Leg.Hist.) . [ Footnote 17 ] See S.Rep. 9-10, Leg.Hist. 149-150; H.R.Rep. 21-22, Leg.Hist. 851-852. [ Footnote 18 ] It is also worth noting that the Secretary's interpretation of 29 U.S.C. § 660(c)(1) conforms to the interpretation that Congress clearly wished the courts to give to the parallel antidiscrimination provision of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1976 ed. and Supp. II). The legislative history of that provision, 30 U.S.C. § 815(c)(1) (1976 ed., Supp. II), establishes that Congress intended it to protect "the refusal to work in conditions which are believed to be unsafe or unhealthful." S.Rep. No. 95-181, p 35 (1977). See id. at 36; 123 Cong.Rec. 20043-20044 (1977) (remarks of Sen. Church, Sen. Williams, Sen. Javits). [ Footnote 19 ] H.R. 16785, 91st Cong., 2d Sess. (1970), Leg.Hist. 893-976 (bill as reported to the House). See H.R.Rep. Leg.Hist. 831. [ Footnote 20 ] Section 19(a)(5) of H.R. 16785, supra, Leg.Hist. 969-970 (as reported to the House floor) provided in relevant part: "The Secretary of Health, Education, and Welfare shall publish . . . a list of all known or potentially toxic substances and the concentrations at which such toxicity is known to occur; and shall determine following a request by any employer or authorized representative of any group of employees whether any substance normally found in the working place has potentially toxic or harmful effects in such concentration as used or found; and shall submit such determination both to employers and affected employees as soon as possible. Within sixty days of such determination by the Secretary of Health, Education, and Welfare of potential toxicity of any substance, an employer shall not require any employee to be exposed to such substance designated above in toxic or greater concentrations unless it is accompanied by information, made available to employees, by label or other appropriate means, of the known hazards or toxic or long-term ill effects, the nature of the substance, and the signs, symptoms, emergency treatment and proper conditions and precautions of safe use, and personal protective equipment is supplied which allows established work procedures to be performed with such equipment, or unless such exposed employee may absent himself from such risk of harm for the period necessary to avoid such danger without loss of regular compensation for such period." The Committee Report explained the provision as follows: "There is still a real danger that an employee may be economically coerced into self-exposure in order to earn his livelihood, so the bill allows an employee to absent himself from that specific danger for the period of its duration without loss of pay. . . . Nothing herein restricts t.he right of the employer, except as he is obligated under other agreements, to assign a worker to other nonprohibited work during this time. This should eliminate possible abuse by allowing the employer to avoid payment for work not performed." H.R.Rep. 30, Leg.Hist. 860. [ Footnote 21 ] H.R.19200, 91st Cong., 2d Sess. (1970), Leg.Hist. 763-830 (bill as originally introduced). See H.Res. 1218, 91st Cong., 2d Sess. (1970), Leg.Hist. 977. [ Footnote 22 ] 116 Cong.Rec. 38376, 38377-38378, 38707 (1970), Leg.Hist. 1004, 1005, 1008-1009, 1071 (Rep. Daniels). See 116 Cong.Rec. 38369 (1970), Leg.Hist. 986 (Rep. Perkins). Representative Daniels explained to the House why he was proposing his amendment: "The provision on employees not losing pay was so generally misunderstood that we have decided to drop it. We have no provision for payment of employees who want to absent themselves from risk of harm; instead, we have this amendment which enables employees subject to a risk of harm to get the Secretary into the situation quickly. Instead of making provisions for employees when their employer is not providing a safe workplace, we have strengthened the enforcement by this amendment provision to try and minimize the amount that employees will be subject to the risk of harm." 116 Cong.Rec. 38377-38378 (1970), Leg.Hist. 1009. [ Footnote 23 ] 116 Cong.Rec. 38715 (teller vote), 38723-38724 (roll-call vote) (1970), Leg.Hist. 1091, 1112-1115. Representative Daniels' proposed amendments were never acted upon. His original bill was voted down in favor of the Steiger bill. See 116 Cong.Rec. 38704-38705 (1970), Leg.Hist. 1064 (the Chairman and Rep. Perkins); 116 Cong.Rec. 38707 (1970), Leg.Hist 1072 (Rep. O'Hara). [ Footnote 24 ] S. 2193, 91st Cong., 2d Sess. (1970), Leg.Hist. 204-295 (bill as reported to Senate by Senate Committee on Labor and Public Welfare). See S.Rep.Leg.Hist. 141. [ Footnote 25 ] See S. 2193, supra, § 8(f)(1), Leg.Hist. 252-253. [ Footnote 26 ] "[D]espite some wide-spread contentions to the contrary, . . . the committee bill does not contain a so-called strike-with-pay provision. Rather than raising a possibility for endless disputes over whether employees were entitled to walk off the job with full pay, it was decided in committee to enhance the prospects of compliance by the employer through such means as giving the employees the right to request a special Labor Department investigation or inspection." 116 Cong.Rec. 37326 (1970), Leg.Hist. 416. [ Footnote 27 ] H.R.Conf.Rep. No. 91-1765, pp. 37-38 (1970), Leg.Hist. 1190 1191. See 29 U.S.C. § 657(f). [ Footnote 28 ] See H.R. 16785, supra, n 19, § 12(b), Leg.Hist. 956 (bill as reported to House). [ Footnote 29 ] Congress' concern necessarily was with the provision's compensation requirement. The law then, as it does today, already afforded workers a right, under certain circumstances, to walk off their jobs when faced with hazardous conditions. See 116 Cong.Rec. 42208 (1970), Leg.Hist. 12231224 (Rep. Scherle) (reference to Taft-Hartley Act). Under Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, employees have a protected right to strike over safety issues. See NLRB v. Washington Aluminum Co., 370 U. S. 9 . Similarly, Section 502 of the Labor Management Relations Act, 29 U.S.C. § 143, provides that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike." The effect of this section is to create an exception to a no-strike obligation in a collective bargaining agreement. Gateway Coal Co. v. Mine Workers, 414 U. S. 368 , 414 U. S. 385 . The existence of these statutory rights also makes clear that the Secretary's regulation does not conflict with the general pattern of federal labor legislation in the area of occupational safety and health. See also 29 CFR § 1977.18 (1979). [ Footnote 30 ] See 116 Cong.Rec. 37326 (1970), Leg.Hist. 416 (Sen. Williams); 116 Cong.Rec. 38369 (1970), Leg.Hist. 986 (Rep. Perkins); 116 Cong.Rec. 38376, 38377-38378, 38707 (1970), Leg.Hist. 1005, 1009, 1071 (Rep. Daniels); 116 Cong.Rec. 38379 (1970), Leg.Hist. 1011 (Rep. Randall); 116 Cong.Rec. 38391 (1970), Leg.Hist. 1046 (Rep. Feighan); 116 Cong.Rec. 38714 (1970), Leg.Hist. 1089 (Rep. Horton). The petitioner cites two passages in the legislative debates that, at first blush, appear to suggest that Congress was also concerned with employee walkouts not accompanied by pay. One is a statement by Representative Cohelan, a supporter of the Daniels bill, that "a comprehensive occupational safety and health program . . . must permit the worker to leave his post whenever and wherever conditions exist that endanger his health or safety." 116 Cong.Rec. 38375 (1970), Leg.Hist. 1001. The other is a statement by another Member that the Daniels bill did not authorize "strikes without pay." 116 Cong.Rec. 38708 (1970), Leg.Hist. 1075. Read in context, however, it is clear that both statements were referring to the "strike with pay" provision contained in the Daniels bill. [ Footnote 31 ] Deemer and Cornwell were clearly subjected to "discrimination" when the petitioner placed reprimands in their respective employment files. Whether the two employees were also discriminated against when they were denied pay for the approximately six hours they did not work on July 10, 1974, is a question not now before us. The District Court dismissed the complaint without indicating what relief it thought would have been appropriate had it upheld the Secretary's regulation. The Court of Appeals expressed no view concerning the limits of the relief to which the Secretary might ultimately be entitled. On remand, the District Court will reach this issue. [ Footnote 32 ] The version contained in the Daniels bill would have authorized the Secretary to issue a shutdown order of no more than five days' duration. See H.R. 16785, supra, n 19, § 12(a), Leg.Hist. 955-956 (bill as reported to the House); H.R.Rep. 25, Leg.Hist. 855. As reported to the Senate, the version contained in the Williams bill limited the permissible duration of the administrative order to 72 hours, and required that a Regional Director of the Labor Department concur in the order. S. 2193, supra, n 24, § 11(b), Leg.Hist. 263-264. See S.Rep. 12-13, Leg.Hist. 152-153; S.Rep. 56-57, Leg.Hist.195-196 (individual views of Sen. Javits). On the floor of the Senate, amendments were adopted that would have required the Labor Department official authorizing the inspector's actions to be an official appointed with the advice and consent of the Senate and that would have mandated that the employer be given prior notice of the reasons for the shutdown. 116 Cong.Rec. 37621-37622 (1970), Leg.Hist. 499-500; 116 Cong.Rec. 37624-37625 (1970), Leg.Hist. 508-509. See S. 2193, supra, n 24, § 12(b), Leg.Hist. 562-563 (bill as passed by Senate). [ Footnote 33 ] 116 Cong.Rec. 38372, 38376, 38378, 38707 (1970), Leg.Hist. 913, 1005, 1009-1010, 1011, 1071 (Rep. Daniels). As Representative Daniels explained: "[B]usiness groups have expressed great fears about the potential for abuse. They believe that the power to shut down a plant should not be vested in an inspector. While there is no documentation for this fear, we recognize that it is very prevalent. The Courts have shown their capacity to respond quickly in emergency situations, and we believe that the availability of temporary restraining orders will be sufficient to deal with emergency situations. Under the Federal rules of civil procedure, these orders can be used ex parte. If the Secretary uses the authority that he is given efficiently and expeditiously, he should be able to get a court order within a matter of minutes, rather than hours." 116 Cong.Rec. 38378 (1970), Leg.Hist. 1009-1010. [ Footnote 34 ] H.R.19200, supra, n 21, § 12, Leg.Hist. 796-798. [ Footnote 35 ] H.R.Conf.Rep. No. 91-1765, supra, n 27, at 40, Leg.Hist. 1193. [ Footnote 36 ] See 116 Cong.Rec. 35607, 37602 (1970), Leg.Hist. 299, 452-453 (Sen. Saxbe); 116 Cong.Rec. 37338 (1970), Leg.Hist. 425 (Sen. Dominick); 116 Cong.Rec. 37602 (1970), Leg.Hist. 453-454 (Sen. Schweiker); 116 Cong.Rec. 41763 (1970), Leg.Hist. 1149 (Sen. Prouty); H.R.Rep. 55-57, Leg.Hist. 885-887 (minority report); 116 Cong.Rec. 38368 (1970), Leg.Hist. 983 (Rep. Anderson); 116 Cong.Rec. 38372, 38702 (1970), Leg.Hist. 992, 1058 (Rep. Steiger) ; 116 Cong.Rec. 38378-38379 (1970), Leg.Hist. 1011-1012 (Rep. Randall); 116 Cong.Rec. 38393 (1970), Leg.Hist. 1050 (Rep. Michel); 116 Cong.Rec. 38394 (1970), Leg.Hist. 1052 (Rep. Broomfield); 116 Cong.Rec. 38704 (1970), Leg.Hist. 1062 (Rep. Sikes); 116 Cong.Rec. 38713 (1970), Leg.Hist. 1087 (Rep. Robison); 116 Cong.Rec. 42203 (1970), Leg.Hist. 1210 (Rep. Daniels). [ Footnote 37 ] See 116 Cong.Rec. 37346 (1970), Leg.Hist. 448 (Sen. Tower); H.R.Rep. 55-57, Leg.Hist. 885-887 (minority report); 116 Cong.Rec. 38393 (1970), Leg.Hist. 1050 (Rep. Michel). Some of these Members of Congress expressed particular fears over the possible pressures which might be brought to bear on an inspector during a strike.

Here is a summary of the case: In Whirlpool Corp. v. Marshall, the U.S. Supreme Court upheld an Occupational Safety and Health Administration (OSHA) regulation that allowed employees to refuse dangerous work. Two employees of Whirlpool refused to perform maintenance on a wire mesh screen due to safety concerns and were reprimanded. The Secretary of Labor sued, arguing that Whirlpool's actions violated the Occupational Safety and Health Act. The Court agreed, finding that the regulation was a valid exercise of the Secretary's authority and consistent with the Act's goal of preventing workplace deaths and injuries. The Court also noted that the regulation complemented the Act's "general duty" clause, which requires employers to provide a safe workplace. This case affirms the right of employees to prioritize their safety and the authority of OSHA to protect workers.

Labor & Employment

Connecticut v. Teal

https://supreme.justia.com/cases/federal/us/457/440/

U.S. Supreme Court Connecticut v. Teal, 457 U.S. 440 (1982) Connecticut v. Teal No. 80-2147 Argued March 29, 1982 Decided June 21, 1982 457 U.S. 440 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent black employees of a Connecticut state agency were promoted provisionally to supervisors. To attain permanent status as supervisors, they had to participate in a selection process that required, as a first step, a passing score on a written examination. Subsequently, an examination was given to 48 black and 259 white candidates. Fifty-four percent of the black candidates passed, this being approximately 68 percent of the passing rate for the white candidates. Respondent black employees failed the examination, and were thus excluded from further consideration for permanent supervisory positions. They then brought an action in Federal District Court against petitioners (the State of Connecticut and certain state agencies and officials), alleging that petitioners had violated Title VII of the Civil Rights Act of 1964 by requiring, as an absolute condition for consideration for promotion, that applicants pass a written test that disproportionately excluded blacks and was not job-related. In the meantime, before trial, petitioners made promotions from the eligibility list, the overall result being that 22.9 percent of the black candidates were promoted, but only 13.5 percent of the white candidates. Petitioners urged that this "bottom-line" result, more favorable to blacks than to whites, was a complete defense to the suit. The District Court agreed, and entered judgment for petitioners, holding that the "bottom line" percentages precluded the finding of a Title VII violation and that petitioners were not required to demonstrate that the promotional examination was job-related. The Court of Appeals reversed, holding that the District Court erred in ruling that the examination results alone were insufficient to support a prima facie case of disparate impact in violation of Title VII. Held: Petitioners' nondiscriminatory "bottom line" does not preclude respondents from establishing a prima facie case nor does it provide petitioners with a defense to such a case. Pp. 457 U. S. 445 -456. (a) Despite petitioners' nondiscriminatory "bottom line," respondents' claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under § 703(a)(2) of Title VII, which makes it an unlawful employment practice for an employer to "limit, segregate, or classify his employees" in any way which would deprive "any individual of employment Page 457 U. S. 441 opportunities" because of race, color, religion, sex, or national origin. To measure disparate impact only at the "bottom line" ignores the fact that Title VII guarantees these individual black respondents the opportunity to compete equally with white workers on the basis of job-related criteria. Respondents' rights under § 703(a)(2) have been violated unless petitioners can demonstrate that the examination in question was not an artificial, arbitrary, or unnecessary barrier, but measured skills related to effective performance as a supervisor. Pp. 457 U. S. 445 -451. (b) No special haven for discriminatory tests is offered by 703(h) of Title VII, which provides that it shall not be an unlawful employment practice for an employer to act upon results of an ability test if such test is "not designed, intended, or used to discriminate" because of race, color, religion, sex, or national origin. A non-job-related test that has a disparate impact and is used to "limit" or "classify" employees is "used to discriminate" within the meaning of Title VII, whether or not it was "designed or intended" to have this effect and despite an employer's efforts to compensate for its discriminatory effect. Pp. 457 U. S. 451 -452. (c) The principal focus of § 703(a)(2) is the protection of the individual employee, rather than the protection of the minority group as a whole. To suggest that the "bottom line" may be a defense to a claim of discrimination against an individual employee confuses unlawful discrimination with discriminatory intent. Resolution of the factual question of intent is not what is at issue in this case, but rather petitioners seek to justify discrimination against the black respondents on the basis of petitioners' favorable treatment of other members of these respondents' racial group. Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group. Pp. 457 U. S. 452 -456. 645 F.2d 133, affirmed and remanded. BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined, post, p. 457 U. S. 456 . Page 457 U. S. 442 JUSTICE BRENNAN delivered the opinion of the Court. We consider here whether an employer sued for violation of Title VII of the Civil Rights Act of 1964 [ Footnote 1 ] may assert a "bottom-line" theory of defense. Under that theory, as asserted in this case, an employer's acts of racial discrimination in promotions -- effected by an examination having disparate impact -- would not render the employer liable for the racial discrimination suffered by employes barred from promotion if the "bottom-line" result of the promotional process was an appropriate racial balance. We hold that the "bottom line" does not preclude respondent employees from establishing a prima facie case, nor does it provide petitioner employer with a defense to such a case. I Four of the respondents, Winnie Teal, Rose Walker, Edith Latney, and Grace Clark, are black employees of the Department of Income Maintenance of the State of Connecticut. [ Footnote 2 ] Page 457 U. S. 443 Each was promoted provisionally to the position of Welfare Eligibility Supervisor and served in that capacity for almost two years. To attain permanent status as supervisors, however, respondents had to participate in a selection process that required, as the first step, a passing score on a written examination. This written test was administered on December 2, 1978, to 329 candidates. Of these candidates, 48 identified themselves as black and 259 identified themselves as white. The results of the examination were announced in March, 1979. With the passing score set at 65, [ Footnote 3 ] 54.17 percent of the identified black candidates passed. This was approximately 68 percent of the passing rate for the identified white candidates. [ Footnote 4 ] The four respondents were among the blacks who failed the examination, and they were thus excluded Page 457 U. S. 444 from further consideration for permanent supervisory positions. In April, 1979, respondents instituted this action in the United States District Court for the District of Connecticut against petitioners, the State of Connecticut, two state agencies, and two state officials. Respondents alleged, inter alia, that petitioners violated Title VII by imposing, as an absolute condition for consideration for promotion, that applicants pass a written test that excluded blacks in disproportionate numbers and that was not job-related. More than a year after this action was instituted, and approximately one month before trial, petitioners made promotions from the eligibility list generated by the written examination. In choosing persons from that list, petitioners considered past work performance, recommendations of the candidates' supervisors and, to a lesser extent, seniority. Petitioners then applied what the Court of Appeals characterized as an affirmative action program in order to ensure a significant number of minority supervisors. [ Footnote 5 ] Forty-six persons were promoted to permanent supervisory positions, 11 of whom were black and 35 of whom were white. The overall result of the selection process was that, of the 48 identified black candidates who participated in the selection process, 22.9 percent were promoted and of the 259 identified white candidates, 13.5 percent were promoted. [ Footnote 6 ] It is this "bottom-line" result, more favorable to blacks than to whites, that petitioners urge should be adjudged to be a complete defense to respondents' suit. After trial, the District Court entered judgment for petitioners. App. to Pet. for Cert. 18a. The court treated respondents' claim as one of disparate impact under Griggs v. Duke Power Co., 401 U. S. 424 (1971), Albemarle Paper Co. Page 457 U. S. 445 v. Moody, 422 U. S. 405 (1975), and Dothard v. Rawlinson, 433 U. S. 321 (1977). However, the court found that, although the comparative passing rates for the examination indicated a prima facie case of adverse impact upon minorities, the result of the entire hiring process reflected no such adverse impact. Holding that these "bottom-line" percentages precluded the finding of a Title VII violation, the court held that the employer was not required to demonstrate that the promotional examination was job-related. App. to Pet. for Cert. 22a-24a, 26a. The United States Court of Appeals for the Second Circuit reversed, holding that the District Court erred in ruling that the results of the written examination alone were insufficient to support a prima facie case of disparate impact in violation of Title VII. 645 F.2d 133 (1981). The Court of Appeals stated that, where "an identifiable pass-fail barrier denies an employment opportunity to a disproportionately large number of minorities and prevents them from proceeding to the next step in the selection process," that barrier must be shown to be job-related. Id. at 138. We granted certiorari, 454 U.S. 813 (1981), and now affirm. II A We must first decide whether an examination that bars a disparate number of black employees from consideration for promotion, and that has not been shown to be job-related, presents a claim cognizable under Title VII. Section 703 (a)(2) of Title VII provides in pertinent part: "It shall be an unlawful employment practice for an employer -- " " * * * *" "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as Page 457 U. S. 446 an employee, because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, as amended, 42 U.S.C. § 2000e-2(a)(2). Respondents base their claim on our construction of this provision in Griggs v. Duke Power Co., supra. Prior to the enactment of Title VII, the Duke Power Co. restricted its black employees to the labor department. Beginning in 1965, the company required all employees who desired a transfer out of the labor department to have either a high school diploma or to achieve a passing grade on two professionally prepared aptitude tests. New employees seeking positions in any department other than labor had to possess both a high school diploma and a passing grade on these two examinations. Although these requirements applied equally to white and black employees and applicants, they barred employment opportunities to a disproportionate number of blacks. While there was no showing that the employer had a racial purpose or invidious intent in adopting these requirements, this Court held that they were invalid because they had a disparate impact and were not shown to be related to job performance: "[Title VII] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited." 401 U.S. at 401 U. S. 431 . Griggs and its progeny have established a three-part analysis of disparate impact claims. To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that "any given requirement [has] a manifest relationship to the employment in question," in order to Page 457 U. S. 447 avoid a finding of discrimination. Griggs, supra, at 401 U. S. 432 . Even in such a case, however, the plaintiff may prevail if he shows that the employer was using the practice as a mere pretext for discrimination. See Albemarle Paper Co., supra, at 457 U. S. 425 ; Dothard, supra, at 433 U. S. 329 . [ Footnote 7 ] Griggs recognized that, in enacting Title VII, Congress required "the removal of artificial, arbitrary, and unnecessary barriers to employment" and professional development that had historically been encountered by women and blacks, as well as other minorities. 401 U.S. at 401 U. S. 431 . See also Dothard v. Rawlinson, supra. [ Footnote 8 ] McDonnell-Douglas Corp. v. Green, 411 U. S. 792 (1973), explained that " Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives." Id. at 411 U. S. 806 . Page 457 U. S. 448 Petitioners' examination, which barred promotion and had a discriminatory impact on black employees, clearly falls within the literal language of § 703(a)(2), as interpreted by Griggs. The statute speaks, not in terms of jobs and promotions, but in terms of limitations and classifications that would deprive any individual of employment opportunities. [ Footnote 9 ] A disparate impact claim reflects the language of § 703(a)(2) and Congress' basic objectives in enacting that statute: "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees." 401 U.S. at 401 U. S. 429 -430 (emphasis added). When an employer uses a non-job-related barrier in order to deny a minority or woman applicant employment or promotion, and that barrier has a significant adverse effect on minorities or women, then the applicant has been deprived of an employment opportunity "because of . . . race, color, religion, sex, or national origin." In other words, § 703(a)(2) prohibits discriminatory "artificial, arbitrary, and unnecessary barriers to employment," 401 U.S. at 401 U. S. 431 , that "limit . . . or classify . . . applicants for employment . . . in any way which would deprive or tend to deprive any individual of employment opportunities. " (Emphasis added.) Relying on § 703(a)(2), Griggs explicitly focused on employment "practices, procedures, or tests," 401 U.S. at 401 U. S. 430 , that deny equal employment "opportunity," id. at 401 U. S. 431 . We concluded that Title VII prohibits "procedures or testing mechanisms that operate as built-in headwinds' for minority Page 457 U. S. 449 groups." Id. at 401 U. S. 432 . We found that Congress' primary purpose was the prophylactic one of achieving equality of employment "opportunities" and removing "barriers" to such equality. Id. at 401 U. S. 429 -430. See Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 417 . The examination given to respondents in this case surely constituted such a practice and created such a barrier. Our conclusion that § 703(a)(2) encompasses respondents' claim is reinforced by the terms of Congress' 1972 extension of the protections of Title VII to state and municipal employees. See n 8, supra. Although Congress did not explicitly consider the viability of the defense offered by the state employer in this case, the 1972 amendments to Title VII do reflect Congress' intent to provide state and municipal employees with the protection that Title VII, as interpreted by Griggs, had provided to employees in the private sector: equality of opportunity and the elimination of discriminatory barriers to professional development. The Committee Reports and the floor debates stressed the need for equality of opportunity for minority applicants seeking to obtain governmental positions. E.g., S.Rep. No. 9215, p. 10 (1971); 118 Cong.Rec. 1815 (1972) (remarks of Sen. Williams). Congress voiced its concern about the widespread use by state and local governmental agencies of "invalid selection techniques" that had a discriminatory impact. S.Rep. No. 9215, supra, at 10; H.R.Rep. No. 92-238, p. 17 (1971); 117 Cong.Rec. 31961 (1971) (remarks of Rep. Perkins). [ Footnote 10 ] Page 457 U. S. 450 The decisions of this Court following Griggs also support respondents' claim. In considering claims of disparate impact under § 703(a)(2) this Court has consistently focused on employment and promotion requirements that create a discriminatory bar to opportunities. This Court has never read § 703(a)(2) as requiring the focus to be placed instead on the overall number of minority or female applicants actually hired or promoted. Thus, Dothard v. Rawlinson, 433 U. S. 321 (1977), found that minimum statutory height and weight requirements for correctional counselors were the sort of arbitrary barrier to equal employment opportunity for women forbidden by Title VII. Although we noted in passing that women constituted 36.89 percent of the labor force and only 12. 9 percent of correctional counselor positions, our focus was not on this "bottom line." We focused instead on the disparate effect that the minimum height and weight standards had on applicants: classifying far more women than men as ineligible for employment. Id. at 433 U. S. 329 -330, and n. 12. Similarly, in Albemarle Paper Co. v. Moody, supra, the action was remanded to allow the employer to attempt to show that the tests that he had given to his employees for promotion were job-related. We did not suggest that, by promoting a sufficient number of the black employees who passed the examination, the employer could avoid this burden. See 422 U.S. at 422 U. S. 436 . See also New York Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 584 (1979) ("A prima facie violation of the Act may be established by statistical evidence showing that an employment practice has the effect of denying members of one race equal access to employment opportunities ") (emphasis added). Page 457 U. S. 451 In short, the District Court's dismissal of respondents' claim cannot be supported on the basis that respondents failed to establish a prima facie case of employment discrimination under the terms of § 703(a)(2). The suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria. Title VII strives to achieve equality of opportunity by rooting out "artificial, arbitrary, and unnecessary" employer-created barriers to professional development that have a discriminatory impact upon individuals. Therefore, respondents' rights under 703(a)(2) have been violated unless petitioners can demonstrate that the examination given was not an artificial, arbitrary, or unnecessary barrier, because it measured skills related to effective performance in the role of Welfare Eligibility Supervisor. B The United States, in its brief as amicus curiae, apparently recognizes that respondents' claim in this case falls within the affirmative commands of Title VII. But it seeks to support the District Court's judgment in this case by relying on the defenses provided to the employer in § 703(h). [ Footnote 11 ] Section 703(h) provides in pertinent part: "Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because Page 457 U. S. 452 of race, color, religion, sex or national origin." 78 Stat. 267, as amended, 42 U.S.C. 2000e-2(h). The Government argues that the test administered by the petitioners was not "used to discriminate," because it did not actually deprive disproportionate numbers of blacks of promotions. But the Government's reliance on § 703(h) as offering the employer some special haven for discriminatory tests is misplaced. We considered the relevance of this provision in Griggs. After examining the legislative history of § 703(h), we concluded that Congress, in adding § 703(h), intended only to make clear that tests that were job-related would be permissible despite their disparate impact. 401 U.S. at 401 U. S. 433 -436. As the Court recently confirmed, § 703 (h), which was introduced as an amendment to Title VII on the Senate floor, "did not alter the meaning of Title VII, but merely clarifie[d] its present intent and effect.'" American Tobacco Co. v. Patterson, 456 U. S. 63 , 456 U. S. 73 , n. 11 (1982), quoting 110 Cong.Rec. 12723 (1964) (remarks of Sen. Humphrey). A non-job-related test that has a disparate racial impact, and is used to "limit" or "classify" employees, is "used to discriminate" within the meaning of Title VII, whether or not it was "designed or intended" to have this effect and despite an employer's efforts to compensate for its discriminatory effect. See Griggs, 401 U.S. at 401 U. S. 433 . In sum, respondents' claim of disparate impact from the examination, a pass-fail barrier to employment opportunity, states a prima facie case of employment discrimination under § 703(a)(2), despite their employer's nondiscriminatory "bottom line," and that "bottom line" is no defense to this prima facie case under § 703(h). III Having determined that respondents' claim comes within the terms of Title VII, we must address the suggestion of petitioners and some amici curiae that we recognize an exception, either in the nature of an additional burden on plaintiffs Page 457 U. S. 453 seeking to establish a prima facie case or in the nature of an affirmative defense, for cases in which an employer has compensated for a discriminatory pass-fail barrier by hiring or promoting a sufficient number of black employees to reach a nondiscriminatory "bottom line." We reject this suggestion, which is, in essence, nothing more than a request that we redefine the protections guaranteed by Title VII. [ Footnote 12 ] Section 703(a)(2) prohibits practices that would deprive or tend to deprive " any individual of employment opportunities." The principal focus of the statute is the protection of the individual employee, rather than the protection of the minority Page 457 U. S. 454 group as a whole. Indeed, the entire statute and its legislative history are replete with references to protection for the individual employee. See, e.g., §§ 703(a)(1), (b), (c), 704(a), 78 Stat. 255-257, as amended, 42 U.S.C. §§ 2000e-2(a)(1), (b), (c), 2000e-3(a); 110 Cong.Rec. 7213 (1964) (interpretive memorandum of Sens. Clark and Case) ("discrimination is prohibited as to any individual"); id. at 8921 (remarks of Sen. Williams) ("Every man must be judged according to his ability. In that respect, all men are to have an equal opportunity to be considered for a particular job"). In suggesting that the "bottom line" may be a defense to a claim of discrimination against an individual employee, petitioners and amici appear to confuse unlawful discrimination with discriminatory intent. The Court has stated that a nondiscriminatory "bottom line" and an employer's good faith efforts to achieve a nondiscriminatory workforce might, in some cases, assist an employer in rebutting the inference that particular action had been intentionally discriminatory: "Proof that [a] workforce was racially balanced or that it contained a disproportionately high percentage of minority employees is not wholly irrelevant on the issue of intent when that issue is yet to be decided." Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 580 (1978). See also Teamsters v. United States, 431 U. S. 324 , 431 U. S. 340 , n. 20 (1977). But resolution of the factual question of intent is not what is at issue in this case. Rather, petitioners seek simply to justify discrimination against respondents on the basis of their favorable treatment of other members of respondents' racial group. Under Title VII, "[a] racially balanced workforce cannot immunize an employer from liability for specific acts of discrimination." Furnco Construction Corp. v. Waters, 438 U.S. at 438 U. S. 579 . "It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for each applicant regardless of race, without regard to whether Page 457 U. S. 455 members of the applicant's race are already proportionately represented in the workforce. See Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 430 ; McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 , 427 U. S. 279 (1976)." Ibid. (emphasis in original). It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees' group. We recognized in Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 (1978), that fairness to the class of women employees as a whole could not justify unfairness to the individual female employee, because the "statute's focus on the individual is unambiguous." Id. at 435 U. S. 708 . Similarly, in Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), we recognized that a rule barring employment of all married women with preschool children, if not a bona fide occupational qualification under § 703(e), violated Title VII, even though female applicants without preschool children were hired in sufficient numbers that they constituted 75 to 80 percent of the persons employed in the position plaintiff sought. Petitioners point out that Furnco, Manhart, and Phillips involved facially discriminatory policies, while the claim in the instant case is one of discrimination from a facially neutral policy. The fact remains, however, that, irrespective of the form taken by the discriminatory practice, an employer's treatment of other members of the plaintiffs' group can be "of little comfort to the victims of . . . discrimination." Teamsters v. United States, supra, at 431 U. S. 342 . Title VII does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her race or sex were hired. That answer is no more satisfactory when it is given to victims of a policy that is facially neutral but practically discriminatory. Every individual employee is protected against both discriminatory treatment Page 457 U. S. 456 and "practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 431 . Requirements and tests that have a discriminatory impact are merely some of the more subtle, but also the more pervasive, of the "practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens." McDonnell Douglas Corp. v. Green, 411 U.S. at 411 U. S. 800 . IV In sum, petitioners' nondiscriminatory "bottom line" is no answer, under the terms of Title VII, to respondents' prima facie claim of employment discrimination. Accordingly, the judgment of the Court of Appeals for the Second Circuit is affirmed, and this case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp. IV). [ Footnote 2 ] The black respondents were joined as plaintiffs by four white employees on a pendent claim that the written test violated provisions of state law that require promotional exams to be job-related. That claim is not before us. See 645 F.2d 133, 135, n. 3 (CA2 1981). [ Footnote 3 ] The mean score on the examination was 70.4 percent. However, because the black candidates had a mean score 6.7 percentage points lower than the white candidates, the passing score was set at 65, apparently in an attempt to lessen the disparate impact of the examination. See id. at 135, and n. 4. [ Footnote 4 ] The following table shows the passing rates of various candidate groups: Passing Candidate No. Receiving Rate Group Number Passing Score (%) Black 48 26 54.17 Hispanic 4 3 75.00 Indian 3 2 66.67 White 25 206 79.54 Unidentified 15 9 60.00 --- --- ----- Total 329 246 74.77 Petitioners do not contest the District Court's implicit finding that the examination itself resulted in disparate impact under the "eighty percent rule" of the Uniform Guidelines on Employee Selection Procedures adopted by the Equal Employment Opportunity Commission. See App. to Pet. for Cert. 18a, 23a, and n. 2. Those guidelines provide that a selection rate that "is less than [80 percent] of the rate for the group with the highest rate will generally be regarded . . . as evidence of adverse impact." 29 CFR § 1607.4D (1981). [ Footnote 5 ] Petitioners contest this characterization of their selection procedure. We have no need, however, to resolve this dispute in the context of the present controversy. [ Footnote 6 ] The actual promotion rate of blacks was thus close to 170 percent that of the actual promotion rate of whites. [ Footnote 7 ] Petitioners apparently argue both that the nondiscriminatory "bottom line" precluded respondents from establishing a prima facie case and, in the alternative, that it provided a defense. [ Footnote 8 ] The legislative history of the 1972 amendments to Title VII, 86 Stat. 103-113, is relevant to this case because those amendments extended the protection of the Act to respondents here by deleting exemptions for state and municipal employers. See 86 Stat. 103. That history demonstrates that Congress recognized and endorsed the disparate impact analysis employed by the Court in Griggs. Both the House and Senate Reports cited Griggs with approval, the Senate Report noting: "Employment discrimination as viewed today is a . . . complex and pervasive phenomenon. Experts familiar with the subject now generally describe the problem in terms of 'systems' and 'effects,' rather than simply intentional wrongs." S.Rep. No. 92-415, p. 5 (1971). See also H.R.Rep. No. 92-238, p. 8 (1971). In addition, the section-by-section analyses of the 1972 amendments submitted to both Houses explicitly stated that, in any area not addressed by the amendments, present case law -- which as Congress had already recognized included our then recent decision in Griggs -- was intended to continue to govern. 118 Cong.Rec. 7166, 7564 (1972). [ Footnote 9 ] In contrast, the language of § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), if it were the only protection given to employees and applicants under Title VII, might support petitioners' exclusive focus on the overall result. That subsection makes it an unlawful employment practice "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race color, religion, sex, or national origin." [ Footnote 10 ] The Committee Reports in both Houses, and Senator Williams, principal sponsor of the Senate bill that was ultimately enacted in large part, relied upon a report of the United States Commission on Civil Rights, which Senator Williams placed in the Congressional Record. See H.R.Rep. No. 92-238, p. 17 (1971); S.Rep. No. 92 415, p. 10 (1971); 118 Cong.Rec. 1815-1819 (1972). The Commission concluded that serious "[b]arriers to equal opportunity" existed for state and local government employees. Two of the three barriers cited were "recruitment and selection devices which are arbitrary, unrelated to job performance, and result in unequal treatment of minorities," and promotions made on the basis of "criteria unrelated to job performance and on discriminatory supervisory ratings." U.S. Commission on Civil Rights, For All the People . . . By All the People -- A Report on Equal Opportunity in State and Local Government Employment 119 (1969), reprinted in 118 Cong.Rec. 1817 (1972). [ Footnote 11 ] The Government's brief is submitted by the Department of Justice, which shares responsibility for federal enforcement of Title VII with the Equal Employment Opportunity Commission (EEOC). The EEOC declined to join this brief. See Brief for United States as Amicus Curiae 1, and n. [ Footnote 12 ] Petitioners suggest that we should defer to the EEOC Guidelines in this regard. But there is nothing in the Guidelines to which we might defer that would aid petitioners in this case. The most support petitioners could conceivably muster from the Uniform Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1981) (now issued jointly by the EEOC, the Office of Personnel Management, the Department of Labor, and the Department of Justice, see 29 CFR § 1607.1A (1981)), is neutrality on the question whether a discriminatory barrier that does not result in a discriminatory overall result constitutes a violation of Title VII. Section 1607.4C of the Guidelines, relied upon by petitioners, states that as a matter of " administrative and prosecutorial discretion, in usual circumstances, " the agencies will not take enforcement action based upon the disparate impact of any component of a selection process if the total selection process results in no adverse impact. (Emphasis added.) The agencies made clear that the "guidelines do not address the underlying question of law," and that an individual "who is denied the job because of a particular component in a procedure which otherwise meets the 'bottom line' standard . . . retains the right to proceed through the appropriate agencies, and into Federal court." 43 Fed.Reg. 38291 (1978). See 29 CFR § 1607.161 (1981). In addition, in a publication entitled Adoption of Questions and Answers to Clarify and Provide a Common Interpretation of the Uniform Guidelines on Employee Selection Procedures, the agencies stated: "Since the [bottom-line] concept is not a rule of law, it does not affect the discharge by the EEOC of its statutory responsibilities to investigate charges of discrimination, render an administrative finding on its investigation, and engage in voluntary conciliation efforts. Similarly, with respect to the other issuing agencies, the bottom line concept applies not to the processing of individual charges, but to the initiation of enforcement action." 44 Fed.Reg. 12000 (1979). JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting. In past decisions, this Court has been sensitive to the critical difference between cases proving discrimination under Title VII, 42 U.S.C. § 2000e et seq. (1976 ed. and Supp. IV), by a showing of disparate treatment or discriminatory intent and those proving such discrimination by a showing of disparate impact. Because today's decision blurs that distinction and results in a holding inconsistent with the very nature of disparate impact claims, I dissent. I Section 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2), provides that it is an unlawful employment practice for an employer to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or Page 457 U. S. 457 otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." Although this language suggests that discrimination occurs only on an individual basis, in Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 432 (1971), the Court held that discriminatory intent on the part of the employer against an individual need not be shown when "employment procedures or testing mechanisms . . . operate as 'built-in headwinds' for minority groups, and are unrelated to measuring job capability." Thus, the Court held that the "disparate impact" of an employer's practices on a racial group can violate § 703(a)(2) of Title VII. In Griggs and each subsequent disparate impact case, however, the Court has considered not whether the claimant as an individual had been classified in a manner impermissible under § 703(a)(2), but whether an employer's procedures have had an adverse impact on the protected group to which the individual belongs. Thus, while disparate treatment cases focus on the way in which an individual has been treated, disparate impact cases are concerned with the protected group. This key distinction was explained in Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 581 -582 (1978) (MARSHALL, J., concurring in part): "It is well established under Title VII that claims of employment discrimination because of race may arise in two different ways. Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 -336, n. 15 (1977). An individual may allege that he has been subjected to 'disparate treatment' because of his race, or that he has been the victim of a facially neutral practice having a 'disparate impact' on his racial group. [ Footnote 2/1 ] " Page 457 U. S. 458 In keeping with this distinction, our disparate impact cases consistently have considered whether the result of an employer's total selection process had an adverse impact upon the protected group. [ Footnote 2/2 ] If this case were decided by reference to the total process -- as our cases suggest that it should be -- the result would be clear. Here 22.9% of the blacks who entered the selection process were ultimately promoted, compared with only 13. 5% of the whites. To say that this selection process had an unfavorable "disparate impact" on blacks is to ignore reality. The Court, disregarding the distinction drawn by our cases, repeatedly asserts that Title VII was designed to protect individual, not group, rights. It emphasizes that some individual blacks were eliminated by the disparate impact of the preliminary test. But this argument confuses the aim of Title VII with the legal theories through which its aims were intended to be vindicated. It is true that the aim of Title VII is to protect individuals, not groups. But in advancing this commendable objective, Title VII jurisprudence has recognized two distinct methods of proof. In one set of cases -- those involving direct proof of discriminatory intent -- the plaintiff seeks to establish direct, intentional discrimination against him. In that type of case, the individual is at the forefront throughout the entire presentation of evidence. In disparate impact cases, by contrast, the plaintiff seeks to carry his burden of proof by way of inference -- by showing that an employer's selection process results in the rejection of a disproportionate number of members of a protected group Page 457 U. S. 459 to which he belongs. From such a showing, a fair inference then may be drawn that the rejected applicant, as a member of that disproportionately excluded group, was himself a victim of that process' " built-in headwinds.'" Griggs, supra, at 401 U. S. 432 . But this method of proof -- which actually defines disparate impact theory under Title VII -- invites the plaintiff to prove discrimination by reference to the group, rather than to the allegedly affected individual. [ Footnote 2/3 ] There can be no violation of Title VII on the basis of disparate impact in the absence of disparate impact on a group. [ Footnote 2/4 ] In this case, respondent black employees seek to benefit from a conflation of "discriminatory treatment" and "disparate impact" theories. But they cannot have it both ways. Having undertaken to prove discrimination by reference to one set of group figures (used at a preliminary point in the selection process), these respondents then claim that non discrimination cannot be proved by viewing the impact of the entire process on the group as a whole. The fallacy of this reasoning -- accepted by the Court -- is transparent. It is to Page 457 U. S. 460 confuse the individualistic aim of Title VII with the methods of proof by which Title VII rights may be vindicated. The respondents, as individuals, are entitled to the full personal protection of Title VII. But, having undertaken to prove a violation of their rights by reference to group figures, respondents cannot deny petitioners the opportunity to rebut their evidence by introducing figures of the same kind. Having pleaded a disparate impact case, the plaintiff cannot deny the defendant the opportunity to show that there was no disparate impact. As the Court of Appeals for the Third Circuit noted in EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 192 (1980): "[N]o violation of Title VII can be grounded on the disparate impact theory without proof that the questioned policy or practice has had a disproportionate impact on the employer's workforce. This conclusion should be as obvious as it is tautological: there can be no disparate impact unless there is [an ultimate] disparate impact." Where, under a facially neutral employment process, there has been no adverse effect on the groups -- and certainly there has been none here -- Title VII has not been infringed. II The Court's position is no stronger in case authority than it is in logic. None of the cases relied upon by the Court controls the outcome of this case. [ Footnote 2/5 ] Indeed, the disparate Page 457 U. S. 461 impact cases do not even support the propositions for which they are cited. For example, the Court cites Dothard v. Rawlinson, 433 U. S. 321 (1977) (holding impermissible minimum statutory height and weight requirements for correctional counselors), and observes that, "[a]lthough we noted in passing that women constituted 36.89 percent of the labor force and only 12.9 percent of correctional counselor positions, our focus was not on this 'bottom line.' We focused instead on the disparate effect that the minimum height and weight standards had on applicants: classifying far more women than men as ineligible for employment." Ante at 457 U. S. 450 . In Dothard, however, the Court was not considering a case in which there was any difference between the discriminatory effect of the employment standard and the number of minority members actually hired. The Dothard Court itself stated: "[T]o establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a discriminatory pattern. Once it is shown that the employment standards are discriminatory in effect, the employer must meet 'the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question.'" 433 U.S. at 433 U. S. 329 (emphasis added). The Dothard Court did not decide today's case. It addressed only a case in which the challenged standards had a discriminatory impact at the bottom line -- the hiring decision. And the Dothard Court's "focus," referred to by the Court, is of no help in deciding the instant case. [ Footnote 2/6 ] Page 457 U. S. 462 The Court concedes that the other major cases on which it relies, Furnco, Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 (1978), and Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam) "involved facially discriminatory policies, while the claim in the instant case is one of discrimination from a facially neutral policy." Ante at 457 U. S. 455 . The Court nevertheless applies the principles derived from those cases to the case at bar. It does so by reiterating the view that Title VII protects individuals, not groups, and therefore that the manner in which an employer has treated other members of a group cannot defeat the claim of an individual who has suffered as a result of even a facially neutral policy. As appealing as this sounds, it confuses the distinction -- uniformly recognized until today -- between disparate impact and disparate treatment. See supra at 457 U. S. 457 -458. Our cases, cited above, have made clear that discriminatory impact claims cannot be based on how an individual is treated in isolation from the treatment of other members of the group. Such claims necessarily are based on whether the group fares less well than other groups under a policy, practice, or test. Indeed, if only one minority member has Page 457 U. S. 463 taken a test, a disparate impact claim cannot be made, regardless of whether the test is an initial step in the selection process or one of several factors considered by the employer in making an employment decision. [ Footnote 2/7 ] III Today's decision takes a long and unhappy step in the direction of confusion. Title VII does not require that employers adopt merit hiring or the procedures most likely to permit the greatest number of minority members to be considered for or to qualify for jobs and promotions. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 258 -259 (1981); Furnco, 438 U.S. at 438 U. S. 578 . Employers need not develop tests that accurately reflect the skills of every individual candidate; there are few if any tests that do so. Yet the Court seems unaware of this practical reality, and perhaps oblivious to the likely consequences of its decision. By its holding today, the Court may force employers either to eliminate tests or rely on expensive, job-related, testing procedures, the validity of which may or may not be sustained if challenged. For state and local governmental employers with limited funds, the practical effect of today's decision may well be the adoption of simple quota hiring. [ Footnote 2/8 ] This arbitrary Page 457 U. S. 464 method of employment is itself unfair to individual applicants, whether or not they are members of minority groups. And it is not likely to produce a competent workforce. Moreover, the Court's decision actually may result in employers' employing fewer minority members. As Judge Newman noted in Brown v. New Haven Civil Service Board, 474 F. Supp. 1256 , 1263 (Conn.1979): "[A]s private parties are permitted under Title VII itself to adopt voluntary affirmative action plans, . . . Title VII should not be construed to prohibit a municipality's using a hiring process that results in a percentage of minority policemen approximating their percentage of the local population, instead of relying on the expectation that a validated job-related testing procedure will produce an equivalent result, yet with the risk that it might lead to substantially less minority hiring." Finding today's decision unfortunate in both its analytical approach and its likely consequences, I dissent. [ Footnote 2/1 ] See also Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 -336, n. 15 (1977) (similar explanation). [ Footnote 2/2 ] See Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977) (statutory height and weight requirements operated as a bar to employment of disproportionate number of women); Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 409 -411 (1975) (seniority system allegedly locked blacks into lower paying jobs; applicants to skilled lines of progression were required to pass two tests); Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 431 (1971) (tests were an absolute bar to transfers or hiring; the Court observed that all Congress requires is "the removal of artificial, arbitrary, and unnecessary barriers to employment. . . .") (emphasis added). [ Footnote 2/3 ] Initially, the plaintiff bears the burden of establishing a prima facie case that Title VII has been infringed. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 252 -253 (1981). In a disparate impact case, this burden is met by showing that an employer's selection process results in the rejection of a disproportionate number of members of a protected group. See Teamsters v. United States, supra, at 431 U. S. 336 -338. Regardless of whether the plaintiff's prima facie case must itself focus on the defendant's overall selection process or whether it is sufficient that the plaintiff establish that at least one pass-fail barrier has resulted in disparate impact, the employer's presentation of evidence showing that its overall selection procedure does not operate in a discriminatory fashion certainly dispels any inference of discrimination. In such instances, at the close of the evidence, the plaintiff has failed to show disparate impact by a preponderance of the evidence. [ Footnote 2/4 ] The Equal Employment Opportunity Commission and other federal enforcement agencies have adopted the "bottom-line" principle -- i.e., the process viewed as a whole -- in deciding when to bring an action against an employer. See Uniform Guidelines on Employee Selection Procedures, 5 CFR § 300.103(c) (1981). [ Footnote 2/5 ] The Court concentrates on cases of questionable relevance. Most of the lower courts that have squarely considered the question have concluded that there can be no violation of Title VII on a disparate impact basis when there is no disparate impact at the bottom line. See, e.g., EEOC v. Greyhound Lines, Inc., 635 F.2d 188 (CA3 1980); EEOC v. Navajo Refining Co., 593 F.2d 988 (CA10 1979); Friend v. Leidinger, 588 F.2d 61, 66 (CA4 1978); Rule v. International Assn. of Ironworkers, 568 F.2d 558 (CA8 1977); Smith v. Troyan, 520 F.2d 492, 497-498 (CA6 1975), cert. denied, 426 U.S. 934 (1976); Williams v. City & County of San Francisco, 483 F. Supp. 335 (ND Cal.1979); Brown v. New Haven Civil Service Board, 474 F. Supp. 1256 (Conn.1979); Lee v. City of Richmond, 456 F. Supp. 756 (ED Va.1978). [ Footnote 2/6 ] The Court cites language from two other disparate impact cases. The Court notes that, in Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975), the Court "remanded to allow the employer to attempt to show that the tests . . . given . . . for promotion were job-related." Ante at 457 U. S. 450 . But the fact that the Court did so without suggesting "that, by promoting a sufficient number of black employees who passed the examination, the employer could avoid this burden," ibid., can hardly be precedent for the negative of that proposition when the issue was neither presented in the facts of the case nor addressed by the Court. Similarly, New York Transit Authority v. Beazer, 440 U. S. 568 (1979), provides little support despite the language quoted by the Court. See ante at 457 U. S. 450 , quoting 440 U.S. at 440 U. S. 584 (" A prima facie violation of the Act may be established by statistical evidence showing that an employment practice has the effect of denying members of one race equal access to employment opportunities '") (emphasis added by the Court). In Beazer, the Court ruled that the statistical evidence actually presented was insufficient to establish a prima facie case of discrimination, and, in doing so, it indicated that it would have found statistical evidence of the number of applicants and employees in a methadone program quite probative. See id. at 440 U. S. 585 . Beazer therefore does not justify the Court's speculation that the number of blacks and Hispanics actually employed were irrelevant to whether a case of disparate impact had been established under Title VII. [ Footnote 2/7 ] Courts have recognized that the probative value of statistical evidence varies with sample size in disparate impact cases. See, e.g., Teamsters v. United States, 431 U.S. at 431 U. S. 340 , n. 20 ("Considerations such as small sample size may, of course, detract from the value of such evidence . . ."); Mayor of Philadelphia v. Educational Equality League, 415 U. S. 605 , 415 U. S. 621 (1974) ("[T]he District Court's concern for the smallness of the sample presented by the 13-member Panel was . . . well founded"); Rogillio v. Diamond Shamrock Chemical Co., 446 F. Supp. 423 , 427-428 (SD Tex.1978) (sample of 10 too small); Dendy v. Washington Hospital Center, 431 F. Supp. 873 , 876 (DC 1977) (sample must be "large enough to mirror the reality of the employment situation"). A sample of only one would have far too little probative value to establish a prima facie case of disparate impact. [ Footnote 2/8 ] Another possibility is that employers may integrate consideration of test results into one overall hiring decision based on that "factor" and additional factors. Such a process would not, even under the Court's reasoning, result in a finding of discrimination on the basis of disparate impact unless the actual hiring decisions had a disparate impact on the minority group. But if employers integrate test results into a single-step decision, they will be free to select only the number of minority candidates proportional to their representation in the workforce. If petitioners had used this approach, they would have been able to hire substantially fewer blacks without liability on the basis of disparate impact. The Court hardly could have intended to encourage this.

In Connecticut v. Teal (1982), the U.S. Supreme Court ruled that an employer's nondiscriminatory "bottom line" or overall result of their hiring process does not prevent employees from establishing a prima facie case of employment discrimination under Title VII of the Civil Rights Act of 1964. The case involved black employees of a Connecticut state agency who were provisionally promoted to supervisors but failed a written examination required for permanent status. Despite a higher passing rate for black candidates, the respondents (black employees) argued that the test disproportionately excluded blacks and was not job-related. The Court held that the "bottom-line" percentages of promotions (more favorable to blacks) did not preclude a finding of a Title VII violation. The Court's decision focused on the opportunity for individuals to compete equally, regardless of the ultimate "bottom-line" result. The opinion also discussed the probative value of statistical evidence in disparate impact cases and the potential for employers to manipulate hiring processes to avoid liability.

Labor & Employment

Connick v. Myers

https://supreme.justia.com/cases/federal/us/461/138/

U.S. Supreme Court Connick v. Myers, 461 U.S. 138 (1983) Connick v. Myers No. 81-1251 Argued November 8, 1982 Decided April 20, 1983 461 U.S. 138 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Respondent was employed as an Assistant District Attorney in New Orleans with the responsibility of trying criminal cases. When petitioner District Attorney proposed to transfer respondent to prosecute cases in a different section of the criminal court, she strongly opposed the transfer, expressing her view to several of her supervisors, including petitioner. Shortly thereafter, she prepared a questionnaire that she distributed to the other Assistant District Attorneys in the office concerning office transfer policy, office morale, the need for a grievance committee, the level ,of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Petitioner then informed respondent that she was being terminated for refusal to accept the transfer, and also told her that her distribution of the questionnaire was considered an act of insubordination. Respondent filed suit in Federal District Court under 42 U.S.C. § 1983 (1976 ed., Supp. V), alleging that she was wrongfully discharged because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered her reinstated, and awarded backpay, damages, and attorney's fees. Finding that the questionnaire, not the refusal to accept the transfer, was the real reason for respondent's termination, the court held that the questionnaire involved matters of public concern and that the State had not "clearly demonstrated" that the questionnaire interfered with the operation of the District Attorney's office. The Court of Appeals affirmed. Held: Respondent's discharge did not offend the First Amendment. Pp. 461 U. S. 142 -154. (a) In determining a public employee's rights of free speech, the problem is to arrive "at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U. S. 563 , 391 U. S. 568 . P. 461 U. S. 142 . (b) When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not Page 461 U. S. 139 the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Here, except for the question in respondent's questionnaire regarding pressure upon employees to work in political campaigns, the questions posed do not fall under the rubric of matters of "public concern." Pp. 461 U. S. 143 -149. (c) The District Court erred in imposing an unduly onerous burden on the State to justify respondent's discharge by requiring it to "clearly demonstrate" that the speech involved "substantially interfered" with the operation of the office. The State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression. Pp. 461 U. S. 149 -150. (d) The limited First Amendment interest involved here did not require petitioner to tolerate action that he reasonably believed would disrupt the office, undermine his authority, and destroy the close working relationships within the office. The question on the questionnaire regarding the level of confidence in supervisors was a statement that carried the clear potential for undermining office relations. Also, the fact that respondent exercised her rights to speech at the office supports petitioner's fears that the function of his office was endangered. And the fact that the questionnaire emerged immediately after a dispute between respondent and petitioner and his deputies requires that additional weight be given to petitioner's view that respondent threatened his authority to run the office. Pp. 461 U. S. 150 -154. 654 F.2d 719, reversed. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J. filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS JJ., joined, post, p. 461 U. S. 156 . Page 461 U. S. 140 JUSTICE WHITE delivered the opinion of the Court. In Pickering v. Board of Education, 391 U. S. 563 (1968), we stated that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. We also recognized that the State's interests as an employer in regulating the speech of its employees "differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. at 391 U. S. 568 . The problem, we thought, was arriving "at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Ibid. We return to this problem today and consider whether the First and Fourteenth Amendments prevent the discharge of a state employee for circulating a questionnaire concerning internal office affairs. I The respondent, Sheila Myers, was employed as an Assistant District Attorney in New Orleans for five and a half years. She served at the pleasure of petitioner Harry Connick, the District Attorney for Orleans Parish. During this period, Myers competently performed her responsibilities of trying criminal cases. In the early part of October, 1980, Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Myers was strongly opposed to the proposed transfer [ Footnote 1 ] and expressed her view to several of her supervisors, including Connick. Despite her objections, on October 6, Myers was notified that she was being transferred. Page 461 U. S. 141 Myers again spoke with Dennis Waldron, one of the First Assistant District Attorneys, expressing her reluctance to accept the transfer. A number of other office matters were discussed, and Myers later testified that, in response to Waldron's suggestion that her concerns were not shared by others in the office, she informed him that she would do some research on the matter. That night, Myers prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. [ Footnote 2 ] Early the following morning, Myers typed and copied the questionnaire. She also met with Connick, who urged her to accept the transfer. She said she would "consider" it. Connick then left the office. Myers then distributed the questionnaire to 15 Assistant District Attorneys. Shortly after noon, Dennis Waldron learned that Myers was distributing the survey. He immediately phoned Connick and informed him that Myers was creating a "mini-insurrection" within the office. Connick returned to the office and told Myers that she was being terminated because of her refusal to accept the transfer. She was also told that her distribution of the questionnaire was considered an act of insubordination. Connick particularly objected to the question which inquired whether employees "had confidence in and would rely on the word" of various superiors in the office, and to a question concerning pressure to work in political campaigns which he felt would be damaging if discovered by the press. Myers filed suit under 42 U.S.C. § 1983 (1976 ed., Supp. V), contending that her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The District Court agreed, ordered Myers reinstated, and awarded backpay, damages, and Page 461 U. S. 142 attorney's fees. 507 F. Supp. 752 (ED La.1981). [ Footnote 3 ] The District Court found that, although Connick informed Myers that she was being fired because of her refusal to accept a transfer, the facts showed that the questionnaire was the real reason for her termination. The court then proceeded to hold that Myers' questionnaire involved matters of public concern, and that the State had not "clearly demonstrated" that the survey "substantially interfered" with the operations of the District Attorney's office. Connick appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed on the basis of the District Court's opinion. 654 F.2d 719 (1981). Connick then sought review in this Court by way of certiorari, which we granted. 455 U.S. 999 (1982). II For at least 15 years, it has been settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression. Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 605 -606 (1967); Pickering v. Board of Education, 391 U. S. 563 (1968); Perry v. Sindermann, 408 U. S. 593 , 408 U. S. 597 (1972); Branti v. Finkel, 445 U. S. 507 , 445 U. S. 515 -516 (1980). Our task, as we defined it in Pickering, is to seek "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." 391 U.S. at 391 U. S. 568 . The District Court, and thus the Court of Appeals as well, misapplied our decision in Pickering, and consequently, in our view, erred in striking the balance for respondent. Page 461 U. S. 143 A The District Court got off on the wrong foot in this case by initially finding that, "[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office and are matters of public importance and concern." 507 F. Supp. at 758. Connick contends at the outset that no balancing of interests is required in this case, because Myers' questionnaire concerned only internal office matters, and that such speech is not upon a matter of "public concern," as the term was used in Pickering. Although we do not agree that Myers' communication in this case was wholly without First Amendment protection, there is much force to Connick's submission. The repeated emphasis in Pickering on the right of a public employee "as a citizen, in commenting upon matters of public concern," was not accidental. This language, reiterated in all of Pickering's progeny, [ Footnote 4 ] reflects both the historical evolvement of the rights of public employees and the common-sense realization that government offices could not function if every employment decision became a constitutional matter. [ Footnote 5 ] For most of this century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment -- including those which restricted the exercise of constitutional rights. The classic formulation of this position was that of Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: "[A policeman] may have a constitutional Page 461 U. S. 144 right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). For many years, Holmes' epigram expressed this Court's law. Adler v. Board of Education, 342 U. S. 485 (1952); Garner v. Los Angeles Bd. of Public Works, 341 U. S. 716 (1951); Public Workers v. Mitchell, 330 U. S. 75 (1947); United States v. Wurzbach, 280 U. S. 396 (1930); Ex parte Curtis, 106 U. S. 371 (1882). The Court cast new light on the matter in a series of cases arising from the widespread efforts in the 1950's and early 1960's to require public employees, particularly teachers, to swear oaths of loyalty to the State and reveal the groups with which they associated. In Wiemann v. Updegraff, 344 U. S. 183 (1952), the Court held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. In Cafeteria Workers v. McElroy, 367 U. S. 886 (1961), the Court recognized that the government could not deny employment because of previous membership in a particular party. See also Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 490 (1960); Torcaso v. Watkins, 367 U. S. 488 (1961); Cramp v. Board of Public Instruction, 368 U. S. 278 (1961). By the time Sherbert v. Verner, 374 U. S. 398 (1963), was decided, it was already "too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege." Id. at 374 U. S. 404 . It was therefore no surprise when, in Keyishian v. Board of Regents, supra, the Court invalidated New York statutes barring employment on the basis of membership in "subversive" organizations, observing that the theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, had been uniformly rejected. Id. at 385 U. S. 605 -606. In all of these cases, the precedents in which Pickering is rooted, the invalidated statutes and actions sought to suppress the rights of public employees to participate in public Page 461 U. S. 145 affairs. The issue was whether government employees could be prevented or "chilled" by the fear of discharge from joining political parties and other associations that certain public officials might find "subversive." The explanation for the Constitution's special concern with threats to the right of citizens to participate in political affairs is no mystery. The First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 476 , 354 U. S. 484 (1957); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 269 (1964). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 74 -75 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the " highest rung of the heirarchy of First Amendment values,'" and is entitled to special protection. NAACP v. Claiborne Hardware Co., 458 U. S. 886 , 458 U. S. 913 (1982); Carey v. Brown, 447 U. S. 455 , 447 U. S. 467 (1980). Pickering v. Board of Education, supra, followed from this understanding of the First Amendment. In Pickering, the Court held impermissible under the First Amendment the dismissal of a high school teacher for openly criticizing the Board of Education on its allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue. Pickering's subject was "a matter of legitimate public concern" upon which "free and open debate is vital to informed decisionmaking by the electorate." 391 U.S. at 391 U. S. 571 -572. Our cases following Pickering also involved safeguarding speech on matters of public concern. The controversy in Perry v. Sindermann, 408 U. S. 593 (1972), arose from the failure to rehire a teacher in the state college system who had testified before committees of the Texas Legislature and had become involved in public disagreement over whether the college should be elevated to 4-year status -- a change opposed by the Regents. In Mt. Healthy City Board of Ed. v. Page 461 U. S. 146 Doyle, 429 U. S. 274 (1977), a public school teacher was not rehired because, allegedly, he had relayed to a radio .station the substance of a memorandum relating to teacher dress and appearance that the school principal had circulated to various teachers. The memorandum was apparently prompted by the view of some in the administration that there was a relationship between teacher appearance and public support for bond issues, and indeed, the radio station promptly announced the adoption of the dress code as a news item. Most recently, in Givhan v. Western Line Consolidated School District, 439 U. S. 410 (1979), we held that First Amendment protection applies when a public employee arranges to communicate privately with his employer, rather than to express his views publicly. Although the subject matter of Mrs. Givhan's statements were not the issue before the Court, it is clear that her statements concerning the School District's allegedly racially discriminatory policies involved a matter of public concern. Pickering, its antecedents, and its progeny lead us to conclude that, if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. [ Footnote 6 ] When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable. Page 461 U. S. 147 Board of Regents v. Roth, 408 U. S. 564 (1972); Perry v. Sindermann, supra; Bishop v. Wood, 426 U. S. 341 , 426 U. S. 349 -350 (1976). We do not suggest, however, that Myers' speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment. "[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political. 'Great secular causes, with smaller ones, are guarded.'" Mine Workers v. Illinois Bar Assn., 389 U. S. 217 , 389 U. S. 223 (1967), quoting Thomas v. Collins, 323 U. S. 516 , 323 U. S. 531 (1945). We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction. See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Roth v. United States, supra; New York v. Ferber, 458 U. S. 747 (1982). For example, an employee's false criticism of his employer on grounds not of public concern may be cause for his discharge, but would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street. We hold only that, when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Cf. Bishop v. Wood, supra, at 426 U. S. 349 -350. Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State. Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context Page 461 U. S. 148 of a given statement, as revealed by the whole record. [ Footnote 7 ] In this case, with but one exception, the questions posed by Myers to her coworkers do not fall under the rubric of matters of "public concern." We view the questions pertaining to the confidence and trust that Myers' coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers' dispute over her transfer to another section of the criminal court. Unlike the dissent, post at 461 U. S. 163 , we do not believe these questions are of public import in evaluating the performance of the District Attorney as an elected official. Myers did not seek to inform the public that the District Attorney's Office was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo. While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myers' questions is not to evaluate the performance of the office, but rather to gather ammunition for another round of controversy with her superiors. These questions reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre. [ Footnote 8 ] Page 461 U. S. 149 To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark -- and certainly every criticism directed at a public official -- would plant the seed of a constitutional case. While, as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs. One question in Myers' questionnaire, however, does touch upon a matter of public concern. Question 11 inquires if assistant district attorneys "ever feel pressured to work in political campaigns on behalf of office supported candidates." We have recently noted that official pressure upon employees to work for political candidates not of the worker's own choice constitutes a coercion of belief in violation of fundamental constitutional rights. Branti v. Finkel, 445 U.S. at 445 U. S. 515 -516; Elrod v. Burns, 427 U. S. 347 (1976). In addition, there is a demonstrated interest in this country that government service should depend upon meritorious performance, rather than political service. CSC v. Letter Carriers, 413 U. S. 548 (1973); Public Workers v. Mitchell, 330 U. S. 75 (1947). Given this history, we believe it apparent that the issue of whether assistant district attorneys are pressured to work in political campaigns is a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal. B Because one of the questions in Myers' survey touched upon a matter of public concern and contributed to her discharge, we must determine whether Connick was justified in discharging Myers. Here the District Court again erred in imposing an unduly onerous burden on the State to justify Page 461 U. S. 150 Myers' discharge. The District Court viewed the issue of whether Myers' speech was upon a matter of "public concern" as a threshold inquiry, after which it became the government's burden to "clearly demonstrate" that the speech involved "substantially interfered" with official responsibilities. Yet Pickering unmistakably states, and respondent agrees, [ Footnote 9 ] that the State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests. [ Footnote 10 ] C The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government's legitimate purpose in "promot[ing] Page 461 U. S. 151 efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service." Ex parte Curtis, 106 U.S. at 106 U. S. 373 . As JUSTICE POWELL explained in his separate opinion in Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 168 (1974): "To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation, and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency." We agree with the District Court that there is no demonstration here that the questionnaire impeded Myers' ability to perform her responsibilities. The District Court was also correct to recognize that "it is important to the efficient and successful operation of the District Attorney's office for Assistants to maintain close working relationships with their superiors." 507 F. Supp. at 759. Connick's judgment, and apparently also that of his first assistant Dennis Waldron, who characterized Myers' actions as causing a "mini-insurrection," was that Myers' questionnaire was an act of insubordination which interfered with working relationships. [ Footnote 11 ] When close working relationships are essential to fulfilling public Page 461 U. S. 152 responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. [ Footnote 12 ] We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern. The District Court rejected Connick's position because, "[u]nlike a statement of fact which might be deemed critical of one's superiors, [Myers'] questionnaire was not a statement of fact, but the presentation and solicitation of ideas and opinions," which are entitled to greater constitutional protection because, " under the First Amendment, there is no such thing as a false idea.'" Ibid. This approach, while perhaps relevant in weighing the value of Myers' speech, bears no logical relationship to the issue of whether the questionnaire undermined office relationships. Questions, no less than forcefully stated opinions and facts, carry messages and it requires no unusual insight to conclude that the purpose, if not the likely result, of the questionnaire is to seek to precipitate a vote of no confidence in Connick and his supervisors. Thus, Question 10, which asked whether or not the Assistants had confidence in and relied on the word of five named supervisors, is a statement that carries the clear potential for undermining office relations. Also relevant is the manner, time, and place in which the questionnaire was distributed. As noted in Givhan v. Western Line Consolidated School District, 439 U.S. at 439 U. S. 415 , n. 4: "Private expression . . . may in some situations bring additional Page 461 U. S. 153 factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency's institutional efficiency may be threatened not only by the content of the employee's message, but also by the manner, time, and place in which it is delivered." Here the questionnaire was prepared and distributed at the office; the manner of distribution required not only Myers to leave her work, but others to do the same in order that the questionnaire be completed. [ Footnote 13 ] Although some latitude in when official work is performed is to be allowed when professional employees are involved, and Myers did not violate announced office policy, [ Footnote 14 ] the fact that Myers, unlike Pickering, exercised her rights to speech at the office supports Connick's fears that the functioning of his office was endangered. Finally, the context in which the dispute arose is also significant. This is not a case where an employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research. Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the transfer notice. When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view that the employee has threatened the authority of the employer to run the office. Although we accept the District Court's factual finding that Myers' reluctance to accede to the transfer order was not a sufficient cause in itself for her dismissal, and thus does not constitute a sufficient defense under Mt. Healthy Page 461 U. S. 154 City Board of Ed. v. Doyle, 429 U. S. 274 (1977), this does not render irrelevant the fact that the questionnaire emerged after a persistent dispute between Myers and Connick and his deputies over office transfer policy. III Myers' questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers' discharge therefore did not offend the First Amendment. We reiterate, however, the caveat we expressed in Pickering, 391 U.S. at 391 U. S. 569 : "Because of the enormous variety of fact situations in which critical statements by . . . public employees may be thought by their superiors . . . to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged." Our holding today is grounded in our longstanding recognition that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office. Although today the balance is struck for the government, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for the great principles of free expression if the Amendment's safeguarding of a public employee's right, as a citizen, to participate in discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here. The judgment of the Court of Appeals is Reversed. Page 461 U. S. 155 | 461 U.S. 138 app| APPENDIX TO OPINION OF THE COURT Questionnaire distributed by respondent on October 7, 1980. PLAINTIFF's EXHIBIT 2, App.191 "PLEASE TAKE THE FEW MINUTES IT WILL REQUIRE TO FILL THIS OUT. YOU CAN FREELY EXPRESS YOUR OPINION WITH ANONYMITY GUARANTEED." " ******************************************************" "1. How long have you been in the Office?" "2. Were you moved as a result of the recent transfers?" "3. Were the transfers as they effected [ sic ] you discussed with you by any superior prior to the notice of them being posted?" "4. Do you think as a matter of policy, they should have been?" "5. From your experience, do you feel office procedure regarding transfers has been fair?" "6. Do you believe there is a rumor mill active in the office?" "7. If so, how do you think it effects [ sic ] overall working performance of A.D.A. personnel?" "8. If so, how do you think it effects [ sic ] office morale?" "9. Do you generally first learn of office changes and developments through rumor?" "10. Do you have confidence in and would you rely on the word of:" "Bridget Bane" "Fred Harper" "Lindsay Larson" "Joe Meyer" "Dennis Waldron" "11. Do you ever feel pressured to work in political campaigns on behalf of office supported candidates?" "12. Do you feel a grievance committee would be a worthwhile addition to the office structure? " Page 461 U. S. 156 "14. Please feel free to express any comments or feelings you have." "THANK YOU FOR YOUR COOPERATION IN THIS SURVEY." [ Footnote 1 ] Myers' opposition was at least partially attributable to her concern that a conflict of interest would have been created by the transfer because of her participation in a counseling program for convicted defendants released on probation in the section of the criminal court to which she was to be assigned. [ Footnote 2 ] The questionnaire is reproduced as an 461 U.S. 138 app|>Appendix to this opinion. [ Footnote 3 ] Petitioner has also objected to the assessment of damages as being in violation of the Eleventh Amendment and to the award of attorney's fees. Because of our disposition of the case, we do not reach these questions. [ Footnote 4 ] See Perry v. Sindermann, 408 U. S. 593 , 408 U. S. 598 (1972); Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274 , 429 U. S. 284 (1977); Givhan v. Western Line Consolidated School District, 439 U. S. 410 , 439 U. S. 414 (1979). [ Footnote 5 ] The question of whether expression is of a kind that is of legitimate concern to the public is also the standard in determining whether a common law action for invasion of privacy is present. See Restatement (Second) of Torts § 652D (1977). See also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975) (action for invasion of privacy cannot be maintained when the subject matter of the publicity is matter of public record); Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 387 -388 (1967). [ Footnote 6 ] See Clark v. Holmes, 474 F.2d 928 (CA7 1972), cert. denied, 411 U.S. 972 (1973); Schmidt v. Fremont County School Dist., 558 F.2d 982, 984 (CA10 1977). [ Footnote 7 ] The inquiry into the protected status of speech is one of law, not fact. See n 10, infra. [ Footnote 8 ] This is not a case like Givhan, where an employee speaks out as a citizen on a matter of general concern, not tied to a personal employment dispute, but arranges to do so privately. Mrs. Givhan's right to protest racial discrimination -- a matter inherently of public concern -- is not forfeited by her choice of a private forum. 439 U.S. at 439 U. S. 415 -416. Here, however, a questionnaire not otherwise of public concern does not attain that status because its subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest. The dissent's analysis of whether discussions of office morale and discipline could be matters of public concern is beside the point -- it does not answer whether this questionnaire is such speech. [ Footnote 9 ] See Brief for Respondent 9 ("These factors, including the degree of the 'importance' of plaintiff's speech, were proper considerations to be weighed in the Pickering balance"); Tr. of Oral Arg. 30 (counsel for respondent) ("I certainly would not disagree that the content of the questionnaire, whether it affects a matter of great public concern or only a very narrow internal matter, is a relevant circumstance to be weighed in the Pickering analysis"). [ Footnote 10 ] "The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they [are] made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect." Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 (1946) (footnote omitted). Because of this obligation, we cannot "avoid making an independent constitutional judgment on the facts of the case." Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 190 (1964) (opinion of BRENNAN, J.). See Edwards v. South Carolina, 372 U. S. 229 , 372 U. S. 235 (1963); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 285 (1964); NAACP v. Claiborne Hardware Co., 458 U. S. 886 , 458 U. S. 915 -916, n. 50 (1982). [ Footnote 11 ] Waldron testified that from what he had learned of the events on October 7, Myers "was trying to stir up other people not to accept the changes [transfers] that had been made on the memorandum and that were to be implemented." App. 167. In his view, the questionnaire was a "final act of defiance" and that, as a result of Myers' action, "there were going to be some severe problems about the changes." Ibid. Connick testified that he reached a similar conclusion after conducting his own investigation. "After I satisfied myself that not only wasn't she accepting the transfer, but that she was affirmatively opposing it and disrupting the routine of the office by this questionnaire. I called her in . . . [and dismissed her]." Id. at 130. [ Footnote 12 ] Cf. Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 460 U. S. 52 , n. 12 (1983) (proof of future disruption not necessary to justify denial of access to nonpublic forum on grounds that the proposed use may disrupt the property's intended function); Greer v. Spock, 424 U. S. 828 (1976) (same). [ Footnote 13 ] The record indicates that some, though not all, of the copies of the questionnaire were distributed during lunch. Employee speech which transpires entirely on the employee's own time, and in nonwork areas of the office, bring different factors into the Pickering calculus, and might lead to a different conclusion. Cf. NLRB v. Magnavox Co., 415 U. S. 322 (1974). [ Footnote 14 ] The violation of such a rule would strengthen Connick's position. See Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. at 429 U. S. 284 . JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. Sheila Myers was discharged for circulating a questionnaire to her fellow Assistant District Attorneys seeking information about the effect of petitioner's personnel policies on employee morale and the overall work performance of the District Attorney's Office. The Court concludes that her dismissal does not violate the First Amendment, primarily because the questionnaire addresses matters that, in the Court's view, are not of public concern. It is hornbook law, however, that speech about "the manner in which government is operated or should be operated" is an essential part of the communications necessary for self-governance the protection of which was a central purpose of the First Amendment. Mills v. Alabama, 384 U. S. 214 , 384 U. S. 218 (1966). Because the questionnaire addressed such matters and its distribution did not adversely affect the operations of the District Attorney's Office or interfere with Myers' working relationship with her fellow employees, I dissent. I The Court correctly reaffirms the long-established principle that the government may not constitutionally compel persons to relinquish their First Amendment rights as a condition of public employment. E.g., Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 605 -606 (1967); Pickering v. Board of Education, 391 U. S. 563 , 391 U. S. 568 (1968); Perry v. Sindermann, 408 U. S. 593 , 408 U. S. 597 (1972). Pickering held that the First Amendment protects the rights of public employees "as citizens to comment on matters of public interest" in connection with the operation of the government agencies for which they work. 391 U.S. at 391 U. S. 568 . We recognized, however, that the Page 461 U. S. 157 government has legitimate interests in regulating the speech of its employees that differ significantly from its interests in regulating the speech of people generally. Ibid. We therefore held that the scope of public employees' First Amendment rights must be determined by balancing "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Ibid. The balancing test articulated in Pickering comes into play only when a public employee's speech implicates the government's interests as an employer. When public employees engage in expression unrelated to their employment while away from the workplace, their First Amendment rights are, of course, no different from those of the general public. See id. at 391 U. S. 574 . Thus, whether a public employee's speech addresses a matter of public concern is relevant to the constitutional inquiry only when the statements at issue -- by virtue of their content or the context in which they were made -- may have an adverse impact on the government's ability to perform its duties efficiently. [ Footnote 2/1 ] The Court's decision today is flawed in three respects. First, the Court distorts the balancing analysis required under Pickering by suggesting that one factor, the context in which a statement is made, is to be weighed twice -- first in Page 461 U. S. 158 determining whether an employee's speech addresses a matter of public concern and then in deciding whether the statement adversely affected the government's interest as an employer. See ante at 461 U. S. 147 -148, 461 U. S. 152 -153. Second, in concluding that the effect of respondent's personnel policies on employee morale and the work performance of the District Attorney's Office is not a matter of public concern, the Court impermissibly narrows the class of subjects on which public employees may speak out without fear of retaliatory dismissal. See ante at 461 U. S. 148 -149. Third, the Court misapplies the Pickering balancing test in holding that Myers could constitutionally be dismissed for circulating a questionnaire addressed to at least one subject that was "a matter of interest to the community," ante at 461 U. S. 149 , in the absence of evidence that her conduct disrupted the efficient functioning of the District Attorney's Office. II The District Court summarized the contents of respondent's questionnaire as follows: "Plaintiff solicited the views of her fellow Assistant District Attorneys on a number of issues, including office transfer policies and the manner in which information of that nature was communicated within the office. The questionnaire also sought to determine the views of Assistants regarding office morale, the need for a grievance committee, and the level of confidence felt by the Assistants for their supervisors. Finally, the questionnaire inquired as to whether the Assistants felt pressured to work in political campaigns on behalf of office-supported candidates." 507 F. Supp. 752 , 758 (ED La.1981). After reviewing the evidence, the District Court found that, "[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office, and are matters of public importance and concern." Ibid. The Court of Appeals affirmed on the basis of Page 461 U. S. 159 the District Court's findings and conclusions. 654 F.2d 719 (CA5 1981). The Court nonetheless concludes that Myers' questions about the effect of petitioner's personnel policies on employee morale and overall work performance are not "of public import in evaluating the performance of the District Attorney as an elected official." Ante at 461 U. S. 148 . In so doing, it announces the following standard: "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement. . . ." Ante at 461 U. S. 147 -148. The standard announced by the Court suggests that the manner and context in which a statement is made must be weighed on both sides of the Pickering balance. It is beyond dispute that how and where a public employee expresses his views are relevant in the second half of the Pickering inquiry -- determining whether the employee's speech adversely affects the government's interests as an employer. The Court explicitly acknowledged this in Givhan v. Western Line Consolidated School District, 439 U. S. 410 (1979), where we stated that, when a public employee speaks privately to a supervisor, "the employing agency's institutional efficiency may be threatened not only by the content of the . . . message but also by the manner, time, and place in which it is delivered." Id. at 439 U. S. 415 , n. 4. But the fact that a public employee has chosen to express his views in private has nothing whatsoever to do with the first half of the Pickering calculus -- whether those views relate to a matter of public concern. This conclusion is implicit in Givhan's holding that the freedom of speech guaranteed by the First Amendment is not "lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public." 439 U.S. at 439 U. S. 415 -416. The Court seeks to distinguish Givhan on the ground that speech protesting racial discrimination is "inherently of public concern." Ante at 461 U. S. 148 , n. 8. In so doing, it suggests that there are two classes of speech of public concern: statements "of public import" because of their content, form, and context, Page 461 U. S. 160 and statements that, by virtue of their subject matter, are "inherently of public concern." In my view, however, whether a particular statement by a public employee is addressed to a subject of public concern does not depend on where it was said or why. The First Amendment affords special protection to speech that may inform public debate about how our society is to be governed -- regardless of whether it actually becomes the subject of a public controversy. [ Footnote 2/2 ] "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Page 461 U. S. 161 Louisiana, 379 U. S. 64 , 379 U. S. 74 -75 (1964). "The maintenance of the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 (1931). We have long recognized that one of the central purposes of the First Amendment's guarantee of freedom of expression is to protect the dissemination of information on the basis of which members of our society may make reasoned decisions about the government. Mills v. Alabama, 384 U.S. at 384 U. S. 218 -219; New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 269 -270 (1964). See A. Meiklejohn, Free Speech and Its Relation to Self-Government 22-27 (1948). "No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny." Saxbe v. Washington Post Co., 417 U. S. 843 , 417 U. S. 862 (1974) (POWELL, J., dissenting). Unconstrained discussion concerning the manner in which the government performs its duties is an essential element of the public discourse necessary to informed self-government. "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes." Mills v. Alabama, supra, at 384 U. S. 218 -219 (emphasis added). Page 461 U. S. 162 The constitutionally protected right to speak out on governmental affairs would be meaningless if it did not extend to statements expressing criticism of governmental officials. In New York Times Co. v. Sullivan, supra, we held that the Constitution prohibits an award of damages in a libel action brought by a public official for criticism of his official conduct absent a showing that the false statements at issue were made with " actual malice.'" 376 U.S. at 376 U. S. 279 -280. We stated there that the First Amendment expresses "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Id. at 376 U. S. 270 . See Garrison v. Louisiana, supra, at 379 U. S. 76 . In Pickering we held that the First Amendment affords similar protection to critical statements by a public school teacher directed at the Board of Education for whom he worked. 391 U.S. at 391 U. S. 574 . In so doing, we recognized that "free and open debate" about the operation of public schools "is vital to informed decisionmaking by the electorate." Id. at 391 U. S. 571 -572. We also acknowledged the importance of allowing teachers to speak out on school matters. "Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal." Id. at 391 U. S. 572 . See also Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 228 (1974) (MARSHALL, J., dissenting) (describing "[t]he importance of Government employees' being assured of their right to freely comment on the conduct of Government, to inform the public of abuses of power and of the misconduct of their superiors . . . "). Page 461 U. S. 163 Applying these principles, I would hold that Myers' questionnaire addressed matters of public concern because it discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which the Orleans Parish District Attorney, an elected official charged with managing a vital governmental agency, discharges his responsibilities. The questionnaire sought primarily to obtain information about the impact of the recent transfers on morale in the District Attorney's Office. It is beyond doubt that personnel decisions that adversely affect discipline and morale may ultimately impair an agency's efficient performance of its duties. See Arnett v. Kennedy, supra, at 416 U. S. 168 (opinion of POWELL, J.). Because I believe the First Amendment protects the right of public employees to discuss such matters so that the public may be better informed about how their elected officials fulfill their responsibilities, I would affirm the District Court's conclusion that the questionnaire related to matters of public importance and concern. The Court's adoption of a far narrower conception of what subjects are of public concern seems prompted by its fears that a broader view "would mean that virtually every remark -- and certainly every criticism directed at a public official -- would plant the seed of a constitutional case." Ante at 461 U. S. 149 . Obviously, not every remark directed at a public official by a public employee is protected by the First Amendment. [ Footnote 2/3 ] But deciding whether a particular matter is of public concern is an inquiry that, by its very nature, is a sensitive one for judges charged with interpreting a constitutional provision intended to put "the decision as to what views shall be Page 461 U. S. 164 voiced largely into the hands of each of us. . . ." Cohen v. California, 403 U. S. 15 , 403 U. S. 24 (1971). [ Footnote 2/4 ] The Court recognized the sensitive nature of this determination in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), which held that the scope of the constitutional privilege in defamation cases turns on whether or not the plaintiff is a public figure, not on whether the statements at issue address a subject of public concern. In so doing, the Court referred to the "difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of 'general or public interest' and which do not," and expressed "doubt [about] the wisdom of committing this task to the conscience of judges." Id. at 418 U. S. 346 . See also Rosenbloom v. Metromedia, Inc., 403 U. S. 29 , 403 U. S. 79 (1971) (MARSHALL, J., dissenting). In making such a delicate inquiry, we must bear in mind that "the citizenry is the final judge of the proper conduct of public business." Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 , 420 U. S. 495 (1975). The Court's decision ignores these precepts. Based on its own narrow conception of which matters are of public concern, the Court implicitly determines that information concerning Page 461 U. S. 165 employee morale at an important government office will not inform public debate. To the contrary, the First Amendment protects the dissemination of such information so that the people, not the courts, may evaluate its usefulness. The proper means to ensure that the courts are not swamped with routine employee grievances mischaracterized as First Amendment cases is not to restrict artificially the concept of "public concern," but to require that adequate weight be given to the public's important interests in the efficient performance of governmental functions and in preserving employee discipline and harmony sufficient to achieve that end. See Part 461 U. S. infra. [ Footnote 2/5 ] Page 461 U. S. 166 III Although the Court finds most of Myers' questionnaire unrelated to matters of public interest, it does hold that one question -- asking whether Assistants felt pressured to work in political campaigns on behalf of office-supported candidates -- addressed a matter of public importance and concern. The Court also recognizes that this determination of public interest must weigh heavily in the balancing of competing interests required by Pickering. Having gone that far, however, the Court misapplies the Pickering test and holds -- against our previous authorities -- that a public employer's mere apprehension that speech will be disruptive justifies suppression of that speech when all the objective evidence suggests that those fears are essentially unfounded. Pickering recognized the difficulty of articulating "a general standard against which all . . . statements may be judged," 391 U.S. at 391 U. S. 569 ; it did, however, identify a number of factors that may affect the balance in particular cases. Those relevant here are whether the statements are directed to persons with whom the speaker "would normally be in contact in the course of his daily work"; whether they had an adverse effect on "discipline by immediate superiors or harmony among coworkers"; whether the employment relationship in question is "the kind . . . for which it can persuasively Page 461 U. S. 167 be claimed that personal loyalty and confidence are necessary to their proper functioning;" and whether the statements "have in any way either impeded [the employee's] proper performance of his daily duties . . . or . . . interfered with the regular operation of the [office]." Id. at 391 U. S. 568 -573. In addition, in Givhan, we recognized that, when the statements in question are made in private to an employee's immediate supervisor, "the employing agency's institutional efficiency may be threatened not only by the content of the . . . message, but also by the manner, time, and place in which it is delivered." 439 U.S. at 439 U. S. 415 , n. 4. See supra at 461 U. S. 159 . The District Court weighed all of the relevant factors identified by our cases. It found that petitioner failed to establish that Myers violated either a duty of confidentiality or an office policy. 507 F, Supp. at 758-759. Noting that most of the copies of the questionnaire were distributed during lunch, it rejected the contention that the distribution of the questionnaire impeded Myers' performance of her duties, and it concluded that "Connick has not shown any evidence to indicate that the plaintiff's work performance was adversely affected by her expression." Id. at 754-755, 759 (emphasis supplied). The Court accepts all of these findings. See ante at 461 U. S. 151 . It concludes, however, that the District Court failed to give adequate weight to the context in which the questionnaire was distributed and to the need to maintain close working relationships in the District Attorney's Office. In particular, the Court suggests the District Court failed to give sufficient weight to the disruptive potential of Question 10, which asked whether the Assistants had confidence in the word of five named supervisors. Ante at 461 U. S. 152 . The District Court, however, explicitly recognized that this was petitioner's "most forceful argument"; but after hearing the testimony of four of the five supervisors named in the question, it found that the question had no adverse effect on Myers' relationship with her superiors. 507 F. Supp. at 759. Page 461 U. S. 168 To this the Court responds that an employer need not wait until the destruction of working relationships is manifest before taking action. In the face of the District Court's finding that the circulation of the questionnaire had no disruptive effect, the Court holds that respondent may be dismissed because petitioner "reasonably believed [the action] would disrupt the office, undermine his authority, and destroy close working relationships." Ante at 461 U. S. 154 . Even though the District Court found that the distribution of the questionnaire did not impair Myers' working relationship with her supervisors, the Court bows to petitioner's judgment because, "[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Ante at 461 U. S. 151 -152. Such extreme deference to the employer's judgment is not appropriate when public employees voice critical views concerning the operations of the agency for which they work. Although an employer's determination that an employee's statements have undermined essential working relationships must be carefully weighed in the Pickering balance, we must bear in mind that "the threat of dismissal from public employment is . . . a potent means of inhibiting speech." Pickering, 391 U.S. at 391 U. S. 574 . See Keyishian v. Board of Regents, 385 U.S. at 385 U. S. 604 . If the employer's judgment is to be controlling, public employees will not speak out when what they have to say is critical of their supervisors. In order to protect public employees' First Amendment right to voice critical views on issues of public importance, the courts must make their own appraisal of the effects of the speech in question. In this regard, our decision in Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969), is controlling. Tinker arose in a public school, a context similar to the one in which the present case arose in that the determination of the scope of the Constitution's guarantee of freedom of speech required consideration of the "special Page 461 U. S. 169 characteristics of the . . . environment" in which the expression took place. See id. at 393 U. S. 506 . At issue was whether public high school students could constitutionally be prohibited from wearing black armbands in school to express their opposition to the Vietnam conflict. The District Court had ruled that such a ban "was reasonable because it was based upon [school officials'] fear of a disturbance from the wearing of armbands." Id. at 393 U. S. 508 . We found that justification inadequate, because, "in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Ibid. We concluded: "In order for the State . . . to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained." Id. at 393 U. S. 509 (emphasis supplied) (quoting Burnside v. Byars, 363 F.2d 744, 749 (CA5 1966)). Because the speech at issue addressed matters of public importance, a similar standard should be applied here. After reviewing the evidence, the District Court found that "it cannot be said that the defendant's interest in promoting the efficiency of the public services performed through his employees was either adversely affected or substantially impeded by plaintiff's distribution of the questionnaire." 507 F. Supp. at 759. Based on these findings, the District Court concluded that the circulation of the questionnaire was protected by the First Amendment. The District Court applied the proper legal standard and reached an acceptable accommodation between the competing interests. I would affirm its decision and the judgment of the Court of Appeals. Page 461 U. S. 170 IV The Court's decision today inevitably will deter public employees from making critical statements about the manner in which government agencies are operated for fear that doing so will provoke their dismissal. As a result, the public will be deprived of valuable information with which to evaluate the performance of elected officials. Because protecting the dissemination of such information is an essential function of the First Amendment, I dissent. [ Footnote 2/1 ] Although the Court's opinion states that, "if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge," ante at 461 U. S. 146 (footnote omitted), I do not understand it to imply that a governmental employee's First Amendment rights outside the employment context are limited to speech on matters of public concern. To the extent that the Court's opinion may be read to suggest that the dismissal of a public employee for speech unrelated to a subject of public interest does not implicate First Amendment interests, I disagree, because our cases establish that public employees enjoy the full range of First Amendment rights guaranteed to members of the general public. Under the balancing test articulated in Pickering, however, the government's burden to justify such a dismissal may be lighter. See 461 U.S. 138 fn2/4|>n. 4, infra. [ Footnote 2/2 ] Although the parties offered no evidence on whether the subjects addressed by the questionnaire were, in fact, matters of public concern, extensive local press coverage shows that the issues involved are of interest to the people of Orleans Parish. Shortly after the District Court took the case under advisement, a major daily newspaper in New Orleans carried a 7-paragraph story describing the questionnaire, the events leading to Myers' dismissal, and the filing of this action. The Times-Picayune/The States-Item, Dec. 6, 1980, section 1, p. 21, col. 1. The same newspaper also carried a 16-paragraph story when the District Court ruled in Myers' favor, Feb. 11, 1981, section 1, p. 15, col. 2; a 14-paragraph story when the Court of Appeals affirmed the District Court's decision, July 28, 1981, section 1, p. 11, col. 1; a 12-paragraph story when this Court granted Connick's petition for certiorari, Mar. 9, 1982, section 1, p. 15, col. 5.; and a 17-paragraph story when we heard oral argument, Nov. 9, 1982, section 1, p. 13, col. 5. In addition, matters affecting the internal operations of the Orleans Parish District Attorney's Office often receive extensive coverage in the same newspaper. For example, The Times-Picayune/The States-Item carried a lengthy story reporting that the agency moved to "plush new offices," and describing in detail the "privacy problem" faced by Assistant District Attorneys because the office was unable to obtain modular furniture with which to partition its new space. Jan. 25, 1981, section 8, p. 13, col. 1. It also carried a 16-paragraph story when a committee of the Louisiana State Senate voted to prohibit petitioner from retaining a public relations specialist. July 9, 1982, section 1, p. 14, col. 1. In light of the public's interest in the operations of the District Attorney's Office in general, and in the dispute between the parties in particular, it is quite possible that, contrary to the Court's view, ante at 461 U. S. 148 -149, Myers' comments concerning morale and working conditions in the office would actually have engaged the public's attention had she stated them publicly. Moreover, as a general matter, the media frequently carry news stories reporting that personnel policies in effect at a government agency have resulted in declining employee morale and deteriorating agency performance. [ Footnote 2/3 ] Perhaps the simplest example of a statement by a public employee that would not be protected by the First Amendment would be answering "No" to a request that the employee perform a lawful task within the scope of his duties. Although such a refusal is "speech," which implicates First Amendment interests, it is also insubordination, and as such it may serve as the basis for a lawful dismissal. [ Footnote 2/4 ] Indeed, it has been suggested that "a classification that bases the right to First Amendment protection on some estimate of how much general interest there is in the communication is surely in conflict with the whole idea of the First Amendment." T. Emerson, The System of Freedom of Expression 554 (1970). The degree to which speech is of interest to the public may be relevant in determining whether a public employer may constitutionally be required to tolerate some degree of disruption resulting from its utterance. See ante at 461 U. S. 152 . In general, however, whether a government employee's speech is of "public concern" must be determined by reference to the broad conception of the First Amendment's guarantee of freedom of speech found necessary by the Framers "to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 (1940) (footnote omitted). See Wood v. Georgia, 370 U. S. 375 , 370 U. S. 388 (1962). [ Footnote 2/5 ] The Court's narrow conception of which matters are of public interest is also inconsistent with the broad view of that concept articulated in our cases dealing with the constitutional limits on liability for invasion of privacy. In Time, Inc. v. Hill, 385 U. S. 374 (1967), we held that a defendant may not constitutionally be held liable for an invasion of privacy resulting from the publication of a false or misleading report of "matters of public interest" in the absence of proof that the report was published with knowledge of its falsity or reckless disregard for its truth. Id. at 385 U. S. 389 -391. In that action, Hill had sought damages resulting from the publication of an allegedly false report that a new play portrayed the experience of him and his family when they were held hostage in their home in a publicized incident years earlier. We entertained "no doubt that . . . the opening of a new play linked to an actual incident, is a matter of public interest." Id. at 385 U. S. 388 . See also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975) (holding that a radio station could not constitutionally be held liable for broadcasting the name of a rape victim, because the victim's name was contained in public records). Our discussion in Time, Inc. v. Hill of the breadth of the First Amendment's protections is directly relevant here: "The guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government. One need only pick up any newspaper or magazine to comprehend the vast range of published matter which exposes persons to public view, both private citizens and public officials. . . ." "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." " Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 . No suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking expression." " Bridges v. California, 314 U. S. 252 , 314 U. S. 269 ." 385 U.S. at 385 U. S. 388 . The quoted passage makes clear that, contrary to the Court's view, ante at 461 U. S. 143 , n. 5, the subjects touched upon in respondent's questionnaire fall within the broad conception of "matters of public interest" that defines the scope of the constitutional privilege in invasion of privacy cases. See Restatement (Second) of Torts § 652D, Comment j (1977): "The scope of a matter of legitimate concern to the public is not limited to 'news,' in the sense of reports of current events or activities. It extends also to the use of names, likenesses or facts in giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published."

In Connick v. Myers, the Supreme Court held that a public employee speaking as an employee on matters of personal interest, rather than as a citizen on matters of public concern, has limited free speech rights. The Court ruled that the questionnaire distributed by the respondent, an Assistant District Attorney, primarily addressed internal office issues rather than matters of public concern, and thus, her termination did not violate the First Amendment. The Court emphasized the distinction between matters of public concern and internal office affairs in determining the scope of a public employee's free speech rights.

Labor & Employment

Shaw v. Delta Air Lines, Inc.

https://supreme.justia.com/cases/federal/us/463/85/

U.S. Supreme Court Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) Shaw v. Delta Air Lines, Inc. No. 81-1578 Argued January 10, 1983 Decided June 24, 1983 463 U.S. 85 ast|>* 463 U.S. 85 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus New York's Human Rights Law forbids discrimination in employee benefit plans on the basis of pregnancy, and its Disability Benefits Law requires employers to pay sick-leave benefits to employees unable to work because of pregnancy. Section 514(a) of the federal Employee Retirement Income Security Act of 1974 (ERISA) provides, with enumerated exceptions, that ERISA shall supersede "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of employee benefits. Prior to the effective date of the Pregnancy Discrimination Act of 1978 (PDA), which made discrimination based on pregnancy unlawful under Title VII of the Civil Rights Act of 1964, appellee employers had welfare benefit plans subject to ERISA that did not provide benefits to employees disabled by pregnancy. Appellees brought three separate declaratory judgment actions in Federal District Court, alleging that the Human Rights Law was preempted by ERISA. Appellee airlines also alleged that the Disability Benefits Law was preempted. The District Court in each case held that the Human Rights Law was preempted, at least insofar as it required the provision of pregnancy benefits prior to the effective date of the PDA. As to appellee airlines' challenge to the Disability Benefits Law, the District Court construed § 4(b)(3) of ERISA as exempting from ERISA coverage those provisions of an employee benefit plan maintained to comply with state disability insurance laws, and, because it concluded that appellees would have provided pregnancy benefits solely to comply with the Disability Benefits Law, the court dismissed the portion of the complaint seeking relief from that law. The Court of Appeals affirmed as to the Human Page 463 U. S. 86 Rights Law. With respect to the Disability Benefits Law, the Court of Appeals held that § 4(b)(3)'s exemption from preemption applied only when a benefit plan, "as an integral unit," is maintained solely to comply with the disability law. The Court of Appeals remanded for a determination whether appellee airlines provided benefits through such plans, in which event the Disability Benefits Law would be enforceable, or through portions of comprehensive plans, in which case ERISA regulation would be exclusive. Held: 1. Given § 514(a)'s plain language, and ERISA's structure and legislative history, both the Human Rights Law and the Disability Benefits Law "relate to any employee benefit plan" within the meaning of § 514(a). Pp. 463 U. S. 95 -100. 2. The Human Rights Law is preempted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under federal law. Pp. 463 U. S. 100 -106. (a) Section 514(d) of ERISA provides that § 514(a) shall not "be construed to . . . modify [or] impair . . . any law of the United States." To the extent that the Human Rights Law provides a means of enforcing Title VII's commands, preemption of the Human Rights Law would modify and impair federal law within the meaning of § 514(d). State fair employment laws and administrative remedies play a significant role in the federal enforcement scheme under Title VII. If ERISA were interpreted to preempt the Human Rights Law entirely with respect to covered benefit plans, the State no longer could prohibit employment practices relating to such plans and the state agency no longer would be authorized to grant relief. The Equal Employment Opportunity Commission thus would be unable to refer claims involving covered plans to the state agency. This would frustrate the goal of encouraging joint state/federal enforcement of Title VII. Pp. 463 U. S. 100 -102. (b) Insofar as state laws prohibit employment practices that are lawful under Title VII, however, preemption would not impair Title VII within the meaning of § 514(d). While § 514(d) may operate to exempt state laws upon which federal laws, such as Title VII, depend for their enforcement, the combination of Congress' enactment of § 514(a)'s all-inclusive preemption provision and its enumeration of narrow, specific exceptions to that provision militate against expanding § 514(d) into a more general saving clause. Section 514(d)'s limited legislative history is entirely consistent with Congress' goal of ensuring that employers would not face conflicting or inconsistent state and local regulation of employee benefit plans. Pp. 463 U. S. 103 -106. 3. The Disability Benefits Law is not preempted by ERISA. Pp. 463 U. S. 106 -108. Page 463 U. S. 87 (a) Section 4(b)(3) of ERISA, which exempts from ERISA coverage "any employee benefit plan . . . maintained solely for the purpose of complying with applicable . . . disability insurance laws," excludes "plans," not portions of plans, from ERISA coverage. Hence, those portions of appellee airlines' multibenefit plans maintained to comply with the Disability Benefits Law are not exempt from ERISA and are not subject to state regulation. Section 4(b)(3)'s use of the word "solely" demonstrates that the purpose of the entire plan must be to comply with an applicable disability insurance law. Thus, only separately administered disability plans maintained solely to comply with the Disability Benefits Law are exempt from ERISA coverage under § 4(b)(3). Pp. 463 U. S. 106 -108. (b) A State may require an employer to maintain a separate disability plan, but the fact that state law permits employers to meet their state law obligations by including disability benefits in a multibenefit ERISA plan does not make the state law wholly unenforceable as to employers who choose that option. P. 463 U. S. 108 . 650 F.2d 1287 and 666 F.2d 21; and 666 F.2d 27 and 666 F.2d 26, affirmed in part, vacated in part, and remanded. BLACKMUN, J., delivered the opinion for a unanimous Court. Page 463 U. S. 88 JUSTICE BLACKMUN delivered the opinion of the Court. New York's Human Rights Law forbids discrimination in employment, including discrimination in employee benefit plans on the basis of pregnancy. The State's Disability Benefits Law requires employers to pay sick leave benefits to employees unable to work because of pregnancy or other nonoccupational disabilities. The question before us is whether these New York laws are preempted by the federal Employee Retirement Income Security Act of 1974. I A The Human Rights Law, N.Y. Exec. Law §§ 290-301 (McKinney 1982 and Supp.1982-1983), is a comprehensive antidiscrimination statute prohibiting, among other practices, employment discrimination on the basis of sex. § 296.1 (a). [ Footnote 1 ] The New York Court of Appeals has held that a private employer whose employee benefit plan treats pregnancy differently from other nonoccupational disabilities engages in sex discrimination within the meaning of the Human Rights Law. Brooklyn Union Gas Co. v. New York State Human Rights Appeal Board, 41 N.Y.2d 84, 359 N.E.2d 393 (1976). In contrast, two weeks before the decision in Brooklyn Union Gas, this Court ruled that discrimination based on pregnancy was not sex discrimination under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, Page 463 U. S. 89 42 U.S.C. § 2000e et seq. General Electric Co. v. Gilbert, 429 U. S. 125 (1976). [ Footnote 2 ] Congress overcame the Gilbert ruling by enacting § 1 of the Pregnancy Discrimination Act of 1978, 92 Stat. 2076, 42 U.S.C. § 2000e(k) (1976 ed., Supp. V), which added subsection (k) to § 701 of the Civil Rights Act of 1964. [ Footnote 3 ] See Newport News Shipbuilding an Dry Dock Co. v. EEOC, 462 U. S. 669 , 462 U. S. 678 (1983). Until that Act took effect on April 29, 1979, see § 2(b), 92 Stat. 2076, the Human Rights Law in this respect had a reach broader than Title VII. The Disability Benefits Law, N.Y.Work.Comp.Law §§ 200-242 (McKinney 1965 and Supp.1982-1983), requires employers to pay certain benefits to employees unable to work because of nonoccupational injuries or illness. Disabled employees generally are entitled to receive the lesser of $95 per week or one-half their average weekly wage, for a maximum of 26 weeks in any 1-year period. §§ 204.2, 205.1. Until August 1977, the Disability Benefits Law provided that employees were not entitled to benefits for pregnancy-related disabilities. § 205.3 (McKinney 1965). From August, 1977, to June, 1981, employers were required to provide eight weeks of benefits for pregnancy-related disabilities. Page 463 U. S. 90 1977 N.Y. Laws, ch. 675, § 29 (formerly codified as N.Y.Work.Comp. Law § 205.3). This limitation was repealed in 1981, see 1981 N.Y. Laws, ch. 352, § 2, and the Disability Benefits Law now requires employers to provide the same benefits for pregnancy as for any other disability. [ Footnote 4 ] B The federal Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq. (1976 ed. and Supp. V), subjects to federal regulation plans providing employees with fringe benefits. ERISA is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans. See Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U. S. 359 , 446 U. S. 361 -362 (1980); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 , 451 U. S. 510 (1981). The term "employee benefit plan" is defined as including both pension plans and welfare Page 463 U. S. 91 plans. [ Footnote 5 ] The statute imposes participation, funding, and vesting requirements on pension plans. §§ 201-306, 29 U.S.C. §§ 1051-1086 (1976 ed. and Supp. V). It also sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension and welfare plans. §§ 101-111, 401-414, 29 U.S.C. §§ 10211031, 1101-1114 (1976 ed. and Supp. V). ERISA does not mandate that employers provide any particular benefits, and does not itself proscribe discrimination in the provision of employee benefits. Section 514(a) of ERISA, 29 U.S.C. § 1144(a), preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. [ Footnote 6 ] State laws regulating insurance, banking, or securities are exempt from this preemption provision, as are generally applicable state criminal laws. §§ 514(b)(2)(A) and (b)(4), 29 U.S.C. §§ 1144(b)(2)(A) and (b)(4). Section 514(d), 29 U.S.C. § 1144(d), moreover, provides that "[n]othing in this title shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States . . . or any rule or regulation issued under any such law." And § 4(b)(3) Page 463 U. S. 92 of ERISA, 29 U.S.C. § 1003(b)(3), exempts from ERISA coverage employee benefit plans that are "maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws." II Appellees in this litigation, Delta Air Lines, Inc., and other airlines (Airlines), Burroughs Corporation (Burroughs), and Metropolitan Life Insurance Company (Metropolitan), provided their employees with various medical and disability benefits through welfare plans subject to ERISA. These plans, prior to the effective date of the Pregnancy Discrimination Act, did not provide benefits to employees disabled by pregnancy as required by the New York Human Rights Law and the State's Disability Benefits Law. Appellees brought three separate federal declaratory judgment actions against appellant state agencies and officials, [ Footnote 7 ] alleging that the Human Rights Law was preempted by ERISA. The Airlines in their action alleged that the Disability Benefits Law was similarly preempted. [ Footnote 8 ] The United States District Court in each case held that the Human Rights Law was preempted, at least insofar as it Page 463 U. S. 93 required the provision of pregnancy benefits prior to the effective date of the Pregnancy Discrimination Act. [ Footnote 9 ] With respect to the Airlines' challenge to the Disability Benefits Law, the District Court construed § 4(b)(3) of ERISA as exempting from the federal statute "those provisions of an employee plan which are maintained to comply with" state disability insurance laws. Delta Air Lines, Inc. v. Kramarsky, 485 F. Supp. 300 , 307 (SDNY 1980). Because it concluded that the Airlines would have provided pregnancy benefits solely to comply with the Disability Benefits Law, the court dismissed the portion of their complaint seeking relief from that law. The United States Court of Appeals for the Second Circuit affirmed as to the Human Rights Law. Delta Air Lines, Inc. v. Kramarsky, 666 F.2d 21 (1981); Metropolitan Life Page 463 U. S. 94 Insurance Co. v. Kramarsky, 666 F.2d 26 (1981); Burroughs Corp. v. Kramarsky, 666 F.2d 27 (1981). [ Footnote 10 ] Relying on this Court's decision in Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 (1981), and on its own ruling in Pervel Industries, Inc. v. Connecticut Commission on Human Rights & Opportunities, 603 F.2d 214 (1979), order aff'g, 468 F. Supp. 490 (Conn.1978), cert. denied, 444 U.S. 1031 (1980), the court held that § 514(a) of ERISA operated to preempt the Human Rights Law, and that § 514(d) did not save that law from preemption. [ Footnote 11 ] With respect to the Disability Benefits Law, the Court of Appeals had concluded earlier that § 4(b)(3)'s exemption from preemption applied only when a benefit plan, "as Page 463 U. S. 95 an integral unit," is maintained solely to comply with a disability law. Delta Air Lines, Inc. v. Kramarsky, 650 F.2d 1287, 1304 (1981). The court remanded for inquiries into whether the Airlines provided disability benefits through plans constituting separate administrative units, in which event the Disability Benefits Law would be enforceable, or through portions of comprehensive benefit plans, in which case ERISA regulation would be exclusive. Because courts have disagreed about the scope of ERISA's preemption provisions, [ Footnote 12 ] and because of the continuing importance of the issues presented, [ Footnote 13 ] we noted probable jurisdiction in all three cases. 456 U.S. 924 (1982). III In deciding whether a federal law preempts a state statute, our task is to ascertain Congress' intent in enacting the federal statute at issue. "Preemption may be either express or implied, and 'is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose.' Jones v. Rath Packing Co., 430 U. S. 519 , 430 U. S. 525 (1977)." Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 , 458 U. S. 152 -153 (1982). See Exxon Corp. v. Eagerton , 462 U.S. Page 463 U. S. 96 176, 462 U. S. 180 -182 (1983); Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190 , 461 U. S. 203 -204 (1983). In these cases, we address the scope of several provisions of ERISA that speak expressly to the question of preemption. The issues are whether the Human Rights Law and Disability Benefits Law "relate to" employee benefit plans within the meaning of § 514(a), see n 6, supra, and, if so, whether any exception in ERISA saves them from preemption. [ Footnote 14 ] We have no difficulty in concluding that the Human Rights Law and Disability Benefits Law "relate to" employee benefit plans. The breadth of § 514(a)'s preemptive reach is apparent from that section's language. [ Footnote 15 ] A law "relates to" an Page 463 U. S. 97 employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan. [ Footnote 16 ] Employing this definition, the Human Rights Law, which prohibits employers from structuring their employee benefit plans in a manner that discriminates on the basis of pregnancy, and the Disability Benefits Law, which requires employers to pay employees specific benefits, clearly "relate to" benefit plans. [ Footnote 17 ] We must give effect to this plain language unless there is good reason to believe Congress intended the language to have some more restrictive meaning. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102 , 447 U. S. 108 (1980); see North Dakota v. United States, 460 U. S. 300 , Page 463 U. S. 98 460 U. S. 312 (1983); Dickerson v. New Banner Institute, Inc., 460 U. S. 103 , 460 U. S. 110 (1983). In fact, however, Congress used the words "relate to" in § 514(a) in their broad sense. To interpret § 514(a) to preempt only state laws specifically designed to affect employee benefit plans would be to ignore the remainder of § 514. It would have been unnecessary to exempt generally applicable state criminal statutes from preemption in § 514(b), for example, if § 514(a) applied only to state laws dealing specifically with ERISA plans. Nor, given the legislative history, can § 514(a) be interpreted to preempt only state laws dealing with the subject matters covered by ERISA -- reporting, disclosure, fiduciary responsibility, and the like. The bill that became ERISA originally contained a limited preemption clause, applicable only to state laws relating to the specific subjects covered by ERISA. [ Footnote 18 ] The Conference Committee rejected these provisions in favor of the present language, and indicated that the section's preemptive scope was as broad as its language. See H.R.Conf.Rep. No. 93-1280, p. 383 (1974); S.Conf.Rep. No. 93-1090, p. 383 (1974). [ Footnote 19 ] Statements by the bill's Page 463 U. S. 99 sponsors during the subsequent debates stressed the breadth of federal preemption. Representative Dent, for example, stated: "Finally, I wish to make note of what is, to many, the crowning achievement of this legislation, the reservation to Federal authority the sole power to regulate the field of employee benefit plans. With the preemption of the field, we round out the protection afforded participants by eliminating the threat of conflicting and inconsistent State and local regulation." 120 Cong.Rec. 29197 (1974). Senator Williams echoed these sentiments: "It should be stressed that, with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law." Id. at 29933. [ Footnote 20 ] Page 463 U. S. 100 Given the plain language of § 514(a), the structure of the Act, and its legislative history, we hold that the Human Rights Law and the Disability Benefits Law "relate to any employee benefit plan" within the meaning of ERISA's § 514(a). [ Footnote 21 ] IV We next consider whether any of the narrow exceptions to § 514(a) saves these laws from preemption. A Appellants argue that the Human Rights Law is exempt from preemption by § 514(d), which provides that § 514(a) Page 463 U. S. 101 shall not "be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States." According to appellants, preemption of state fair employment laws would impair and modify Title VII because it would change the means by which it is enforced. State laws obviously play a significant role in the enforcement of Title VII. See, e.g., Kremer v. Chemical Construction Corp., 456 U. S. 461 , 456 U. S. 468 -469, 456 U. S. 472 , 456 U. S. 477 (1982); id. at 456 U. S. 504 (dissenting opinion); New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 , 447 U. S. 63 -65 (1980). Title VII expressly preserves nonconflicting state laws in its § 708: "Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title." 78 Stat. 262, 42 U.S.C. § 2000e-7. [ Footnote 22 ] Moreover, Title VII requires recourse to available state administrative remedies. When an employment practice prohibited by Title VII is alleged to have occurred in a State or locality which prohibits the practice and has established an Page 463 U. S. 102 agency to enforce that prohibition, the Equal Employment Opportunity Commission (EEOC) refers the charges to the state agency. The EEOC may not actively process the charges "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." § 706(c), 86 Stat. 104, 42 U.S.C. § 2000e-5(c); see Love v. Pullman Co., 404 U. S. 522 (1972). In its subsequent proceedings, the EEOC accords "substantial weight" to the state administrative determination. § 706(b), 86 Stat. 104, 42 U.S.C. § 2000e-5(b). Given the importance of state fair employment laws to the federal enforcement scheme, preemption of the Human Rights Law would impair Title VII to the extent that the Human Rights Law provides a means of enforcing Title VII's commands. Before the enactment of ERISA, an employee claiming discrimination in connection with a benefit plan would have had his complaint referred to the New York State Division of Human Rights. If ERISA were interpreted to preempt the Human Rights Law entirely with respect to covered benefit plans, the State no longer could prohibit the challenged employment practice, and the state agency no longer would be authorized to grant relief. The EEOC thus would be unable to refer the claim to the state agency. This would frustrate the goal of encouraging joint state/federal enforcement of Title VII; an employee's only remedies for discrimination prohibited by Title VII in ERISA plans would be federal ones. Such a disruption of the enforcement scheme contemplated by Title VII would, in the words of § 514(d), "modify" and "impair" federal law. [ Footnote 23 ] Page 463 U. S. 103 Insofar as state laws prohibit employment practices that are lawful under Title VII, however, preemption would not impair Title VII within the meaning of § 514(d). Although Title VII does not itself prevent States from extending their nondiscrimination laws to areas not covered by Title VII, see § 708, 78 Stat. 262, 42 U.S.C. § 2000e-7, it in no way depends on such extensions for its enforcement. Title VII would prohibit precisely the same employment practices, and be enforced in precisely the same manner, even if no State made additional employment practices unlawful. Quite simply, Title VII is neutral on the subject of all employment practices it does not prohibit. [ Footnote 24 ] We fail to see how federal Page 463 U. S. 104 law would be impaired by preemption of a state law prohibiting conduct that federal law permitted. ERISA's structure and legislative history, while not particularly illuminating with respect to § 514(d), caution against applying it too expansively. As we have detailed above, Congress applied the principle of preemption "in its broadest sense to foreclose any non-Federal regulation of employee benefit plans," creating only very limited exceptions to preemption. 120 Cong.Rec. 29197 (1974) (remarks of Rep. Dent); see id. at 29933 (remarks of Sen. Williams). Sections 4(b)(3) and 514(b), which list specific exceptions, do not refer to state fair employment laws. While § 514(d) may operate to exempt provisions of state laws upon which federal laws depend for their enforcement, the combination of Congress' enactment of an all-inclusive preemption provision and its enumeration of narrow, specific exceptions to that provision makes us reluctant to expand § 514(d) into a more general saving clause. The references to employment discrimination in the legislative history of ERISA provide no basis for an expansive construction of § 514(d). During floor debates, Senator Mondale questioned whether the Senate bill should be amended to require nondiscrimination in ERISA plans. Senator Williams replied that no such amendment was necessary or desirable. He noted that Title VII already prohibited discrimination in benefit plans, and stated: "I believe that the thrust toward centralized administration of nondiscrimination in employment must be maintained. And I believe this can be done by the Equal Employment Opportunity Commission under terms of existing law." 119 Cong.Rec. 30409 (1973). Senator Mondale, "with the understanding that nondiscrimination in pension and profit-sharing plans is fully required under the Equal Employment Opportunity Act," id. at 30410, chose not to offer a nondiscrimination amendment. This colloquy was repeated on the floor of the House by Representatives Abzug and Dent. 120 Cong.Rec. 4726 (1974). Page 463 U. S. 105 These exchanges demonstrate only the obvious: that § 514(d) does not preempt federal law. The speakers referred to federal law, the EEOC, and the need for centralized enforcement. The limited legislative history dealing with § 514(d) is entirely consistent with Congress' goal of ensuring that employers would not face "conflicting or inconsistent State and local regulation of employee benefit plans," 120 Cong.Rec. 29933 (1974) (remarks of Sen. Williams). Congress might well have believed, had it considered the precise issue before us, that ERISA plans should be subject only to the nondiscrimination provisions of Title VII, and not also to state laws prohibiting other forms of discrimination. By establishing benefit plan regulation "as exclusively a federal concern," Alessi v. Raybestos-Manhattan, Inc., 451 U.S. at 451 U. S. 523 , Congress minimized the need for interstate employers to administer their plans differently in each State in which they have employees. [ Footnote 25 ] We recognize that our interpretation of § 514(d) as requiring partial preemption of state fair employment laws may cause certain practical problems. Courts and state agencies, rather than considering whether employment practices are Page 463 U. S. 106 unlawful under a broad state law, will have to determine whether they are prohibited by Title VII. If they are not, the state law will be superseded and the agency will lack authority to act. It seems more than likely, however, that state agencies and courts are sufficiently familiar with Title VII to apply it in their adjudicative processes. Many States look to Title VII law as a matter of course in defining the scope of their own laws. [ Footnote 26 ] In any event, these minor practical difficulties do not represent the kind of "impairment" or "modification" of federal law that can save a state law from preemption under § 514(d). To the extent that our construction of ERISA causes any problems in the administration of state fair employment laws, those problems are the result of congressional choice, and should be addressed by congressional action. To give § 514(d) the broad construction advocated by appellants would defeat the intent of Congress to provide comprehensive preemption of state law. B The Disability Benefits Law presents a different problem. Section 514(a) of ERISA preempts state laws that relate to benefit plans "described in section 4(a) and not exempt under section 4(b)." Consequently, while the Disability Benefits Law plainly is a state law relating to employee benefit plans, it is not preempted if the plans to which it relates are exempt from ERISA under § 4(b). Section 4(b)(3) exempts "any employee benefit plan . . . maintained solely for the purpose of complying with applicable . . . disability insurance laws." The Disability Benefits Law is a "disability insurance law," of course; the difficulty is that at least some of the benefit Page 463 U. S. 107 plans offered by the Airlines provide benefits not required by that law. The question is whether, with respect to those among the Airlines using multibenefit plans, the Disability Benefits Law's requirement that employers provide particular benefits remains enforceable. As the Court of Appeals recognized, § 4(b)(3) excludes "plans," not portions of plans, from ERISA coverage; those portions of the Airlines' multibenefit plans maintained to comply with the Disability Benefits Law, therefore, are not exempt from ERISA, and are not subject to state regulation. There is no reason to believe that Congress used the word "plan" in § 4(b) to refer to individual benefits offered by an employee benefit plan. To the contrary, § 4(b)(3)'s use of the word "solely" demonstrates that the purpose of the entire plan must be to comply with an applicable disability insurance law. As the Court noted in Alessi, plans that not only provide benefits required by such a law, but also "more broadly serve employee needs as a result of collective bargaining," are not exempt. 451 U.S. at 451 U. S. 523 , n. 20. The test is not one of the employer's motive -- any employer could claim that it provided disability benefits altruistically, to attract good employees, or to increase employee productivity, as well as to obey state law -- but whether the plan, as an administrative unit, provides only those benefits required by the applicable state law. Any other rule, it seems to us, would make little sense. Under the District Court's approach, for which appellants argue here, one portion of a multibenefit plan would be subject only to state regulation, while other portions would be exclusively within the federal domain. An employer with employees in several States would find its plan subject to a different jurisdictional pattern of regulation in each State, depending on what benefits the State mandated under disability, workmen's compensation, and unemployment compensation laws. The administrative impracticality of permitting mutually exclusive pockets of federal and state Page 463 U. S. 108 jurisdiction within a plan is apparent. We see no reason to torture the plain language of § 4(b)(3) to achieve this result. Only separately administered disability plans maintained solely to comply with the Disability Benefits Law are exempt from ERISA coverage under § 4(b)(3). This is not to say, however, that the Airlines are completely free to circumvent the Disability Benefits Law by adopting plans that combine disability benefits inferior to those required by that law with other types of benefits. Congress surely did not intend, at the same time it preserved the role of state disability laws, to make enforcement of those laws impossible. A State may require an employer to maintain a disability plan complying with state law as a separate administrative unit. Such a plan would be exempt under § 4(b)(3). The fact that state law permits employers to meet their state law obligations by including disability insurance benefits in a multibenefit ERISA plan, see N.Y. Work.Comp.Law App. § 355.6 (McKinney Supp.1982-1983), does not make the state law wholly unenforceable as to employers who choose that option. In other words, while the State may not require an employer to alter its ERISA plan, it may force the employer to choose between providing disability benefits in a separately administered plan and including the state-mandated benefits in its ERISA plan. If the State is not satisfied that the ERISA plan comports with the requirements of its disability insurance law, it may compel the employer to maintain a separate plan that does comply. The Court of Appeals erred, therefore, in holding that appellants are not at all free to enforce the Disability Benefits Law against those appellees that provide disability benefits as part of multibenefit plans. V We hold that New York's Human Rights Law is preempted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under federal law. To Page 463 U. S. 109 this extent, the judgments of the Court of Appeals are affirmed. To the extent the Court of Appeals held any more of the Human Rights Law preempted, we vacate its judgments and remand the cases. We further hold that the Disability Benefits Law is not preempted by ERISA, although New York may not enforce its provisions through regulation of ERISA-covered benefit plans. We therefore vacate the Court of Appeals' judgment in the Airlines' case on this ground and remand that case for further proceedings consistent with this opinion. No costs are allowed. It s so ordered. * Together with Shaw, Acting Commissioner, New York State Division of Human Rights v. Burroughs Corp.; and Shaw, Acting Commissioner, New York State Division of Human Rights, et al. v. Metropolitan Life Insurance Co., also on appeal from the same court ( see this Court's Rule 10.6). [ Footnote 1 ] Section 296.1 (McKinney 1982) provides: "1. It shall be an unlawful discriminatory practice:" "(a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sex, or disability, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." [ Footnote 2 ] The New York court in Brooklyn Union Gas noted the Gilbert decision, but declined to follow it in interpreting the analogous provision of the Human Rights Law. 41 N.Y.2d at 86, n. 1, 359 N.E.2d at 395, n. 1. Most state courts have done the same. See Minnesota Mining & Manufacturing Co. v. State, 289 N.W.2d 396 , 399, n. 2 (Minn.1979) (collecting cases), appeal dism'd, 444 U.S. 1041 (1980). [ Footnote 3 ] Subsection (k) provides in relevant part: "The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise." [ Footnote 4 ] The current version of the Disability Benefits Law provides in relevant part: "§ 204. Disability during employment" "1. Disability benefits shall be payable to an eligible employee for disabilities . . . beginning with the eighth consecutive day of disability and thereafter during the continuance of disability, subject to the limitations as to maximum and minimum amounts and duration and other conditions and limitations in this section and in sections two hundred five and two hundred six. . . ." "2. The weekly benefit which the disabled employee is entitled to receive for disability commencing on or after July first, nineteen hundred seventy-four shall be one-half of the employee's average weekly wage, but in no case shall such benefit exceed ninety-five dollars nor be less than twenty dollars; except that, if the employee's average weekly wage is less than twenty dollars, his benefit shall be such average weekly wage. . . ." "§ 205. Disabilities and disability periods for which benefits are not payable" "No employee shall be entitled to benefits under this article:" "1. For more than twenty-six weeks during a period of fifty-two consecutive calendar weeks or during any one period of disability." [ Footnote 5 ] ERISA § 3(3), 29 U.S.C. § 1002(3). An "employee pension benefit plan" provides income deferral or retirement income. § 3(2), 29 U.S.C. § 1002(2). An "employee welfare benefit plan" includes any program that provides benefits for contingencies such as illness, accident, disability, death, or unemployment. § 3(1), 29 U.S.C. § 1002(1). [ Footnote 6 ] Section 514(a) provides: "Except as provided in subsection (b) of this section, the provisions of this title and title IV shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b)." The term "State law" includes "all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." § 514(c)(1), 29 U.S.C. § 1144(c)(1). The term "State" includes "a State, any political subdivisions thereof, or any agency or instrumentality of either, which purports to regulate, directly or indirectly, the terms and conditions of employee benefit plans covered by this title." § 514(c)(2), 29 U.S.C. § 1144(c)(2). [ Footnote 7 ] The Airlines brought their action in the United States District Court for the Southern District of New York and named as defendants the New York State Division of Human Rights, the Division's Commissioner, the Division's General Counsel, the New York State Workmen's Compensation Board, and the Board's Chairman. App. 28. Burroughs brought its action in the Western District of New York against only the Commissioner of the Division of Human Rights. Id. at 81. Metropolitan, suing in the Southern District of New York, named the Commissioner, the Division, and the New York State Human Rights Appeal Board. Id. at 88. [ Footnote 8 ] The Airlines also contended that the Human Rights Law and Disability Benefits Law were preempted by the Railway Labor Act, 45 U.S.C. § 151 et seq.; the Equal Pay Act, 29 U.S.C. § 206(d); Exec.Order No. 11246, 3 CFR 339 (1964-1965 Comp.); and Title VII. These claims were resolved against the Airlines, see Delta Air Lines, Inc. v. Kramarsky, 666 F.2d 21, 26, n. 2 (CA2 1981); Delta Air Lines, Inc. v. Kramarsky, 650 F.2d 1287, 1296-1302 (CA2 1981), and are not before us. [ Footnote 9 ] The opinion in the Airlines' case is reported as Delta Air Lines Inc. v. Kramarsky, 485 F. Supp. 300 (SDNY 1980); the District Court opinions in the two other cases are not reported. In the Airlines' case, the District Court enjoined appellants from enforcing the Human Rights Law against the Airlines' benefit plans with respect to the period from December 20, 1976 (the date of the New York Court of Appeals' decision in Brooklyn Union Gas ) to April 29, 1979 (the effective date of the federal Pregnancy Discrimination Act). See App. to Juris.Statement A75. As of the latter date, the court held, the Airlines' claims for relief were moot, because federal law required the Airlines to include pregnancy disabilities in their employee benefit plans. 485 F. Supp. at 302. In Burroughs' case, the District Court enjoined prosecution of Burroughs for its refusal to compensate New York employees for pregnancy-related disability claims between January 1, 1975 (the effective date of ERISA) and April 1, 1979 (which the court mistakenly believed to be the effective date of the Pregnancy Discrimination Act). App. to Juris.Statement A103-A104. In Metropolitan's case, the District Court enjoined enforcement of the Human Rights Law with respect to employee benefit plans subject to ERISA. The court's order was not limited to pregnancy benefits, and did not refer specifically to any time period. Id. at A119-A120. The cases, of course, are not moot with respect to the period before the effective date of the Pregnancy Discrimination Act, since enforcement of the Human Rights Law would subject appellees to liability. [ Footnote 10 ] The three cases were not consolidated on appeal, but were argued the same day. The court treated the Airlines' appeal as the "lead" case. [ Footnote 11 ] Initially, the Court of Appeals had reversed the District Courts' holdings that ERISA preempted the Human Rights Law. Delta Air Lines, Inc. v. Kramarsky, 650 F.2d 1287 (1981); Burroughs Corp. v. Kramarsky, 650 F.2d 1308 (1981); Metropolitan Life Insurance Co. v. Kramarsky, 650 F.2d 1309 (1981). Although Pervel ordinarily would have been controlling, the court concluded that it was bound by this Court's dismissals, for want of a substantial federal question, of the appeals in Minnesota Mining & Manufacturing Co. v. State, 289 N.W.2d 396 (Minn.1979), appeal dism'd, 444 U.S. 1041 (1980), and Mountain States Telephone & Telegraph Co. v. Commissioner of Labor & Industry, 187 Mont. 22, 608 P.2d 1047 (1979), appeal dism'd, 445 U.S. 921 (1980). In those cases, the state courts had determined that state fair employment laws similar to the Human Rights Law were not preempted by ERISA. The Court of Appeals observed that this Court had denied certiorari in Pervel, which reached the opposite result, only a week before dismissing the appeal in Minnesota Mining. Understandably viewing this sequence of events as "rather mystifying," 650 F.2d at 1296, the court noted that dismissals of appeals are binding precedents for the lower courts, see Hicks v. Miranda, 422 U. S. 332 , 422 U. S. 343 -345, and n. 14 (1975), while denials of certiorari have no precedential force. After this Court's decision in Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 (1981), the Court of Appeals granted rehearing and returned to its Pervel reasoning, holding that Alessi was a "doctrinal development," see Hicks v. Miranda, 422 U.S. at 422 U. S. 344 -345, that warranted departure from the precedent set by the Court's summary dispositions. 666 F.2d at 25-26. [ Footnote 12 ] See Minnesota Mining & Manufacturing Co. v. State, supra; Mountain States Telephone & Telegraph Co. v. Commissioner of Labor & Industry, supra; see also Bucyrus-Erie Co. v. Department of Industry, Labor & Human Relations, 599 F.2d 205 (CA7 1979), cert. denied, 444 U.S. 1031 (1980). [ Footnote 13 ] Under the Pregnancy Discrimination Act, the kind of discrimination at issue here is now unlawful regardless of state law. The controversy about the Human Rights Law has not thereby become less significant, however; the Human Rights Law and other state fair employment laws may contain proscriptions broader than Title VII in other respects, see, e.g., N.Y. Exec. Law. § 296.1(a) (McKinney 1982) (prohibiting discrimination in employment based on marital status), and there is uncertainty about whether state fair employment laws may be enforced to the extent they prohibit the same practices as Title VII. [ Footnote 14 ] The Court's decision today in Franchise Tax Board v. Construction Laborers Vacation Trust, ante, p. 463 U. S. 1 , does not call into question the lower courts' jurisdiction to decide these cases. Franchise Tax Board was an action seeking a declaration that state laws were not preempted by ERISA. Here, in contrast, companies subject to ERISA regulation seek injunctions against enforcement of state laws they claim are preempted by ERISA, as well as declarations that those laws are preempted. It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. See Ex parte Young, 209 U. S. 123 , 209 U. S. 160 -162 (1908). A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve. See Smith v. Kansas City Title & Trust Co., 255 U. S. 180 , 255 U. S. 199 -200 (1921); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 , 211 U. S. 152 (1908); see also Franchise Tax Board, ante at 463 U. S. 19 -22, and n. 20; Note, Federal Jurisdiction over Declaratory Suits Challenging State Action, 79 Colum.L.Rev. 983, 996-1000 (1979). This Court, of course, frequently has resolved preemption disputes in a similar jurisdictional posture. See, e.g., Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978); Jones v. Rath Packing Co., 430 U. S. 519 (1977); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963); Hines v. Davidowitz, 312 U. S. 52 (1941). [ Footnote 15 ] The Court recently considered § 514(a) in Alessi, supra. In that case, a New Jersey statute prohibited a method of computing pension benefits which, the Court found, Congress intended to permit when it enacted ERISA. Finding that Congress "meant to establish pension plan regulation as exclusively a federal concern," 451 U.S. at 451 U. S. 523 , and that the New Jersey law "eliminates one method for calculating pension benefits -- integration -- that is permitted by federal law," id. at 451 U. S. 524 , the Court held that the law was preempted. The Court relied not on § 514(a)'s language and legislative history, but on the state law's frustration of congressional intent. That kind of tension is not present in these cases; while federal law did not prohibit pregnancy discrimination during the relevant period, Congress, in enacting ERISA, demonstrated no desire to permit it. Alessi's recognition of the exclusive federal role in regulating benefit plans, therefore, is instructive, but not dispositive. See also Franchise Tax Board v. Construction Laborers Vacation Trust, ante at 463 U. S. 24 , n. 26 (describing § 514(a) as a "virtually unique preemption provision"); Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 , 438 U. S. 248 , n. 21 (1978) (dictum). [ Footnote 16 ] See Black's Law Dictionary 1158 (5th ed.1979) ("Relate. To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with"). See also Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U. S. 689 , 289 U. S. 695 (1933). [ Footnote 17 ] Accord, Bucyrus-Erie Co. v. Department of Industry, Labor & Human Relations, 599 F.2d at 208-210; Pervel Industries, Inc. v. Connecticut Commission on Human Rights & Opportunities, 468 F. Supp. 490 , 492 (Conn.1978), affirmance order, 603 F.2d 214 (CA2 1979), cert. denied, 444 U.S. 1031 (1980). Of course, § 514(a) preempts state laws only insofar as they relate to plans covered by ERISA. The Human Rights Law, for example, would be unaffected insofar as it prohibits employment discrimination in hiring, promotion, salary, and the like. [ Footnote 18 ] The bill that passed the House, H.R. 2, 93d Cong., 2d Sess., § 514(a) (1974), 3 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled by the Senate Committee on Labor and Public Welfare), pp. 4057-4058 (1976) (Legislative History), provided that ERISA would supersede state laws "relat[ing] to the reporting and disclosure responsibilities, and fiduciary responsibilities, of persons acting on behalf of any employee benefit plan to which part 1 applies." The bill that passed the Senate, H.R. 2, 93d Cong,2d Sess., § 699(a) (1974), 3 Legislative History 3820, provided for preemption of state laws "relat[ing] to the subject matters regulated by this Act or the Welfare and Pension Plans Disclosure Act." [ Footnote 19 ] In deciding to preempt state laws relating to benefit plans, rather than those laws relating to subjects covered by ERISA, the Conference Committee rejected a much narrower administration proposal. The administration's recommendations to the conferees described the preemption provision of the House and Senate bills as "extremely vague" and "too broad," respectively, and suggested language making explicit the areas of state law to be preempted. Administration Recommendations to the House and Senate Conferees on H.R. 2 to Provide for Pension Reform 107-108, 3 Legislative History 5145-5146. The version of § 514(a) that emerged from Conference bore no resemblance to the administration proposal. See Hutchinson & Ifshin, Federal Preemption of State Law Under the Employee Retirement Income Security Act of 1974, 46 U.Chi.L.Rev. 23, 39-40, and n. 121 (1978). [ Footnote 20 ] See also 120 Cong.Rec. 29942 (1974) (remarks of Sen. Javits): "Both [original] House and Senate bills provided for preemption of State law, but -- with one major exception appearing in the House bill -- defined the perimeters of preemption in relation to the areas regulated by the bill. Such a formulation raised the possibility of endless litigation over the validity of State action that might impinge on Federal regulation, as well as opening the door to multiple and potentially conflicting State laws hastily contrived to deal with some particular aspect of private welfare or pension benefit plans not clearly connected to the Federal regulatory scheme." "Although the desirability of further regulation -- at either the State or Federal level -- undoubtedly warrants further attention, on balance, the emergence of a comprehensive and pervasive Federal interest and the interests of uniformity with respect to interstate plans required -- but for certain exceptions -- the displacement of State action in the field of private employee benefit programs." Senator Javits noted that the conferees had assigned the Congressional Pension Task Force the responsibility of studying and evaluating ERISA preemption in order to determine whether modifications in the preemption policy would be necessary. Ibid. See ERISA §§ 3021, 3022(a)(4), 88 Stat. 999 (formerly codified as 29 U.S.C. §§ 1221, 1222(a)(5)). After a period of monitoring by the Task Force, and hearings by the Subcommittee on Labor Standards of the House Committee on Education and Labor, a Report was issued evaluating ERISA's preemption provisions. The Report expressed approval of ERISA's broad preemption of state law, explaining that "the Federal interest and the need for national uniformity are so great that enforcement of state regulation should be precluded." H.R.Rep. No. 94-1785, p. 47 (1977). The Report recommended only that the exceptions described in § 514(b) be narrowed still further. Ibid. [ Footnote 21 ] Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law "relates to" the plan. Cf. American Telephone and Telegraph Co. v. Merry, 592 F.2d 118, 121 (CA2 1979) (state garnishment of a spouse's pension income to enforce alimony and support orders is not preempted). The present litigation plainly does not present a borderline question, and we express no views about where it would be appropriate to draw the line. [ Footnote 22 ] See also § 1104, 78 Stat. 268, 42 U.S.C. § 2000h-4. The Court of Appeals properly rejected the simplistic "double saving clause" argument -- that, because ERISA does not preempt Title VII, and Title VII does not preempt state fair employment laws, ERISA does not preempt such laws. 666 F.2d at 25-26. Title VII does not transform state fair employment laws into federal laws that § 514(d) saves from ERISA preemption. Furthermore, since Title VII's saving clause applies to all state laws with which it is not in conflict, rather than just to nondiscrimination laws, and since many federal laws contain nonpreemption provisions, the double saving clause argument, taken to its logical extreme, would save almost all state laws from preemption. The question whether preemption of state fair employment laws would "impair" Title VII, in light of Title VII's reliance on state laws and agencies, is the more difficult question we address in the text. [ Footnote 23 ] Preemption of this sort not only would eliminate a forum for resolving disputes that, in certain situations, may be more convenient than the EEOC, but also would substantially increase the EEOC's workload. Because the EEOC would be unable to refer claims to state agencies for initial processing, those claims that would have been settled at the state level would require the EEOC's attention. Claims that would not have been settled at the state level, but would have produced an administrative record, would come to the EEOC without such a record. The EEOC's options for coping with this added burden, barring discoveries of reserves in the agency budget, would be to devote less time to each individual case or to accept longer delays in handling cases. The inevitable result of complete preemption, in short, would be less effective enforcement of Title VII. [ Footnote 24 ] Appellants argue that preemption of the Human Rights Law's prohibition of pregnancy discrimination would impair Title VII, because that law encourages States to enact fair employment laws providing greater substantive protection than Title VII. See, e.g., Tr. of Oral Arg. 6-7, 11. We have found no statutory language or legislative history suggesting that the federal interest in state fair employment laws extends any farther than saving such laws from preemption by Title VII itself. As the court stated in Pervel, 468 F. Supp. at 493, "Title VII did not create new authority for state antidiscrimination laws; it simply left them where they were before the enactment of Title VII." The legislative history of the Pregnancy Discrimination Act does not assist appellants. Although the House Report observed that many employers already were subject to state laws prohibiting pregnancy discrimination, H.R.Rep. No. 95-948, pp. 9-11 (1978); see S.Rep. No. 95-331, pp. 10-11 (1977), this observation subsequent to ERISA's enactment conveys no information about the intent of the Congress that passed ERISA. The conferees did not even mention ERISA; evidently, they simply failed to consider whether ERISA plans were subject to state laws prohibiting pregnancy discrimination. [ Footnote 25 ] An employer with employees in many States might find that the most efficient way to provide benefits to those employees is through a single employee benefit plan. Obligating the employer to satisfy the varied and perhaps conflicting requirements of particular state fair employment laws, as well as the requirements of Title VII, would make administration of a uniform nationwide plan more difficult. The employer might choose to offer a number of plans, each tailored to the laws of particular States; the inefficiency of such a system presumably would be paid for by lowering benefit levels. Alternatively, assuming that the state laws were not in conflict, the employer could comply with the laws of all States in a uniform plan. To offset the additional expenses, the employer presumably would reduce wages or eliminate those benefits not required by any State. Another means by which the employer could retain its uniform nationwide plan would be by eliminating classes of benefits that are subject to state requirements with which the employer is unwilling to comply. ERISA's comprehensive preemption of state law was meant to minimize this sort of interference with the administration of employee benefit plans. [ Footnote 26 ] See, e.g., Arizona Civic Rights Division v. Olson, 132 Ariz. 20, 24 n. 2, 643 P.2d 723, 727, n. 2 (1982); Scarborough v. Arnold, 117 N.H. 803, 807, 379 A.2d 790, 793 (1977); Snell v. Montana-Dakota Utilities Co., 198 Mont. 56, 62, 643 P.2d 841, 844 (1982); Orr v. Clyburn, 277 S.C. 536, 539, 290 S.E.2d 804 , 806 (1982); Albertson's, Inc. v. Washington. State Human Rights Comm'n, 14 Wash. App. 697, 699-700, 544 P.2d 98, 100 (1976).

The U.S. Supreme Court case Shaw v. Delta Air Lines, Inc. (1983) concerned the preemption of state laws by the federal Employee Retirement Income Security Act of 1974 (ERISA). The state laws in question were New York's Human Rights Law, which prohibited pregnancy discrimination in employee benefit plans, and its Disability Benefits Law, which required employers to provide sick leave for pregnancy-related absences. The Court held that both the Human Rights Law and the Disability Benefits Law "related to" employee benefit plans and were therefore preempted by ERISA's broad preemption provision, Section 514(a). This decision was based on the plain language of the statute and ERISA's legislative history and structure. The Court also addressed the appellants' argument that preemption of the Human Rights Law would impair Title VII of the Civil Rights Act of 1964, which encourages states to enact fair employment laws. The Court found no evidence in the statutory language or legislative history to support this claim and concluded that Title VII did not create new authority for state anti-discrimination laws but simply left them unchanged. The Shaw case established the primacy of ERISA over state laws relating to employee benefit plans and clarified that ERISA's preemption is not limited to state laws specifically targeting such plans.

Labor & Employment

Meritor Savings Bank v. Vinson

https://supreme.justia.com/cases/federal/us/477/57/

U.S. Supreme Court Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) Meritor Savings Bank v. Vinson No. 84-1979 Argued March 25, 1986 Decided June 19, 1986 477 U.S. 57 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Respondent former employee of petitioner bank brought an action against the bank and her supervisor at the bank, claiming that, during her employment at the bank, she had been subjected to sexual harassment by the supervisor in violation of Title VII of the Civil Rights Act of 1964, and seeking injunctive relief and damages. At the trial, the parties presented conflicting testimony about the existence of a sexual relationship between respondent and the supervisor. The District Court denied relief without resolving the conflicting testimony, holding that, if respondent and the supervisor did have a sexual relationship, it was voluntary, and had nothing to do with her continued employment at the bank, and that therefore respondent was not the victim of sexual harassment. The court then went on to hold that, since the bank was without notice, it could not be held liable for the supervisor's alleged sexual harassment. The Court of Appeals reversed and remanded. Noting that a violation of Title VII may be predicated on either of two types of sexual harassment -- (1) harassment that involves the conditioning of employment benefits on sexual favors, and (2) harassment that, while not affecting economic benefits, creates a hostile or offensive working environment -- the Court of Appeals held that, since the grievance here was of the second type, and the District Court had not considered whether a violation of this type had occurred, a remand was necessary. The court further held that the need for a remand was not obviated by the fact that the District Court had found that any sexual relationship between respondent and the supervisor was a voluntary one, a finding that might have been based on testimony about respondent's "dress and personal fantasies" that "had no place in the litigation." As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment by supervisory personnel, whether or not the employer knew or should have known about it. Held: 1. A claim of "hostile environment" sexual harassment is a form of sex discrimination that is actionable under Title VII. Pp. 477 U. S. 63 -69. (a) The language of Title VII is not limited to "economic" or "tangible" discrimination. Equal Employment Opportunity Commission Guidelines fully support the view that sexual harassment leading to non-economic Page 477 U. S. 58 injury can violate Title VII. Here, respondent's allegations were sufficient to state a claim for "hostile environment" sexual harassment. Pp. 477 U. S. 63 -67. (b) The District Court's findings were insufficient to dispose of respondent's "hostile environment" claim. The District Court apparently erroneously believed that a sexual harassment claim will not lie absent an economic effect on the complainant's employment, and erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her participation in them was voluntary. Pp. 477 U. S. 67 -68. (c) The District Court did not err in admitting evidence of respondent's sexually provocative speech and dress. While "voluntariness" in the sense of consent is no defense to a sexual harassment claim, it does not follow that such evidence is irrelevant as a matter of law in determining whether the complainant found particular sexual advances unwelcome. Pp. 477 U. S. 68 -69. 2. The Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. While common law agency principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. In this case, however, the mere existence of a grievance procedure in the bank and the bank's policy against discrimination, coupled with respondent's failure to invoke that procedure, do not necessarily insulate the bank from liability. Pp. 477 U. S. 69 -73. 243 U.S.App.D.C. 323, 753 F.2d 141, affirmed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, STEVENS, and O'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 477 U. S. 73 . MARSHALL, J., filed an opinion concurring in the judgment, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 477 U. S. 74 . Page 477 U. S. 59 JUSTICE REHNQUIST delivered the opinion of the Court. This case presents important questions concerning claims of workplace "sexual harassment" brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. I In 1974, respondent Mechelle Vinson met Sidney Taylor, a vice-president of what is now petitioner Meritor Savings Bank (bank) and manager of one of its branch offices. When respondent asked whether she might obtain employment at the bank, Taylor gave her an application, which she completed and returned the next day; later that same day, Taylor called her to say that she had been hired. With Taylor as her supervisor, respondent started as a teller-trainee, and thereafter was promoted to teller, head teller, and assistant Page 477 U. S. 60 branch manager. She worked at the same branch for four years, and it is undisputed that her advancement there was based on merit alone. In September, 1978, respondent notified Taylor that she was taking sick leave for an indefinite period. On November 1, 1978, the bank discharged her for excessive use of that leave. Respondent brought this action against Taylor and the bank, claiming that, during her four years at the bank, she had "constantly been subjected to sexual harassment" by Taylor in violation of Title VII. She sought injunctive relief, compensatory and punitive damages against Taylor and the bank, and attorney's fees. At the 11-day bench trial, the parties presented conflicting testimony about Taylor's behavior during respondent's employment. * Respondent testified that, during her probationary period as a teller-trainee, Taylor treated her in a fatherly way and made no sexual advances. Shortly thereafter, however, he invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job, she eventually agreed. According to respondent, Taylor thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions. These activities ceased after 1977, respondent stated, when she started going with a steady boyfriend. Respondent also testified that Taylor touched and fondled other women employees of the bank, and she attempted to Page 477 U. S. 61 call witnesses to support this charge. But while some supporting testimony apparently was admitted without objection, the District Court did not allow her "to present wholesale evidence of a pattern and practice relating to sexual advances to other female employees in her case in chief, but advised her that she might well be able to present such evidence in rebuttal to the defendants' cases." Vinson v. Taylor, 22 EPD � 30,708, p. 14,693, n. 1, 23 FEP Cases 37, 38-39, n. 1 (DC 1980). Respondent did not offer such evidence in rebuttal. Finally, respondent testified that, because she was afraid of Taylor, she never reported his harassment to any of his supervisors and never attempted to use the bank's complaint procedure. Taylor denied respondent's allegations of sexual activity, testifying that he never fondled her, never made suggestive remarks to her, never engaged in sexual intercourse with her, and never asked her to do so. He contended instead that respondent made her accusations in response to a business-related dispute. The bank also denied respondent's allegations, and asserted that any sexual harassment by Taylor was unknown to the bank and engaged in without its consent or approval. The District Court denied relief, but did not resolve the conflicting testimony about the existence of a sexual relationship between respondent and Taylor. It found instead that "[i]f [respondent] and Taylor did engage in an intimate or sexual relationship during the time of [respondent's] employment with [the bank], that relationship was a voluntary one having nothing to do with her continued employment at [the bank] or her advancement or promotions at that institution." Id. at 14,692, 23 FEP Cases at 42 (footnote omitted). The court ultimately found that respondent "was not the victim of sexual harassment and was not the victim of sexual discrimination" while employed at the bank. Ibid., 23 FEP Cases at 43. Page 477 U. S. 62 Although it concluded that respondent had not proved a violation of Title VII, the District Court nevertheless went on to address the bank's liability. After noting the bank's express policy against discrimination, and finding that neither respondent nor any other employee had ever lodged a complaint about sexual harassment by Taylor, the court ultimately concluded that "the bank was without notice, and cannot be held liable for the alleged actions of Taylor." Id. at 14,691, 23 FEP Cases, at 42. The Court of Appeals for the District of Columbia Circuit reversed. 243 U.S.App.D.C. 323, 753 F.2d 141 (1985). Relying on its earlier holding in Bundy v. Jackson, 205 U.S.App.D.C. 444, 641 F.2d 934 (1981), decided after the trial in this case, the court stated that a violation of Title VII may be predicated on either of two types of sexual harassment: harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment. The court drew additional support for this position from the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex, 29 CFR § 1604.11(a) (1985), which set out these two types of sexual harassment claims. Believing that "Vinson's grievance was clearly of the [hostile environment] type," 243 U.S.App.D.C. at 327, 753 F.2d at 145, and that the District Court had not considered whether a violation of this type had occurred, the court concluded that a remand was necessary. The court further concluded that the District Court's finding that any sexual relationship between respondent and Taylor "was a voluntary one" did not obviate the need for a remand. "[U]ncertain as to precisely what the [district] court meant" by this finding, the Court of Appeals held that, if the evidence otherwise showed that "Taylor made Vinson's toleration of sexual harassment a condition of her employment," her voluntariness "had no materiality whatsoever." Page 477 U. S. 63 Id. at 328, 753 F.2d at 146. The court then surmised that the District Court's finding of voluntariness might have been based on "the voluminous testimony regarding respondent's dress and personal fantasies," testimony that the Court of Appeals believed "had no place in this litigation." Id. at 328, n. 36, 753 F.2d at 146, n. 36. As to the bank's liability, the Court of Appeals held that an employer is absolutely liable for sexual harassment practiced by supervisory personnel, whether or not the employer knew or should have known about the misconduct. The court relied chiefly on Title VII's definition of "employer" to include "any agent of such a person," 42 U.S.C. § 2000e(b), as well as on the EEOC Guidelines. The court held that a supervisor is an "agent" of his employer for Title VII purposes, even if he lacks authority to hire, fire, or promote, since "the mere existence -- or even the appearance -- of a significant degree of influence in vital job decisions gives any supervisor the opportunity to impose on employees." 243 U.S.App.D.C. at 332, 753 F.2d at 150. In accordance with the foregoing, the Court of Appeals reversed the judgment of the District Court and remanded the case for further proceedings. A subsequent suggestion for rehearing en banc was denied, with three judges dissenting. 245 U.S.App.D.C. 306, 760 F.2d 1330 (1985). We granted certiorari, 474 U.S. 1047 (1985), and now affirm, but for different reasons. II Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives. 110 Cong.Rec. 2577-2584 (1964). The principal argument in opposition Page 477 U. S. 64 to the amendment was that "sex discrimination" was sufficiently different from other types of discrimination that it ought to receive separate legislative treatment. See id. at 2577 (statement of Rep. Celler quoting letter from United States Department of Labor); id. at 2584 (statement of Rep. Green). This argument was defeated, the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on "sex." Respondent argues, and the Court of Appeals held, that unwelcome sexual advances that create an offensive or hostile working environment violate Title VII. Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor "discriminate[s]" on the basis of sex. Petitioner apparently does not challenge this proposition. It contends instead that, in prohibiting discrimination with respect to "compensation, terms, conditions, or privileges" of employment, Congress was concerned with what petitioner describes as "tangible loss" of "an economic character," not "purely psychological aspects of the workplace environment." Brief for Petitioner 30-31, 34. In support of this claim petitioner observes that, in both the legislative history of Title VII and this Court's Title VII decisions, the focus has been on tangible, economic barriers erected by discrimination. We reject petitioner's view. First, the language of Title VII is not limited to "economic" or "tangible" discrimination. The phrase "terms, conditions, or privileges of employment" evinces a congressional intent " to strike at the entire spectrum of disparate treatment of men and women'" in employment. Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 , 435 U. S. 707 , n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). Petitioner has pointed to nothing in the Act to suggest that Congress contemplated the limitation urged here. Page 477 U. S. 65 Second, in 1980 the EEOC issued Guidelines specifying that "sexual harassment," as there defined, is a form of sex discrimination prohibited by Title VII. As an "administrative interpretation of the Act by the enforcing agency," Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 433 -434 (1971), these Guidelines, "'while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,'" General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 141 -142 (1976), quoting Skidmore v. Swift & Co., 323 U. S. 134 , 323 U. S. 140 (1944). The EEOC Guidelines fully support the view that harassment leading to noneconomic injury can violate Title VII. In defining "sexual harassment," the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." 29 CFR § 1604.11(a) (1985). Relevant to the charges at issue in this case, the Guidelines provide that such sexual misconduct constitutes prohibited "sexual harassment," whether or not it is directly linked to the grant or denial of an economic quid pro quo, where "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." § 1604.11(a)(3). In concluding that so-called "hostile environment" ( i.e., non quid pro quo ) harassment violates Title VII, the EEOC drew upon a substantial body of judicial decisions and EEOC precedent holding that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. See generally 45 Fed.Reg. 74676 (1980). Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U.S. 957 (1972), was apparently the first case to recognize a cause of action based upon a discriminatory work environment. In Rogers, the Court of Appeals for the Fifth Page 477 U. S. 66 Circuit held that a Hispanic complainant could establish a Title VII violation by demonstrating that her employer created an offensive work environment for employees by giving discriminatory service to its Hispanic clientele. The court explained that an employee's protections under Title VII extend beyond the economic aspects of employment: "[T]he phrase 'terms, conditions or privileges of employment' in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination. . . . One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . . ." 454 F.2d at 238. Courts applied this principle to harassment based on race, e.g., Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506, 514-515 (CA8), cert. denied sub nom. Banta v. United States, 434 U.S. 819 (1977); Gray v. Greyhound Lines, East, 178 U.S.App.D.C. 91, 98, 545 F.2d 169, 176 (1976), religion, e.g., Compston v. Borden, Inc., 424 F. Supp. 157 (SD Ohio 1976), and national origin, e.g., Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (CA8 1977). Nothing in Title VII suggests that a hostile environment based on discriminatory sexual harassment should not be likewise prohibited. The Guidelines thus appropriately drew from, and were fully consistent with, the existing case law. Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. As the Court of Appeals for the Eleventh Circuit wrote in Henson v. Dundee, 682 F.2d 897, 902 (1982): Page 477 U. S. 67 "Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets." Accord, Katz v. Dole, 709 F.2d 251, 254-255 (CA4 1983); Bundy v. Jackson, 205 U.S.App.D.C. at 444-454, 641 F.2d at 934-944; Zabkowicz v. West Bend Co., 589 F. Supp. 780 (ED Wis.1984). Of course, as the courts in both Rogers and Henson recognized, not all workplace conduct that may be described as "harassment" affects a "term, condition, or privilege" of employment within the meaning of Title VII. See Rogers v. EEOC, supra, at 238 ("mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not affect the conditions of employment to sufficiently significant degree to violate Title VII); Henson, 682 F.2d at 904 (quoting same). For sexual harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." Ibid. Respondent's allegations in this case -- which include not only pervasive harassment but also criminal conduct of the most serious nature -- are plainly sufficient to state a claim for "hostile environment" sexual harassment. The question remains, however, whether the District Court's ultimate finding that respondent "was not the victim of sexual harassment," 22 EPD � 30,708, at 14,692-14,693, 23 FEP Cases, at 43, effectively disposed of respondent's claim. The Court of Appeals recognized, we think correctly, that this ultimate finding was likely based on one or both of two erroneous views of the law. First, the District Court apparently believed that a claim for sexual harassment will not lie Page 477 U. S. 68 absent an economic effect on the complainant's employment. See ibid. ("It is without question that sexual harassment of female employees in which they are asked or required to submit to sexual demands as a condition to obtain employment or to maintain employment or to obtain promotions falls within protection of Title VII") (emphasis added). Since it appears that the District Court made its findings without ever considering the "hostile environment" theory of sexual harassment, the Court of Appeals' decision to remand was correct. Second, the District Court's conclusion that no actionable harassment occurred might have rested on its earlier "finding" that "[i]f [respondent] and Taylor did engage in an intimate or sexual relationship . . . that relationship was a voluntary one." Id. at 14,692, 23 FEP Cases, at 42. But the fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." 29 CFR § 1604.11(a) (1985). While the question whether particular conduct was indeed unwelcome presents difficult problems of proof, and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the "voluntariness" of respondent's participation in the claimed sexual episodes. The correct inquiry is whether respondent, by her conduct, indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary. Petitioner contends that even if this case must be remanded to the District Court, the Court of Appeals erred in one of the terms of its remand. Specifically, the Court of Appeals stated that testimony about respondent's "dress and personal fantasies," 243 U.S.App.D.C. at 328, n. 36, 753 F.2d at 146, n. 36, which the District Court apparently admitted Page 477 U. S. 69 into evidence, "had no place in this litigation." Ibid. The apparent ground for this conclusion was that respondent's voluntariness vel non in submitting to Taylor's advances was immaterial to her sexual harassment claim. While "voluntariness" in the sense of consent is not a defense to such a claim, it does not follow that a complainant's sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of "the record as a whole" and "the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." 29 CFR § 1604.11(b) (1985). Respondent's claim that any marginal relevance of the evidence in question was outweighed by the potential for unfair prejudice is the sort of argument properly addressed to the District Court. In this case the District Court concluded that the evidence should be admitted, and the Court of Appeals' contrary conclusion was based upon the erroneous, categorical view that testimony about provocative dress and publicly expressed sexual fantasies "had no place in this litigation." 243 U.S.App.D.C. at 328, n. 36, 753 F.2d at 146, n. 36. While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind, there is no per se rule against its admissibility. III Although the District Court concluded that respondent had not proved a violation of Title VII, it nevertheless went on to consider the question of the bank's liability. Finding that "the bank was without notice" of Taylor's alleged conduct, and that notice to Taylor was not the equivalent of notice to the bank, the court concluded that the bank therefore could not be held liable for Taylor's alleged actions. The Court of Appeals took the opposite view, holding that an employer is Page 477 U. S. 70 strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct. The court held that a supervisor, whether or not he possesses the authority to hire, fire, or promote, is necessarily an "agent" of his employer for all Title VII purposes, since "even the appearance" of such authority may enable him to impose himself on his subordinates. The parties and amici suggest several different standards for employer liability. Respondent, not surprisingly, defends the position of the Court of Appeals. Noting that Title VII's definition of "employer" includes any "agent" of the employer, she also argues that, "so long as the circumstance is work-related, the supervisor is the employer and the employer is the supervisor." Brief for Respondent 27. Notice to Taylor that the advances were unwelcome, therefore, was notice to the bank. Petitioner argues that respondent's failure to use its established grievance procedure, or to otherwise put it on notice of the alleged misconduct, insulates petitioner from liability for Taylor's wrongdoing. A contrary rule would be unfair, petitioner argues, since, in a hostile environment harassment case, the employer often will have no reason to know about, or opportunity to cure, the alleged wrongdoing. The EEOC, in its brief as amicus curiae, contends that courts formulating employer liability rules should draw from traditional agency principles. Examination of those principles has led the EEOC to the view that, where a supervisor exercises the authority actually delegated to him by his employer, by making or threatening to make decisions affecting the employment status of his subordinates, such actions are properly imputed to the employer whose delegation of authority empowered the supervisor to undertake them. Brief for United States and EEOC as Amici Curiae 22. Thus, the courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, Page 477 U. S. 71 whether or not the employer knew, should have known, or approved of the supervisor's actions. E.g., Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (CA6 1972). The EEOC suggests that, when a sexual harassment claim rests exclusively on a "hostile environment" theory, however, the usual basis for a finding of agency will often disappear. In that case, the EEOC believes, agency principles lead to "a rule that asks whether a victim of sexual harassment had reasonably available an avenue of complaint regarding such harassment, and, if available and utilized, whether that procedure was reasonably responsive to the employee's complaint. If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment (obtained, e.g., by the filing of a charge with the EEOC or a comparable state agency). In all other cases, the employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of the case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials." Brief for United States and EEOC as Amici Curiae 26. As respondent points out, this suggested rule is in some tension with the EEOC Guidelines, which hold an employer liable for the acts of its agents without regard to notice. 29 CFR § 1604.11(c) (1985). The Guidelines do require, however, an "examin[ation of] the circumstances of the particular employment relationship and the job [f]unctions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity." Ibid. Page 477 U. S. 72 This debate over the appropriate standard for employer liability has a rather abstract quality about it, given the state of the record in this case. We do not know at this stage whether Taylor made any sexual advances toward respondent at all, let alone whether those advances were unwelcome, whether they were sufficiently pervasive to constitute a condition of employment, or whether they were "so pervasive and so long continuing . . . that the employer must have become conscious of [them]," Taylor v. Jones, 653 F.2d 1193, 1197-1199 (CA8 1981) (holding employer liable for racially hostile working environment based on constructive knowledge). We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the EEOC that Congress wanted courts to look to agency principles for guidance in this area. While such common law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958). For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid. Finally, we reject petitioner's view that the mere existence of a grievance procedure and a policy against discrimination, coupled with respondent's failure to invoke that procedure, must insulate petitioner from liability. While those facts are plainly relevant, the situation before us demonstrates why they are not necessarily dispositive. Petitioner's general nondiscrimination policy did not address sexual harassment in particular, and thus did not alert employees to their employer's Page 477 U. S. 73 interest in correcting that form of discrimination. App. 25. Moreover, the bank's grievance procedure apparently required an employee to complain first to her supervisor, in this case Taylor. Since Taylor was the alleged perpetrator, it is not altogether surprising that respondent failed to invoke the procedure and report her grievance to him. Petitioner's contention that respondent's failure should insulate it from liability might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward. IV In sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII, that the District Court's findings were insufficient to dispose of respondent's hostile environment claim, and that the District Court did not err in admitting testimony about respondent's sexually provocative speech and dress. As to employer liability, we conclude that the Court of Appeals was wrong to entirely disregard agency principles and impose absolute liability on employers for the acts of their supervisors, regardless of the circumstances of a particular case. Accordingly, the judgment of the Court of Appeals reversing the judgment of the District Court is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. * Like the Court of Appeals, this Court was not provided a complete transcript of the trial. We therefore rely largely on the District Court's opinion for the summary of the relevant testimony. JUSTICE STEVENS, concurring. Because I do not see any inconsistency between the two opinions, and because I believe the question of statutory construction that JUSTICE MARSHALL has answered is fairly presented by the record, I join both the Court's opinion and JUSTICE MARSHALL's opinion. Page 477 U. S. 74 JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, concurring in the judgment. I fully agree with the Court's conclusion that workplace sexual harassment is illegal, and violates Title VII. Part III of the Court's opinion, however, leaves open the circumstances in which an employer is responsible under Title VII for such conduct. Because I believe that question to be properly before us, I write separately. The issue the Court declines to resolve is addressed in the EEOC Guidelines on Discrimination Because of Sex, which are entitled to great deference. See Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 433 -434 (1971) (EEOC Guidelines on Employment Testing Procedures of 1966); see also ante at 477 U. S. 65 . The Guidelines explain: "Applying general Title VII principles, an employer . . . is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job [f]unctions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity." "With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action." 29 CFR §§ 1604.11(c),(d) (1985). The Commission, in issuing the Guidelines, explained that its rule was "in keeping with the general standard of employer Page 477 U. S. 75 liability with respect to agents and supervisory employees. . . . [T]he Commission and the courts have held for years that an employer is liable if a supervisor or an agent violates the Title VII, regardless of knowledge or any other mitigating factor." 45 Fed.Reg. 74676 (1980). I would adopt the standard set out by the Commission. An employer can act only through individual supervisors and employees; discrimination is rarely carried out pursuant to a formal vote of a corporation's board of directors. Although an employer may sometimes adopt company-wide discriminatory policies violative of Title VII, acts that may constitute Title VII violations are generally effected through the actions of individuals, and often an individual may take such a step even in defiance of company policy. Nonetheless, Title VII remedies, such as reinstatement and backpay, generally run against the employer as an entity. [ Footnote 1 ] The question thus arises as to the circumstances under which an employer will be held liable under Title VII for the acts of its employees. The answer supplied by general Title VII law, like that supplied by federal labor law, is that the act of a supervisory employee or agent is imputed to the employer. [ Footnote 2 ] Thus, for example, when a supervisor discriminatorily fires or refuses to promote a black employee, that act is, without more, considered the act of the employer. The courts do not stop to consider whether the employer otherwise had "notice" of the action, or even whether the supervisor had actual authority to act as he did. E.g., Flowers v. Crouch-Walker Corp., Page 477 U. S. 76 552 F.2d 1277, 1282 (CA7 1977); Young v. Southwestern Savings and Loan Assn., 509 F.2d 140 (CA5 1975); Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 (CA6 1972). Following that approach, every Court of Appeals that has considered the issue has held that sexual harassment by supervisory personnel is automatically imputed to the employer when the harassment results in tangible job detriment to the subordinate employee. See Horn v. Duke Homes, Inc., Div. of Windsor Mobile Homes, 755 F.2d 599, 604-606 (CA7 1985); Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 80-81 (CA3 1983); Katz v. Dole, 709 F.2d 251, 255, n. 6 (CA4 1983); Henson v. Dundee, 682 F.2d 897, 910 (CA11 1982); Miller v. Bank of America, 600 F.2d 211, 213 (CA9 1979). The brief filed by the Solicitor General on behalf of the United States and the EEOC in this case suggests that a different rule should apply when a supervisor's harassment "merely" results in a discriminatory work environment. The Solicitor General concedes that sexual harassment that affects tangible job benefits is an exercise of authority delegated to the supervisor by the employer, and thus gives rise to employer liability. But, departing from the EEOC Guidelines, he argues that the case of a supervisor merely creating a discriminatory work environment is different because the supervisor "is not exercising, or threatening to exercise, actual or apparent authority to make personnel decisions affecting the victim." Brief for United States and EEOC as Amici Curiae 24. In the latter situation, he concludes, some further notice requirement should therefore be necessary. The Solicitor General's position is untenable. A supervisor's responsibilities do not begin and end with the power to hire, fire, and discipline employees, or with the power to recommend such actions. Rather, a supervisor is charged with the day-to-day supervision of the work environment and with ensuring a safe, productive workplace. There is no reason why abuse of the latter authority should have different consequences than abuse of the former. In both cases, it is the authority Page 477 U. S. 77 vested in the supervisor by the employer that enables him to commit the wrong: it is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates. There is therefore no justification for a special rule, to be applied only in "hostile environment" cases, that sexual harassment does not create employer liability until the employee suffering the discrimination notifies other supervisors. No such requirement appears in the statute, and no such requirement can coherently be drawn from the law of agency. Agency principles and the goals of Title VII law make appropriate some limitation on the liability of employers for the acts of supervisors. Where, for example, a supervisor has no authority over an employee, because the two work in wholly different parts of the employer's business, it may be improper to find strict employer liability. See 29 CFR § 1604.11(c) (1985). Those considerations, however, do not justify the creation of a special "notice" rule in hostile environment cases. Further, nothing would be gained by crafting such a rule. In the "pure" hostile environment case, where an employee files an EEOC complaint alleging sexual harassment in the workplace, the employee seeks not money damages, but injunctive relief. See Bundy v. Jackson, 205 U.S.App.D.C. 444, 456, n. 12, 641 F.2d 934, 946, n. 12 (1981). Under Title VII, the EEOC must notify an employer of charges made against it within 10 days after receipt of the complaint. 42 U.S.C. § 2000e-5(b). If the charges appear to be based on "reasonable cause," the EEOC must attempt to eliminate the offending practice through "informal methods of conference, conciliation, and persuasion." Ibid. An employer whose internal procedures assertedly would have redressed the discrimination can avoid injunctive relief by employing these procedures after receiving notice of the complaint or during the conciliation period. Cf. Brief for United Page 477 U. S. 78 States and EEOC as Amici Curiae 26. Where a complainant, on the other hand, seeks backpay on the theory that a hostile work environment effected a constructive termination, the existence of an internal complaint procedure may be a factor in determining not the employer's liability, but the remedies available against it. Where a complainant without good reason bypassed an internal complaint procedure she knew to be effective, a court may be reluctant to find constructive termination, and thus to award reinstatement or backpay. I therefore reject the Solicitor General's position. I would apply in this case the same rules we apply in all other Title VII cases, and hold that sexual harassment by a supervisor of an employee under his supervision, leading to a discriminatory work environment, should be imputed to the employer for Title VII purposes regardless of whether the employee gave "notice" of the offense. [ Footnote 1 ] The remedial provisions of Title VII were largely modeled on those of the National Labor Relations Act (NLRA). See Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 419 , and n. 11 (1975); see also Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 768 -770 (1976). [ Footnote 2 ] For NLRA cases, see, e.g., Graves Trucking, Inc. v. NLRB, 692 F.2d 470 (CA7 1982); NLRB v. Kaiser Agricultural Chemical, Division of Kaiser Aluminum & Chemical Corp., 473 F.2d 374, 384 (CA5 1973); Amalgamated Clothing Workers of America v. NLRB, 124 U.S.App.D.C. 365, 377, 365 F.2d 898, 909 (1966).

In Meritor Savings Bank v. Vinson (1986), the United States Supreme Court ruled that sexual harassment creating a hostile work environment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. The case involved a female employee of Meritor Savings Bank who sued the bank and her supervisor, claiming she was subjected to sexual harassment by the supervisor during her employment. The lower court denied her claim, arguing that any sexual relationship was voluntary and unrelated to her employment. However, the Court of Appeals reversed this decision, recognizing two types of sexual harassment under Title VII: 1. Harassment involving the conditioning of employment benefits on sexual favors; and 2. Harassment that creates a hostile or offensive work environment, even if it does not affect economic benefits. The Supreme Court upheld the Court of Appeals' decision, holding that a "hostile environment" sexual harassment claim is valid under Title VII. The Court also clarified that an employer is liable for sexual harassment by supervisory personnel, regardless of whether the employer knew or should have known about it. This case established an important precedent in recognizing the adverse impact of sexual harassment on employees and holding employers accountable for maintaining a safe and respectful work environment.

Labor & Employment

Fort Halifax Packing Co., Inc. v. Coyne

https://supreme.justia.com/cases/federal/us/482/1/

U.S. Supreme Court Fort Halifax Packing v. Coyne, 482 U.S. 1 (1987) Fort Halifax Packing Co., Inc. v. Coyne No. 86-341 Argued March 24, 1987 Decided June 1, 1987 482 U.S. 1 APPEAL FROM THE SUPREME JUDICIAL COURT OF MAINE Syllabus After appellant closed its poultry packaging and processing plant and laid off most of the employees who worked there, the Director of Maine's Bureau of Labor Standards filed suit to enforce the provisions of a state statute requiring employers, in the event of a plant closing, to provide a one-time severance payment to employees not covered by an express contract providing for severance pay. The State Superior Court granted the Director summary judgment, holding appellant liable under the statute, and the State Supreme Court affirmed, rejecting appellant's contentions that the state statute was preempted by the Employee Retirement Income Security Act of 1974 (ERISA) and by the National Labor Relations Act (NLRA). Held: 1. The Maine severance pay statute is not preempted by ERISA, since it does not "relate to any employee benefit plan" under that statute's preemption provision, 29 U.S.C. § 1144(a). Appellant's contention that any state law pertaining to a type of employee benefit listed in ERISA, such as severance pay, necessarily regulates an employee benefit plan, and is therefore preempted, fails in light of the plain meaning and underlying purpose of § 1144(a) and the overall objectives of ERISA itself. Pp. 482 U. S. 7 -19. (a) Section 1144(a) does not refer to state laws relating simply to "employee benefits," but expressly states that state laws are superseded Page 482 U. S. 2 insofar as they "relate to any employee benefit plan " (emphasis added). In fact, ERISA uses the words "benefit" and "plan" separately throughout the statute, and nowhere treats them as equivalent. Given the basic difference between the two concepts, Congress' choice of language is significant in its preemption of only the latter, which cannot be read out of ERISA. In order to be preempted, a state statute must have some connection with, or reference to, a plan. Pp. 482 U. S. 7 -8. (b) Premption of the Maine statute would not further the purpose of ERISA preemption, which is to allow plans to adopt a uniform scheme for coordinating complex administrative activities, unaffected by conflicting regulatory requirements in differing States. The Maine statute neither establishes, nor requires an employer to maintain, a plan that would embody a set of administrative practices vulnerable to the burden imposed by a patchwork, multistate regulatory scheme. In fact, the theoretical possibility of a one-time, lump-sum severance payment triggered by a single event requires no administrative scheme whatsoever to meet the employer's statutory obligation. Pp. 482 U. S. 8 -15. (c) Similarly, the Maine statute does not implicate the regulatory concerns of ERISA itself, which was enacted to ensure administrative integrity in the operation of plans by preventing potential fiduciary abuse. The Maine statute neither establishes a plan nor generates any administrative activity capable of being abused. Pp. 482 U. S. 15 -16. (d) Appellant's contention that failure to preempt the Maine statute will allow employers to circumvent ERISA, by persuading States to require types of plans the employers would otherwise have established on their own, has no force with respect to a state statute that, as here, does not establish a plan, generates no ERISA-covered program activity, presents no risk that otherwise applicable federal requirements will be evaded by an employer or dislodged by a State, and creates no prospect that an employer will face difficulty in operating a unified administrative benefit payment scheme. Holland v. Burlington Industries, Inc., 772 F.2d 1140, summarily aff'd, 477 U.S. 901, and Gilbert v. Burlington Industries, Inc., 765 F.2d 320, summarily aff'd, 477 U.S. 901, distinguished. Pp. 482 U. S. 16 -19. (e) Where, as here, a state statute creates no danger of conflict with a federal statute, there is no reason to disable it from attempting to address uniquely local social and economic problems. P. 482 U. S. 19 . 2. The Maine severance pay statute is not preempted by the NLRA. Appellant's argument that the statute's establishment of a minimum labor standard impermissibly intrudes upon the collective bargaining process was rejected in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , and is without merit here. Although the statute does Page 482 U. S. 3 give employees something for which they might otherwise have had to bargain, that is true of any state law that substantively regulates employment conditions. Moreover, appellant's argument that this case is distinguishable from Metropolitan Life because the statutory obligation at issue here is optional, in that it applies only in the absence of an agreement between employer and employees, is not persuasive, since, in fact, the parties' freedom to devise their own severance pay arrangements strengthens the case that the statute works no intrusion on collective bargaining. Thus, the statute is a valid and unexceptional exercise of the State's police power, and is compatible with the NLRA. Pp. 482 U. S. 19 -22. 510 A.2d 1054 , affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O'CONNOR and SCALIA, JJ., joined, post p. 482 U. S. 23 . JUSTICE BRENNAN delivered the opinion of the Court. In this case, we must decide whether a Maine statute requiring employers to provide a one-time severance payment to employees in the event of a plant closing, Me.Rev.Stat. Page 482 U. S. 4 Ann., Tit. 26, § 625-B (Supp.1986-1987), [ Footnote 1 ] is preempted by either the Employee Retirement Income Security Act of 1974, 88 Stat. 832, as amended, 29 U.S.C. §§ 1001-1381 (ERISA), or the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. §§ 157-158 (NLRA). The statute was upheld by the Maine Superior Court, Civ. Action No. CV81-516 (Oct. 29, 1982), and by the Maine Supreme Judicial Court, 510 A.2d 1054 (1986). We noted probable jurisdiction, 479 U.S. 947 (1986), and now affirm. I In 1972, Fort Halifax Packing Company (Fort Halifax or Company) purchased a poultry packaging and processing plant that had operated in Winslow, Maine, for almost two decades. The Company continued to operate the plant for almost another decade, until, on May 23, 1981, it discontinued operations at the plant and laid off all its employees except several maintenance and clerical workers. At the time Page 482 U. S. 5 of closing, over 100 employees were on the payroll. Forty-five had worked in the plant for over 10 years, 19 for over 20 years, and 2 for 29 years. Plaintiff's Supplementary Response to Employee List, Exhibit A (June 3, 1983). Following the closing, the Company met with state officials and with representatives of Local 385 of the Amalgamated Meat Cutters & Butcher Workmen of North America, which represented many of the employees who had worked in the plant. While Fort Halifax initially suggested that reopening the plant might be feasible if the union agreed to certain concessions in the form of amendments to the collective bargaining agreement, ultimately the Company decided against resuming operations and to close the plant. On October 30, 1981, 11 employees filed suit in Superior Court seeking severance pay pursuant to Me.Rev.Stat.Ann., Tit. 26, § 625-B (Supp.1986-1987). This statute, which is set forth in n 1, supra, provides that any employer that terminates operations at a plant with 100 or more employees, or relocates those operations more than 100 miles away, must provide one week's pay for each year of employment to all employees who have worked in the plant at least three years. The employer has no such liability if the employee accepts employment at the new location, or if the employee is covered by a contract that deals with the issue of severance pay. §§ 625-B(2), (3). Under authority granted by the statute, the Maine Director of the Bureau of Labor Standards also commenced an action to enforce the provisions of the state law, which action superseded the suit filed by the employees. [ Footnote 2 ] Page 482 U. S. 6 The Superior Court, ruling on cross-motions for summary judgment, granted the Director's motion, holding that Fort Halifax is liable for severance pay under the statute. Civ. Action No. CV81-516 (Oct. 29, 1982). The Maine Supreme Judicial Court affirmed. 510 A.2d 1054 (1986). The court rejected the Company's contention that the plant-closing statute was preempted by ERISA, holding that ERISA preempted only benefit plans created by employers or employee organizations. Id. at 1059. It observed that the severance pay liability in this case results from the operation of the state statute, rather than from the operation of an employer-created benefit plan. Ibid. Therefore, reasoned the court, "[i]nasmuch as § 625-B does not implicate a plan created by an employer or employee organization, it cannot be said to be preempted by ERISA." Ibid. The court also rejected the argument that the state provision was preempted by the NLRA because it regulated conduct covered by either § 7 or § 8 of that statute. It found that the Maine statute applies equally to union and nonunion employees, and reflects "the state's substantial interest in protecting Maine citizens from the economic dislocation that accompanies large-scale plant closings." Id. at 1062. As a result, the court found that eligible employees were entitled to severance pay due to the closure of the plant at Winslow. [ Footnote 3 ] We hold that the Maine statute is not preempted by ERISA, not for the reason offered by the Maine Supreme Judicial Court, but because the statute neither establishes, nor requires an employer to maintain, an employee welfare benefit "plan" under that federal statute. [ Footnote 4 ] We hold further that Page 482 U. S. 7 the Maine law is not preempted by the NLRA, since it establishes a minimum labor standard that does not intrude upon the collective bargaining process. As a result, we affirm the judgment of the Maine Supreme Judicial Court that the Maine statute is not preempted by either ERISA or the NLRA. II Appellant's basic argument is that any state law pertaining to a type of employee benefit listed in ERISA necessarily regulates an employee benefit plan, and therefore must be preempted. Because severance benefits are included in ERISA, see 29 U.S.C. § 1002(1)(B), appellant argues that ERISA preempts the Maine statute. [ Footnote 5 ] In effect, appellant argues that ERISA forecloses virtually all state legislation regarding employee benefits. This contention fails, however, in light of the plain language of ERISA's preemption provision, the underlying purpose of that provision, and the overall objectives of ERISA itself. A The first answer to appellant's argument is found in the express language of the statute. ERISA's preemption provision does not refer to state laws relating to "employee benefits," but to state laws relating to "employee benefit plans ": Page 482 U. S. 8 "[T]he provisions of this subchapter . . . shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in § 1003(a) of this title and not exempt under § 1003(b) of this title." 29 U.S.C. § 1144(a) (emphasis added). We have held that the words "relate to" should be construed expansively: "[a] law relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Shaw v. Delta Airlines, Inc., 463 U. S. 85 , 463 U. S. 96 -97 (1983). Nothing in our case law, however, supports appellant's position that the word "plan" should in effect be read out of the statute. Indeed, Shaw itself speaks of a state law's connection with or reference to a plan. Ibid. The words "benefit" and "plan" are used separately throughout ERISA, and nowhere in the statute are they treated as the equivalent of one another. Given the basic difference between a "benefit" and a "plan," Congress' choice of language is significant in its preemption of only the latter. Thus, as a first matter, the language of the ERISA presents a formidable obstacle to appellant's argument. The reason for Congress' decision to legislate with respect to plans, rather than to benefits, becomes plain upon examination of the purpose of both the preemption section and the regulatory scheme as a whole. B The second answer to appellant's argument is that preemption of the Maine statute would not further the purpose of ERISA preemption. In analyzing whether ERISA's preemption section is applicable to the Maine law, "as in any preemption analysis, the purpose of Congress is the ultimate touchstone.'" Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 471 U. S. 747 (1985) (quoting Malone v. White Motor Corp., 435 U. S. 497 , 435 U. S. 504 (1978)). Attention to purpose is particularly necessary in this case because the terms "employee benefit plan" and "plan" are defined only tautologically in the statute, each being described as "an employee welfare Page 482 U. S. 9 benefit plan or employee pension benefit plan or a plan which is both an employee welfare benefit plan and an employee pension benefit plan." 29 U.S.C. § 1002(3). Statements by ERISA's sponsors in the House and Senate clearly disclose the problem that the preemption provision was intended to address. In the House, Representative Dent stated that, "with the preemption of the field [of employee benefit plans], we round out the protection afforded participants by eliminating the threat of conflicting and inconsistent State and local regulation." 120 Cong.Rec. 29197 (1974). Similarly, Senator Williams declared: "It should be stressed that, with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans." Id. at 29933. These statements reflect recognition of the administrative realities of employee benefit plans. An employer that makes a commitment systematically to pay certain benefits undertakes a host of obligations, such as determining the eligibility of claimants, calculating benefit levels, making disbursements, monitoring the availability of funds for benefit payments, and keeping appropriate records in order to comply with applicable reporting requirements. The most efficient way to meet these responsibilities is to establish a uniform administrative scheme, which provides a set of standard procedures to guide processing of claims and disbursement of benefits. Such a system is difficult to achieve, however, if a benefit plan is subject to differing regulatory requirements in differing States. A plan would be required to keep certain records in some States but not in others; to make certain benefits available in some States but not in others; to process claims in a certain way in some States but not in others; and to comply with certain fiduciary standards in some States but not in others. Page 482 U. S. 10 We have not hesitated to enforce ERISA's preemption provision where state law created the prospect that an employer's administrative scheme would be subject to conflicting requirements. In Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 (1981), for instance, we struck down a New Jersey statute that prohibited offsetting worker compensation payments against pension benefits. Since such a practice is permissible under federal law and the law of other States, the effect of the statute was to force the employer either to structure all its benefit payments in accordance with New Jersey law or to adopt different payment formulae for employees inside and outside the State. The employer therefore was required to accommodate conflicting regulatory schemes in devising and operating a system for processing claims and paying benefits -- precisely the burden that ERISA preemption was intended to avoid. This point was emphasized in Shaw, supra, where we said with respect to another form of State regulation: "Obligating the employer to satisfy the varied and perhaps conflicting requirements of particular state fair employment laws . . . would make administration of a nationwide plan more difficult." 463 U.S. at 463 U. S. 105 , n. 25. Such a situation would produce considerable inefficiencies, which the employer might choose to offset by lowering benefit levels. As the Court in Shaw indicated, "ERISA's comprehensive preemption of state law was meant to minimize this sort of interference with the administration of employee benefit plans," ibid., so that employers would not have to "administer their plans differently in each State in which they have employees." Id. at 463 U. S. 105 (footnote omitted). This concern about the effect of state regulation on the administration of benefit programs is reflected in Shaw's holding that only disability programs administered separately from other benefit plans fall within ERISA's preemption exemption for plans maintained "for the purpose of complying with . . . disability insurance laws." 29 U.S.C. § 1003(b)(3). Page 482 U. S. 11 To permit the exemption to apply to disability benefits paid under a multibenefit plan was held to be inconsistent with the purpose of ERISA's preemption provision: "An employer with employees in several States would find its plan subject to a different jurisdictional pattern of regulation in each State, depending on what benefits the State mandated under disability, workmen's compensation, and unemployment compensation laws. The administrative impracticality of permitting mutually exclusive pockets of federal and state jurisdiction within a plan is apparent." 463 U.S. at 463 U. S. 107 -108. It is thus clear that ERISA's preemption provision was prompted by recognition that employers establishing and maintaining employee benefit plans are faced with the task of coordinating complex administrative activities. A patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation, which might lead those employers with existing plans to reduce benefits, and those without such plans to refrain from adopting them. Preemption ensures that the administrative practices of a benefit plan will be governed by only a single set of regulations. See, e.g., H.R.Rep. No. 93-533, p. 12 (1973) ("[A] fiduciary standard embodied in Federal legislation is considered desirable, because it will bring a measure of uniformity in an area where decisions under the same set of facts may differ from state to state"). The purposes of ERISA's preemption provision make clear that the Maine statute in no way raises the types of concerns that prompted preemption. Congress intended preemption to afford employers the advantages of a uniform set of administrative procedures governed by a single set of regulations. This concern only arises, however, with respect to benefits whose provision by nature requires an ongoing administrative program to meet the employer's obligation. It is for this reason that Congress preempted state laws relating to plans, rather than simply to benefits. Only a plan embodies a set of Page 482 U. S. 12 administrative practices vulnerable to the burden that would be imposed by a patchwork scheme of regulation. The Maine statute neither establishes, nor requires an employer to maintain, an employee benefit plan. The requirement of a one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer's obligation. The employer assumes no responsibility to pay benefits on a regular basis, and thus faces no periodic demands on its assets that create a need for financial coordination and control. Rather, the employer's obligation is predicated on the occurrence of a single contingency that may never materialize. The employer may well never have to pay the severance benefits. To the extent that the obligation to do so arises, satisfaction of that duty involves only making a single set of payments to employees at the time the plant closes. To do little more than write a check hardly constitutes the operation of a benefit plan. [ Footnote 6 ] Once this single event is over, the employer has no further responsibility. The theoretical possibility of a one-time obligation in the future simply creates no need for an ongoing administrative program for processing claims and paying benefits. This point is underscored by comparing the consequences of the Maine statute with those produced by a state statute requiring the establishment of a benefit plan. In Standard Oil Co. of California v. Agsalud, 633 F.2d 760 (CA9 1980), summarily aff'd, 454 U.S. 801 (1981), for instance, Hawaii had required that employers provide employees with a comprehensive health care plan. The Hawaii law was struck Page 482 U. S. 13 down, for it posed two types of problems. [ Footnote 7 ] First, the employer in that case already had in place a health care plan governed by ERISA, which did not comply in all respects with the Hawaii Act. If the employer sought to achieve administrative efficiencies by integrating the Hawaii plan into its existing plan, different components of its single plan would be subject to different requirements. If it established a separate plan to administer the program directed by Hawaii, it would lose the benefits of maintaining a single administrative scheme. Second, if Hawaii could demand the operation of a particular benefit plan, so could other States, which would require that the employer coordinate perhaps dozens of programs. Agsalud thus illustrates that whether a State requires an existing plan to pay certain benefits, or whether it requires the establishment of a separate plan where none existed before, the problem is the same. Faced with the difficulty or impossibility of structuring administrative practices according to a set of uniform guidelines, an employer may decide to reduce benefits or simply not to pay them at all. [ Footnote 8 ] Page 482 U. S. 14 By contrast, the Maine law does not put the employer to the choice of either: (1) integrating a state-mandated ongoing benefit plan with an existing plan or (2) establishing a separate plan to process and pay benefits under the plan required by the State. This is because there is no state-mandated benefit plan to administer. In this case, for instance, Fort Halifax found no need to respond to passage of the Maine statute by setting up an administrative scheme to meet its contingent statutory obligation, any more than it would find it necessary to set up an ongoing scheme to deal with the obligations it might face in the event that some day it might go bankrupt. The Company makes no contention that its statutory duty has in any way hindered its ability to operate its retirement plan in uniform fashion, a plan that pays retirement, death, and permanent and total disability benefits on an ongoing basis. App. 40. The obligation imposed by the Maine statute thus differs radically in impact from a requirement that an employer pay ongoing benefits on a continuous basis. The Maine statute therefore creates no impediment to an employer's adoption of a uniform benefit administration scheme. Neither the possibility of a one-time payment in the future, nor the act of making such a payment, in any way creates the potential for the type of conflicting regulation of benefit plans that ERISA preemption was intended to prevent. [ Footnote 9 ] As a result, preemption of the Maine law would not Page 482 U. S. 15 serve the purpose for which ERISA's preemption provision was enacted. C The third answer to appellant's argument is that the Maine statute not only fails to implicate the concerns of ERISA's preemption provision, it fails to implicate the regulatory concerns of ERISA itself. The congressional declaration of policy, codified at 29 U.S.C. § 1001, states that ERISA was enacted because Congress found it desirable that "disclosure be made and safeguards be provided with respect to the establishment, operation, and administration of [employee benefit] plans." § 1001(a). Representative Dent, the House sponsor of the legislation, represented that ERISA's fiduciary standards "will prevent abuses of the special responsibilities borne by those dealing with plans." 120 Cong.Rec. 29197 (1974). Senator Williams, the Senate sponsor, stated that these standards would safeguard employees from "such abuses as self-dealing, imprudent investing, and misappropriation of plan funds." Id. at 29932. The focus of the statute thus is on the administrative integrity of benefit plans -- which presumes that some type of administrative activity is taking place. See, e.g., H.R.Rep. No. 94-1785, p. 46 (1977) ("In electing deliberately to preclude state authority over these plans, Congress acted to insure uniformity of regulation with respect to their activities ") (emphasis added); 120 Cong.Rec. 29197 (1974) (remarks of Rep. Dent) (disclosure and reporting requirements "will enable both participants and the Federal Government to monitor the plans' operations ") (emphasis added); id. at 29935 (remarks of Sen. Javits) (disclosure Page 482 U. S. 16 meant to provide employees information "covering in detail the fiscal operations of their plan") (emphasis added). The foregoing makes clear both why ERISA is concerned with regulating benefit "plans" and why the Maine statute does not establish one. Only "plans" involve administrative activity potentially subject to employer abuse. The obligation imposed by Maine generates no such activity. There is no occasion to determine whether a "plan" is "operated" in the interest of its beneficiaries, because nothing is "operated." No financial transactions take place that would be listed in an annual report, and no further information regarding the terms of the severance pay obligation is needed, because the statute itself makes these terms clear. It would make no sense for preemption to clear the way for exclusive federal regulation, for there would be nothing to regulate. Under such circumstances, preemption would in no way serve the overall purpose of ERISA. D Appellant contends that failure to preempt the Maine law will create the opportunity for employers to circumvent ERISA's regulatory requirements by persuading a State to require the type of benefit plan that the employer otherwise would establish on its own. That may be so under the rationale offered by the State Supreme Judicial Court, but that is not the rationale on which we rely today. The Maine Supreme Judicial Court rested its decision on the premise that ERISA only preempts state regulation of preexisting benefit plans established by the employer, and not state-mandated benefit plans. We agree that such an approach would afford employers a readily available means of evading ERISA's regulatory scope, thereby depriving employees of the protections of that statute. In addition, it would permit States to circumvent ERISA's preemption provision, by allowing them to require directly what they are forbidden to regulate. In contrast, our analysis of the purpose Page 482 U. S. 17 of ERISA preemption makes clear why the mere fact that a plan is required by a State is insufficient to fend off preemption. The requirements imposed by a State's establishment of a benefit plan would pose a formidable barrier to the development of a uniform set of administrative practices. As Standard Oil Co. of California v. Agsalud, 633 F.2d 760 (CA9 1980), illustrates, an employer would be put to the choice of operating separate ongoing benefit plans or a single plan subject to different regulatory requirements, and would face the prospect that numerous other States would impose their own distinct requirements -- a result squarely inconsistent with the goal of ERISA preemption. Appellant's arguments are thus well taken insofar as they are addressed to the reasoning of the court below. We have demonstrated supra, however, they have no force with respect to a state statute that, as here, does not establish a plan. Such a statute generates no program activity that normally would be subject to ERISA regulation. Enforcement of the Maine statute presents no risk either that an employer will evade or that a State will dislodge otherwise applicable federal regulatory requirements. Nor is there any prospect that an employer will face difficulty in operating a unified administrative scheme for paying benefits. The rationale on which we rely thus does not create the dangers that appellant contends will result from upholding the Maine law. Appellant also argues that its contention that the severance obligation under the Maine statute is an ERISA plan is supported by Holland v. Burlington Industries, Inc., 772 F.2d 1140 (CA4 1985), summarily aff'd, 477 U.S. 901 (1986), and Gilbert v. Burlington Industries, Inc., 765 F.2d 320 (CA2 1985), summarily aff'd, 477 U.S. 901 (1986). We disagree. Those cases hold that a plan that pays severance benefits out of general assets is an ERISA plan. That holding is completely consistent with our analysis above. There was no question in the Burlington cases, as there is in this Page 482 U. S. 18 case, whether the employer had a "plan"; [ Footnote 10 ] there was a "plan" and the only issue was whether the type of benefits paid by that plan are among those covered by ERISA. The precise question was simply whether severance benefits paid by a plan out of general assets, rather than out of a trust fund, should be regarded as employee welfare benefits under 29 U.S.C. § 1002. [ Footnote 11 ] The courts' conclusion that they should be so regarded took into account ERISA's central focus on administrative integrity: if an employer has an administrative scheme for paying benefits, it should not be able to evade the requirements of the statute merely by paying those benefits out of general assets. Some severence benefit obligations, by their nature, necessitate an ongoing administrative scheme, but others do not. Those that do not, such as the obligation imposed in this case, simply do not involve a state law that "relate[s] to" an employee benefit "plan." 29 U.S.C. § 1144(a). [ Footnote 12 ] Page 482 U. S. 19 The Burlington cases therefore do not support appellant's argument. E ERISA preemption analysis "must be guided by respect for the separate spheres of governmental authority preserved in our federalist system." Alessi v. Raybestos-Manhattan, Inc., 451 U.S. at 451 U. S. 522 . The argument that ERISA preempts state laws relating to certain employee benefits, rather than to employee benefit plans, is refuted by the express language of the statute, the purposes of the preemption provision, and the regulatory focus of ERISA as a whole. If a State creates no prospect of conflict with a federal statute, there is no warrant for disabling it from attempting to address uniquely local social and economic problems. [ Footnote 13 ] Since the Maine severance payment statute raises no danger of such conflict, we hold that the statute is not preempted by ERISA. III Appellant also contends that Maine's statute is preempted by the NLRA. In so arguing, the Company relies on the strand of NLRA preemption analysis that prohibits States from "imposing additional restrictions on economic weapons of self-help." Golden State Transit Corp. v. City of Los Angeles, 475 U. S. 608 , 475 U. S. 614 (1986). [ Footnote 14 ] Restriction on state activity in this area rests on the theory that preemption is necessary to further Congress' intent that "the conduct involved Page 482 U. S. 20 be unregulated because [it should be] left to be controlled by the free play of economic forces.'" Machinists v. Wisconsin Employment Relations Comm'n, 427 U. S. 132 , 427 U. S. 140 (1976) (quoting NLRB v. Nash-Finch Co., 404 U. S. 138 , 404 U. S. 144 (1971)). Appellant concedes that, unlike cases in which state laws have been struck down under this doctrine, Maine has not directly regulated any economic activity of either of the parties. See, e.g., Machinists, supra, (State enjoined union members from continuing to refuse to work overtime); Garner v. Teamsters, 346 U. S. 485 (1953) (State enjoined union picketing). Nor has the State sought directly to force a party to forgo the use of one of its economic weapons. See, e.g., Golden State Transit, supra, (City Council conditioned taxicab franchise renewal on settlement of strike). Nonetheless, appellant maintains that the Maine law intrudes on the bargaining activities of the parties because the prospect of a statutory obligation undercuts an employer's ability to withstand a union's demand for severance pay. This argument -- that a State's establishment of minimum substantive labor standards undercuts collective bargaining -- was considered and rejected in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). That case involved a state law requiring that minimum mental health benefits be provided under certain health insurance policies. Appellants there presented the same argument that appellant makes in this case: "[B]ecause Congress intended to leave the choice of terms in collective bargaining agreements to the free play of economic forces, . . . mandated-benefit laws should be preempted by the NLRA." Id. at 471 U. S. 748 . The Court held, however, that the NLRA is concerned with ensuring an equitable bargaining process, not with the substantive terms that may emerge from such bargaining. "The evil Congress was addressing thus was entirely unrelated to local or federal regulation establishing minimum terms of employment." Id. at 471 U. S. 754 . Such regulation provides protections Page 482 U. S. 21 to individual union and nonunion workers alike, and thus "neither encourage[s] nor discourage[s] the collective bargaining processes that are the subject of the NLRA." Id. at 471 U. S. 755 . Furthermore, preemption should not be lightly inferred in this area, since the establishment of labor standards falls within the traditional police power of the State. As a result, held the Court: "When a state law establishes a minimal employment standard not inconsistent with the general legislative goals of the NLRA, it conflicts with none of the purposes of the Act." Id. at 471 U. S. 757 . It is true that the Maine statute gives employees something for which they otherwise might have to bargain. That is true, however, with regard to any state law that substantively regulates employment conditions. Both employers and employees come to the bargaining table with rights under state law that form a " backdrop'" for their negotiations. Ibid. (quoting Taggart v. Weinacker's, Inc., 397 U. S. 223 , 397 U. S. 228 (1970) (concurring opinion)). Absent a collective bargaining agreement, for instance, state common law generally permits an employer to run the workplace as it wishes. The employer enjoys this authority without having to bargain for it. The parties may enter negotiations designed to alter this state of affairs, but if impasse is reached, the employer may rely on preexisting state law to justify its authority to make employment decisions; that same state law defines the rights and duties of employees. Similarly, Maine provides that employer and employees may negotiate with the intention of establishing severance pay terms. If impasse is reached, however, preexisting state law determines the right of employees to a certain level of severance pay and the duty of the employer to provide it. Thus, the mere fact that a state statute pertains to matters over which the parties are free to bargain cannot support a claim of preemption, for "there is nothing in the NLRA . . . which expressly forecloses all state regulatory power with respect to those issues . . . that may be the Page 482 U. S. 22 subject of collective bargaining." Malone v. White Motor Corp., 435 U. S. 497 , 435 U. S. 504 -505 (1978). Appellant maintains that this case is distinguishable from Metropolitan Life. It points out that, unlike Metropolitan Life, the statutory obligation at issue here is optional, since it applies only in the absence of an agreement between employer and employees. Therefore, the Company argues, the Maine law cannot be regarded as establishing a genuine minimum labor standard. The fact that the parties are free to devise their own severance pay arrangements, however, strengthens the case that the statute works no intrusion on collective bargaining. Maine has sought to balance the desirability of a particular substantive labor standard against the right of self-determination regarding the terms and conditions of employment. If a statute that permits no collective bargaining on a subject escapes NLRA preemption, see Metropolitan Life, surely one that permits such bargaining cannot be preempted. [ Footnote 15 ] We therefore find that Maine's severance payment law is "a valid and unexceptional exercise of the [State's] police power." Metropolitan Life, 471 U.S. at 471 U. S. 758 . Since "Congress developed the framework for self-organization and collective bargaining of the NLRA within the larger body of state law promoting public health and safety," id. at 471 U. S. 756 , the Maine statute is not preempted by the NLRA. [ Footnote 16 ] Page 482 U. S. 23 IV We hold that the Maine severance pay statute is not preempted by ERISA, since it does not "relate to any employee benefit plan" under that statute. 29 U.S.C. § 1144(a). We hold further that the law is not preempted by the NLRA, since its establishment of a minimum labor standard does not impermissibly intrude upon the collective bargaining process. The judgment of the Maine Supreme Judicial Court is therefore Affirmed. [ Footnote 1 ] The statute provides in pertinent part: "2. Severance pay. Any employer who relocates or terminates a covered establishment shall be liable to his employees for severance pay at the rate of one week's pay for each year of employment by the employee in that establishment. The severance pay to eligible employees shall be in addition to any final wage payment to the employee and shall be paid within one regular pay period after the employee's last full day of work, notwithstanding any other provisions of law." "3. Mitigation of severance pay liability. There shall be no liability for severance pay to an eligible employee if:" "A. Relocation or termination of a covered establishment is necessitated by a physical calamity;" "B. The employee is covered by an express contract providing for severance pay;" "C. That employee accepts employment at the new location; or" "D. That employee has been employed by the employer for less than 3 years." Section 625-B(1)(A) defines "covered establishment" as a facility that employs 100 or more persons, while § 625-B(1)(F) defines "relocation" as the removal of all or substantially all operations at least 100 miles away from their original location. [ Footnote 2 ] Section 626-B(5) of the Maine statute provides in relevant part: "5. Suits by the director. The director is authorized to supervise the payment of the unpaid severance pay owing to any employee under this section. The director may bring an action in any court of competent jurisdiction to recover the amount of any unpaid severance pay. The right provided by subsection 4 to bring an action by or on behalf of any employee, and of any employee to become a party plaintiff to any such action, shall terminate upon the filing of a complaint by the director in an action under this subsection, unless the action is dismissed without prejudice by the director. . . ." [ Footnote 3 ] Ninety-three employees of the plant are eligible for lump-sum payments ranging from $490 to $11,500. The total amount due is about $256,600. Affidavit of Xavier J. Dietrich, Exhibit A (Aug. 13, 1984). [ Footnote 4 ] Because we hold that the obligation created by the Maine statute does not involve a plan, we do not address the State's alternative argument that, even if the law does establish a plan, it is not preempted by virtue of the exemption for plans "maintained solely for the purpose of complying with applicable . . . unemployment compensation or disability insurance laws." 29 U.S.C. § 1003(b)(3). [ Footnote 5 ] Section 1002(1)(B) defines an employee welfare benefit plan as a plan that pays, inter alia, benefits described in 29 U.S.C. § 186(c). The latter section includes, inter alia, money paid by an employer to a trust fund to pay for severance benefits. Section 1002(1)(B) has been construed to include severance benefits paid out of general assets, as well as out of a trust fund. See Holland v. Burlington Industries, Inc., 772 F.2d 1140 (CA4 1985), summarily aff'd, 477 U.S. 901 (1986); Gilbert v. Burlington Industries, Inc., 765 F.2d 320 (CA2 1985), summarily aff'd, 477 U.S. 901 (1986); Scott v. Gulf Oil Corp., 754 F.2d 1499 (CA9 1985); 29 CFR § 2510.3-1(a)(3) (1986). See also discussion infra at 482 U. S. 17 -19. [ Footnote 6 ] See Martori Bros. Distributors v. James-Massengale, 781 F.2d 1349, 1358 (CA9) ("It is difficult to see how the making of one-time lump sum payments could constitute the establishment of a plan"), amended on other grounds, 791 F.2d 799, cert. denied, 479 U.S. 949 (1986). Cf. Donovan v. Dillingham, 688 F.2d 1367, 1373 (CA11 1982) ("A decision to extend benefits is not the establishment of a plan or program"). [ Footnote 7 ] In 1983, Congress amended ERISA to exempt from preemption certain provisions of the Hawaii Act in place before the enactment of ERISA, Haw.Rev.Stat. §§ 393-1 through 393-48 (1976 and Supp.1984). 29 U.S.C. § 1144(b)(5). The amendment did not exempt from preemption those portions of the law dealing with reporting, disclosure, and fiduciary requirements. [ Footnote 8 ] The dissent draws support for its position from the the court's rejection in Agsalud of the argument that only state laws relating to plan administration, as opposed to plan benefits, are preempted by ERISA. Post at 482 U. S. 26 . The court's position, however, no more than acknowledges what we have said in our discussion, supra: state laws requiring the payment of benefits also "relate to a[n] employee benefit plan" if they attempt to dictate what benefits shall be paid under a plan. To hold otherwise would create the prospect that plan administration would be subject to differing requirements regarding benefit eligibility and benefit levels -- precisely the type of conflict that ERISA's preemption provision was intended to prevent. [ Footnote 9 ] Appellant notes that death benefits sometimes involve a one-time payment to beneficiaries, and that ERISA nonetheless defines an employee welfare benefit plan to include a program that pays such benefits. 29 U.S.C. § 1002(1). Thus, it contends, the fact that the Maine statute requires a single payment does not mean that the statute does not establish a plan. This argument, however, misunderstands what it is that makes a plan a plan. While death benefits may represent a one-time payment from the perspective of the beneficiaries, the employer clearly foresees the need to make regular payments to survivors on an ongoing basis. The ongoing, predictable nature of this obligation therefore creates the need for an administrative scheme to process claims and pay out benefits, whether those benefits are received by beneficiaries in a lump sum or on a periodic basis. This is borne out by the fact that death benefits are included in appellant's retirement plan, with instructions on how eligibility is to be determined, benefit levels calculated, and disbursements made. App. 54-56. By contrast, appellant's statutory obligation did not prompt the establishment of any payment program, since there were no ongoing benefits to be paid. [ Footnote 10 ] The employer had made a commitment to pay severance benefits to employees as each person left employment. This commitment created the need for an administrative scheme to pay these benefits on an ongoing basis, and the company had distributed both a Policy Manual and Employees' Handbook that provided details on matters such as eligibility benefit levels, and payment schedules. 772 F.2d at 1143-1144, and n. 1; 765 F.2d at 323. The fact that the employer had not complied with the requirements of ERISA in operating this scheme therefore does not, as the dissent contends, post at 482 U. S. 25 -26, mean that no such program for paying benefits was in existence. [ Footnote 11 ] The question arose because § 1002(1)(B) provides that an employee welfare benefit plan includes a plan that provides benefits described in 29 U.S.C. § 186(c). The latter section lists, inter alia, money paid by an employer to a trust fund for severance benefits. [ Footnote 12 ] Thus, if a State required a benefit whose regularity of payment necessarily required an ongoing benefit program, it could not evade preemption by the simple expedient of somehow formally characterizing the obligation as a one-time, lump-sum payment triggered by the occurrence of a certain contingency. It is therefore not the case, as the dissent argues, post at 482 U. S. 23 , that a State could dictate the payment of numerous employee benefits "by simply characterizing them as non- administrative.'" Ibid. [ Footnote 13 ] During the decade between 1971 and 1981, a total of 107 plants were closed in Maine, resulting in the direct loss of 21,215 jobs. Leighton, Plant Closings in Maine: Law and Reality, in Key Issues, No. 27, Plant Closing Legislation 1 (A. Aboud ed., 1984). Taking into account the multiplier effects of these job losses on the local communities, it is estimated that the total number of jobs lost in Maine during this period was 49,219. Id. at 3. These losses were concentrated in the poorer counties of the State and in the lower wage industries, resulting in a significant burden on local public and private social service agencies. Id. at 4. [ Footnote 14 ] The National Labor Relations Act contains no express preemption provision. [ Footnote 15 ] Appellant also contends that, unlike the statute in Metropolitan Life, the Maine law does not fall equally upon union and nonunion employees. Nonunion employers, it argues, are free unilaterally to escape their statutory obligation by establishing severance payment levels, while unionized employers must engage in collective bargaining in order to achieve the same result. Any difference in the ease of establishing alternative severance payment obligations, however, flows not from the statute, but from the basic fact that a nonunion employer is freer to set employment terms than is a unionized employer. [ Footnote 16 ] We also find no support for an argument of preemption under the rule established in San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), since the Maine statute does not purport to regulate any conduct subject to regulation by the National Labor Relations Board. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 748 -749. JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting. The Court rejects appellant's preemption challenge to Maine's severance pay statute by reasoning that the statute does not create a "plan" under ERISA because it does not require an "administrative scheme" to administer the payment of severance benefits. By making preemption turn on the existence of an "administrative scheme," the Court creates a loophole in ERISA's preemption statute, 29 U.S.C. § 1144, which will undermine Congress' decision to make employee benefit plans a matter of exclusive federal regulation. The Court's rule requiring an established "administrative scheme" as a prerequisite for ERISA preemption will allow States to effectively dictate a wide array of employee benefits that must be provided by employers by simply characterizing them as non-"administrative." The Court has also chosen to ignore completely what precedent exists as to what constitutes a "plan" under ERISA. I dissent because it is incredible to believe that Congress intended that the broad preemption provision contained in ERISA would depend upon the extent to which an employer exercised administrative foresight in preparing for the eventual payment of employee benefits. Page 482 U. S. 24 ERISA preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . ." 29 U.S.C. § 1144. Congress defined an "employee welfare benefit plan" as "any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or an employee organization" and which provides certain benefits, including severance pay. 29 U.S.C. § 1002(1). See Gilbert v. Burlington Industries, Inc., 765 F.2d 320, 325 (CA2 1985), summarily aff'd, 477 U.S. 901 (1986). A state law "which requires employers to pay employees specific benefits clearly relate[s] to' benefit plans" as contemplated by ERISA's preemption provision. Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , 463 U. S. 97 (1983). I would have thought this to be the end of the preemption inquiry. Here, the Maine statute clearly creates an employee benefit plan, and having created an ERISA plan, the statute plainly "relates to" such a plan. The Maine Supreme Judicial Court, in effect, acknowledged as much, but held that Maine's statute was not preempted by ERISA because it was created by the state legislature, instead of by a private employer. Apparently recognizing the flaw inherent in this reasoning, the majority nevertheless struggles to achieve its desired result by asserting that the statute does not create a "plan" because it does not require an employer to establish an administrative scheme. I cannot accept this conclusion. First, § 1002(1) establishes no requirement that a "plan" meet any specific formalities or that there be some policy manual or employee handbook to effectuate it. Cf. ante at 482 U. S. 14 -15, n. 9. In reading such a requirement into § 1002(1), the majority ignores the obvious: when a Maine employer is called upon to discharge its legislatively mandated duty under the severance pay statute, the funds from which it pays the benefits do not materialize out of thin air. The Maine Legislature has presumed, as it is so entitled, that employers will comply with the dictates of the statute's requirements. That an employer's liability is contingent upon an Page 482 U. S. 25 event that may never happen does not make the plan that the legislature has imposed upon employers any less of a plan. And that there may be imprudent employers who either are unaware of the severance pay statute or order their business affairs as if the statute's obligations do not exist -- and it is upon the behavior of this class of employers that the majority seemingly relies in concluding that the severance pay statute does not embody an "administrative scheme" -- in no way supports the remarkable conclusion that the statutory obligations do not constitute a plan for the payment of severance benefits. Second, in concluding that Maine's statute does not establish a "plan" as contemplated by ERISA, the Court overrules, sub silentio, recent decisions of this Court. Gilbert v. Burlington Industries, Inc., supra, involved an employer's policy to pay severance benefits to employees who were involuntarily terminated. The employer had no separate fund from which to make severance pay payments, and, of particular note, there was virtually no "administrative scheme" to effectuate the program: "The granting or denial of severance pay was automatic upon termination. Plaintiffs [employees] allege that Burlington never sought to comply with ERISA respecting its severance pay policy. That is, they claim that: it never published or filed an annual report, a financial statement, a plan description or a statement of plan modifications; it did not designate a fiduciary for the plan or inform employees of their rights under ERISA and the plan; there was no established claims procedure; and, apart from the company's 'open door' grievance policy, there was no established appeals procedure." Gilbert, 765 F.2d at 323. The employees and numerous amici claimed that "a promise or agreement to pay severance benefits, without more, does not constitute a welfare benefit plan within the meaning of ERISA." Id. at 324. The Second Circuit rejected this contention, id. at 325, and we summarily affirmed, 477 U.S. 901 (1986). See Page 482 U. S. 26 also Holland v. Burlington Industries, Inc., 772 F.2d 1140 (CA4 1985), summarily aff'd, 477 U.S. 901 (1986). The Court characterizes Standard Oil Co. of California v. Agsalud, 633 F.2d 760, 766 (CA9 1980), summarily aff'd, 454 U.S. 801 (1981), as holding that ERISA preempted Hawaii's health care statute because it impaired employers' ability to "structur[e] [their] administrative practices according to a set of uniform guidelines." Ante at 482 U. S. 13 . But that case involved more than administrative uniformity. Indeed, in Agsalud, the Ninth Circuit expressly rejected the argument that ERISA was concerned only with the administration of benefit plans, not state statutes which require employers to provide particular employee benefits: "Appellants in the district court argued that, since ERISA was concerned primarily with the administration of benefit plans, its provisions were not intended to prevent the operation of laws like the Hawaii Act pertaining principally to benefits, rather than administration. There is, however, nothing in the statute to support such a distinction between the state laws relating to benefits, as opposed to administration." 633 F.2d at 765. The Ninth Circuit held that the Hawaii Act "directly and expressly regulates employers and the type of benefits they provide employees. It must 'relate to' employee benefit plans within the meaning of ERISA's broad preemption provision. . . ." Id. at 766. Representatives of the State of Hawaii appealed to this Court, No. 80-1841, claiming, inter alia, that the State's police power permits it to require employers to provide certain employee benefits, and that Hawaii's statute "in no way conflicts with any substantive provision in ERISA, since that statute requires no benefits at all." Juris. Statement, O.T. 1981, No. 80-1841, p. 7. We disagreed, and summarily affirmed. 454 U.S. 801 (1981). The Court's "administrative-scheme" rationale provides States with a means of circumventing congressional intent, clearly expressed in § 1144, to preempt all state laws that relate to employee benefit plans. For that reason, I dissent.

In this case, the Supreme Court ruled that a Maine state law requiring employers to provide severance pay to employees in the event of a plant closing was not preempted by the Employee Retirement Income Security Act of 1974 (ERISA). The Court found that the state law did not "relate to any employee benefit plan" under ERISA's preemption provision, as it did not establish or require employers to maintain a plan, and it did not implicate the regulatory concerns of ERISA.

Labor & Employment

O'Connor v. Ortega

https://supreme.justia.com/cases/federal/us/480/709/

U.S. Supreme Court O'Connor v. Ortega, 480 U.S. 709 (1987) O'Connor v. Ortega No. 86-630 Argued October 16, 1986 Decided March 31, 1987 480 U.S. 709 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent, a physician and psychiatrist, was an employee of a state hospital and had primary responsibility for training physicians in the psychiatric residency program. Hospital officials became concerned about possible improprieties in his management of the program, particularly with respect to his acquisition of a computer and charges against him concerning sexual harassment of female hospital employees and inappropriate disciplinary action against a resident. While he was on administrative leave pending investigation of the charges, hospital officials, allegedly in order to inventory and secure state property, searched his office and seized personal items from his desk and file cabinets that were used in administrative proceedings resulting in his discharge. No formal inventory of the property in the office was ever made, and all the other papers in the office were merely placed in boxes for storage. Respondent filed an action against petitioner hospital officials in Federal District Court under 42 U.S.C. §1983, alleging that the search of his office violated the Fourth Amendment. On cross-motions for summary judgment, the District Court granted judgment for petitioners, concluding that the search was proper because there was a need to secure state property in the office. Affirming in part, reversing in part, and remanding the case, the Court of Appeals concluded that respondent had a reasonable expectation of privacy in his office, and that the search violated the Fourth Amendment. The court held that the record justified a grant of partial summary judgment for respondent on the issue of liability for the search, and it remanded the case to the District Court for a determination of damages. Held: The judgment is reversed, and the case is remanded. 764 F.2d 703, reversed and remanded. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE POWELL, concluded that: 1. Searches and seizures by government employers or supervisors of the private property of their employees are subject to Fourth Amendment restraints. An expectation of privacy in one's place of work is based upon societal expectations that have deep roots in the history of the Amendment. However, the operational realities of the workplace may make some public employees' expectations of privacy unreasonable Page 480 U. S. 710 when an intrusion is by a supervisor, rather than a law enforcement official. Some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. Because the record does not reveal the extent to which hospital officials may have had work-related reasons to enter respondent's office, the Court of Appeals should have remanded the matter to the District Court for its further determination. However, a majority of this Court agrees with the determination of the Court of Appeals that respondent had a reasonable expectation of privacy in his office. Regardless of any expectation of privacy in the office itself, the undisputed evidence supports the conclusion that respondent had a reasonable expectation of privacy at least in his desk and file cabinets. Pp. 480 U. S. 714 -719. 2. In determining the appropriate standard for a search conducted by a public employer in areas in which an employee has a reasonable expectation of privacy, what is a reasonable search depends on the context within which the search takes place, and requires balancing the employee's legitimate expectation of privacy against the government's need for supervision, control, and the efficient operation of the workplace. Requiring an employer to obtain a warrant whenever the employer wishes to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unreasonable. Moreover, requiring a probable cause standard for searches of the type at issue here would impose intolerable burdens on public employers. Their intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this standard, both the inception and the scope of the intrusion must be reasonable. Pp. 480 U. S. 719 -726. 3. In the procedural posture of this case, it cannot be determined whether the search of respondent's office, and the seizure of his personal belongings, satisfied the standard of reasonableness. Both courts below were in error, because summary judgment was inappropriate. The parties were in dispute about the actual justification for the search, and the record was inadequate for a determination of the reasonableness of the search and seizure. On remand, the District Court must determine these matters. Pp. 480 U. S. 726 -729. JUSTICE SCALIA concluded that the offices of government employees, and a fortiori the drawers and files within those offices, are covered by Fourth Amendment protections as a general matter, and no special circumstances Page 480 U. S. 711 were present here that would call for an exception to the ordinary rule. However, government searches to retrieve work-related materials or to investigate violations of workplace rules -- searches of the sort that are regarded as reasonable and normal in the private employer context -- do not violate the Fourth Amendment. Because the conflicting and incomplete evidence in the present case could not conceivably support summary judgment that the search did not have such a validating purpose, the decision must be reversed and remanded. Pp. 480 U. S. 731 -732. O'CONNOR, J., announced the judgment of the Court and delivered an opinion in which REHNQUIST, C.J., and WHITE and POWELL, JJ., joined. SCALIA, J. filed an opinion concurring in the judgment, post, p. 480 U. S. 729 . BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 480 U. S. 732 . JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE POWELL join. This suit under 42 U.S.C. § 1983 presents two issues concerning the Fourth Amendment rights of public employees. First, we must determine whether the respondent, a public Page 480 U. S. 712 employee, had a reasonable expectation of privacy in his office, desk, and file cabinets at his place of work. Second, we must address the appropriate Fourth Amendment standard for a search conducted by a public employer in areas in which a public employee is found to have a reasonable expectation of privacy. I Dr. Magno Ortega, a physician and psychiatrist, held the position of Chief of Professional Education at Napa State Hospital (Hospital) for 17 years, until his dismissal from that position in 1981. As Chief of Professional Education, Dr. Ortega had primary responsibility for training young physicians in psychiatric residency programs. In July, 1981, Hospital officials, including Dr. Dennis O'Connor, the Executive Director of the Hospital, became concerned about possible improprieties in Dr. Ortega's management of the residency program. In particular, the Hospital officials were concerned with Dr. Ortega's acquisition of an Apple II computer for use in the residency program. The officials thought that Dr. Ortega may have misled Dr. O'Connor into believing that the computer had been donated, when in fact the computer had been financed by the possibly coerced contributions of residents. Additionally, the Hospital officials were concerned with charges that Dr. Ortega had sexually harassed two female Hospital employees, and had taken inappropriate disciplinary action against a resident. On July 30, 1981, Dr. O'Connor requested that Dr. Ortega take paid administrative leave during an investigation of these charges. At Dr. Ortega's request, Dr. O'Connor agreed to allow Dr. Ortega to take two weeks' vacation instead of administrative leave. Dr. Ortega, however, was requested to stay off Hospital grounds for the duration of the investigation. On August 14, 1981, Dr. O'Connor informed Dr. Ortega that the investigation had not yet been completed, and that he was being placed on paid administrative leave. Dr. Ortega remained on administrative leave until Page 480 U. S. 713 the Hospital terminated his employment on September 22, 1981. Dr. O'Connor selected several Hospital personnel to conduct the investigation, including an accountant, a physician, and a Hospital security officer. Richard Friday, the Hospital Administrator, led this "investigative team." At some point during the investigation, Mr. Friday made the decision to enter Dr. Ortega's office. The specific reason for the entry into Dr. Ortega's office is unclear from the record. The petitioners claim that the search was conducted to secure state property. Initially, petitioners contended that such a search was pursuant to a Hospital policy of conducting a routine inventory of state property in the office of a terminated employee. At the time of the search, however, the Hospital had not yet terminated Dr. Ortega's employment; Dr. Ortega was still on administrative leave. Apparently, there was no policy of inventorying the offices of those on administrative leave. Before the search had been initiated, however, petitioners had become aware that Dr. Ortega had taken the computer to his home. Dr. Ortega contends that the purpose of the search was to secure evidence for use against him in administrative disciplinary proceedings. The resulting search of Dr. Ortega's office was quite thorough. The investigators entered the office a number of times and seized several items from Dr. Ortega's desk and file cabinets, including a Valentine's Day card, a photograph, and a book of poetry all sent to Dr. Ortega by a former resident physician. These items were later used in a proceeding before a hearing officer of the California State Personnel Board to impeach the credibility of the former resident, who testified on Dr. Ortega's behalf. The investigators also seized billing documentation of one of Dr. Ortega's private patients under the California Medicaid program. The investigators did not otherwise separate Dr. Ortega's property from state property because, as one investigator testified, "[t]rying to sort State from non-State, it was too much to do, so I gave it Page 480 U. S. 714 up and boxed it up." App. 62. Thus, no formal inventory of the property in the office was ever made. Instead, all the papers in Dr. Ortega's office were merely placed in boxes and put in storage for Dr. Ortega to retrieve. Dr. Ortega commenced this action against petitioners in Federal District Court under 42 U.S.C. §1083, alleging that the search of his office violated the Fourth Amendment. On cross-motions for summary judgment, the District Court granted petitioners' motion for summary judgment. The District Court, relying on Chenkin v. Bellevue Hospital Center, New York City Health & Hospitals Corp., 479 F. Supp. 207 (SDNY 1979), concluded that the search was proper because there was a need to secure state property in the office. The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part, 764 F.2d 703 (1985), concluding that Dr. Ortega had a reasonable expectation of privacy in his office. While the Hospital had a procedure for office inventories, these inventories were reserved for employees who were departing or were terminated. The Court of Appeals also concluded -- albeit without explanation -- that the search violated the Fourth Amendment. The Court of Appeals held that the record justified a grant of partial summary judgment for Dr. Ortega on the issue of liability for an unlawful search, and it remanded the case to the District Court for a determination of damages. We granted certiorari, 474 U.S. 1018 (1985), and now reverse and remand. II The strictures of the Fourth Amendment, applied to the States through the Fourteenth Amendment, have been applied to the conduct of governmental officials in various civil activities. New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 334 -335 (1985). Thus, we have held in the past that the Fourth Amendment governs the conduct of school officials, see ibid., building inspectors, see Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 528 (1967), and Occupational Safety and Health Page 480 U. S. 715 Act inspectors, see Marshall v. Barlow's, Inc., 436 U. S. 307 , 436 U. S. 312 -313 (1978). As we observed in T.L.0., "[b]ecause the individual's interest in privacy and personal security 'suffers whether the government's motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards,' . . . it would be 'anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.'" 469 U.S. at 469 U. S. 335 (quoting Marshall v. Barlow's, Inc., supra, at 436 U. S. 312 -313 and Camara v. Municipal Court, supra, at 387 U. S. 530 ). Searches and seizures by government employers or supervisors of the private property of their employees, therefore, are subject to the restraints of the Fourth Amendment. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . . " Our cases establish that Dr. Ortega's Fourth Amendment rights are implicated only if the conduct of the Hospital officials at issue in this case infringed "an expectation of privacy that society is prepared to consider reasonable." United States v. Jacobsen, 466 U. S. 109 , 466 U. S. 113 (1984). We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable. Instead, "the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion." Oliver v. United States, 466 U. S. 170 , 466 U. S. 178 (1984) (citations omitted). Because the reasonableness of an expectation of privacy, as well as the appropriate standard for a search, is understood to differ according to context, it is essential first to delineate the boundaries of the workplace context. The workplace includes those areas and items that are related to work and are generally within the employer's control. At a hospital, for Page 480 U. S. 716 example, the hallways, cafeteria, offices, desks, and file cabinets, among other areas, are all part of the workplace. These areas remain part of the workplace context even if the employee has placed personal items in them, such as a photograph placed in a desk or a letter posted on an employee bulletin board. Not everything that passes through the confines of the business address can be considered part of the workplace context, however. An employee may bring closed luggage to the office prior to leaving on a trip, or a handbag or briefcase each workday. While whatever expectation of privacy the employee has in the existence and the outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way. The appropriate standard for a workplace search does not necessarily apply to a piece of closed personal luggage, a handbag, or a briefcase that happens to be within the employer's business address. Within the workplace context, this Court has recognized that employees may have a reasonable expectation of privacy against intrusions by police. See Mancusi v. DeForte, 392 U. S. 364 (1968). As with the expectation of privacy in one's home, such an expectation in one's place of work is "based upon societal expectations that have deep roots in the history of the Amendment." Oliver v. United States, supra, at 466 U. S. 178 , n. 8. Thus, in Mancusi v. DeForte, supra, the Court held that a union employee who shared an office with other union employees had a privacy interest in the office sufficient to challenge successfully the warrantless search of that office: "It has long been settled that one has standing to object to a search of his office, as well as of his home. . . . [I]t seems clear that if DeForte had occupied a 'private' office Page 480 U. S. 717 in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing. . . . In such a 'private' office, DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors." 392 U.S. at 392 U. S. 369 . Given the societal expectations of privacy in one's place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer. The operational realities of the workplace, however, may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor, rather than a law enforcement official. Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. Indeed, in Mancusi itself, the Court suggested that the union employee did not have a reasonable expectation of privacy against his union supervisors. 392 U.S. at 392 U. S. 369 . The employee's expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others -- such as fellow employees, supervisors, consensual visitors, and the general public -- may have frequent access to an individual's office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer, " Page 480 U. S. 718 post at 480 U. S. 731 , but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. Cf. Katz v. United States, 389 U. S. 347 , 389 U. S. 351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not s subject of Fourth Amendment protection"). Given the great variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis. The Court of Appeals concluded that Dr. Ortega had a reasonable expectation of privacy in his office, and five Members of this Court agree with that determination. See post at 480 U. S. 731 -732 (SCALIA, J., concurring in judgment); post at 480 U. S. 732 (BLACKMUN, J., joined by BRENNAN, MARSHALL, and STEVENS, JJ., dissenting). Because the record does not reveal the extent to which Hospital officials may have had work-related reasons to enter Dr. Ortega's office, we think the Court of Appeals should have remanded the matter to the District Court for its further determination. But regardless of any legitimate right of access the Hospital staff may have had to the office as such, we recognize that the undisputed evidence suggests that Dr. Ortega had a reasonable expectation of privacy in his desk and file cabinets. The undisputed evidence discloses that Dr. Ortega did not share his desk or file cabinets with any other employees. Dr. Ortega had occupied the office for 17 years, and he kept materials in his office which included personal correspondence, medical files, correspondence from private patients unconnected to the Hospital, personal financial records, teaching aids and notes, and personal gifts and mementos. App. 14. The files on physicians in residency training were kept outside Dr. Ortega's office. Id. at 21. Indeed, the only items found by the investigators were apparently personal items, because, with the exception of the items seized for use in the administrative hearings, all the papers and effects found in the office were simply placed in boxes and made available to Dr. Ortega. Page 480 U. S. 719 Id. at 68, 62. Finally, we note that there was no evidence that the Hospital had established any reasonable regulation or policy discouraging employees such as Dr. Ortega from storing personal papers and effects in their desks or file cabinets, id. at 44, although the absence of such a policy does not create an expectation of privacy where it would not otherwise exist. On the basis of this undisputed evidence, we accept the conclusion of the Court of Appeals that Dr. Ortega had a reasonable expectation of privacy at least in his desk and file cabinets. See Gillard v. Schmidt, 679 F.2d 826, 829 (CA3 1978); United States v. Speights, 667 F.2d 362 (CA3 1977); United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019 (1951). III Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "search . . . was not a reasonable search under the fourth amendment." 764 F.2d at 707. But as we have stated in T.L.O., "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches. . . . [W]hat is reasonable depends on the context within which a search takes place." New Jersey v. T.L.0., 469 U.S. at 469 U. S. 337 . Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U. S. 696 , 463 U. S. 703 (1983); Camara v. Municipal Court, 387 U.S. at 387 U. S. 536 -537. In the case of searches conducted by a public employer, we must balance the invasion of the employees' legitimate expectations of privacy Page 480 U. S. 720 against the government's need for supervision, control, and the efficient operation of the workplace. "[I]t is settled . . . that "except in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable' unless it has been authorized by a valid search warrant."" Mancusi v. DeForte, 392 U.S. at 392 U. S. 370 (quoting Camara v. Municipal Court, supra, at 387 U. S. 528 -529). There are some circumstances, however, in which we have recognized that a warrant requirement is unsuitable. In particular, a warrant requirement is not appropriate when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court, supra, at 387 U. S. 533 . Or, as JUSTICE BLACKMUN stated in T.L.O., "[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable." 469 U.S. at 469 U. S. 351 (concurring in judgment). In Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), for example, the Court explored the burdens a warrant requirement would impose on the Occupational Safety and Health Act regulatory scheme, and held that the warrant requirement was appropriate only after concluding that warrants would not "impose serious burdens on the inspection system or the courts, [would not] prevent inspections necessary to enforce the statute, or [would not] make them less effective." 436 U.S. at 436 U. S. 316 . In New Jersey v. T.L.O., supra, we concluded that the warrant requirement was not suitable to the school environment, because such a requirement would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools. There is surprisingly little case law on the appropriate Fourth Amendment standard of reasonableness for a public employer's work-related search of its employee's offices, desks, or file cabinets. Generally, however, the lower courts have held that any "work-related" search by an employer Page 480 U. S. 721 satisfies the Fourth Amendment reasonableness requirement. See United States v. Nasser, 476 F.2d 1111, 1123 (CA7 1973) ("work-related" searches and seizures are reasonable under the Fourth Amendment); United States v. Collins, 349 F.2d 863, 868 (CA2 1965) (upholding search and seizure because conducted pursuant to "the power of the Government as defendant's employer, to supervise and investigate the performance of his duties as a Customs employee"). Others have suggested the use of a standard other than probable cause. See United States v. Bunkers, 521 F.2d 1217 (CA9 1975) (work-related search of a locker tested under "reasonable cause" standard); United States v. Blok, supra, at 328, 188 F.2d at 1021 ("No doubt a search of [a desk] without her consent would have been reasonable if made by some people in some circumstances. Her official superiors might reasonably have searched the desk for official property needed for official use"). The only cases to imply that a warrant should be required involve searches that are not work-related, see Gillard v. Schmidt, supra, at 829, n. 1, or searches for evidence of criminal misconduct, see United States v. Kahan, 350 F. Supp. 784 (SDNY 1972). The legitimate privacy interests of public employees in the private objects they bring to the workplace may be substantial. Against these privacy interests, however, must be balanced the realities of the workplace, which strongly suggest that a warrant requirement would be unworkable. While police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct. Employers and supervisors are focused primarily on the need to complete the government agency's work in a prompt and efficient manner. An employer may have need for correspondence, or a file or report available only in an employee's office while the employee is Page 480 U. S. 722 away from the office. Or, as is alleged to have been the case here, employers may need to safeguard or identify state property or records in an office in connection with a pending investigation into suspected employee misfeasance. In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with "the common sense realization that government offices could not function if every employment decision became a constitutional matter." Connick v. Myers, 461 U. S. 138 , 461 U. S. 143 (1983). Whether probable cause is an inappropriate standard for public employer searches of their employees' offices presents a more difficult issue. For the most part, we have required that a search be based upon probable cause, but as we noted in New Jersey v. T.L.O., "[t]he fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although !both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, . . . in certain limited circumstances neither is required." 469 U.S. at 469 U. S. 340 (quoting Almeida-Sanchez v. United States, 413 U. S. 266 , 413 U. S. 277 (1973) (POWELL, J., concurring)). Thus, "[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to Page 480 U. S. 723 adopt such a standard." 469 U.S. at 469 U. S. 341 . We have concluded, for example, that the appropriate standard for administrative searches is not probable cause in its traditional meaning. Instead, an administrative warrant can be obtained if there is a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied. See Marshall v. Barlow's, Inc., 436 U.S. at 436 U. S. 320 ; Camara v. Municipal Court, 387 U.S. at 387 U. S. 538 . As an initial matter, it is important to recognize the plethora of contexts in which employers will have an occasion to intrude to some extent on an employee's expectation of privacy. Because the parties in this case have alleged that the search was either a noninvestigatory work-related intrusion or an investigatory search for evidence of suspected work-related employee misfeasance, we undertake to determine the appropriate Fourth Amendment standard of reasonableness only for these two types of employer intrusions, and leave for another day inquiry into other circumstances. The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employee's desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. See Colorado v. Bertine, 479 U. S. 367 (1987); Illinois v. Lafayette, 462 U. S. 640 (1983). To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons. Page 480 U. S. 724 We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." New Jersey v. T.L.O., supra, at 469 U. S. 351 (BLACKMUN, J., concurring in judgment). Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause, rather than reasonable suspicion, will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest. See 469 U.S. at 469 U. S. 353 ("The time required for a teacher to ask the questions or make the observations that are necessary to turn reasonable grounds into probable cause is time during which the teacher, and other students, are diverted from the essential task of education"). Additionally, while law enforcement officials are expected to "schoo[l] themselves in the niceties of probable cause," id. at 469 U. S. 343 , no such expectation is generally applicable to public employers, at least when the search is not used to gather evidence of a criminal offense. It is simply unrealistic to expect supervisors in most government agencies to learn the subtleties of Page 480 U. S. 725 the probable cause standard. As JUSTICE BLACKMUN observed in T.L.O., "[a] teacher has neither the training nor the day-to-day experience in the complexities of probable cause that a law enforcement officer possesses, and is ill-equipped to make a quick judgment about the existence of probable cause." Id. at 469 U. S. 353 . We believe that this observation is an equally apt description of the public employer and supervisors at the Hospital, and we conclude that a reasonableness standard will permit regulation of the employer's conduct "according to the dictates of reason and common sense." Id. at 469 U. S. 343 . Balanced against the substantial government interests in the efficient and proper operation of the workplace are the privacy interests of government employees in their place of work, which, while not insubstantial, are far less than those found at home or in some other contexts. As with the building inspections in Camara, the employer intrusions at issue here "involve a relatively limited invasion" of employee privacy. 387 U.S. at 387 U. S. 537 . Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home. In sum, we conclude that the "special needs, beyond the normal need for law enforcement make the. . . . probable cause requirement impracticable," 469 U.S. at 469 U. S. 351 (BLACKMUN, J., concurring in judgment), for legitimate work-related, noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness Page 480 U. S. 726 under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable: "Determining the reasonableness of any search involves a twofold inquiry: first, one must consider 'whether the . . . action was justified at its inception,' Terry v. Ohio, 392 U.S. at 392 U. S. 20 ; second, one must determine whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place,' ibid. " New Jersey v. T.L.O., supra, at 469 U. S. 341 . Ordinarily, a search of an employee's office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. Because petitioners had an "individualized suspicion" of misconduct by Dr. Ortega, we need not decide whether individualized suspicion is an essential element of the standard of reasonableness that we adopt today. See New Jersey v. T.L.O., supra, at 469 U. S. 342 , n. 8. The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of . . . the nature of the [misconduct]." 469 U.S. at 469 U. S. 342 . IV In the procedural posture of this case, we do not attempt to determine whether the search of Dr. Ortega's office and the seizure of his personal belongings satisfy the standard of reasonableness we have articulated in this case. No evidentiary hearing was held in this case, because the District Court acted on cross-motions for summary judgment, and granted petitioners summary judgment. The Court of Appeals, on the other hand, concluded that the record in this case justified Page 480 U. S. 727 granting partial summary judgment on liability to Dr. Ortega. We believe that both the District Court and the Court of Appeals were in error, because summary judgment was inappropriate. The parties were in dispute about the actual justification for the search, and the record was inadequate for a determination on motion for summary judgment of the reasonableness of the search and seizure. Petitioners have consistently attempted to justify the search and seizure as required to secure the state property in Dr. Ortega's office. Mr. Friday testified in a deposition that he had ordered members of the investigative team to "check Dr. Ortega's office out in order to separate the business files from any personal files in order to ascertain what was in his office." App. 50. He further testified that the search was initiated because he "wanted to make sure that we had our state property identified, and in order to provide Dr. Ortega with his property and get what we had out of there, in order to make sure our resident's files were protected, and that sort of stuff." Id. at 51. In their motion for summary judgment in the District Court, petitioners alleged that this search to secure property was reasonable as "part of the established hospital policy to inventory property within offices of departing, terminated or separated employees." Record Doc. No. 24, p. 9. The District Court apparently accepted this characterization of the search because it applied Chenkin v. Bellevue Hospital Center, New York City Health & Hospitals Corp., 479 F. Supp. 207 (SDNY 1979), a case involving a Fourth Amendment challenge to an inspection policy. At the time of the search, however, Dr. Ortega had not been terminated, but rather was still on administrative leave, and the record does not reflect whether the Hospital had a policy of inventorying the property of investigated employees. Respondent, moreover, has consistently rejected petitioners' characterization of the search as motivated by a need to secure state property. Page 480 U. S. 728 Instead, Dr. Ortega has contended that the intrusion was an investigatory search whose purpose was simply to discover evidence that would be of use in administrative proceedings. He has pointed to the fact that no inventory was ever taken of the property in the office, and that seized evidence was eventually used in the administrative proceedings. Additionally, Dr. O'Connor stated in a deposition that one purpose of the search was "to look for contractural [ sic ] and other kinds of documents that might have been related to the issues" involved in the investigation. App. 38. Under these circumstances, the District Court was in error in granting petitioners summary judgment. There was a dispute of fact about the character of the search, and the District Court acted under the erroneous assumption that the search was conducted pursuant to a Hospital policy. Moreover, no findings were made as to the scope of the search that was undertaken. The Court of Appeals concluded that Dr. Ortega was entitled to partial summary judgment on liability. It noted that the Hospital had no policy of inventorying the property of employees on administrative leave, but it did not consider whether the search was otherwise reasonable. Under the standard of reasonableness articulated in this case, however, the absence of a Hospital policy did not necessarily make the search unlawful. A search to secure state property is valid as long as petitioners had a reasonable belief that there was government property in Dr. Ortega's office which needed to be secured, and the scope of the intrusion was itself reasonable in light of this justification. Indeed, petitioners have put forward evidence that they had such a reasonable belief; at the time of the search, petitioners knew that Dr. Ortega had removed the computer from the Hospital. The removal of the computer -- together with the allegations of mismanagement of the residency program and sexual harassment -- may have made the search reasonable at its inception under the standard we have put forth in this case. As with the Page 480 U. S. 729 District Court order, therefore, the Court of Appeals conclusion that summary judgment was appropriate cannot stand. On remand, therefore, the District Court must determine the justification for the search and seizure and evaluate the reasonableness of both the inception of the search and its scope. * Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. * We have no occasion in this case to reach the issue of the appropriate standard for the evaluation of the Fourth Amendment reasonableness of the seizure of Dr. Ortega's personal items. Neither the District Court nor the Court of Appeals addressed this issue, and the amicus curiae brief filed on behalf of respondent did not discuss the legality of the seizure separate from that of the search. We also have no occasion in this case to address whether qualified immunity should protect petitioners from damages liability under § 1983. See Davis v. Scherer, 468 U. S. 183 (1984); Harlow v. Fitzgerald, 457 U. S. 800 (1982). The qualified immunity issue was not raised below, and was not addressed by either the District Court or the Court of Appeals. Nor do we address the proper Fourth Amendment analysis for drug and alcohol testing of employees. Finally, we do not address the appropriate standard when an employee is being investigated for criminal misconduct or breaches of other nonwork-related statutory or regulatory standards. JUSTICE SCALIA, concurring in the judgment. Although I share the judgment that this case must be reversed and remanded, I disagree with the reason for the reversal given by the plurality opinion, and with the standard it prescribes for the Fourth Amendment inquiry. To address the latter point first: The plurality opinion instructs the lower courts that existence of Fourth Amendment protection for a public employee's business office is to be assessed "on a case-by-case basis," in light of whether the office is "so open to fellow employees or the public that no expectation of privacy is reasonable." Ante at 480 U. S. 718 . No clue is provided as to how open "so open" must be; much less Page 480 U. S. 730 is it suggested how police officers are to gather the facts necessary for this refined inquiry. As we observed in Oliver v. United States, 466 U. S. 170 , 466 U. S. 181 (1984), "[t]his Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances." Even if I did not disagree with the plurality as to what result the proper legal standard should produce in the case before us, I would object to the formulation of a standard so devoid of content that it produces, rather than eliminates, uncertainty in this field. Whatever the plurality's standard means, however, it must be wrong if it leads to the conclusion on the present facts that, if Hospital officials had extensive "work-related reasons to enter Dr. Ortega's office," no Fourth Amendment protection existed. Ante at 480 U. S. 718 . It is privacy that is protected by the Fourth Amendment, not solitude. A man enjoys Fourth Amendment protection in his home, for example, even though his wife and children have the run of the place -- and indeed, even though his landlord has the right to conduct unannounced inspections at any time. Similarly, in my view, one's personal office is constitutionally protected against warrantless intrusions by the police, even though employer and coworkers are not excluded. I think we decided as much many years ago. In Mancusi v. DeForte, 392 U. S. 364 (1968), we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) "union higher-ups" could enter the office. Id. at 392 U. S. 369 . Just as the secretary working for a corporation in an office frequently entered by the corporation's other employees is protected against unreasonable searches of that office by the government, so also is the government secretary working in an office frequently entered by other government employees. There is no reason why this Page 480 U. S. 731 determination that a legitimate expectation of privacy exists should be affected by the fact that the government, rather than a private entity, is the employer. Constitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer. I cannot agree, moreover, with the plurality's view that the reasonableness of the expectation of privacy (and thus the existence of Fourth Amendment protection) changes "when an intrusion is by a supervisor, rather than a law enforcement official." Ante at 480 U. S. 717 . The identity of the searcher (police v. employer) is relevant not to whether Fourth Amendment protections apply, but only to whether the search of a protected area is reasonable. Pursuant to traditional analysis, the former question must be answered on a more "global" basis. Where, for example, a fireman enters a private dwelling in response to an alarm, we do not ask whether the occupant has a reasonable expectation of privacy (and hence Fourth Amendment protection) vis-a-vis firemen, but rather whether -- given the fact that the Fourth Amendment covers private dwellings -- intrusion for the purpose of extinguishing a fire is reasonable. Cf. Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 509 (1978). A similar analysis is appropriate here. I would hold, therefore, that the offices of government employees, and a fortiori the drawers and files within those offices, are covered by Fourth Amendment protections as a general matter. (The qualifier is necessary to cover such unusual situations as that in which the office is subject to unrestricted public access, so that it is "expose[d] to the public" and therefore "not a subject of Fourth Amendment protection." Katz v. United States, 389 U. S. 347 , 389 U. S. 351 (1967).) Since it is unquestioned that the office here was assigned to Dr. Ortega, and since no special circumstances are suggested that would call for an exception to the ordinary rule, I would Page 480 U. S. 732 agree with the District Court and the Court of Appeals that Fourth Amendment protections applied. The case turns, therefore, on whether the Fourth Amendment was violated -- i.e., whether the governmental intrusion was reasonable. It is here that the government's status as employer, and the employment-related character of the search, become relevant. While, as a general rule, warrantless searches are per se unreasonable, we have recognized exceptions when "special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. . . . " New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 351 (BLACKMUN, J., concurring in judgment). Such "special needs" are present in the context of government employment. The government, like any other employer, needs frequent and convenient access to its desks, offices, and file cabinets for work-related purposes. I would hold that government searches to retrieve work-related materials or to investigate violations of workplace rules -- searches of the sort that are regarded as reasonable and normal in the private employer context -- do not violate the Fourth Amendment. Because the conflicting and incomplete evidence in the present case could not conceivably support summary judgment that the search did not have such a validating purpose, I agree with the plurality that the decision must be reversed and remanded. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. The facts of this case are simple and straightforward. Dr. Ortega had an expectation of privacy in his office, desk, and file cabinets, which were the target of a search by petitioners that can be characterized only as investigatory in nature. Because there was no "special need," see New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 351 (1985) (opinion concurring in judgment), to dispense with the warrant and probable cause requirements of the Fourth Amendment, I would evaluate the search by applying this traditional standard. Under that Page 480 U. S. 733 standard, this search clearly violated Dr. Ortega's Fourth Amendment rights. The problems in the plurality's opinion all arise from its failure or unwillingness to realize that the facts here are clear. The plurality, however, discovers what it feels is a factual dispute: the plurality is not certain whether the search was routine or investigatory. Accordingly, it concludes that a remand is the appropriate course of action. Despite the remand, the plurality assumes it must announce a standard concerning the reasonableness of a public employer's search of the workplace. Because the plurality treats the facts as in dispute, it formulates this standard at a distance from the situation presented by this case. This does not seem to me to be the way to undertake Fourth Amendment analysis, especially in an area with which the Court is relatively unfamiliar. [ Footnote 1 ] Because this analysis, when conducted properly, is always fact-specific to an extent, it is inappropriate that the plurality's formulation of a standard does not arise from a sustained consideration of a particular factual situation. [ Footnote 2 ] Moreover, given that any standard Page 480 U. S. 734 ultimately rests on judgments about factual situations, it is apparent that the plurality has assumed the existence of hypothetical facts from which its standard follows. These "assumed" facts are weighted in favor of the public employer, [ Footnote 3 ] and, as a result, the standard that emerges makes reasonable almost any workplace search by a public employer. I It is necessary to review briefly the factual record in this case because of the plurality's assertion, ante at 480 U. S. 728 , that Page 480 U. S. 735 "[t]here was a dispute of fact about the character of the search." The plurality considers it to be either an inventory search to secure government property or an investigative search to gather evidence concerning Dr. Ortega's alleged misdeeds. Ante at 480 U. S. 727 -728. It is difficult to comprehend how, on the facts of this case, the search in any way could be seen as one for inventory purposes. As the plurality concedes, the search could not have been made pursuant to the Hospital's policy of routinely inventorying state property in an office of a terminated employee, because, at the time of the search, Dr. Ortega was on administrative leave, and had not been terminated. Ante at 480 U. S. 712 -713. [ Footnote 4 ] Napa had no policy of inventorying the office of an employee placed on administrative leave. Ante at 480 U. S. 713 . The plurality, however, observes that the absence of the policy does not dispositively eliminate inventorying or securing state property as a possible purpose for conducting the search. Ante at 480 U. S. 728 . As evidence suggesting such a purpose, the plurality points to petitioners' concern that Dr. Ortega may have removed from the Hospital's grounds a computer owned by the Hospital and to their desire to secure such items as files located in Dr. Ortega's office. See ante at 480 U. S. 727 -728. The record evidence demonstrates, however, that ensuring that the computer had not been removed from the Hospital was not a reason for the search. Mr. Friday, the leader of the "investigative team," stated that the alleged removal of the computer had nothing to do with the decision to enter Dr. Ortega's office. App. 59. Dr. O'Connor himself admitted that there was little connection between the entry and an attempt Page 480 U. S. 736 by petitioners to ascertain the location of the computer. Id. at 39. The search had the computer as its focus only insofar as the team was investigating practices dealing with its acquisition. Id. at 32. In deposition testimony, petitioners did suggest that the search was inventory in character insofar as they aimed to separate Dr. Ortega's personal property from Hospital property in the office. Id. at 38, 40, 50. Such a suggestion, however, is overwhelmingly contradicted by other remarks of petitioners, and particularly by the character of the search itself. Dr. O'Connor spoke of the individuals involved in the search as "investigators," see id. at 37, and, even where he described the search as inventory in nature, he observed that it was aimed primarily at furthering investigative purposes. See, e.g., id. at 40 ("Basically what we were trying to do is to remove what was obviously State records or records that had to do with his program, his department, any of the materials that would be involved in running the residency program, around contracts, around the computer, around the areas that we were interested in investigating"). Moreover, as the plurality itself recognizes, ante at 480 U. S. 713 -714, the "investigators" never made a formal inventory of what they found in Dr. Ortega's office. Rather, they rummaged through his belongings and seized highly personal items later used at a termination proceeding to impeach a witness favorable to him. Ibid. Furthermore, the search was conducted in the evening, App. 53, and it was undertaken only after the investigators had received legal advice, id. at 51. The search in question stemmed neither from a Hospital policy nor from a practice of routine entrances into Dr. Ortega's office. It was plainly exceptional and investigatory in nature. Accordingly, there is no significant factual dispute in this case. II Before examining the plurality's standard of reasonableness for workplace searches, I should like to state both my Page 480 U. S. 737 agreement and disagreement with the plurality's discussion of a public employee's expectation of privacy. What is most important, of course, is that, in this case, the plurality acknowledges that Dr. Ortega had an expectation of privacy in his desk and file cabinets, ante at 480 U. S. 719 , and that, as the plurality concedes, ante at 480 U. S. 718 , the majority of this Court holds that he had a similar expectation in his office. With respect to the plurality's general comments, I am in complete agreement with its observation that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." Ante at 480 U. S. 717 . Moreover, I would go along with the plurality's observation that, in certain situations, the "operational realities" of the workplace may remove some expectation of privacy on the part of the employee. Ibid. However, I am disturbed by the plurality's suggestion, see ante at 480 U. S. 717 -718, that routine entries by visitors might completely remove this expectation. First, this suggestion is contrary to the traditional protection that this Court has recognized the Fourth Amendment accords to offices. See Oliver v. United States, 466 U. S. 170 , 466 U. S. 178 , n. 8 (1984) ("The Fourth Amendment's protection of offices and commercial buildings, in which there may be. legitimate expectations of privacy, is also based upon societal expectations that have deep roots in the history of the Amendment"); Hoffa v. United States, 385 U. S. 293 , 385 U. S. 301 (1966) ("What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile"). The common understanding of an office is that it is a place where a worker receives an occasional business-related visitor. Thus, when the office has received traditional Fourth Amendment protection in our cases, it has been with the understanding that such routine visits occur there. Page 480 U. S. 738 Moreover, as the plurality appears to recognize, see ante at 480 U. S. 717 -718, the precise extent of an employee's expectation of privacy often turns on the nature of the search. This observation is in accordance with the principle that the Fourth Amendment may protect an individual's expectation of privacy in one context, even though this expectation may be unreasonable in another. See New Jersey v. T.L.O., 469 U.S. at 469 U. S. 339 . See also Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 , 442 U. S. 329 (1979) (the opening of a retail store to the public does not mean that "it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees"). As JUSTICE SCALIA observes, "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer." Ante at 480 U. S. 731 . Thus, although an employee might well have no reasonable expectation of privacy with respect to an occasional visit by a fellow employee, he would have such an expectation as to an after-hours search of his locked office by an investigative team seeking materials to be used against him at a termination proceeding. [ Footnote 5 ] Page 480 U. S. 739 Finally and most importantly, the reality of work in modern time, whether done by public or private employees, reveals why a public employee's expectation of privacy in the workplace should be carefully safeguarded and not lightly set aside. It is, unfortunately, all too true that the workplace has become another home for most working Americans. Many employees spend the better part of their days and much of their evenings at work. See R. Kanter, Work and Family in the United States: A Critical Review and Agenda for Research and Policy 31-32 (1977); see also R. Bellah, R. Madsen, W. Sullivan, A. Swidler, & S. Tipton, Habits of the Heart: Individualism and Commitment in American Life 288-289 (1985) (a "less frantic concern for advancement and a reduction of working hours" would make it easier for both men and women to participate fully in working and family life). Consequently, an employee's private life must intersect with the workplace, for example, when the employee takes advantage of work or lunch breaks to make personal telephone calls, to attend to personal business, or to receive personal visitors in the office. As a result, the tidy distinctions (to which the plurality alludes, see ante at 480 U. S. 715 -716) between the workplace and professional affairs, on the one hand, and personal possessions and private activities, on the other, do not exist in reality. [ Footnote 6 ] Not all of an employee's private Page 480 U. S. 740 possessions will stay in his or her briefcase or handbag. Thus, the plurality's remark that the "employee may avoid exposing personal belongings at work by simply leaving them at home," ante at 480 U. S. 725 , reveals on the part of the Members of the plurality a certain insensitivity to the "operational realities of the workplace," ante at 480 U. S. 717 , they so value. [ Footnote 7 ] Page 480 U. S. 741 Dr. Ortega clearly had an expectation of privacy in his office, desk, and file cabinets, particularly with respect to the type of investigatory search involved here. In my view, when examining the facts of other cases involving searches of the workplace, courts should be careful to determine this expectation also in relation to the search in question. III A At the outset of its analysis, the plurality observes that an appropriate standard of reasonableness to be applied to a public employer's search of the employee's workplace is arrived at from "balancing" the privacy interests of the employee against the public employer's interests justifying the intrusion. Ante at 480 U. S. 719 -720. Under traditional Fourth Amendment jurisprudence, however, courts abandon the warrant and probable cause requirements, which constitute the standard of reasonableness for a government search that the Framers established, "[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. . . ." New Jersey v. T.L.O., 469 U.S. at 469 U. S. 351 (opinion concurring in judgment); see United States v. Place, 462 U. S. 696 , 462 U. S. 721 -722, and n. 1 (1983) (opinion concurring in judgment). In sum, only when the practical realities of a particular situation suggest that a government official cannot obtain a warrant based upon probable cause without sacrificing the ultimate goals to which a search would contribute does the Court turn to a "balancing" test to formulate a standard of reasonableness for this context. In New Jersey v. T.L.O., supra, I faulted the Court for neglecting this "crucial step" in Fourth Amendment analysis. See 469 U.S. at 469 U. S. 351 . I agreed, however, with the T.L.O. Court's standard because of my conclusion that this step, had Page 480 U. S. 742 it been taken, would have revealed that the case presented a situation of "special need." Id. at 469 U. S. 353 . I recognized that discipline in this country's secondary schools was essential for the promotion of the overall goal of education, and that a teacher could not maintain this discipline if, every time a search was called for, the teacher would have to procure a warrant based on probable cause. Id. at 469 U. S. 352 -353. Accordingly, I observed: "The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable cause requirements, and in applying a standard determined by balancing the relevant interests." Id. at 469 U. S. 353 . The plurality repeats here the T.L.O. Court's error in analysis. Although the plurality mentions the "special need" step, ante at 480 U. S. 720 , it turns immediately to a balancing test to formulate its standard of reasonableness. This error is significant because, given the facts of this case, no "special need" exists here to justify dispensing with the warrant and probable cause requirements. As observed above, the facts suggest that this was an investigatory search undertaken to obtain evidence of charges of mismanagement at a time when Dr. Ortega was on administrative leave and not permitted to enter the Hospital's grounds. There was no special practical need that might have justified dispensing with the warrant and probable cause requirements. Without sacrificing their ultimate goal of maintaining an effective institution devoted to training and healing, to which the disciplining of Hospital employees contributed, petitioners could have taken any evidence of Dr. Ortega's alleged improprieties to a magistrate in order to obtain a warrant. Furthermore, this seems to be exactly the kind of situation where a neutral magistrate's involvement would have been helpful in curtailing the infringement upon Dr. Ortega's privacy. See United States v. United States District Court , Page 480 U. S. 743 407 U. S. 297 , 407 U. S. 317 (1972) ("The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech"). Petitioners would have been forced to articulate their exact reasons for the search and to specify the items in Dr. Ortega's office they sought, which would have prevented the general rummaging through the doctor's office, desk, and file cabinets. Thus, because no "special need" in this case demanded that the traditional warrant and probable cause requirements be dispensed with, petitioners' failure to conduct the search in accordance with the traditional standard of reasonableness should end the analysis, and the judgment of the Court of Appeals should be affirmed. B Even were I to accept the proposition that this case presents a situation of "special need" calling for an exception to the warrant and probable cause standard, I believe that the plurality's balancing of the public employer's and the employee's respective interests to arrive at a different standard is seriously flawed. Once again, the plurality fails to focus on the facts. Instead, it arrives at its conclusion on the basis of "assumed" facts. First, sweeping with a broad brush, the plurality announces a rule that dispenses with the warrant requirement in every public employer's search of an employee's office, desk, or file cabinets because it "would seriously disrupt the routine conduct of business and would be unduly burdensome." Ante at 480 U. S. 722 . The plurality reasons that a government agency could not conduct its work in an efficient manner if an employer needed a warrant for every routine entry into an employee's office in search of a file or correspondence, or for every investigation of suspected employee misconduct. In addition, it argues that the warrant requirement, if imposed on an employer who would be unfamiliar with this procedure, would prove "unwieldy." Ibid. Page 480 U. S. 744 The danger in formulating a standard on the basis of "assumed" facts becomes very clear at this stage of the plurality's opinion. Whenever the Court has arrived at a standard of reasonableness other than the warrant and probable cause requirements, it has first found, through analysis of a factual situation, that there is a nexus between this other standard, the employee's privacy interests, and the government purposes to be served by the search. Put another way, the Court adopts a new standard only when it is satisfied that there is no alternative in the particular circumstances. [ Footnote 8 ] In Terry v. Ohio, 392 U. S. 1 , 392 U. S. 20 (1968), the Court concluded that, as a practical matter, brief, on-the-spot stops of individuals by police officers need not be subject to a warrant. Still concerned, however, with the import of the warrant requirement, which provides the "neutral scrutiny of a judge," id. at 392 U. S. 21 , the Court weighed in detail the law enforcement and the suspect's interests in the circumstances of the protective search. The resulting standard constituted the equivalent of the warrant: judging the officer's behavior from a reasonable or objective standard, id. at 392 U. S. 21 , 392 U. S. 27 . In Camara v. Municipal Court, 387 U. S. 523 (1967), on the other hand, the Court declined to abandon the warrant as a standard in the case of a municipal health inspection in light of the interests of the target of the health investigation and those of the government in enforcing health standards. Id. at 387 U. S. 532 -533. Page 480 U. S. 745 A careful balancing with respect to the warrant requirement is absent from the plurality's opinion, an absence that is inevitable in light of the gulf between the plurality's analysis and any concrete factual setting. It is certainly correct that a public employer cannot be expected to obtain a warrant for every routine entry into an employee's workplace. [ Footnote 9 ] This situation, however, should not justify dispensing with a warrant in all searches by the employer. The warrant requirement is perfectly suited for many work-related searches, including the instant one. [ Footnote 10 ] Moreover, although the plurality abandons the warrant requirement, it does not explain what it will substitute or how the standard it adopts retains anything of the normal "neutral scrutiny of the judge." [ Footnote 11 ] In sum, the plurality's general result is preordained because, cut off from a particular factual setting, it cannot make the necessary distinctions among types of searches, or formulate an alternative to the warrant requirement that derives from a precise weighing of competing interests. Page 480 U. S. 746 When the plurality turns to the balancing that will produce an alternative to probable cause, it states that it is limiting its analysis to the two situations arguably presented by the facts of this case -- the "noninvestigatory work-related intrusion" ( i.e., inventory search) and the "investigatory search for evidence of suspected work-related employee misfeasance" ( i.e., investigatory search). Ante at 480 U. S. 723 . This limitation, however, is illusory. The plurality describes these searches in such a broad fashion that it is difficult to imagine a search that would not fit into one or the other of the categories. Moreover, it proposes the same standard, one taken from New Jersey v. T.L.O., for both inventory and investigatory searches. See ante at 480 U. S. 725 -726. Therefore, in the context of remanding a case because the facts are unclear, the plurality is announcing a standard to apply to all public employer searches. Moreover, the plurality also abandons any effort at careful balancing in arriving at its substitute for probable cause. Just as the elimination of the warrant requirement requires some nexus between its absence, the employee's privacy interests, and the government interests to be served by the search, so also does the formulation of a standard less than probable cause for a particular search demand a similar connection between these factors. See, e.g., United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 881 (1975). The plurality's discussion of investigatory searches reveals no attempt to set forth the appropriate nexus. [ Footnote 12 ] It is certainly true, as the plurality observes, that a public employer has an interest in eliminating incompetence and work-related misconduct in order to enable the government agency to accomplish its tasks in an efficient manner. It is also conceivable that a public employee's privacy interests are somewhat limited in the workplace, although, as noted above, not to the extent suggested by the plurality. The plurality, however, fails to Page 480 U. S. 747 explain why the balancing of these interests necessarily leads to the standard borrowed from New Jersey v. T.L.O., as opposed to other imaginable standards. Indeed, because the balancing is simply asserted, rather than explicated, [ Footnote 13 ] the plurality never really justifies why probable cause, characterized by this Court as a "practical, nontechnical conception," Brinegar v. United States, 338 U. S. 160 , 338 U. S. 176 (1949), would not protect adequately the public employer's interests in the situation presented by this case. See New Jersey v. T.L.O., 469 U.S. at 469 U. S. 363 -364 (BRENNAN, J., concurring in part and dissenting in part). [ Footnote 14 ] Page 480 U. S. 748 IV I have reviewed at too great length the plurality's opinion because the question of public employers' searches of their employees' workplaces, like any relatively unexplored area of Fourth Amendment law, demands careful analysis. These searches appear in various factual settings, some of which courts are only now beginning to face, and present different problems. [ Footnote 15 ] Accordingly, I believe that the Court should examine closely the practical realities of a particular situation and the interests implicated there before replacing the traditional warrant and probable cause requirements with some other standard of reasonableness derived from a balancing test. The Fourth Amendment demands no less. By ignoring the specific facts of this case, and by announcing in the abstract a standard as to the reasonableness of an employer's workplace searches, the plurality undermines not only the Fourth Amendment rights of public employees but also any further analysis of the constitutionality of public employer searches. I respectfully dissent. [ Footnote 1 ] Although there has been some development on these issues in federal courts, see ante, at 480 U. S. 720 -721, this Court has not yet squarely faced them. [ Footnote 2 ] It is true that this Court has expressed concern about the workability of " an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances.'" Ante at 480 U. S. 730 (SCALIA, J., concurring in judgment), quoting Oliver v. United States, 466 U. S. 170 , 466 U. S. 181 (1984). Given, however, the number and types of workplace searches by public employers that can be imagined -- ranging all the way from the employer's routine entry for retrieval of a file to a planned investigatory search into an employee's suspected criminal misdeeds -- development of a jurisprudence in this area might well require a case-by-case approach. See California v. Carney, 471 U. S. 386 , 471 U. S. 400 (1985) (STEVENS, J., dissenting) ("The only true rules governing search and seizure have been formulated and refined in the painstaking scrutiny of case-by-case adjudication"); New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 366 -367 (1985) (BRENNAN, J., concurring in part and dissenting in part) ("I would not think it necessary to develop a single standard to govern all school searches, any more than traditional Fourth Amendment law applies even the probable cause standard to all searches and seizures" (emphasis in original)). Under a case-by-case approach, a rule governing a particular type of workplace search, unlike the standard of the plurality here, should emerge from a concrete set of facts and possess the precision that only the exploration of "every aspect of a multifacited situation embracing conflicting and demanding interests" can produce. See United States v. Fruehauf, 365 U. S. 146 , 365 U. S. 157 (1961). The manner in which the plurality arrives at its standard, it seems to me, thus not only harms Dr. Ortega and other public employees, but also does a disservice to Fourth Amendment analysis. [ Footnote 3 ] It could be argued that the plurality removes its analysis from the facts of this case in order to arrive at a result unfavorable to public employees, whose position members of the plurality do not look upon with much sympathy. As Justice Cardozo long ago explained, judges are never free from the feelings of the times or those emerging from their own personal lives: "I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge." B. Cardozo, The Nature of the Judicial Process 167 (1921). It seems to me that whenever, as here, courts fail to concentrate on the facts of a case, these predilections inevitably surface, no longer held in check by the "discipline" of the facts, and shape, more than they ever should and even to an extent unknown to the judges themselves, any legal standard that is then articulated. This, I believe, is the central problem of the opinion of the plurality and, indeed, of the concurrence. [ Footnote 4 ] The plurality is correct in pointing out that the District Court erred in its conclusion that there was a Hospital policy that would have justified this search. Ante at 480 U. S. 728 . This was not the only error on the District Court's part. That court also concluded that Dr. Ortega was notified of the search and could have participated in it, see App. 23, a conclusion at odds with the record, see id. at 24, 40. [ Footnote 5 ] This common sense notion that public employees have some expectation of privacy in the workplace, particularly with respect to private documents or papers kept there, was exemplified by recent remarks of the Attorney General. In responding to questions concerning the possibility of a search and seizure of papers and offices of Government employees in connection with an investigation into allegedly illegal diversion of funds to Central American recipients, he is reported to have stated: "I'm not sure we would have any opportunity or any legal right to get into those personal papers. . . . There was certainly no evidence of any criminality that would have supported a search warrant at that time. . . . I don't think public employees' private documents belong to the. Government." N.Y. Times, Dec. 3, 1986, p. All, col. 3. Moreover, courts have recognized that a public employee has a legitimate expectation of privacy as to an employer's search and seizure at the workplace. See, e.g., Gillard v. Schmidt, 579 F.2d 825, 829 (CA3 1978) (search of desk); United States v McIntyre, 582 F.2d 1221, 1224 (CA9 1978) (monitoring conversations at office desk). But see Williams v. Collins, 728 F.2d 721, 728 (CA5 1984) (search of desk). In some cases, courts have decided that an employee had no such expectation with respect to a workplace search because an established regulation permitted the search. See United States v. Speights, 557 F.2d 362, 364-365 (CA3 1977) (describing cases); United States v. Donato, 269 F. Supp. 921 (ED Pa.), aff'd, 379 F.2d 288 (CA3 1967) (Government regulation notified employees that lockers in the United States Mint were not to be viewed by employees as private lockers). The question of such a search pursuant to regulations is not now before this Court. [ Footnote 6 ] Perhaps the greatest sign of the disappearance of the distinction between work and private life is the fact that women -- the traditional representatives of the private sphere and family life -- have entered the workforce in increasing numbers. See BNA Special Report, Work & Family: A Changing Dynamic, 1, 3, 13-15 (1986). It is therein noted: "The myth of 'separate worlds' -- one of work and the other of family life -- long harbored by employers, unions, and even workers themselves has been effectively laid to rest. Their inseparability is undeniable, particularly as two-earner families have become the norm where they once were the exception and as a distressing number of single parents are required to raise children on their own. The import of work-family conflicts -- for the family, for the workplace, and, indeed, for the whole of society -- will grow as these demographic and social transformations in the roles of men and women come to be more fully clarified and appreciated." Id. at 217 (remarks of Professor Phyllis Moen). As a result of this disappearance, moreover, the employee must attempt to maintain the difficult balance between work and personal life. Id. at 227 (remarks of Barney Olmsted and Suzanne Smith). [ Footnote 7 ] I am also troubled by the plurality's implication that a public employee is entitled to a lesser degree of privacy in the workplace because the public agency, not the employee, owns much of what constitutes the workplace. This implication emerges in the distinction the plurality draws between the workplace "context," which includes "the hallways, cafeteria, offices, desks, and file cabinets," and an employee's "closed personal luggage, a handbag, or a briefcase." Ante at 480 U. S. 715 -716. This Court, however, has made it clear that privacy interests protected by the Fourth Amendment do not turn on ownership of particular premises. See, e.g., Rakas v. Illinois, 439 U. S. 128 , 439 U. S. 143 (1978) ("[T]he protection of the Fourth Amendment depends not upon a property right in the invaded place, but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place"); Katz v. United States, 389 U. S. 347 , 389 U. S. 353 (1967) (Fourth Amendment protects people, and not simply "areas"). To be sure, the public employer's ownership of the premises is relevant in determining an employee's expectation of privacy, for often it is the main reason for the routine visits into an employee's office. The employee is assigned an office for work purposes; it is expected that the employee will receive work-related visitors, and that the employer will maintain the office. This fact of ownership, however, like the routine visits, does not abrogate the employee's expectation of privacy. [ Footnote 8 ] This part of the analysis is related to the "special need" step. Courts turn to the balancing test only when they conclude that the traditional warrant and probable cause requirements are not a practical alternative. Through the balancing test, they then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances. The warrant and probable cause requirements, however, continue to serve as a model in the formulation of the new standard. It is conceivable, moreover, that a court, having initially decided that it is faced with a situation of "special need" that calls for balancing, may conclude after application of the balancing test that the traditional standard is a suitable one for the context after all. [ Footnote 9 ] In some workplace investigations, the particular goals of the government agency, coupled with a need for special employee, discipline may justify dispensing with the warrant requirement. See, e.g., Security and Law Enforcement Employees, Dist. Council 82, American Federation of State, County and Municipal Employees, AFL-CIO v. Carey, 737 F.2d 187, 203-204 (CA2 1984) (government interest in maintaining security of a correctional facility justifies strip searches of correctional officers, in certain circumstances, in absence of a warrant). [ Footnote 10 ] While the warrant requirement might be "unwieldy" for public employers if it was required for every workplace search, the plurality has failed to explain why, on the facts of this case, obtaining a warrant would have been burdensome for petitioners, even if one assumes that they were unfamiliar with this requirement. In fact, the opposite seems true. Moreover, contrary to the plurality's suggestion, see ante at 480 U. S. 722 , the warrant requirement is not limited to the criminal context. See Camara v. Municipal Court, 387 U. S. 523 , 387 U. S. 530 -531 (1967)., [ Footnote 11 ] The plurality adopts a "standard of reasonableness under all the circumstances." Ante at 480 U. S. 725 -726. It fails completely to suggest how this standard captures any of the protection of the traditional warrant requirement; indeed, the standard appears to be simply an alternative to probable cause. [ Footnote 12 ] The same holds true for the plurality's discussion of inventory searches. [ Footnote 13 ] The plurality's attempt at explication consists of little more than a series of assertions: that the probable cause requirement "would impose intolerable burdens on public employers"; that the delay caused by such a requirement would result in "tangible and often irreparable damage" to a government agency; and that public employers cannot be expected "to learn the subtleties of the probable cause standard." See ante at 480 U. S. 724 -725. Such assertions cannot pass for careful balancing on the facts of this case, given that the search was conducted during Dr. Ortega's administrative leave from the Hospital, with the advice of counsel, and by an investigating party that included a security officer. My observation that a particular Fourth Amendment standard of reasonableness should be developed from a specific context bears repeating here. [ Footnote 14 ] Even if I believed that this case were an appropriate vehicle for development of a standard on public employer searches, I would fault the plurality for its failure to give much substance to the standard it has borrowed almost verbatim from New Jersey v. T.L.O. See ante at 480 U. S. 714 -715. The T.L.O. Court described in some detail the substance of its test, which was tailored to the circumstances of the case before it, and thus is not directly transferable from the halls of a high school to the offices of government. In any event, were I to apply the rather stark standard of reasonableness announced by the plurality, I would conclude that petitioners here did not satisfy it. Assuming, without deciding, that petitioners had an individualized suspicion that Dr. Ortega was mismanaging the psychiatric residency program, I believe the scope of the search was not reasonably related to this concern. If petitioners were truly in search of evidence of respondent's mismanagement, it is difficult to understand why they looked through the personal belongings of Dr. Ortega, a search that resulted in the seizure of a Valentine's Day card, a photograph, and a book of poetry, which could have no conceivable relation to the claimed purpose of the search. Although, in the plurality's view, the seizure of these items is not an issue in this case, see ante at 480 U. S. 729 , n., I would think that this seizure is relevant to determining the reasonableness of the scope of the search. Accordingly, under the plurality's own standard, this search was unreasonable. [ Footnote 15 ] One example is the Fourth Amendment problem associated with drug and alcohol testing of employees. See, e.g., Shoemaker v. Handel, 795 F.2d 1136, 1141-1143 (CA3) (administrative search exception extended to warrantless breath and urine testing of jockeys, given the heavily regulated nature of the horse-racing industry), cert. denied, 479 U.S. 986 (1986); National Treasury Employees Union v. Von Raab, 649 F. Supp. 380 (ED La. 1986) (wide-scale urinalysis of United States Customs Service employees without probable cause or reasonable suspicion struck down as violative of the Fourth Amendment).

In O'Connor v. Ortega, the Supreme Court considered whether a government employer's search of an employee's workplace is governed by the Fourth Amendment. The Court concluded that public employees do have a reasonable expectation of privacy in their workplaces, but that the standards for a reasonable search may vary depending on the operational realities of the workplace. The case was remanded for further consideration.

Labor & Employment

Pilot Life Ins. Co. v. Dedeaux

https://supreme.justia.com/cases/federal/us/481/41/

U.S. Supreme Court Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) Pilot Life Insurance Co. v. Dedeaux No. 85-1043. Argued January 21, 1987 Decided April 6, 1987 481 U.S. 41 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus The "preemption clause" (§ 514(a)) of the Employee Retirement Income Security Act of 1974 (ERISA) provides that ERISA supersedes all state laws insofar as they "relate to any employee benefit plan," but ERISA's "saving clause" (§ 514(b)(2)(A)) excepts from the preemption clause any state law that "regulates insurance." ERISA's "deemer clause" (§ 514(b)(2)(B)) provides that no employee benefit plan shall be deemed to be an insurance company for purposes of any state law "purporting to regulate insurance." On the basis of a work-related injury occurring in Mississippi in 1975, respondent began receiving permanent disability benefits under his employer's ERISA-regulated welfare benefit plan, under which claims were handled by petitioner, the employer's insurer. However, after two years, petitioner terminated respondent's benefits, and during the following three years his benefits were reinstated and terminated by petitioner several times. Respondent ultimately instituted a diversity action against petitioner in Federal District Court, alleging tort and breach of contract claims under Mississippi common law for petitioner's failure to pay benefits under the insurance policy. The court granted summary judgment for petitioner, finding that respondent's common law claims were preempted by ERISA. The Court of Appeals reversed. Held: ERISA preempts respondent's suit under state common law for alleged improper processing of his claim for benefits under the ERISA-regulated benefit plan. Pp. 481 U. S. 44 -57. (a) The common law causes of action asserted in respondent's complaint, each based on alleged improper processing of a benefit claim under an employee benefit plan, "relate to" an employee benefit plan, and therefore fall under ERISA's preemption clause. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 471 U. S. 739 ; Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , 463 U. S. 96 -100. The preemption clause is not limited to state laws specifically designed to affect employee benefit plans. Pp. 481 U. S. 47 -48. (b) Under the guidelines set forth in Metropolitan Life, respondent's causes of action under state decisional common law -- particularly the cause, presently asserted, based on the Mississippi law of bad faith -- do not fall under ERISA's saving clause, and thus are not excepted from Page 481 U. S. 42 preemption. A common-sense understanding of the language of the saving clause excepting from preemption a state law that "regulates insurance" does not support the argument that the Mississippi law of bad faith falls under the clause. To "regulate" insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry. Mississippi Supreme Court decisions establish that its law of bad faith applies to any breach of contract, not merely a breach of an insurance contract. Neither do the factors for interpreting the phrase "business of insurance" under the McCarran-Ferguson Act (which factors are appropriate for consideration here) support the assertion that the Mississippi law of bad faith "regulates insurance" for purposes of ERISA's saving clause. Pp. 481 U. S. 48 -51. (c) Moreover, interpretation of the saving clause must be informed by the legislative intent concerning ERISA's civil enforcement provisions. The language and structure of those provisions support the conclusion that they were intended to provide exclusive remedies for ERISA-plan participants and beneficiaries asserting improper processing of benefit claims. ERISA's detailed provisions set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. The conclusion that ERISA's civil enforcement provisions were intended to be exclusive is also confirmed by the legislative history of those provisions, particularly the history demonstrating that the preemptive force of ERISA's enforcement provisions was modeled after the powerful preemptive force of § 301 of the Labor Management Relations Act, 1947. Pp. 481 U. S. 51 -56. 770 F.2d 1311, reversed. O'CONNOR, J., delivered the opinion for a unanimous Court. Page 481 U. S. 43 JUSTICE O'CONNOR delivered the opinion of the Court. This case presents the question whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., preempts state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan. I In March, 1975, in Gulfport, Mississippi, respondent Everate W. Dedeaux injured his back in an accident related to his employment for Entex, Inc. (Entex). Entex had at this time a long-term disability employee benefit plan established by purchasing a group insurance policy from petitioner, Pilot Life Insurance Co. (Pilot Life). Entex collected and matched its employees' contributions to the plan and forwarded those funds to Pilot Life; the employer also provided forms to its employees for processing disability claims, and forwarded completed forms to Pilot Life. Pilot Life bore the responsibility of determining who would receive disability benefits. Although Dedeaux sought permanent disability benefits following the 1975 accident, Pilot Life terminated his benefits after two years. During the following three years, Dedeaux's benefits were reinstated and terminated by Pilot Life several times. In 1980, Dedeaux instituted a diversity action against Pilot Life in the United States District Court for the Southern District of Mississippi. Dedeaux's complaint contained three counts: "Tortious Breach of Contract"; "Breach of Fiduciary Duties"; and "Fraud in the Inducement." App. 18-23. Dedeaux sought "[d]amages for failure to provide benefits under the insurance policy in a sum to be determined at the time of trial," "[g]eneral damages for mental and emotional distress and other incidental damages in the sum of $250,000.00," and "[p]unitive and exemplary damages in the Page 481 U. S. 44 sum of $500,000.00." Id. at 23-24. Dedeaux did not assert any of the several causes of action available to him under ERISA, see infra at 481 U. S. 53 . At the close of discovery, Pilot Life moved for summary judgment, arguing that ERISA preempted Dedeaux's common law claim for failure to pay benefits on the group insurance policy. The District Court granted Pilot Life summary judgment, finding all Dedeaux's claims preempted. App. to Pet. Cert. 16a. The Court of Appeals for the Fifth Circuit reversed, primarily on the basis of this Court's decision in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). See 770 F.2d 1311 (1985). We granted certiorari, 478 U.S. 1004 (1986), and now reverse. II In ERISA, Congress set out to "protect . . . participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts." § 2, as set forth in 29 U.S.C. § 1001(b). ERISA comprehensively regulates, among other things, employee welfare benefit plans that, "through the purchase of insurance or otherwise," provide medical, surgical, or hospital care, or benefits in the event of sickness, accident, disability, or death. § 3(1), 29 U.S.C. § 1002(1). Congress capped off the massive undertaking of ERISA with three provisions relating to the preemptive effect of the federal legislation: "Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and Page 481 U. S. 45 subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . ." § 514(a), as set forth in 29 U.S.C. § 1144(a) (preemption clause). "Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." § 514(b)(2)(A), as set forth in 29 U.S.C. § 1144(b)(2)(A) (saving clause). "Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B) (deemer clause). To summarize the pure mechanics of the provisions quoted above: If a state law "relate[s] to . . . employee benefit plan[s]," it is preempted. § 514(a). The saving clause excepts from the preemption clause laws that "regulat[e] insurance." § 514(b)(2)(A). The deemer clause makes clear that a state law that "purport[s] to regulate insurance" cannot deem an employee benefit plan to be an insurance company. § 514(b)(2)(B). "[T]he question whether a certain state action is preempted by federal law is one of congressional intent. " The purpose of Congress is the ultimate touchstone.'"" Allis-Chalmers Corp. v. Lueck, 471 U. S. 202 , 471 U. S. 208 (1985), quoting Malone v. White Motor Corp., 435 U. S. 497 , 435 U. S. 504 (1978), quoting Retail Clerks v. Schermerhorn, 375 U. S. 96 , 375 U. S. 103 (1963). We have observed in the past that the express preemption Page 481 U. S. 46 provisions of ERISA are deliberately expansive, and designed to "establish pension plan regulation as exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 , 451 U. S. 523 (1981). As we explained in Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , 463 U. S. 98 (1983): "The bill that became ERISA originally contained a limited preemption clause, applicable only to state laws relating to the specific subjects covered by ERISA. The Conference Committee rejected those provisions in favor of the present language, and indicated that section's preemptive scope was as broad as its language. See H.R.Conf.Rep. No. 93-1280, p. 383 (1974); S.Conf.Rep. No. 93-1090, p. 383 (1974)." The House and Senate sponsors emphasized both the breadth and importance of the preemption provisions. Representative Dent described the "reservation to Federal authority [of] the sole power to regulate the field of employee benefit plans" as ERISA's "crowning achievement." 120 Cong.Rec. 29197 (1974). Senator Williams said: "It should be stressed that, with the narrow exceptions specified in the bill, the substantive and enforcement provisions of the conference substitute are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans. This principle is intended to apply in its broadest sense to all actions of State or local governments, or any instrumentality thereof, which have the force or effect of law." Id. at 29933. See also Shaw v. Delta Air Lines, Inc., supra, at 463 U. S. 99 -100, n. 20 (describing remarks of Sen. Javits). In Metropolitan Life, this Court, noting that the preemption and saving clauses "perhaps are not a model of legislative drafting," 471 U.S. at 471 U. S. 739 , interpreted these clauses in relation to a Massachusetts statute that required minimum Page 481 U. S. 47 mental health care benefits to be provided Massachusetts residents covered by general health insurance policies. The appellants in Metropolitan Life argued that the state statute, as applied to insurance policies purchased by employee health care plans regulated by ERISA, was preempted. The Court concluded, first, that the Massachusetts statute did "relate to . . . employee benefit plan[s]," thus placing the state statute within the broad sweep of the preemption clause, § 514(a). Metropolitan Life, supra, at 471 U. S. 739 . However, the Court held that, because the state statute was one that "regulate[d] insurance," the saving clause prevented the state law from being preempted. In determining whether the Massachusetts statute regulated insurance, the Court was guided by case law interpreting the phrase "business of insurance" in the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U.S.C. § 1011 et seq. Given the "statutory complexity" of ERISA's three preemption provisions, Metropolitan Life, supra, at 471 U. S. 740 , as well as the wide variety of state statutory and decisional law arguably affected by the federal preemption provisions, it is not surprising that we are again called on to interpret these provisions. III There is no dispute that the common law causes of action asserted in Dedeaux's complaint "relate to" an employee benefit plan, and therefore fall under ERISA's express preemption clause, § 514(a). In both Metropolitan Life, supra, and Shaw v. Delta Air Lines, Inc., supra, at 463 U. S. 96 -100, we noted the expansive sweep of the preemption clause. In both cases "[t]he phrase 'relate to' was given its broad common-sense meaning, such that a state law 'relate[s] to' a benefit plan 'in the normal sense of the phrase, if it has a connection with or reference to such a plan.'" Metropolitan Life, supra, at 471 U. S. 739 , quoting Shaw v. Delta Air Lines, supra, at 463 U. S. 97 . In particular, we have emphasized that the preemption clause is not limited to "state laws specifically designed Page 481 U. S. 48 to affect employee benefit plans." Shaw v. Delta Air Lines, supra, at 463 U. S. 98 . The common law causes of action raised in Dedeaux's complaint, each based on alleged improper processing of a claim for benefits under an employee benefit plan, undoubtedly meet the criteria for preemption under § 514(a). Unless these common law causes of action fall under an exception to § 514(a), therefore, they are expressly preempted. Although Dedeaux's complaint pleaded several state common law causes of action, before this Court Dedeaux has described only one of the three counts -- called "tortious breach of contract" in the complaint, and "the Mississippi law of bad faith" in respondent's brief -- as protected from the preemptive effect of § 514(a). The Mississippi law of bad faith, Dedeaux argues, is a law "which regulates insurance," and thus is saved from preemption by § 514(b)(2)(A). [ Footnote 1 ] In Metropolitan Life, we were guided by several considerations in determining whether a state law falls under the saving clause. First, we took what guidance was available from a "common-sense view" of the language of the saving clause itself. 471 U.S. at 471 U. S. 740 . Second, we made use of the case law interpreting the phrase "business of insurance" under the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq., in interpreting the saving clause. [ Footnote 2 ] Three criteria have been used to determine whether a practice falls under the "business of insurance" for purposes of the McCarran-Ferguson Act: " [F]irst, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether" the practice is an integral part of the policy relationship Page 481 U. S. 49 between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry. Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119 , 458 U. S. 129 (1982) (emphasis in original). In the present case, the considerations weighed in Metropolitan Life argue against the assertion that the Mississippi law of bad faith is a state law that "regulates insurance." As early as 1915, the Mississippi Supreme Court had recognized that punitive damages were available in a contract case when "the act or omission constituting the breach of the contract amounts also to the commission of a tort." See Nood v. Moffett, 109 Miss. 757, 767, 69 So. 664, 666 (1915) (involving a physician's breach of a contract to attend to a woman at her approaching "accouchement"). In American Railway Express Co. v. Bailey, 142 Miss. 622, 631, 107 So. 761, 763 (1926), a case involving a failure of a finance company to deliver to the plaintiff the correct amount of money cabled to the plaintiff through the finance company's offices, the Mississippi Supreme Court explained that punitive damages could be available when the breach of contract was "attended by some intentional wrong, insult, abuse, or gross negligence, which amounts to an independent tort." In Standard Life Insurance Co. v. Veal, 354 So. 2d 239 (1977), the Mississippi Supreme Court, citing D. L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So. 2d 770 (1944) (breach of contract was accompanied by "the breaking down and destruction of another's fence"), American Railway Express Co. v. Bailey, supra, and Hood v. Moffett, supra, upheld an award of punitive damages against a defendant insurance company for failure to pay on a credit life policy. Since Veal, the Mississippi Supreme Court has considered a large number of cases in which plaintiffs have sought punitive damages from insurance companies for failure to pay a claim under an insurance contract, and in a great many of these cases the court has used the identical formulation, first stated in Bailey, of what must "attend" the breach of contract in order for punitive Page 481 U. S. 50 damages to be recoverable. See, e.g., Employers Mutual Casualty Co. v. Tompkins, 490 So. 2d 897 , 902 (1986); State Farm Fire & Casualty Co. v. Simpson, 477 So. 2d 242 , 248 (1985); Consolidated American Life Ins. Co. v. Toche, 410 So. 2d 1303 , 1304 (1982); Gulf Guaranty Life Ins. Co. v. Kelley, 389 So. 2d 920 , 922 (1980); State Farm Mutual Automobile Ins. Co. v. Roberts, 379 So. 2d 321 , 322 (1980); New Hampshire Ins. Co. v. Smith, 357 So. 2d 119 , 121 (1978); Lincoln National Life Ins. Co. v. Crews, 341 So. 2d 1321 , 1322 (1977). Recently, the Mississippi Supreme Court stated that "[w]e have come to term an insurance carrier which refuses to pay a claim when there is no reasonably arguable basis to deny it as acting in 'bad faith,' and a lawsuit based upon such an arbitrary refusal as a 'bad faith' cause of action." Blue Cross & Blue Shield of Mississippi, Inc. v. Campbell, 466 So. 2d 833 , 842 (1984). Certainly a common-sense understanding of the phrase "regulates insurance" does not support the argument that the Mississippi law of bad faith falls under the saving clause. A common-sense view of the word "regulates" would lead to the conclusion that, in order to regulate insurance, a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry. Even though the Mississippi Supreme Court has identified its law of bad faith with the insurance industry, the roots of this law are firmly planted in the general principles of Mississippi tort and contract law. Any breach of contract, and not merely breach of an insurance contract, may lead to liability for punitive damages under Mississippi law. Neither do the McCarran-Ferguson Act factors support the assertion that the Mississippi law of bad faith "regulates insurance." Unlike the mandated-benefits law at issue in Metropolitan Life, the Mississippi common law of bad faith does not effect a spreading of policyholder risk. The state common law of bad faith may be said to concern "the policy relationship between the insurer and the insured. " The connection Page 481 U. S. 51 to the insurer-insured relationship is attenuated, at best, however. In contrast to the mandated-benefits law in Metropolitan Life, the common law of bad faith does not define the terms of the relationship between the insurer and the insured; it declares only that, whatever terms have been agreed upon in the insurance contract, a breach of that contract may in certain circumstances allow the policyholder to obtain punitive damages. The state common law of bad faith is therefore no more "integral" to the insurer-insured relationship than any State's general contract law is integral to a contract made in that State. Finally, as we have just noted, Mississippi's law of bad faith, even if associated with the insurance industry, has developed from general principles of tort and contract law available in any Mississippi breach of contract case. Cf. Hart v. Orion Ins. Co., 453 F.2d 1358 (CA10 1971) (general state arbitration statutes do not regulate the business of insurance under the McCarran-Ferguson Act); Hamilton Life Ins. Co. v. Republic National Life Ins. Co., 408 F.2d 606 (CA2 1969) (same). Accordingly, the Mississippi common law of bad faith, at most, meets one of the three criteria used to identify the "business of insurance" under the McCarran-Ferguson Act, and used in Metropolitan Life to identify laws that "regulat[e] insurance" under the saving clause. In the present case, moreover, we are obliged in interpreting the saving clause to consider not only the factors by which we were guided in Metropolitan Life, but also the role of the saving clause in ERISA as a whole. On numerous occasions we have noted that "" "[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy."'"" Kelly v. Robinson, 479 U. S. 36 , 479 U. S. 43 (1986), quoting Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207 , 477 U. S. 221 (1986) (quoting Mastro Plastics Corp. v. NLRB, 350 U. S. 270 , 350 U. S. 285 (1956) (in turn quoting United States v. Heirs of Boisdore , 8 How. 113, 49 U. S. 122 (1849))). Because, in this case, Page 481 U. S. 52 the state cause of action seeks remedies for the improper processing of a claim for benefits under an ERISA-regulated plan, our understanding of the saving clause must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA § 502(a), 29 U.S.C. § 1132(a). The Solicitor General, for the United States as amicus curiae, argues that Congress clearly expressed an intent that the civil enforcement provisions of ERISA § 502(a) be the exclusive vehicle for actions by ERISA-plan participants and beneficiaries asserting improper processing of a claim for benefits, and that varying state causes of action for claims within the scope of § 502(a) would pose an obstacle to the purposes and objectives of Congress. Brief for United States as Amicus Curiae 18-19. We agree. The conclusion that § 502(a) was intended to be exclusive is supported, first, by the language and structure of the civil enforcement provisions, and second, by legislative history in which Congress declared that the preemptive force of § 502(a) was modeled on the exclusive remedy provided by § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185. The civil enforcement scheme of § 502(a) is one of the essential tools for accomplishing the stated purposes of ERISA. [ Footnote 3 ] The civil enforcement scheme is sandwiched between Page 481 U. S. 53 two other ERISA provisions relevant to enforcement of ERISA and to the processing of a claim for benefits under an employee benefit plan. Section 501, 29 U.S.C. § 1131, authorizes criminal penalties for violations of the reporting and disclosure provisions of ERISA. Section 503, 29 U.S.C. § 1133, requires every employee benefit plan to comply with Department of Labor regulations on giving notice to any participant or beneficiary whose claim for benefits has been denied, and affording a reasonable opportunity for review of the decision denying the claim. Under the civil enforcement provisions of § 502(a), a plan participant or beneficiary may sue to recover benefits due under the plan, to enforce the participant's rights under the plan, or to clarify rights to future benefits. Relief may take the form of accrued benefits due, a declaratory judgment on entitlement to benefits, or an injunction against a plan administrator's improper refusal to pay benefits. A participant or beneficiary may also bring a cause of action for breach of fiduciary duty, and under this cause of action may seek removal of the fiduciary. §§ 502(a)(2), 409. In an action under these civil enforcement provisions, the court in its discretion may allow an award of attorney's fees to either party. § 502(g). See Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134 , 473 U. S. 147 (1985). In Russell, we concluded that ERISA's breach of fiduciary duty provision, § 409(a), 29 U.S.C. Page 481 U. S. 54 § 1109(a), provided no express authority for an award of punitive damages to a beneficiary. Moreover, we declined to find an implied cause of action for punitive damages in that section, noting that "'[t]he presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.'" Russell, supra, at 473 U. S. 147 , quoting Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 , 451 U. S. 97 (1981). Our examination of these provisions made us "reluctant to tamper with an enforcement scheme crafted with such evident care as the one in ERISA." Russell, supra, at 473 U. S. 147 . In sum, the detailed provisions of § 502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. "The six carefully integrated civil enforcement provisions found in § 502(a) of the statute as finally enacted . . . provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly." Russell, supra, at 473 U. S. 146 (emphasis in original). The deliberate care with which ERISA's civil enforcement remedies were drafted and the balancing of policies embodied in its choice of remedies argue strongly for the conclusion that ERISA's civil enforcement remedies were intended to be exclusive. This conclusion is fully confirmed by the legislative history of the civil enforcement provision. The legislative history demonstrates that the preemptive force of § 502(a) was modeled after § 301 of the LMRA. Page 481 U. S. 55 The Conference Report on ERISA describing the civil enforcement provisions of § 502(a) says: "Under the conference agreement, civil actions may be brought by a participant or beneficiary to recover benefits due under the plan, to clarify rights to receive future benefits under the plan, and for relief from breach of fiduciary responsibility. . . . [W]ith respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the title I provisions, they may be brought not only in U.S. district courts, but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947. " H.R.Conf.Rep. No. 93-1280, p. 327 (1974) (emphasis added). Congress was well aware that the powerful preemptive force of § 301 of the LMRA displaced all state actions for violation of contracts between an employer and a labor organization, even when the state action purported to authorize a remedy unavailable under the federal provision. Section 301 preempts any "state law claim [whose resolution] is substantially dependent upon the analysis of the terms of an agreement made between the parties in a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. at 471 U. S. 220 . As we observed in Allis-Chalmers, the broad preemptive effect of § 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U. S. 95 (1962). In Lucas Flour, the Court found that "[t]he dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute." Id. at 369 U. S. 103 . "[I]n enacting § 301, Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Id. at 369 U. S. 104 . Indeed, for purposes of determining federal jurisdiction, this Court has singled out § 301 of the LMRA as having "preemptive Page 481 U. S. 56 force . . . so powerful as to displace entirely any state cause of action 'for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law. . . ." Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 , 463 U. S. 23 (1983), referring to Avco Corp. v. Machinists, 390 U. S. 557 (1968). Congress' specific reference to § 301 of the LMRA to describe the civil enforcement scheme of ERISA makes clear its intention that all suits brought by beneficiaries or participants asserting improper processing of claims under ERISA-regulated plans be treated as federal questions governed by § 502(a). See also H.R.Rep. No. 93-533, p. 12 (1973), reprinted in 2 Senate Committee on Labor and Public Welfare, Legislative History of ERISA, 94th Cong., 2d Sess., 2359 (Comm. Print 1976) ("The uniformity of decision which the Act is designed to foster will help administrators, fiduciaries and participants to predict the legality of proposed actions without the necessity of reference to varying state laws"); 120 Cong.Rec. 29933 (1974) (remarks of Sen. Williams) (suits involving claims for benefits "will be regarded as arising under the laws of the United States, in similar fashion to those brought under section 301 of the Labor Management Relations Act"); id. at 29942 (remarks of Sen. Javits) ("[i]t is also intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans"). The expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop, indeed, the entire comparison of ERISA's § 502(a) to § 301 of the LMRA, would make little sense if the remedies available to ERISA participants and beneficiaries under § 502(a) could be supplemented or supplanted by varying state laws. In Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. at 471 U. S. 746 , this Court rejected an interpretation of the saving clause of ERISA's express preemption provisions, § 514(b) (2)(A), 29 U.S.C. § 1144(b)(2)(A), that saved from preemption Page 481 U. S. 57 "only state regulations unrelated to the substantive provisions of ERISA," finding that "[n]othing in the language, structure, or legislative history of the Act" supported this reading of the saving clause. Metropolitan Life, however, did not involve a state law that conflicted with a substantive provision of ERISA. Therefore the Court's general observation -- that state laws related to ERISA may also fall under the saving clause -- was not focused on any particular relationship or conflict between a substantive provision of ERISA and a state law. In particular, the Court had no occasion to consider in Metropolitan Life the question raised in the present case: whether Congress might clearly express, through the structure and legislative history of a particular substantive provision of ERISA, an intention that the federal remedy provided by that provision displace state causes of action. Our resolution of this different question does not conflict with the Court's earlier general observations in Metropolitan Life . Considering the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly, the clear expression of congressional intent that ERISA's civil enforcement scheme be exclusive, we conclude that Dedeaux's state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by § 514(b)(2)(A), and therefore is preempted by § 514(a). [ Footnote 4 ] Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ] Decisional law that "regulates insurance" may fall under the saving clause. The saving clause, § 514(b)(2)(A), covers "any law of any State." For purposes of § 514, "[t]he term state law' includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State." 29 U.S.C. §§ 1144(c)(1) and (2). [ Footnote 2 ] The McCarran-Ferguson Act provides, in relevant part: "The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business." 15 U.S.C. § 1012(a). [ Footnote 3 ] Section 502(a), as set forth in 29 U.S.C. § 1132(a), provides: "A civil action may be brought -- " "(1) by a participant or beneficiary -- " "(A) for the relief provided for in subsection (c) of this section [concerning requests to the administrator for information], or" "(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;" "(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title [breach of fiduciary duty];" "(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan;" "(4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title [information to be furnished to participants];" "(5) except as otherwise provided in subsection (b) of this subsection, by the Secretary (A) to enjoin any act or practice which violates any provision of this subchapter, or (B) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchapter;" "(6) by the Secretary to collect any civil penalty under subsection (i) of this section." [ Footnote 4 ] Because we conclude that Dedeaux's state common law claims fall under the ERISA preemption clause and are not rescued by the saving clause, we need not reach petitioner's argument that, when an insurance company is engaged in the processing and review of claims for benefits under an employee benefit plan, it is acting in place of the plan's trustees, and should be protected from direct state regulation by the deemer clause.

In Pilot Life Ins. Co. v. Dedeaux, the U.S. Supreme Court held that ERISA (Employee Retirement Income Security Act of 1974) preempts state common law claims for improper processing of benefit claims under an ERISA-regulated benefit plan. The Court found that the state law claims "related to" an employee benefit plan and were therefore preempted by ERISA's broad preemption clause. Additionally, the state law claims did not fall under ERISA's saving clause, which exempts state laws that "regulate insurance," as they were not specifically directed toward the insurance industry.

Labor & Employment

Firestone Tire & Rubber Co. v. Bruch

https://supreme.justia.com/cases/federal/us/489/101/

U.S. Supreme Court Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) Firestone Tire & Rubber Co. v. Bruch No. 87-1054 Argued November 30, 1988 Decided February 21, 1989 489 U.S. 101 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Petitioner Firestone Tire & Rubber Co. (Firestone) maintained, and was the plan administrator and fiduciary of, a termination pay plan and two other unfunded employee benefit plans governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. After Firestone sold its Plastics Division to Occidental Petroleum Co. (Occidental), respondents, Plastics Division employees who were rehired by Occidental, sought severance benefits under the termination pay plan, but Firestone denied their requests on the ground that there had not been a "reduction in workforce" that would authorize benefits under the plan's terms. Several respondents also sought information about their benefits under all three plans pursuant to § 1024(b)(4)'s disclosure requirements, but Firestone denied those requests on the ground that respondents were no longer plan "participants" entitled to information under ERISA. Respondents then brought suit for severance benefits under § 1132(a)(1)(B) and for damages under §§ 1132(a)(1)(A) and (c)(1)(B) based on Firestone's breach of its statutory disclosure obligation. The Federal District Court granted summary judgment for Firestone, holding that the company had satisfied its fiduciary duty as to the benefits requests because its decision not to pay was not arbitrary or capricious, and that it had no disclosure obligation to respondents because they were not plan "participants" within the meaning of § 1002(7) at the time they requested the information. The Court of Appeals reversed and remanded, holding that benefits denials should be subject to de novo judicial review, rather than review under the arbitrary and capricious standard, where the employer is itself the administrator and fiduciary of an unfunded plan, since deference is unwarranted in that situation, given the lack of assurance of impartiality on the employer's part. The Court of Appeals also held that the right to disclosure of plan information extends both to people who are entitled to plan benefits and to those who claim to be, but are not, so entitled. Held: 1. De novo review is the appropriate standard for reviewing Firestone's denial of benefits to respondents. Pp. 489 U. S. 108 -115. Page 489 U. S. 102 (a) The arbitrary and capricious standard -- which was developed under the Labor Management Relations Act, 1947 (LMRA) and adopted by some federal courts for § 1132(a)(1)(B) actions in light of ERISA's failure to provide an appropriate standard of review for that section -- should not be imported into ERISA on a wholesale basis. The raison d'etre for the LMRA standard -- the need for a jurisdictional basis in benefits denial suits against joint labor-management pension plan trustees whose decisions are not expressly made reviewable by the LMRA -- is not present in ERISA, which explicitly authorizes suits against fiduciaries and plan administrators to remedy statutory violations, including breaches of fiduciary duty and lack of compliance with plans. Without this jurisdictional analogy, LMRA principles offer no support for the adoption of the arbitrary and capricious standard insofar as § 1132 (a)(1)(B) is concerned. Pp. 489 U. S. 108 -110. (b) Principles of the law of trusts -- which must guide the present determination under ERISA's language and legislative history and this Court's decisions interpreting the statute -- establish that a denial of benefits challenged under § 1132(a)(1)(B) must be reviewed under a de novo standard unless the benefit plan expressly gives the plan administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan's terms, in which cases a deferential standard of review is appropriate. The latter exception cannot aid Firestone, since there is no evidence that, under the termination pay plan, the administrator has the power to construe uncertain plan terms or that eligibility determinations are to be given deference. Firestone's argument that plan interpretation is inherently discretionary is belied by other settled trust law principles whereby courts construe trust agreements without deferring to either party's interpretation. Moreover, ERISA provisions that define a fiduciary as one who "exercises any discretionary authority," give him control over the plan's operation and administration, and require that he provide a "full and fair review" of claim denials cannot be interpreted to empower him to exercise all his authority in a discretionary manner. Adopting Firestone's interpretation would afford employees and their beneficiaries less protection than they received under pre-ERISA cases, which applied a de novo standard in interpreting plans, a result that Congress could not have intended in light of ERISA's stated purpose of "promot[ing] the interest of employees and their beneficiaries." The fact that, after ERISA's passage, Congress failed to act upon a bill to amend § 1132 to provide de novo review of benefits denial decisions does not indicate congressional approval of the arbitrary and capricious standard that had by then been adopted by most courts, since the bill's demise may have resulted from events having nothing to do with Congress' views on the relative merits of the two Page 489 U. S. 103 standards, and since the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one. Firestone's assertion that the de novo standard would impose higher administrative and litigation costs on plans, and thereby discourage employers from creating plans in contravention of ERISA's spirit, is likewise unpersuasive, since there is nothing to foreclose parties from agreeing upon a narrower standard of review, and since the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard. Those reasons have nothing to do with the concern for impartiality that guided the Court of Appeals, and the de novo standard applies regardless of whether the plan at issue is funded or unfunded and whether the administrator or fiduciary is operating under a conflict of interest. If a plan gives discretion to such an official, however, the conflict must be weighed as a factor in determining whether there is an abuse of discretion. Pp. 489 U. S. 110 -115. 2. A "participant" entitled to disclosure under § 1024(b)(4) and to damages for failure to disclose under § 1132(c)(1)(B) does not include a person who merely claims to be, but is not, entitled to a plan benefit. The Court of Appeals' interpretation to the contrary strays far from the statutory language, which does not say that all "claimants" are entitled to disclosure; begs the question of who is a "participant"; and renders the § 1002(7) definition of "participant" superfluous. Rather, that definition of a "participant" as "any employee or former employee . . . who is or may become eligible" for benefits must be naturally read to mean either an employee in, or reasonably expected to be in, currently covered employment, or a former employee who has a reasonable expectation of returning to covered employment or a colorable claim to vested benefits. Moreover, a claimant must have a colorable claim that (1) he will prevail in a suit for benefits, or that (2) eligibility requirements will be fulfilled in the future in order to establish that he "may be eligible." This view attributes conventional meanings to the statutory language, since the "may become eligible" phrase clearly encompasses all employees in covered employment and former employees with a colorable claim to vested benefits, but simply does not apply to a former employee who has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits. Congress' purpose in enacting the ERISA disclosure provisions -- ensuring that the individual participant knows exactly where he stands -- will not be thwarted by this natural reading of "participant," since a rational plan administrator or fiduciary faced with the possibility of $100-a-day penalties under § 1132(c)(1)(B) for failure to disclose would likely opt to provide a claimant with the requested information if there were any doubt that he was a participant, especially since the claimant could be required to pay the reasonable Page 489 U. S. 104 costs of producing the information under § 1024(b)(4) and Department of Labor regulations. Since the Court of Appeals did not attempt to determine whether respondents were "participants" with respect to the plans about which they sought information, it must do so on remand. Pp. 489 U. S. 115 -118. 828 F.2d 134, affirmed in part, reversed in part, and remanded. O'CONNOR, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, O'CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 489 U. S. 119 . JUSTICE O'CONNOR delivered the opinion of the Court. This case presents two questions concerning the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. Page 489 U. S. 105 829, as amended, 29 U.S.C. § 1001 et seq. First, we address the appropriate standard of judicial review of benefit determinations by fiduciaries or plan administrators under ERISA. Second, we determine which persons are "participants" entitled to obtain information about benefit plans covered by ERISA. I Late in 1980, petitioner Firestone Tire and Rubber Company (Firestone) sold, as going concerns, the five plants composing its Plastics Division to Occidental Petroleum Company (Occidental). Most of the approximately 500 salaried employees at the five plants were rehired by Occidental and continued in their same positions without interruption and at the same rates of pay. At the time of the sale, Firestone maintained three pension and welfare benefit plans for its employees: a termination pay plan, a retirement plan, and a stock purchase plan. Firestone was the sole source of funding for the plans, and had not established separate trust funds out of which to pay the benefits from the plans. All three of the plans were either "employee welfare benefit plans" or "employee pension benefit plans" governed (albeit in different ways) by ERISA. By operation of law, Firestone itself was the administrator, 29 U.S.C. § 1002(16)(A)(ii), and fiduciary, § 1002(21)(A), of each of these "unfunded" plans. At the time of the sale of its Plastics Division, Firestone was not aware that the termination pay plan was governed by ERISA, and therefore had not set up a claims procedure, § 1133, nor complied with ERISA's reporting and disclosure obligations, §§ 1021-1031, with respect to that plan. Respondents, six Firestone employees who were rehired by Occidental, sought severance benefits from Firestone under the termination pay plan. In relevant part, that plan provides as follows: "If your service is discontinued prior to the time you are eligible for pension benefits, you will be given termination pay if released because of a reduction in workforce Page 489 U. S. 106 or if you become physically or mentally unable to perform your job." "The amount of termination pay you will receive will depend on your period of credited company service." Several of the respondents also sought information from Firestone regarding their benefits under all three of the plans pursuant to certain ERISA disclosure provisions. See §§ 1024(b)(4), 1025(a). Firestone denied respondents severance benefits on the ground that the sale of the Plastics Division to Occidental did not constitute a "reduction in workforce" within the meaning of the termination pay plan. In addition, Firestone denied the requests for information concerning benefits under the three plans. Firestone concluded that respondents were not entitled to the information because they were no longer "participants" in the plans. Respondents then filed a class action on behalf of "former, salaried, nonunion employees who worked in the five plants that comprised the Plastics Division of Firestone." Complaint � 9, App. 94. The action was based on § 1132(a)(1), which provides that a "civil action may be brought . . . by a participant or beneficiary [of a covered plan] . . . (A) for the relief provided for in [§ 1132(c)], [and] (B) to recover benefits due to him under the terms of his plan." In Count I of their complaint, respondents alleged that they were entitled to severance benefits because Firestone's sale of the Plastics Division to Occidental constituted a "reduction in workforce" within the meaning of the termination pay plan. Complaint �� 23-44, App. 98-104. In Count VII, respondents alleged that they were entitled to damages under § 1132(c) because Firestone had breached its reporting obligations under § 1025(a). Complaint �� 87-94, App. 104-106. The District Court granted Firestone's motion for summary judgment. 640 F. Supp. 519 (ED Pa.1986). With respect to Count I, the District Court held that Firestone had satisfied its fiduciary duty under ERISA because its decision not to pay severance benefits to respondents under the termination Page 489 U. S. 107 pay plan was not arbitrary or capricious. Id. at 521-526. With respect to Count VII, the District Court held that, although § 1024(b)(4) imposes a duty on a plan administrator to respond to written requests for information about the plan, that duty extends only to requests by plan participants and beneficiaries. Under ERISA. a plan participant is "any employee or former employee . . . who is or may become eligible to receive a benefit of any type from an employee benefit plan." § 1002(7). A beneficiary is "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." § 1002(8). The District Court concluded that respondents were not entitled to damages under § 1132(c) because they were not plan "participants" or "beneficiaries" at the time they requested information from Firestone. 640 F. Supp. at 534. The Court of Appeals reversed the District Court's grant of summary judgment on Counts I and VII. 828 F.2d 134 (CA3 1987). With respect to Count I, the Court of Appeals acknowledged that most federal courts have reviewed the denial of benefits by ERISA fiduciaries and administrators under the arbitrary and capricious standard. Id. at 138 (citing cases). It noted, however, that the arbitrary and capricious standard had been softened in cases where fiduciaries and administrators had some bias or adverse interest. Id. at 138-140. See, e.g., Jung v. FMC Corp., 755 F.2d 708, 711-712 (CA9 1985) (where "the employer's denial of benefits to a class avoids a very considerable outlay [by the employer], the reviewing court should consider that fact in applying the arbitrary and capricious standard of review," and "[l]ess deference should be given to the trustee's decision"). The Court of Appeals held that, where an employer is itself the fiduciary and administrator of an unfunded benefit plan, its decision to deny benefits should be subject to de novo judicial review. It reasoned that, in such situations, deference is unwarranted, given the lack of assurance of impartiality on Page 489 U. S. 108 the part of the employer. 828 F.2d at 137-145. With respect to Count VII, the Court of Appeals held that the right to request and receive information about an employee benefit plan "most sensibly extend[s] both to people who are in fact entitled to a benefit under the plan and to those who claim to be, but in fact are not." Id. at 153. Because the District Court had applied different legal standards in granting summary judgment in favor of Firestone on Counts I and VII, the Court of Appeals remanded the case for further proceedings consistent with its opinion. We granted certiorari, 485 U.S. 986 (1988), to resolve the conflicts among the Courts of Appeals as to the appropriate standard of review in actions under § 1132(a)(1)(B) and the interpretation of the term "participant" in § 1002(7). We now affirm in part, reverse in part, and remand the case for further proceedings. II ERISA provides "a panoply of remedial devices" for participants and beneficiaries of benefit plans. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134 , 473 U. S. 146 (1985). Respondents' action asserting that they were entitled to benefits because the sale of Firestone's Plastics Division constituted a "reduction in workforce" within the meaning of the termination pay plan was based on the authority of § 1132(a)(1)(B). That provision allows a suit to recover benefits due under the plan, to enforce rights under the terms of the plan, and to obtain a declaratory judgment of future entitlement to benefits under the provisions of the plan contract. The discussion which follows is limited to the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations. We express no view as to the appropriate standard of review for actions under other remedial provisions of ERISA. A Although it is a "comprehensive and reticulated statute," Nachman Corp. v. Pension Benefit Guaranty Corp. , 446 Page 489 U. S. 109 U.S. 359, 446 U. S. 361 (1980), ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations. To fill this gap, federal courts have adopted the arbitrary and capricious standard developed under 61 Stat. 157, 29 U.S.C. § 186(c), a provision of the Labor Management Relations Act, 1947 (LMRA). See, e.g., Struble v. New Jersey Brewery Employees' Welfare Trust Fund, 732 F.2d 325, 333 (CA3 1984); Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F.2d 97, 99-100, and n. 3 (CA5 1979). In light of Congress' general intent to incorporate much of LMRA fiduciary law into ERISA, see NLRB v. Amax Coal Co., 453 U. S. 322 , 453 U. S. 32 (1981), and because ERISA, like the LMRA, imposes a duty of loyalty on fiduciaries and plan administrators, Firestone argues that the LMRA arbitrary and capricious standard should apply to ERISA actions. See Brief for Petitioners 13-14. A comparison of the LMRA and ERISA, however, shows that the wholesale importation of the arbitrary and capricious standard into ERISA is unwarranted. In relevant part, 29 U.S.C. § 186(c) authorizes unions and employers to set up pension plans jointly and provides that contributions to such plans be made "for the sole and exclusive benefit of the employees . . . and their families and dependents." The LMRA does not provide for judicial review of the decisions of LMRA trustees. Federal courts adopted the arbitrary and capricious standard both as a standard of review and, more importantly, as a means of asserting jurisdiction over suits under § 186(c) by beneficiaries of LMRA plans who were denied benefits by trustees. See Van Boxel v. Journal Co. Employees' Pension Trust, 836 F.2d 1048, 1052 (CA7 1987) ("[W]hen a plan provision as interpreted had the effect of denying an application for benefits unreasonably, or as it came to be said, arbitrarily and capriciously, courts would hold that the plan as structured' was not for the sole and exclusive benefit of the employees, so that the denial Page 489 U. S. 110 of benefits violated [§ 186(c)])." See also Comment, The Arbitrary and Capricious Standard Under ERISA: Its Origins and Application, 23 Duquesne L.Rev. 1033, 1037-1039 (1985). Unlike the LMRA, ERISA explicitly authorizes suits against fiduciaries and plan administrators to remedy statutory violations, including breaches of fiduciary duty and lack of compliance with benefit plans. See 29 U.S.C. §§ 1132(a), 1132(f). See generally Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 481 U. S. 52 -57 (1987) (describing scope of § 1132(a)). Thus, the raison d'etre for the LMRA arbitrary and capricious standard -- the need for a jurisdictional basis in suits against trustees -- is not present in ERISA. See Note, Judicial Review of Fiduciary Claim Denials Under ERISA: An Alternative to the Arbitrary and Capricious Test, 71 Cornell L.Rev. 986, 994, n. 40 (1986). Without this jurisdictional analogy, LMRA principles offer no support for the adoption of the arbitrary and capricious standard insofar as § 1132(a)(1)(B) is concerned. B ERISA abounds with the language and terminology of trust law. See, e.g., 29 U.S.C. §§ 1002(7) ("participant"), 1002(8) ("beneficiary"), 1002(21)(A) ("fiduciary"), 1103(a) ("trustee"), 1104 ("fiduciary duties"). ERISA's legislative history confirms that the Act's fiduciary responsibility provisions, 29 U.S.C. §§ 1101-1114, "codif[y] and mak[e] applicable to [ERISA] fiduciaries certain principles developed in the evolution of the law of trusts." H.R.Rep. No. 93-533, p. 11 (1973). Given this language and history, we have held that courts are to develop a "federal common law of rights and obligations under ERISA-regulated plans." Pilot Life Ins. Co. v. Dedeaux, supra, at 481 U. S. 56 . See also Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U. S. 1 , 463 U. S. 24 , n. 26 (1983) (" [A] body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans'") (quoting 129 Cong.Rec. 29942 (1974) (remarks of Sen. Javits)). Page 489 U. S. 111 In determining the appropriate standard of review for actions under § 1132(a)(1)(B), we are guided by principles of trust law. Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559 , 472 U. S. 570 (1985). Trust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers. See Restatement (Second) of Trusts § 187 (1959) ("Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court except to prevent an abuse by the trustee of his discretion"). See also G. Bogert & G. Bogert, Law of Trusts and Trustees § 560, pp.193-208 (2d. rev. ed.1980). A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee's interpretation will not be disturbed if reasonable. Id. § 559, at 169-171. Whether "the exercise of a power is permissive or mandatory depends upon the terms of the trust." 3 W. Fratcher, Scott on Trusts § 187, p. 14 (4th ed.1988). Hence, over a century ago we remarked that "[w]hen trustees are in existence, and capable of acting, a court of equity will not interfere to control them in the exercise of a discretion vested in them by the instrument under which they act." Nichols v. Eaton, 91 U. S. 716 , 91 U. S. 724 -725 (1875) (emphasis added). See also Central States, Southeast and Southwest Areas Pension Fund v. Central Transport, Inc., supra, at 568 ("The trustees' determination that the trust documents authorize their access to records here in dispute has significant weight, for the trust agreement explicitly provides that any construction [of the agreement's provisions] adopted by the Trustees in good faith shall be binding upon the Union, Employees, and Employers'"). Firestone can seek no shelter in these principles of trust law, however, for there is no evidence that under Firestone's termination pay plan the administrator has the power to construe uncertain terms or that eligibility determinations are to be given deference. See Brief for Respondents Page 489 U. S. 112 24-25; Reply Brief for Petitioners 7, n. 2; Brief for United States as Amicus Curiae 14-15, n. 11. Finding no support in the language of its termination pay plan for the arbitrary and capricious standard, Firestone argues that, as a matter of trust law, the interpretation of the terms of a plan is an inherently discretionary function. But other settled principles of trust law, which point to de novo review of benefit eligibility determinations based on plan interpretations, belie this contention. As they do with contractual provisions, courts construe terms in trust agreements without deferring to either party's interpretation. "The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney." 3 W. Fratcher, Scott on Trusts § 201, at 221 (emphasis added). A trustee who is in doubt as to the interpretation of the instrument can protect himself by obtaining instructions from the court. Bogert & Bogert supra, § 559, at 162-168; Restatement (Second) of Trusts § 201, Comment b (1959). See also United States v. Mason, 412 U. S. 391 , 412 U. S. 399 (1973). The terms of trusts created by written instruments are "determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust as is not inadmissible." Restatement (Second) of Trusts § 4, Comment d (1959). The trust law de novo standard of review is consistent with the judicial interpretation of employee benefit plans prior to the enactment of ERISA. Actions challenging an employer's denial of benefits before the enactment of ERISA were governed by principles of contract law. If the plan did not give the employer or administrator discretionary or final authority to construe uncertain terms, the court reviewed the employee's claim as it would have any other contract claim -- Page 489 U. S. 113 by looking to the terms of the plan and other manifestations of the parties' intent. See, e.g., Conner v. Phoenix Steel Corp., 249 A.2d 866 (Del.1969); Atlantic Steel Co. v. Kitchens, 228 Ga. 708, 187 S.E.2d 824 (1972); Sigman v. Rudolph Wurlitzer Co., 57 Ohio App. 4, 11 N.E.2d 878 (1937). Despite these principles of trust law pointing to a de novo standard of review fOr claims like respondents', Firestone would have us read ERISA to require the application of the arbitrary and capricious standard to such claims. ERISA defines a fiduciary as one who "exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets." 29 U.S.C. § 1002(21)(A)(i). A fiduciary has "authority to control and manage the operation and administration of the plan," § 1102(a)(1), and must provide a "full and fair review" of claim denials, § 1133(2). From these provisions, Firestone concludes that an ERISA plan administrator, fiduciary, or trustee is empowered to exercise all his authority in a discretionary manner subject only to review for arbitrariness and capriciousness. But the provisions relied upon so heavily by Firestone do not characterize a fiduciary as one who exercises entirely discretionary authority or control. Rather, one is a fiduciary to the extent he exercises any discretionary authority or control. Cf. United Mine Workers of America Health and Retirement Funds v. Robinson, 455 U. S. 562 , 455 U. S. 573 -574 (1982) (common law of trusts did not alter nondiscretionary obligation of trustees to enforce eligibility requirements as required by LMRA trust agreement). ERISA was enacted "to promote the interests of employees and their beneficiaries in employee benefit plans," Shaw v. Delta Airlines, Inc., 463 U. S. 85 , 463 U. S. 90 (1983), and "to protect contractually defined benefits," Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. at 473 U. S. 148 . See generally 29 U.S.C. § 1001 (setting forth congressional findings and declarations of policy regarding ERISA). Adopting Firestone's Page 489 U. S. 114 reading of ERISA would require us to impose a standard of review that would afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted. Nevertheless, Firestone maintains that congressional action after the passage of ERISA indicates that Congress intended ERISA claims to be reviewed under the arbitrary and capricious standard. At a time when most federal courts had adopted the arbitrary and capricious standard of review, a bill was introduced in Congress to amend § 1132 by providing de novo review of decisions denying benefits. See H.R. 6226, 97th Cong., 2d Sess. (1982), reprinted in Pension Legislation: Hearings on H.R. 1614 et al. before the Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 97th Cong., 2d Sess., 60 (1983). Because the bill was never enacted, Firestone asserts that we should conclude that Congress was satisfied with the arbitrary and capricious standard. See Brief for Petitioners 19-20. We do not think that this bit of legislative inaction carries the day for Firestone. Though "instructive," failure to act on the proposed bill is not conclusive of Congress' views on the appropriate standard of review. Bowsher v. Merck & Co., 460 U. S. 824 , 460 U. S. 837 , n. 12 (1983). The bill's demise may have been the result of events that had nothing to do with Congress' view on the propriety of de novo review. Without more, we cannot ascribe to Congress any acquiescence in the arbitrary and capricious standard. "[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, 361 U. S. 304 , 361 U. S. 313 (1960). Firestone and its amici also assert that a de novo standard would contravene the spirit of ERISA because it would impose much higher administrative and litigation costs, and therefore discourage employers from creating benefit plans. See, e.g., Brief for American Council of Life Insurance et al. as Amici Curiae 10-11. Because even under the arbitrary and capricious standard, an employer's denial of benefits could Page 489 U. S. 115 be subject to judicial review, the assumption seems to be that a de novo standard would encourage more litigation by employees, participants, and beneficiaries who wish to assert their right to benefits. Neither general principles of trust law nor a concern for impartial decisionmaking, however, forecloses parties from agreeing upon a narrower standard of review. Moreover, as to both funded and unfunded plans, the threat of increased litigation is not sufficient to outweigh the reasons for a de novo standard that we have already explained. As this case aptly demonstrates, the validity of a claim to benefits under an ERISA plan is likely to turn on the interpretation of terms in the plan at issue. Consistent with established principles of trust law, we hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Because we do not rest our decision on the concern for impartiality that guided the Court of Appeals, see 828 F.2d at 143-146, we need not distinguish between types of plans or focus on the motivations of plan administrators and fiduciaries. Thus, for purposes of actions under § 1132(a)(1)(B), the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest. Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a "facto[r] in determining whether there is an abuse of discretion." Restatement (Second) of Trusts § 187, Comment d (1959) III Respondents unsuccessfully sought plan information from Firestone pursuant to 29 U.S.C. § 1024(b)(4), one of Page 489 U. S. 116 ERISA's disclosure provisions. That provision reads as follows: "The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary [of Labor] may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence." When Firestone did not comply with their request for information, respondents sought damages under 29 U.S.C. § 1132(c)(1)(B) (1982 ed., Supp. IV), which provides that "[a]ny administrator . . . who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary . . . may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day." Respondents have not alleged that they are "beneficiaries" as defined in § 1002(8). See Complaint �� 87-95, App. 104-106. The dispute in this case therefore centers on the definition of the term "participant," which is found in § 1002(7): "The term 'participant' means any employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit." The Court of Appeals noted that § 1132(a)(1) allows suits for benefits "by a participant or beneficiary." Finding that it would be illogical to say that a person could only bring a claim for benefits if he or she was entitled to benefits, the Court of Page 489 U. S. 117 Appeals reasoned that § 1132(a)(1) should be read to mean that " a civil action may be brought by someone who claims to be a participant or beneficiary.'" 828 F.2d at 152. It went on to conclude that the same interpretation should apply with respect to § 1024(b)(4): "A provision such as that one, entitling people to information on the extent of their benefits, would most sensibly extend both to people who are in fact entitled to a benefit under the plan and to those who claim to be, but in fact are not." Id. at 153. The Court of Appeals "concede[d] that it is expensive and inefficient to provide people with information about benefits -- and to permit them to obtain damages if information is withheld -- if they are clearly not entitled to the benefits about which they are informed." Ibid. It tried to solve this dilemma by suggesting that courts use discretion and not award damages if the employee's claim for benefits was not colorable or if the employer did not act in bad faith. There is, however, a more fundamental problem with the Court of Appeals' interpretation of the term "participant": it strays far from the statutory language. Congress did not say that all "claimants" could receive information about benefit plans. To say that a "participant" is any person who claims to be one begs the question of who is a "participant" and renders the definition set forth in § 1002(7) superfluous. Indeed, respondents admitted at oral argument that "the words point against [them]." Tr. of Oral Arg. 40. In our view, the term "participant" is naturally read to mean either "employees in, or reasonably expected to be in, currently covered employment," Saladino v. I.L.G.W.U. National Retirement Fund, 754 F.2d 473, 476 (CA2 1985), or former employees who "have . . . a reasonable expectation of returning to covered employment" or who have "a colorable claim" to vested benefits, Kuntz v. Reese, 785 F.2d 1410, 1411 (CA9) (per curiam), cert. denied, 479 U.S. 916 (1986). In order to establish that he or she "may become eligible" for benefits, a claimant must have a colorable claim that (1) he or she will prevail in a suit for benefits, or that (2) eligibility requirements Page 489 U. S. 118 will be fulfilled in the future. "This view attributes conventional meanings to the statutory language, since all employees in covered employment and former employees with a colorable claim to vested benefits 'may become eligible.' A former employee who has neither a reasonable expectation of returning to covered employment nor a colorable claim to vested benefits, however, simply does not fit within the [phrase] 'may become eligible.'" Saladino v. I.L.G.W.U. National Retirement Fund, supra, at 476. We do not think Congress' purpose in enacting the ERISA disclosure provisions -- ensuring that "the individual participant knows exactly where he stands with respect to the plan," H.R.Rep. No. 93-533, p. 11 (1973) -- will be thwarted by a natural reading of the term "participant." Faced with the possibility of $100 a day in penalties under § 1132(c)(1)(B), a rational plan administrator or fiduciary would likely opt to provide a claimant with the information requested if there is any doubt as to whether the claimant is a "participant," especially when the reasonable costs of producing the information can be recovered. See 29 CFR § 2520.104b-30(b) (1987) (the "charge assessed by the plan administrator to cover the costs of furnishing documents is reasonable if it is equal to the actual cost per page to the plan for the least expensive means of acceptable reproduction, but in no event may such charge exceed 25 cents per page"). The Court of Appeals did not attempt to determine whether respondents were "participants" under § 1002(7). See 828 F.2d at 152-153. We likewise express no views as to whether respondents were "participants" with respect to the benefit plans about which they sought information. Those questions are best left to the Court of Appeals on remand. For the reasons set forth above, the decision of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion. So ordered. Page 489 U. S. 119 JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the judgment of the Court, and Parts I and II of its opinion. I agree with its disposition, but not all of its reasoning, regarding Part III. The Court holds that a person with a colorable claim is one who " may become eligible' for benefits" within the meaning of the statutory definition of "participant," because, it reasons, such a claim raises the possibility that "he or she will prevail in a suit for benefits." Ante at 489 U. S. 117 . The relevant portion of the definition, however, refers to an employee "who is or may become eligible to receive a benefit." There is an obvious parallelism here: one "may become" eligible by acquiring, in the future, the same characteristic of eligibility that someone who "is" eligible now possesses. And I find it contrary to normal usage to think that the characteristic of "being" eligible consists of "having prevailed in a suit for benefits." Eligibility exists not merely during the brief period between formal judgment of entitlement and payment of benefits. Rather, one is eligible whether or not he has yet been adjudicated to be -- and similarly one can become eligible before he is adjudicated to be. It follows that the phrase "may become eligible" has nothing to do with the probabilities of winning a suit. I think that, properly read, the definition of "participant" embraces those whose benefits have vested, and those who (by reason of current or former employment) have some potential to receive the vesting of benefits in the future, but not those who have a good argument that benefits have vested, even though they have not. Applying the definition in this fashion would mean, of course, that, if the employer guesses right that a person with a colorable claim is in fact not entitled to benefits, he can deny that person the information required to be provided under 29 U.S.C. § 1024(b)(4) without paying the $100-a-day damages assessable for breach of that obligation, 29 U.S.C. § 1132(c)(1)(B) (1982 ed., Supp. IV). Since, however, no employer Page 489 U. S. 120 sensible enough to consult the law would be senseless enough to take that risk, giving the term its defined meaning would produce precisely the same incentive for disclosure as the Court's opinion.

Here is a summary of the case: The case of Firestone Tire & Rubber Co. v. Bruch dealt with the denial of severance benefits and requests for information about employee benefit plans. The respondents, former employees of Firestone, sought severance benefits after the company sold its Plastics Division, but Firestone denied their requests. The respondents also asked for information about their benefits, but Firestone refused, claiming they were no longer plan "participants." The courts disagreed on the appropriate standard of review for benefits denials and the extent of the right to disclosure of plan information. The Supreme Court held that a de novo review, rather than an arbitrary and capricious standard, should be used to review Firestone's denial of benefits. They also decided that the right to disclosure extends to those who claim to be entitled to benefits, even if they are not. The Court affirmed in part, reversed in part, and remanded the case for further proceedings. This case sets a precedent for how courts should review benefit denials and who has the right to request information about employee benefit plans. It highlights the importance of a fair and impartial review process and ensures that employees have access to the information they need to understand their benefits.

Labor & Employment

Watson v. Fort Worth Bank & Trust

https://supreme.justia.com/cases/federal/us/487/977/

U.S. Supreme Court Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) Watson v. Fort Worth Bank & Trust No. 86-6139 Argued January 20, 1988 Decided June 29, 1988 487 U.S. 977 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Petitioner employee, who is black, was rejected in favor of white applicants for four promotions to supervisory positions in respondent bank, which had not developed precise and formal selection criteria for the positions, but instead relied on the subjective judgment of white supervisors who were acquainted with the candidates and with the nature of the jobs. After exhausting her administrative remedies, petitioner filed suit in Federal District Court, alleging, inter alia, that respondent's promotion policies had unlawfully discriminated against blacks generally and her personally in violation of Title VII of the Civil Rights Act of 1964. As to petitioner's individual claim, the court held that she had not met her burden of proof under the discriminatory treatment evidentiary standard and, for this and other reasons, dismissed the action. The Court of Appeals affirmed in relevant part, rejecting petitioner's contention that the District Court erred in failing to apply "disparate impact" analysis to her promotion claims. The court held that, under its precedent, a Title VII challenge to a discretionary or subjective promotion system can only be analyzed under the disparate treatment model. Held: The judgment is vacated, and the case is remanded. 798 F.2d 791, vacated and remanded. JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, concluding that disparate impact analysis may be applied to a subjective or discretionary promotion system. Pp. 487 U. S. 985 -991, 487 U. S. 999 -1000. (a) Each of this Court's decisions applying disparate impact analysis -- under which facially neutral employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to illegal intentional discrimination -- involved standardized tests or criteria, such as written aptitude tests or high school diploma requirements, see, e.g., Griggs v. Duke Power Co., 401 U. S. 424 , and the Court has consistently used disparate treatment theory, in which proof of intent to discriminate is required, to review hiring or promotion decisions that were based on the exercise of personal judgment or the application of subjective criteria, see, e.g., McDonnell Douglas Corp. v. Green, 411 U. S. 792 . Until today, the Court has never addressed the Page 487 U. S. 978 question whether disparate impact analysis may be applied to subjective employment criteria. Pp. 487 U. S. 985 -989. (b) The reasons supporting the use of disparate impact analysis apply to subjective employment practices. That analysis might effectively be abolished if it were confined to objective, standardized selection practices, since an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices with a subjective component, such as a brief interview, in a system that refrained from making the objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge. Moreover, disparate impact analysis is, in principle, no less applicable to subjective employment criteria than to objective or standardized tests, since, in either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. Simply because no inference of discriminatory intent can be drawn from the customary and reasonable practice in some businesses of leaving promotion decisions to the unchecked discretion of the lower level supervisors most familiar with the jobs and candidates, it does not follow that these supervisors always act without discriminatory intent. Even if it is assumed that discrimination by individual supervisors can be adequately policed through disparate treatment analysis, that analysis would not solve the problem created by subconscious stereotypes and prejudices that lead to conduct prohibited by Title VII. Pp. 487 U. S. 989 -991. (c) Since neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner made out a prima facie case of discrimination under disparate impact theory, the case must be remanded. Pp. 487 U. S. 999 -1000. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA, concluded in Parts II-C and II-D that: 1. The extension of disparate impact analysis to subjective employment practices could increase the risk that, in order to avoid liability, employers will adopt surreptitious numerical goals and quotas in the belief that, since disparate impact analysis inevitably focuses on statistical evidence, which cannot practically be rebutted by the kind of counterevidence typically used to defend objective criteria, the threat of ruinous litigation requires steps to ensure that no plaintiff can establish a prima facie case under disparate impact theory. That result would be contrary to Congress' clearly expressed intent in 42 U.S.C. § 2000(e)-2(j) that no employer shall be required to grant preferential treatment to any protected individual or group because of a numerical imbalance in its workforce. Pp. 487 U. S. 991 -993. 2. However, the application of disparate impact theory to subjective employment criteria should not have any chilling effect on legitimate Page 487 U. S. 979 business practices, since the high standards of proof applicable in such cases operate to constrain the theory within its proper bounds and provide adequate safeguards against the danger that quotas or preferential treatment will be adopted by employers. Pp. 487 U. S. 993 -999. (a) In establishing a prima facie case when subjective selection criteria are at issue, the plaintiff may have difficulty satisfying the initial burden of identifying the specific employment practices that are allegedly responsible for any observed statistical disparity, especially where the employer has combined the subjective criteria with more rigid standardized rules or tests. Moreover, the plaintiff's statistical evidence must be sufficiently substantial to prove that the practice in question has caused the exclusion of job or promotion applicants because of their membership in a protected group, and the defendant is free to attack the probative weight of that evidence, to point out fallacies or deficiencies in the plaintiff's data or statistical techniques, and to adduce countervailing evidence of its own. Pp. 487 U. S. 994 -997. (b) The nature of the "business necessity" or "job-relatedness" defense -- under which the defendant has a burden of producing evidence after the plaintiff has made out a prima facie case -- also constrains the application of the disparate impact theory. Employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In the context of subjective or discretionary decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." Many jobs, for example those involving managerial responsibilities, require personal qualities that are not amenable to standardized testing, but are nevertheless job-related. In evaluating claims that discretionary practices are insufficiently related to legitimate business purposes, courts are generally less competent than employers to restructure business practices, and therefore should not attempt to do so. Pp. 487 U. S. 997 -999. JUSTICE BLACKMUN, joined by JUSTICE BRENNAN and JUSTICE MARSHALL, agreeing that disparate impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, concluded that: 1. In the disparate- impact context, a plaintiff who successfully establishes a prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 ; Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 ; and Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 432 . The plurality's assertion to the contrary mimics the allocation of burdens this Court has established in the very different context of individual disparate treatment claims. Unlike a Page 487 U. S. 980 disparate treatment claim of intentional discrimination, which a prima facie case establishes only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity shown by the prima facie case, and the employer can avoid liability only if it can prove that the discriminatory effect is justified. To be justified as a business necessity, a practice must directly relate to a prospective employee's ability to perform the job effectively; i.e., it must be necessary to fulfill legitimate business requirements. Pp. 487 U. S. 1000 -1006. 2. The plurality's suggestion that the employer will often find it easier to produce evidence of job-relatedness for a subjective factor than for standardized tests may prove misleading, since the employer still has the obligation to persuade the court of job-relatedness through the introduction of relevant evidence. Pp. 487 U. S. 1006 -1011. (a) The fact that the formal validation techniques endorsed by the Equal Employment Opportunity Commission's (EEOC) Uniform Guidelines on Employee Selection Procedures cannot always be used to prove the job-relatedness of subjective selection processes does not free an employer from its burden of proof. The link between such processes and job performance may, depending on the type and size of the business and the nature of the particular job, be established by a variety of methods, including the results of studies, expert testimony, and prior successful experience. Although common sense plays a part in the assessment, a reviewing court may not rely on its own, or an employer's, sense of what is "normal" as a substitute for a neutral assessment of the evidence. Pp. 487 U. S. 1006 -1008. (b) The employer's burden of justifying an employment practice that produces a disparate impact is not lessened simply because the practice relies upon subjective assessments. Establishing a general rule allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating employment discrimination by encouraging employers to abandon attempts to construct neutral selection mechanisms in favor of broad generalities. While subjective criteria will sometimes pose difficult problems for courts charged with assessing job-relatedness, requiring the development of a greater factual record, and, perhaps, the exercise of a greater degree of judgment, that does not dictate that subjective selection processes generally are to be accepted at face value. Pp. 487 U. S. 1008 -1011. JUSTICE STEVENS, agreeing that the racially adverse impact of an employer's practice of simply committing employment decisions to the unchecked discretion of a white supervisory corps is subject to the test of Griggs v. Duke Power Co., 401 U. S. 424 , concluded that, since cases Page 487 U. S. 981 involving such practices will include too many variables to be adequately considered in a general context, further discussion of evidentiary standards should be postponed until after the District Court has made appropriate findings concerning petitioner's prima facie evidence of disparate impact and respondent's explanation for its subjective practice. P. 487 U. S. 1011 . O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and SCALIA, JJ., joined, and an opinion with respect to Parts II-C and II-D in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 1000 . STEVENS, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 1011 . KENNEDY, J., took no part in the consideration or decision of the case. Page 487 U. S. 982 JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and III, and an opinion with respect to parts II-C and II-D, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join. This case requires us to decide what evidentiary standards should be applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., in determining whether an employer's practice of committing promotion decisions to the subjective discretion of supervisory employees has led to illegal discrimination. I Petitioner Clara Watson, who is black, was hired by respondent Fort Worth Bank and Trust (the Bank) as a proof operator in August, 1973. In January, 1976, Watson was promoted to a position as teller in the Bank's drive-in facility. In February, 1980, she sought to become supervisor of the tellers in the main lobby; a white male, however, was selected for this job. Watson then sought a position as supervisor of the drive-in bank, but this position was given to a white female. In February, 1981, after Watson had served for about a year as a commercial teller in the Bank's main lobby, and informally as assistant to the supervisor of tellers, the man holding that position was promoted. Watson applied for the vacancy, but the white female who was the supervisor of the drive-in bank was selected instead. Watson then applied for the vacancy created at the drive-in; a white male was selected for that job. The Bank, which has about 80 employees, had not developed precise and formal criteria for evaluating candidates for the positions for which Watson unsuccessfully applied. It relied instead on the subjective judgment of supervisors who were acquainted with the candidates, and with the nature of the jobs to be filled. All the supervisors involved in denying Watson the four promotions at issue were white. Page 487 U. S. 983 Watson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC). After exhausting her administrative remedies, she filed this lawsuit in the United States District Court for the Northern District of Texas. She alleged that the Bank had unlawfully discriminated against blacks in hiring, compensation, initial placement, promotions, terminations, and other terms and conditions of employment. On Watson's motion under Federal Rule of Civil Procedure 23, the District Court certified a class consisting of "blacks who applied to or were employed by [respondent] on or after October 21, 1979, or who may submit employment applications to [respondent] in the future." App.190. The District Court later decertified this broad class because it concluded, in light of the evidence presented at trial, that there was not a common question of law or fact uniting the groups of applicants and employees. After splitting the class along this line, the court found that the class of black employees did not meet the numerosity requirement of Rule 23(a); accordingly, this subclass was decertified. The court also concluded that Watson was not an adequate representative of the applicant class, because her promotion claims were not typical of the claims of the members of that group. Because Watson had proceeded zealously on behalf of the job applicants, however, the court went on to address the merits of their claims. It concluded that Watson had failed to establish a prima facie case of racial discrimination in hiring: the percentage of blacks in the Bank's workforce approximated the percentage of blacks in the metropolitan area where the Bank is located. App.199-202. The District Court addressed Watson's individual claims under the evidentiary standards that apply in a discriminatory treatment case. See McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). It concluded, on the evidence presented at trial, that Watson had established a prima facie case of employment discrimination, but that the Page 487 U. S. 984 Bank had met its rebuttal burden by presenting legitimate and nondiscriminatory reasons for each of the challenged promotion decisions. The court also concluded that Watson had failed to show that these reasons were pretexts for racial discrimination. Accordingly, the action was dismissed. App.195-197, 203. A divided panel of the United States Court of Appeals for the Fifth Circuit affirmed in part. 798 F.2d 791 (1986). The majority concluded that there was no abuse of discretion in the District Court's class decertification decisions. In order to avoid unfair prejudice to members of the class of black job applicants, however, the Court of Appeals vacated the portion of the judgment affecting them and remanded with instructions to dismiss those claims without prejudice. The majority affirmed the District Court's conclusion that Watson had failed to prove her claim of racial discrimination under the standards set out in McDonnell Douglas, supra, and Burdine, supra. [ Footnote 1 ] Watson argued that the District Court had erred in failing to apply "disparate impact" analysis to her claims of discrimination in promotion. Relying on Fifth Circuit precedent, the majority of the Court of Appeals panel held that "a Title VII challenge to an allegedly discretionary promotion system is properly analyzed under the disparate treatment model, rather than the disparate impact model." 798 F.2d at 797. Other Courts of Appeals have held that disparate impact analysis may be applied to hiring or promotion systems that involve the use of "discretionary" or "subjective" criteria. See, e.g., Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (CA9) (en banc), on return to panel, 827 F.2d Page 487 U. S. 985 439 (1987), cert denied, No. 87-1388, 485 U.S. 989 (1988), cert. pending, No. 87-1387; Griffin v. Carlin, 755 F.2d 1516, 1522-1525 (CA11 1985). Cf. Segar v. Smith, 238 U.S.App.D.C. 103, 738 F.2d 1249 (1984), cert. denied, 471 U.S. 1115 (1985). We granted certiorari to resolve the conflict. 483 U.S. 1004 (1987). II A Section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, provides: "(a) It shall be an unlawful employment practice for an employer -- " "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or" "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." " * * * *" "(h) Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. . . ." Several of our decisions have dealt with the evidentiary standards that apply when an individual alleges that an employer has treated that particular person less favorably than Page 487 U. S. 986 others because of the plaintiff's race, color, religion, sex, or national origin. In such "disparate treatment" cases, which involve "the most easily understood type of discrimination," Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 , n. 15 (1977), the plaintiff is required to prove that the defendant had a discriminatory intent or motive. In order to facilitate the orderly consideration of relevant evidence, we have devised a series of shifting evidentiary burdens that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 450 U. S. 255 , n. 8. Under that scheme, a prima facie case is ordinarily established by proof that the employer, after having rejected the plaintiff's application for a job or promotion, continued to seek applicants with qualifications similar to the plaintiff's. Id. at 450 U. S. 253 , and n. 6. The burden of proving a prima facie case is "not onerous," id. at 450 U. S. 253 , and the employer in turn may rebut it simply by producing some evidence that it had legitimate, nondiscriminatory reasons for the decision. Id. at 450 U. S. 254 -255. If the defendant carries this burden of production, the plaintiff must prove by a preponderance of all the evidence in the case that the legitimate reasons offered by the defendant were a pretext for discrimination. Id. at 450 U. S. 253 , 450 U. S. 255 , n. 10. We have cautioned that these shifting burdens are meant only to aid courts and litigants in arranging the presentation of evidence: "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 250 U. S. 253 . See also United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 715 (1983). In Griggs v. Duke Power Co., 401 U. S. 424 (1971), this Court held that a plaintiff need not necessarily prove intentional discrimination in order to establish that an employer has violated § 703. In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate the Act without proof Page 487 U. S. 987 that the employer adopted those practices with a discriminatory intent. The factual issues and the character of the evidence are inevitably somewhat different when the plaintiff is exempted from the need to prove intentional discrimination. See Burdine, supra, at 450 U. S. 252 , n. 5; see also United States Postal Service Bd. of Governors v. Aikens, supra, at 460 U. S. 713 , n. l; McDonnell Douglas , 411 U.S. at 411 U. S. 802 , n. 14; Teamsters, supra, at 431 U. S. 335 -336, n. 15. The evidence in these "disparate impact" cases usually focuses on statistical disparities, rather than specific incidents, and on competing explanations for those disparities. The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. See, e.g., Washington v. Davis, 426 U. S. 229 , 426 U. S. 253 -254 (1976) (STEVENS, J., concurring). Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than is required to prove intentional discrimination. Rather, the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination. Perhaps the most obvious examples of such functional equivalence have been found where facially neutral job requirements necessarily operated to perpetuate the effects of intentional discrimination that occurred before Title VII was enacted. In Griggs itself, for example, the employer had a history of overt racial discrimination that predated the enactment of the Civil Rights Act of 1964. 401 U.S. at 401 U. S. 426 -428. Such conduct had apparently ceased thereafter, but the employer continued to follow employment policies that had "a markedly disproportionate" adverse effect on blacks. Id. at 401 U. S. 428 -429. Cf. Teamsters, supra, at 431 U. S. 349 , and n. 32. The Griggs Court found that these policies, which involved the use of general aptitude tests and a high school diploma Page 487 U. S. 988 requirement, were not demonstrably related to the jobs for which they were used. 401 U.S. at 401 U. S. 431 -432. Believing that diplomas and tests could become "masters of reality," id. at 401 U. S. 433 , which would perpetuate the effects of pre-Act discrimination, the Court concluded that such practices could not be defended simply on the basis of their facial neutrality, or on the basis of the employer's lack of discriminatory intent. This Court has repeatedly reaffirmed the principle that some facially neutral employment practices may violate Title VII even in the absence of a demonstrated discriminatory intent. We have not limited this principle to cases in which the challenged practice served to perpetuate the effects of pre-Act intentional discrimination. Each of our subsequent decisions, however, like Griggs itself, involved standardized employment tests or criteria. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975) (written aptitude tests); Washington v. Davis, supra, (written test of verbal skills); Dothard v. Rawlinson, 433 U. S. 321 (1977) (height and weight requirements); New York City Transit Authority v. Beazer, 440 U. S. 568 (1979) (rule against employing drug addicts); Connecticut v. Teal, 457 U. S. 440 (1982) (written examination). In contrast, we have consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review hiring and promotion decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria. See, e.g., McDonnell Douglas Corp. v. Green, supra, (discretionary decision not to rehire individual who engaged in criminal acts against employer while laid off); Furnco Construction Corp. v. Waters, 438 U. S. 567 (1978) (hiring decisions based on personal knowledge of candidates and recommendations); Texas Dept. of Community Affairs v. Burdine, supra, (discretionary decision to fire individual who was said not to get along with coworkers); United States Postal Service Page 487 U. S. 989 Bd. of Governors v. Aikens, 460 U.S. at 460 U. S. 715 (discretionary promotion decision). Our decisions have not addressed the question whether disparate impact analysis may be applied to cases in which subjective criteria are used to make employment decisions. As noted above, the Courts of Appeals are in conflict on the issue. In order to resolve this conflict, we must determine whether the reasons that support the use of disparate impact analysis apply to subjective employment practices, and whether such analysis can be applied in this new context under workable evidentiary standards. B The parties present us with stark and uninviting alternatives. Petitioner contends that subjective selection methods are at least as likely to have discriminatory effects as are the kind of objective tests at issue in Griggs and our other disparate impact cases. Furthermore, she argues, if disparate impact analysis is confined to objective tests, employers will be able to substitute subjective criteria having substantially identical effects, and Griggs will become a dead letter. Respondent and the United States (appearing as amicus curiae ) argue that conventional disparate treatment analysis is adequate to accomplish Congress' purpose in enacting Title VII. They also argue that subjective selection practices would be so impossibly difficult to defend under disparate impact analysis that employers would be forced to adopt numerical quotas in order to avoid liability. We are persuaded that our decisions in Griggs and succeeding cases could largely be nullified if disparate impact analysis were applied only to standardized selection practices. However one might distinguish "subjective" from "objective" criteria, it is apparent that selection systems that combine both types would generally have to be considered subjective in nature. Thus, for example, if the employer in Griggs had consistently preferred applicants who had a high school diploma Page 487 U. S. 990 and who passed the company's general aptitude test, its selection system could nonetheless have been considered "subjective" if it also included brief interviews with the candidates. So long as an employer refrained from making standardized criteria absolutely determinative, it would remain free to give such tests almost as much weight as it chose without risking a disparate impact challenge. If we announced a rule that allowed employers so easily to insulate themselves from liability under Griggs, disparate impact analysis might effectively be abolished. We are also persuaded that disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests. In either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices. It is true, to be sure, that an employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct. Especially in relatively small businesses like respondent's, it may be customary and quite reasonable simply to delegate employment decisions to those employees who are most familiar with the jobs to be filled and with the candidates for those jobs. It does not follow, however, that the particular supervisors to whom this discretion is delegated always act without discriminatory intent. Furthermore, even if one assumed that any such discrimination can be adequately policed through disparate treatment analysis, the problem of subconscious stereotypes and prejudices would remain. In this case, for example, petitioner was apparently told at one point that the teller position was a big responsibility, with "a lot of money . . . for blacks to have to count." App. 7. Such remarks may not prove discriminatory intent, but they do suggest a lingering form of the problem that Title VII was enacted to combat. If an employer's undisciplined system of subjective decisionmaking has precisely the same effects as Page 487 U. S. 991 a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII's proscription against discriminatory actions should not apply. In both circumstances, the employer's practices may be said to "adversely affect [an individual's] status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2). We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases. C Having decided that disparate impact analysis may in principle be applied to subjective as well as to objective practices, we turn to the evidentiary standards that should apply in such cases. It is here that the concerns raised by respondent have their greatest force. Respondent contends that a plaintiff may establish a prima facie case of disparate impact through the use of bare statistics, and that the defendant can rebut this statistical showing only by justifying the challenged practice in terms of "business necessity," Griggs, 401 U.S. at 401 U. S. 431 , or "job-relatedness," Albemarle Paper Co., 422 U.S. at 422 U. S. 426 . Standardized tests and criteria, like those at issue in our previous disparate impact cases, can often be justified through formal "validation studies," which seek to determine whether discrete selection criteria predict actual on-the-job performance. See generally id. at 422 U. S. 429 -436. Respondent warns, however, that "validating" subjective selection criteria in this way is impracticable. Some qualities -- for example, common sense, good judgment, originality, ambition, loyalty, and tact -- cannot be measured accurately through standardized testing techniques. Moreover, success at many jobs in which such qualities are crucial cannot itself be measured directly. Opinions often differ when managers and supervisors are evaluated, and the same can be said for many jobs that involve close cooperation with one's coworkers or complex and subtle tasks like the provision of Page 487 U. S. 992 professional services or personal counseling. Because of these difficulties, we are told, employers will find it impossible to eliminate subjective selection criteria and impossibly expensive to defend such practices in litigation. Respondent insists, and the United States agrees, that employers' only alternative will be to adopt surreptitious quota systems in order to ensure that no plaintiff can establish a statistical prima facie case. We agree that the inevitable focus on statistics in disparate impact cases could put undue pressure on employers to adopt inappropriate prophylactic measures. It is completely unrealistic to assume that unlawful discrimination is the sole cause of people's failing to gravitate to jobs and employers in accord with the laws of chance. See Sheet Metal Workers v. EEOC, 478 U. S. 421 , 478 U. S. 489 (1986) (O'CONNOR, J., concurring in part and dissenting in part). It would be equally unrealistic to suppose that employers can eliminate, or discover and explain, the myriad of innocent causes that may lead to statistical imbalances in the composition of their workforces. Congress has specifically provided that employers are not required to avoid "disparate impact" as such: "Nothing contained in [Title VII] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available workforce in any community, State, section, or other area." 42 U.S.C. § 2000e-2(j). Page 487 U. S. 993 Preferential treatment and the use of quotas by public employers subject to Title VII can violate the Constitution, see, e.g., Wygant v. Jackson Bd. of Education, 476 U. S. 267 (1986), and it has long been recognized that legal rules leaving any class of employers with "little choice" but to adopt such measures would be "far from the intent of Title VII." Albemarle Paper Co., 422 U.S. at 422 U. S. 449 (BLACKMUN, J., concurring in judgment). Respondent and the United States are thus correct when they argue that extending disparate impact analysis to subjective employment practices has the potential to create a Hobson's choice for employers, and thus to lead in practice to perverse results. If quotas and preferential treatment become the only cost-effective means of avoiding expensive litigation and potentially catastrophic liability, such measures will be widely adopted. The prudent employer will be careful to ensure that its programs are discussed in euphemistic terms, but will be equally careful to ensure that the quotas are met. Allowing the evolution of disparate impact analysis to lead to this result would be contrary to Congress' clearly expressed intent, and it should not be the effect of our decision today. D We do not believe that disparate impact theory need have any chilling effect on legitimate business practices. We recognize, however, that today's extension of that theory into the context of subjective selection practices could increase the risk that employers will be given incentives to adopt quotas or to engage in preferential treatment. Because Congress has so clearly and emphatically expressed its intent that Title VII not lead to this result, 42 U.S.C. § 2000e-2(j), we think it imperative to explain in some detail why the evidentiary standards that apply in these cases should serve as adequate safeguards against the danger that Congress recognized. Page 487 U. S. 994 Our previous decisions offer guidance, but today's extension of disparate impact analysis calls for a fresh and somewhat closer examination of the constraints that operate to keep that analysis within its proper bounds. [ Footnote 2 ] First, we note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's workforce. The plaintiff must begin by identifying the specific employment practice that is challenged. Although this has been relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is, in our view, responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Cf. Connecticut v. Teal, 457 U. S. 440 (1982). Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Our formulations, which have never Page 487 U. S. 995 been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation. In Griggs, for example we examined "requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants." 401 U.S. at 401 U. S. 426 . Similarly, we said in Albemarle Paper Co. that plaintiffs are required to show "that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants." 422 U.S. at 422 U. S. 425 . Later cases have framed the test in similar terms. See, e.g., Washington v. Davis, 426 U.S. at 426 U. S. 246 -247 ("hiring and promotion practices disqualifying substantially disproportionate numbers of blacks"); Dothard, 433 U.S. at 433 U. S. 329 (employment standards that "select applicants for hire in a significantly discriminatory pattern"); Beazer, 440 U.S. at 440 U. S. 584 ("statistical evidence showing that an employment practice has the effect of denying the members of one race equal access to employment opportunities"); Teal, 457 U.S. at 457 U. S. 446 ("significantly discriminatory impact"). [ Footnote 3 ] Page 487 U. S. 996 Nor are courts or defendants obliged to assume that plaintiffs' statistical evidence is reliable. "If the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own." Dothard, 433 U.S. at 433 U. S. 331 . See also id. at 433 U. S. 338 -339 (REHNQUIST, J., concurring in result and concurring in part) ("If the defendants in a Title VII suit believe there to be any reason to discredit plaintiffs' statistics that does not appear on their face, the opportunity to challenge them is available to the defendants, just as in any other lawsuit. They may endeavor to impeach the reliability of the statistical evidence, they may offer rebutting evidence, or they may disparage in arguments or in briefs the probative weight which the plaintiffs' evidence should be accorded"). Without attempting to catalog all the weaknesses that may be found in such evidence, we may note that typical examples include small or incomplete Page 487 U. S. 997 data sets and inadequate statistical techniques. See, e.g., Fudge v. Providence Fire Dept., 766 F.2d 650, 656-659 (CA1 1985). Similarly, statistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value. See, e.g., Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 308 (1977) ("[P]roper comparison was between the racial composition of [the employer's] teaching staff and the racial composition of the qualified public school teacher population in the relevant labor market") (footnote omitted). Other kinds of deficiencies in facially plausible statistical evidence may emerge from the facts of particular cases. See, e.g., Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 189 (CA5 1983) ("The flaw in the plaintiffs' proof was its failure to establish the required causal connection between the challenged employment practice (testing) and discrimination in the workforce. Because the test does not have a cut-off, and is only one of many factors in decisions to hire or promote, the fact that blacks score lower does not automatically result in disqualification of disproportionate numbers of blacks as in cases involving cutoffs") (citation omitted); Contreras v. Los Angeles, 656 F.2d 1267, 1273-1274 (CA9 1981) (probative value of statistics impeached by evidence that plaintiffs failed a written examination at a disproportionately high rate because they did not study seriously for it), cert. denied, 455 U.S. 1021 (1982). A second constraint on the application of disparate impact theory lies in the nature of the "business necessity" or "job-relatedness" defense. Although we have said that an employer has "the burden of showing that any given requirement must have a manifest relationship to the employment in question," Griggs, 401 U.S. at 401 U. S. 432 , such a formulation should not be interpreted as implying that the ultimate burden of proof can be shifted to the defendant. On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times. Page 487 U. S. 998 Thus, when a plaintiff has made out a prima facie case of disparate impact, and when the defendant has met its burden of producing evidence that its employment practices are based on legitimate business reasons, the plaintiff must "show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in efficient and trustworthy workmanship." Albemarle Paper Co., 422 U.S. at 422 U. S. 425 (citation omitted; internal quotation marks omitted). Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals. The same factors would also be relevant in determining whether the challenged practice has operated as the functional equivalent of a pretext for discriminatory treatment. Cf. ibid. Our cases make it clear that employers are not required, even when defending standardized or objective tests, to introduce formal "validation studies" showing that particular criteria predict actual on-the-job performance. In Beazer, for example, the Court considered it obvious that "legitimate employment goals of safety and efficiency" permitted the exclusion of methadone users from employment with the New York City Transit Authority; the Court indicated that the "manifest relationship" test was satisfied, even with respect to non-safety-sensitive jobs, because those legitimate goals were "significantly served by" the exclusionary rule at issue in that case, even though the rule was not required by those goals. 440 U.S. at 440 U. S. 587 , n. 31. Similarly, in Washington v. Davis, the Court held that the "job-relatedness" requirement was satisfied when the employer demonstrated that a written test was related to success at a police training academy "wholly aside from [the test's] possible relationship to actual performance as a police officer." 426 U.S. at 426 U. S. 250 . See also id. at 426 U. S. 256 (STEVENS, J., concurring) ("[A]s a matter of law, it is permissible for the police department to use a test Page 487 U. S. 999 for the purpose of predicting ability to master a training program, even if the test does not otherwise predict ability to perform on the job"). In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a "manifest relationship to the employment in question." It is self-evident that many jobs, for example those involving managerial responsibilities, require personal qualities that have never been considered amenable to standardized testing. In evaluating claims that discretionary employment practices are insufficiently related to legitimate business purposes, it must be borne in mind that "[c]ourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." Furnco Construction Corp. v. Waters, 438 U.S. at 438 U. S. 578 . See also Zahorik v. Cornell University, 729 F.2d 85, 96 (CA2 1984) ("[The] criteria [used by a university to award tenure], however difficult to apply and however much disagreement they generate in particular cases, are job-related. . . . It would be a most radical interpretation of Title VII for a court to enjoin use of an historically settled process and plainly relevant criteria largely because they lead to decisions which are difficult for a court to review"). In sum, the high standards of proof in disparate impact cases are sufficient, in our view, to avoid giving employers incentives to modify any normal and legitimate practices by introducing quotas or preferential treatment. III We granted certiorari to determine whether the court below properly held disparate impact analysis inapplicable to a subjective or discretionary promotion system, and we now hold that such analysis may be applied. We express no opinion as to the other rulings of the Court of Appeals. Neither the District Court nor the Court of Appeals has evaluated the statistical evidence to determine whether petitioner Page 487 U. S. 1000 made out a prima facie case of discriminatory promotion practices under disparate impact theory. It may be that the relevant data base is too small to permit any meaningful statistical analysis, but we leave the Court of Appeals to decide in the first instance, on the basis of the record and the principles announced today, whether this case can be resolved without further proceedings in the District Court. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KENNEDY took no part in the consideration or decision of this case. [ Footnote 1 ] The dissenting judge argued that the District Court had abused its discretion in decertifying the broad class of black employees and applicants. He also argued that Watson had succeeded in proving that the Bank had discriminated against this class, and that the case should be remanded so that appropriate relief could be ordered. 798 F.2d at 800-815. [ Footnote 2 ] Both concurrences agree that we should, for the first time, approve the use of disparate impact analysis in evaluating subjective selection practices. Unlike JUSTICE STEVENS, we believe that this step requires us to provide the lower courts with appropriate evidentiary guidelines, as we have previously done for disparate treatment cases. Moreover, we do not believe that each verbal formulation used in prior opinions to describe the evidentiary standards in disparate impact cases is automatically applicable in light of today's decision. Cf. post at 487 U. S. 1000 -1001, 487 U. S. 1005 -1006 (BLACKMUN, J., concurring in part and concurring in judgment). Congress expressly provided that Title VII not be read to require preferential treatment or numerical quotas. 42 U.S.C. § 2000e-2(j). This congressional mandate requires, in our view, that a decision to extend the reach of disparate impact theory be accompanied by safeguards against the result that Congress clearly said it did not intend. [ Footnote 3 ] Faced with the task of applying these general statements to particular cases, the lower courts have sometimes looked for more specific direction in the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 CFR pt. 1607 (1987). See, e.g., Bushey v. New York State Civil Service Comm'n, 733 F.2d 220, 225-226 (CA2 1984), cert. denied, 469 U. S. 1117 (1985); Firefighters Institute v. St. Louis, 616 F.2d 350, 356-357 (CA8 1980), cert. denied sub nom. Saint Louis v. United States, 452 U.S. 938 (1981). These Guidelines have adopted an enforcement rule under which adverse impact will not ordinarily be inferred unless the members of a particular race, sex, or ethnic group are selected at a rate that is less than four-fifths of the rate at which the group with the highest rate is selected. 29 CFR § 1607.4(D) (1987). This enforcement standard has been criticized on technical grounds, see, e.g., Boardman & Vining, The Role of Probative Statistics in Employment Discrimination Cases, 46 Law & Contemp.Prob., No. 4, pp. 189, 205-207 (1983); Shoben, Differential Pass-Fail Rates in Employment Testing: Statistical Proof Under Title VII, 91 Harv.L.Rev. 793, 805-811 (1978), and it has not provided more than a rule of thumb for the courts, see, e.g., Clady v. County of Los Angeles, 770 F.2d 1421, 1428-1429 (CA9 1985), cert. denied, 475 U.S. 1109 (1986). Courts have also referred to the "standard deviation" analysis sometimes used in jury selection cases. See, e.g., Rivera v. Wichita Falls, 665 F.2d 531, 536, n. 7 (CA5 1982) (citing Casteneda v. Partida, 430 U. S. 482 (1977)); Guardians Association of New York City Police Dept. v. Civil Service Comm'n of New York, 630 F.2d 79, 86, and n. 4 (CA2 1980) (same), cert. denied, 452 U.S. 940 (1981). We have emphasized the useful role that statistical methods can have in Title VII cases, but we have not suggested that any particular number of "standard deviations" can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination. See Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 311 , n. 17 (1977). Nor has a consensus developed around any alternative mathematical standard. Instead, courts appear generally to have judged the "significance" or "substantiality" of numerical disparities on a case-by-case basis. See Clady, supra, at 1428-1429; B. Schlei & P. Grossman, Employment Discrimination Law 98-99, and n. 77 (2d ed.1983); id. at 18-19, and n. 33 (Supp.1983-1985). At least at this stage of the law's development, we believe that such a case-by-case approach properly reflects our recognition that statistics "come in infinite variety, and . . . their usefulness depends on all of the surrounding facts and circumstances." Teamsters v. United States, 431 U. S. 324 , 434 U. S. 340 (1977). JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, concurring in part and concurring in the judgment. I agree that disparate impact analysis may be applied to claims of discrimination caused by subjective or discretionary selection processes, and I therefore join Parts 487 U. S. 487 U. S. 487 U. S. and 487 U. S. I am concerned, however, that the plurality mischaracterizes the nature of the burdens this Court has allocated for proving and rebutting disparate impact claims. In so doing, the plurality projects an application of disparate impact analysis to subjective employment practices that I find to be inconsistent with the proper evidentiary standards and with the central purpose of Title VII. I therefore cannot join Parts 487 U. S. S. 993|>II-D. I write separately to reiterate what I thought our prior cases had made plain about the nature of claims brought within the disparate impact framework. I The plurality's discussion of the allocation of burdens of proof and production that apply in litigating a disparate impact claim under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., is flatly Page 487 U. S. 1001 contradicted by our cases. [ Footnote 2/1 ] The plurality, of course, is correct that the initial burden of proof is borne by the plaintiff, who must establish, by some form of numerical showing, that a facially neutral hiring practice "select[s] applicants . . . in a significantly discriminatory pattern." Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977). [ Footnote 2/2 ] Our cases make clear, however, that, contrary to the plurality's assertion, ante at 487 U. S. 997 , a plaintiff who successfully establishes this prima facie case shifts the burden of proof, not production, to the defendant to establish that the employment practice in question is a business necessity. See, e.g., Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 (1975) (employer must "meet the burden of proving that its tests are job-related'"); Dothard v. Rawlinson, 433 U.S. at 433 U. S. 329 (employer must " prov[e] that the challenged requirements are job-related"); Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 432 (1971) ("Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question") (emphasis added in each quotation). The plurality's suggested allocation of burdens bears a closer resemblance to the allocation of burdens we established for disparate treatment claims in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 -804 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 252 -256 (1981), than it does to those the Court has established for disparate impact claims. Nothing in our cases supports the plurality's declaration that, in the context of a disparate impact challenge, "the ultimate burden of proving Page 487 U. S. 1002 that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." Ante at 487 U. S. 997 . What is most striking about this statement is that it is a near-perfect echo of this Court's declaration in Burdine that, in the context of an individual disparate treatment claim, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." 450 U.S. at 450 U. S. 253 . In attempting to mimic the allocation of burdens the Court has established in the very different context of individual disparate treatment claims, the plurality turns a blind eye to the crucial distinctions between the two forms of claims. [ Footnote 2/3 ] The violation alleged in a disparate treatment challenge focuses exclusively on the intent of the employer. See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 , n. 15 (1977) (in disparate treatment challenge "[p]roof of discriminatory motive is critical"). Unless it is proved that an employer intended to disfavor the plaintiff because of his membership in a protected class, a disparate treatment claim fails. A disparate impact claim, in contrast, focuses on the effect of the employment practice. See id. at 431 U. S. 336 , n. 15 (disparate impact claims "involve employment practices that are facially neutral in their treatment of different groups, but that, in fact, fall more harshly on one group than another"). Unless an employment practice producing the disparate effect is justified by "business necessity," ibid., it violates Title VII, for "good intent or absence of discriminatory intent does not redeem Page 487 U. S. 1003 employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups." Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 432 . In McDonnell Douglas and Burdine, this Court formulated a scheme of burden allocation designed "progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 450 U. S. 255 , n. 8. The plaintiff's initial burden of establishing a prima facie case of disparate treatment is "not onerous," id. at 450 U. S. 253 , and "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 577 (1978). [ Footnote 2/4 ] An employer may rebut this presumption if it asserts that plaintiff's rejection was based on "a legitimate, nondiscriminatory reason" and produces evidence sufficient to "rais[e] a genuine issue of fact as to whether it discriminated against the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 450 U. S. 254 -255. If the employer satisfies "this burden of production," then "the factual inquiry proceeds to a new level of specificity," id. at 450 U. S. 255 , and it is up to the plaintiff to prove that the proffered reason was a pretext for discrimination. Id. at 450 U. S. 256 . This allocation of burdens reflects the Court's unwillingness to require a trial court to presume, on the basis of the facts establishing a prima facie case, that an employer intended to discriminate, in the face of evidence suggesting that the plaintiff's rejection might have been justified by Page 487 U. S. 1004 some nondiscriminatory reason. The prima facie case is therefore insufficient to shift the burden of proving a lack of discriminatory intent to the defendant. The prima facie case of disparate impact established by a showing of a significant statistical disparity is notably different. Unlike a claim of intentional discrimination, which the McDonnell Douglas factors establish only by inference, the disparate impact caused by an employment practice is directly established by the numerical disparity. Once an employment practice is shown to have discriminatory consequences, an employer can escape liability only if it persuades the court that the selection process producing the disparity has " a manifest relationship to the employment in question.'" Connecticut v. Teal, 457 U. S. 440 , 457 U. S. 446 (1982), quoting Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 432 . The plaintiff in such a case already has proved that the employment practice has an improper effect; it is up to the employer to prove that the discriminatory effect is justified. Intertwined with the plurality's suggestion that the defendant's burden of establishing business necessity is merely one of production is the implication that the defendant may satisfy this burden simply by "producing evidence that its employment practices are based on legitimate business reasons." Ante at 487 U. S. 998 . Again, the echo from the disparate treatment cases is unmistakable. In that context, it is enough for an employer "to articulate some legitimate, nondiscriminatory reason" for the allegedly discriminatory act in order to rebut the presumption of intentional discrimination. McDonnell Douglas, 411 U.S. at 411 U. S. 802 . But again the plurality misses a key distinction: an employer accused of discriminating intentionally need only dispute that it had any such intent -- which it can do by offering any legitimate, nondiscriminatory justification. Such a justification is simply not enough to legitimize a practice that has the effect of excluding a protected class from job opportunities at a significantly disproportionate rate. Our cases since Griggs make Page 487 U. S. 1005 clear that this effect itself runs afoul of Title VII unless it is "necessary to safe and efficient job performance." Dothard v. Rawlinson, 433 U.S. at 433 U. S. 332 , n. 14. See also Nashville Gas Co. v. Satty, 434 U. S. 136 , 434 U. S. 143 (1977) (issue is whether "a company's business necessitates the adoption of particular leave policies"); Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 432 ("[A]ny given requirement must have a manifest relationship to the employment in question") (emphasis added). Precisely what constitutes a business necessity cannot be reduced, of course, to a scientific formula, for it necessarily involves a case-specific judgment which must take into account the nature of the particular business and job in question. The term itself, however, goes a long way toward establishing the limits of the defense: to be justified as a business necessity, an employment criterion must bear more than an indirect or minimal relationship to job performance. See Dothard v. Rawlinson, 433 U.S. at 433 U. S. 331 -332 (absent proof that height and weight requirements directly correlated with amount of strength deemed "essential to good job performance," requirements not justified as business necessity); Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 431 , quoting the Equal Employment Opportunity Commission's (EEOC) Uniform Guidelines on Employee Selection Procedures, 29 CFR § 1607.4(c) (1974) ("The message of these Guidelines is the same as that of the Griggs case -- that discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job'"). Cf. Washington v. Davis, 426 U. S. 229 , 426 U. S. 247 (1976) (Title VII litigation "involves a more probing judicial review, and less deference to the seemingly reasonable acts of [employers] than is appropriate under the Constitution where special racial impact, without discriminatory purpose, is claimed"). The criterion must directly relate to a prospective employee's ability to perform the job effectively. And even where an employer Page 487 U. S. 1006 proves that a particular selection process is sufficiently job-related, the process in question may still be determined to be unlawful if the plaintiff persuades the court that other selection processes that have a lesser discriminatory effect could also suitably serve the employer's business needs. Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 425 . In sum, under Griggs and its progeny, an employer, no matter how well-intended, will be liable under Title VII if it relies upon an employment selection process that disadvantages a protected class, unless that process is shown to be necessary to fulfill legitimate business requirements. The plurality's suggestion that the employer does not bear the burden of making this showing cannot be squared with our prior cases. II I am also concerned that, unless elaborated upon, the plurality's projection of how disparate impact analysis should be applied to subjective selection processes may prove misleading. The plurality suggests: "In the context of subjective or discretionary employment decisions, the employer will often find it easier than in the case of standardized tests to produce evidence of a 'manifest relationship to the employment in question.'" Ante at 487 U. S. 999 . This statement warrants further comment in two respects. A As explained above, once it has been established that a selection method has a significantly disparate impact on a protected class, it is clearly not enough for an employer merely to produce evidence that the method of selection is job-related. It is an employer's obligation to persuade the reviewing court of this fact. While the formal validation techniques endorsed by the EEOC in its Uniform Guidelines may sometimes not be effective in measuring the job-relatedness of subjective selection Page 487 U. S. 1007 processes, [ Footnote 2/5 ] a variety of methods are available for establishing the link between these selection processes and job performance, just as they are for objective selection devices. See 29 CFR § 1607.6(B)(1) and (2) (1987) (where selection procedure with disparate impact cannot be formally validated, employer can "justify continued use of the procedure in accord with Federal law"). Cf. Washington v. Davis, 426 U.S. at 426 U. S. 247 , and n. 13 (hiring and promotion practices can be validated in "any one of several ways"). The proper means of establishing business necessity will vary with the type and size of the business in question, as well as the particular job for which the selection process is employed. Courts have recognized that the results of studies, see Davis v. Dallas, 777 F.2d 205, 218-219 (CA5 1985), cert. denied, 476 U.S. 1116 (1986) (nationwide studies and reports showing job-relatedness of college degree requirement); the presentation of expert testimony, 777 F.2d at 219-222, 224-225 (criminal justice scholars' testimony explaining job-relatedness of college degree requirement and psychologist's testimony explaining job-relatedness of prohibition on recent marijuana use); and prior successful experience, Zahorik v. Cornell University, 729 F.2d 85, 96 (CA2 1984) ("generations" of experience reflecting job-relatedness of decentralized decisionmaking structure based on peer judgments in academic setting), can all be used, under appropriate circumstances, to establish business necessity. [ Footnote 2/6 ] Moreover, an employer that Page 487 U. S. 1008 complies with the EEOC's recordkeeping requirements, 29 CFR §§ 1607.4 and 1607.15 (1987), and keeps track of the effect of its practices on protected classes, will be better prepared to document the correlation between its employment practices and successful job performance when required to do so by Title VII. The fact that job-relatedness cannot always be established with mathematical certainty does not free an employer from its burden of proof, but rather requires a trial court to look to different forms of evidence to assess an employer's claim of business necessity. And while common sense surely plays a part in this assessment, a reviewing court may not rely on its own, or an employer's, sense of what is "normal," ante at 487 U. S. 999 , as a substitute for a neutral assessment of the evidence presented. Indeed, to the extent an employer's "normal" practices serve to perpetuate a racially disparate status quo, they clearly violate Title VII unless they can be shown to be necessary, in addition to being "normal." See Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 430 ("[P]ractices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to freeze' the [discriminatory] status quo "). B The plurality's prediction that an employer "will often find it easier" ante at 487 U. S. 999 , to justify the use of subjective practices as a business necessity is difficult to analyze in the abstract. Nevertheless, it bears noting that this statement Page 487 U. S. 1009 cannot be read, consistently with Title VII principles, to lessen the employer's burden of justifying an employment practice that produces a disparate impact simply because the practice relies upon subjective assessments. Indeed, the less defined the particular criteria involved, or the system relied upon to assess these criteria, the more difficult it may be for a reviewing court to assess the connection between the selection process and job performance. Cf. Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 433 (validation mechanism that fails to identify "whether the criteria actually considered were sufficiently related to the [employer's] legitimate interest in job-specific ability" cannot establish that test in question was sufficiently job-related). For example, in this case, the Bank supervisors were given complete, unguided discretion in evaluating applicants for the promotions in question. [ Footnote 2/7 ] If petitioner can successfully establish that respondent's hiring practice disfavored black applicants to a significant extent, the bald assertion that a purely discretionary selection process allowed respondent to discover the best people for the job, without any further evidentiary support, would not be enough to prove job-relatedness. [ Footnote 2/8 ] Allowing an employer to escape liability simply by articulating vague, inoffensive-sounding subjective criteria would disserve Title VII's goal of eradicating discrimination in employment. It would make no sense to establish a general rule whereby an employer could more easily establish business Page 487 U. S. 1010 necessity for an employment practice, which left the assessment of a list of general character qualities to the hirer's discretion, than for a practice consisting of the evaluation of various objective criteria carefully tailored to measure relevant job qualifications. Such a rule would encourage employers to abandon attempts to construct selection mechanisms subject to neutral application for the shelter of vague generalities. [ Footnote 2/9 ] While subjective criteria, like objective criteria, will sometimes pose difficult problems for the court charged with assessing the relationship between selection process and job performance, the fact that some cases will require courts to develop a greater factual record and, perhaps, exercise a greater degree of judgment, does not dictate that subjective selection processes generally are to be accepted at face value, as long as they strike the reviewing court as "normal and legitimate." Ante at 487 U. S. 999 . [ Footnote 2/10 ] Griggs teaches that employment practices "fair in form, but discriminatory in operation Page 487 U. S. 1011 ," cannot be tolerated under Title VII. 401 U.S. at 401 U. S. 431 . This lesson should not be forgotten simply because the "fair form" is a subjective one. [ Footnote 2/1 ] It bears noting that the question on which we granted certiorari, and the question presented in petitioner's brief, is whether disparate impact analysis applies to subjective practices, not where the burdens fall if the analysis applies. The plurality need not have reached its discussion of burden allocation and evidentiary standards to resolve the question presented. I, however, find it necessary to reach this issue in order to respond to remarks made by the plurality. [ Footnote 2/2 ] I have no quarrel with the plurality's characterization of the plaintiff's burden of establishing that any disparity is significant. See ante at 487 U. S. 994 -997. [ Footnote 2/3 ] See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 252 , n. 5 (1981) (recognizing, in the context of articulating allocation of burdens applicable to disparate treatment claims, "that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes"); United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 713 , n. 1 (1983) ("We have consistently distinguished disparate treatment cases from cases involving facially neutral employment standards that have disparate impact on minority applicants"). [ Footnote 2/4 ] In McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 (1973), the Court explained that a plaintiff could meet his burden of establishing a prima facie case of racial discrimination by showing: "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." [ Footnote 2/5 ] The American Psychological Association, co-author of Standards for Educational and Psychological Testing (1985), which is relied upon by the EEOC in its Uniform Guidelines, has submitted a brief as amicus curiae explaining that subjective assessment devices are, in fact, amenable to the same "psychometric scrutiny" as more objective screening devices, such as written tests. Brief for the American Psychological Association as Amicus Curiae 2. See also Bartholet, Application of Title VII to Jobs in High Places, 95 Harv.L.Rev. 947, 987-988 (1982) (discussing feasibility of validating subjective hiring assessments). [ Footnote 2/6 ] As a corollary, of course, a Title VII plaintiff can attack an employer's offer of proof by presenting contrary evidence, including proof that the employer's hiring methods failed in fact to screen for the qualities identified as central to successful job performance. In this case, for example, petitioner could produce evidence that Kevin Brown, one of the white employees chosen over her for a promotion, allegedly in part because of his greater "supervisory experience," proved to be totally unqualified for the position. App. 113. Six months after Brown was promoted, his performance was evaluated as only "close to being competent.'" 1 Record 68. When he resigned soon thereafter, allegedly under pressure, he questioned whether "poor communication . . . inadequate training," or his personality had rendered him unqualified for the job. Id. at 85. [ Footnote 2/7 ] One of the hiring supervisors testified that she was never given any guidelines or instructions on her hiring and promotion decisions. App. 161-162. Another testified that he could not attribute specific weight to any particular factors considered in his promotion decisions, because "fifty or a hundred things" might enter into such decisions. Id. at 136. [ Footnote 2/8 ] Because the establishment of business necessity is necessarily case-specific, I am unwilling to preclude the possibility that an employer could ever establish that a successful selection among applicants required granting the hirer near-absolute discretion. Of course, in such circumstances, the employer would bear the burden of establishing that an absence of specified criteria was necessary for the proper functioning of the business. [ Footnote 2/9 ] See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1485 (CA9) (en banc) ("It would subvert the purpose of Title VII to create an incentive to abandon efforts to validate objective criteria in favor of purely discretionary hiring methods"), on return to panel, 827 F.2d 439 (1987), cert. denied, No. 87-1388, 485 U.S. 989 (1988), cert. pending, No. 87-1387; Miles v. M.N.C. Corp., 750 F.2d 867, 871 (CA11 1985) (subjective assessments involving white supervisors provide "ready mechanism" for racial discrimination). Cf. Doverspike, Barrett, & Alexander, The Feasibility of Traditional Validation Procedures for Demonstrating Job-Relatedness, 9 Law & Psychology Rev. 35, 35 (1985) (noting that "litigious climate has resulted in a decline in the use of tests and an increase in more subjective methods of hiring"). [ Footnote 2/10 ] Nor can the requirement that a plaintiff in a disparate impact case specify the employment practice responsible for the statistical disparity be turned around to shield from liability an employer whose selection process is so poorly defined that no specific criterion can be identified with any certainty, let alone be connected to the disparate effect. Cf. ante at 487 U. S. 994 (plaintiff is responsible "for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities"). JUSTICE STEVENS, concurring in the judgment. The question we granted certiorari to decide, though extremely important, is also extremely narrow. It reads as follows: "Is the racially adverse impact of an employer's practice of simply committing employment decisions to the unchecked discretion of a white supervisory corps subject to the test of Griggs v. Duke Power Co., 401 U. S. 424 (1971)?" Pet. for Cert. i. Essentially for the reasons set forth in Parts 487 U. S. S. 989|>II-B of JUSTICE O'CONNOR's opinion, I agree that this question must be answered in the affirmative. At this stage of the proceeding, however, I believe it unwise to announce a "fresh" interpretation of our prior cases applying disparate impact analysis to objective employment criteria. See ante at 487 U. S. 994 . Cases in which a Title VII plaintiff challenges an employer's practice of delegating certain kinds of decisions to the subjective discretion of its executives will include too many variables to be adequately discussed in an opinion that does not focus on a particular factual context. I would therefore postpone any further discussion of the evidentiary standards set forth in our prior cases until after the District Court has made appropriate findings concerning this plaintiff's prima facie evidence of disparate impact and this defendant's explanation for its practice of giving supervisors discretion in making certain promotions.

In *Watson v. Fort Worth Bank & Trust*, the Supreme Court decided that "disparate impact" analysis may be applied to subjective or discretionary promotion systems in claims of racial discrimination under Title VII of the Civil Rights Act of 1964. The Court vacated the lower court's judgment and remanded the case for further consideration. Justice O'Connor's opinion concluded that the reasons for using disparate impact analysis (where neutral practices may have discriminatory effects) also apply to subjective employment practices. Restricting disparate impact analysis to only objective criteria would create an incentive for employers to abandon objective standards in favor of purely discretionary methods, making discrimination harder to identify and prove. Justice Stevens concurred, emphasizing the narrowness of the question presented and agreeing that disparate impact analysis applies to subjective criteria. He preferred to postpone further discussion of evidentiary standards until the lower court had made specific findings on the plaintiff's prima facie evidence and the employer's explanation for its subjective promotion practices.

Labor & Employment

Communications Workers of America v. Beck

https://supreme.justia.com/cases/federal/us/487/735/

U.S. Supreme Court Commun. Workers of Amer. v. Beck, 487 U.S. 735 (1988) Communications Workers of America v. Beck No. 86-637 Argued January 11, 1988 Decided June 29, 1988 487 U.S. 735 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus Section 8(a)(3) of the National Labor Relations Act (NLRA) permits an employer and a union to enter into an agreement requiring all employees in the bargaining unit to pay union dues as a condition of continued employment, whether or not the employees become union members. Petitioner Communications Workers of America (CWA) entered into a collective bargaining agreement that contains a union-security clause under which all represented employees who do not become union members must pay the union "agency fees" in amounts equal to the dues paid by union members. Respondents, bargaining unit employees who chose not to become union members, filed this suit in Federal District Court, challenging CWA's use of their agency fees for purposes other than collective bargaining, contract administration, or grievance adjustment (hereinafter "collective bargaining" activities). They alleged that expenditure of their fees on activities such as organizing the employees of other employers, lobbying for labor legislation, and participating in social, charitable, and political events violated CWA's duty of fair representation, § 8(a)(3), and the First Amendment. The court concluded that CWA's collection and disbursement of agency fees for purposes other than collective bargaining activities violated the associational and free speech rights of objecting nonmembers, and granted injunctive relief and an order for reimbursement of excess fees. The Court of Appeals, preferring to rest its judgment on a ground other than the Constitution, ultimately concluded, inter alia, that the collection of nonmembers' fees for purposes unrelated to collective bargaining violated CWA's duty of fair representation. Held: 1. The courts below properly exercised jurisdiction over respondents' claims that exactions of agency fees beyond those necessary to finance collective bargaining activities violated the judicially created duty of fair representation and respondents' First Amendment rights. Although the National Labor Relations Board (Board) had primary jurisdiction over respondents' § 8(a)(3) claim, cf. San Diego Building Trades Council v. Garmon, 359 U. S. 236 , the courts below were not precluded from deciding the merits of that claim insofar as such a decision was necessary Page 487 U. S. 736 to the disposition of respondents' duty of fair representation challenge. Federal courts may resolve unfair labor practice questions that emerge as collateral issues in suits brought under independent federal remedies. Respondents did not attempt to circumvent the Board's primary jurisdiction by casting their statutory claim as a violation of CWA's duty of fair representation. Instead, the necessity of deciding the scope of § 8(a)(3) arose because CWA and its copetitioner local unions sought to defend themselves on the ground that the statute authorizes the type of union security agreement in issue. Pp. 487 U. S. 742 -744. 2. Section 8(a)(3) does not permit a union, over the objections of dues-paying nonmember employees, to expend funds collected from them on activities unrelated to collective bargaining activities. Pp. 487 U. S. 744 -762. (a) The decision in Machinists v. Street, 367 U. S. 740 -- holding that § 2, Eleventh of the Railway Labor Act (RLA) does not permit a union, over the objections of nonmembers, to expend agency fees on political causes -- is controlling, for § 8(a)(3) and § 2, Eleventh are in all material respects identical. Their nearly identical language reflects the fact that, in both, Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost. Indeed, Congress, in 1951, expressly modeled § 2, Eleventh on § 8(a)(3), which it had added to the NLRA by the Taft-Hartley Act only four years earlier, and emphasized that it was extending to railroad labor the same rights and privileges of the union shop that were contained in the Taft-Hartley Act. Pp. 487 U. S. 744 -747. (b) Section 8(a)(3) was intended to correct abuses of compulsory unionism that had developed under "closed shop" agreements and, at the same time, to require, through union-security clauses, that nonmember employees pay their share of the cost of benefits secured by the union through collective bargaining. These same concerns prompted Congress' later amendment of the RLA. Given the parallel purpose, structure, and language of § 8(a)(3) and § 2, Eleventh, both provisions must be interpreted in the same manner. Only the most compelling evidence would support a contrary conclusion, and petitioners have not proffered such evidence here. Pp. 487 U. S. 747 -754. (c) Petitioners claim that the union security provisions of the RLA and NLRA should be read differently in light of the different history of unionism in the regulated industries -- that is, the tradition of voluntary unionism in the railway industry prior to the 1951 amendment of the RLA and the history of compulsory unionism in NLRA-regulated industries prior to 1947. Petitioners contend that, because agreements requiring the payment of uniform dues were not among the specific abuses Congress sought to remedy in the Taft-Hartley Act, § 8(a)(3) cannot plausibly be read to prohibit the collection of fees in excess of those Page 487 U. S. 737 necessary to cover the costs of collective bargaining. This argument is unpersuasive, because the legislative history of § 8(a)(3) shows that Congress was concerned with numerous and systemic abuses of the closed shop, and therefore resolved to ban the closed shop altogether; to the extent it permitted union security agreements at all, Congress was guided -- as it was in its later amendment of the RLA -- by the principle that those enjoying the benefits of union representation should contribute their fair share to the expense of securing those benefits. Moreover, it is clear that Congress understood its actions in 1947 and 1951 to have placed the respective regulated industries on an equal footing insofar as compulsory unionism was concerned. Pp. 487 U. S. 754 -756. (d) The fact that, in the Taft-Hartley Act, Congress expressly considered proposals regulating union finances, but ultimately placed only a few limitations on the collection and use of dues and fees, and otherwise left unions free to arrange their financial affairs as they saw fit, is not sufficient to compel a broader construction of § 8(a)(3) than that accorded § 2, Eleventh in Street. The legislative history of § 8(a)(3) shows that Congress was concerned with the dues and rights of union members, not the agency fees and rights of nonmembers. The absence, in such legislative history, of congressional concern for the rights of nonmembers is consistent with the view that Congress understood § 8(a)(3) to afford nonmembers adequate protection by authorizing the collection of only those fees necessary to finance collective bargaining activities. Nor is there any merit to the contention that, because unions had previously used members' dues for a variety of purposes in addition to collective bargaining agreements, Congress' silence in 1947 as to the uses to which unions could put nonmembers' fees should be understood as an acquiescence in such union practices. Pp. 756-761. (e) Street cannot be distinguished on the theory that the construction of § 2, Eleventh was merely expedient to avoid the constitutional question -- as to the use of fees for political causes that nonmembers find objectionable -- that otherwise would have been raised because the RLA (unlike the NLRA) preempts state laws banning union security agreements, and thus nonmember fees were compelled by "governmental action." Even assuming that the exercise of rights permitted, though not compelled, by § 8(a)(3) does not involve state action, and that the NLRA and RLA therefore differ in such respect, nevertheless the absence of any constitutional concerns in this case would not warrant reading the nearly identical language of § 8(a)(3) and § 2, Eleventh differently. Pp. 487 U. S. 761 -762. 800 F.2d 1280, affirmed. Page 487 U. S. 738 BRENNAN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, and STEVENS, JJ., joined, and in Parts I and II of which BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR and SCALIA, JJ., joined, post, p. 487 U. S. 763 . KENNEDY, J., took no part in the consideration or decision of the case. JUSTICE BRENNAN delivered the opinion of the Court. Section 8(a)(3) of the National Labor Relations Act of 1935 (NLRA), 49 Stat. 452, as amended, 29 U.S.C. § 158(a)(3), permits an employer and an exclusive bargaining representative to enter into an agreement requiring all employees in the bargaining unit to pay periodic union dues and initiation fees as a condition of continued employment, whether or not the employees otherwise wish to become union members. Today we must decide whether this provision also permits a union, over the objections of dues-paying nonmember employees, to expend funds so collected on activities unrelated to collective bargaining, contract administration, or grievance adjustment, and, if so, whether such expenditures violate the union's duty of fair representation or the objecting employees' First Amendment rights. Page 487 U. S. 739 I In accordance with § 9 of the NLRA, 49 Stat. 453, as amended, 29 U.S.C. § 159, a majority of the employees of American Telephone and Telegraph Company and several of its subsidiaries selected petitioner Communications Workers of America (CWA) as their exclusive bargaining representative. As such, the union is empowered to bargain collectively with the employer on behalf of all employees in the bargaining unit over wages, hours, and other terms and conditions of employment, § 9(a), 29 U.S.C. § 159(a), and it accordingly enjoys "broad authority . . . in the negotiation and administration of [the] collective bargaining contract." Humphrey v. Moore, 375 U. S. 335 , 375 U. S. 342 (1964). This broad authority, however, is tempered by the union's "statutory obligation to serve the interests of all members without hostility or discrimination toward any," Vaca v. Sipes, 386 U. S. 171 , 386 U. S. 177 (1967), a duty that extends not only to the negotiation of the collective bargaining agreement itself, but also to the subsequent enforcement of that agreement, including the administration of any grievance procedure the agreement may establish. Ibid. CWA chartered several local unions, copetitioners in this case, to assist it in discharging these statutory duties. In addition, at least in part to help defray the considerable costs it incurs in performing these tasks, CWA negotiated a union security clause in the collective bargaining agreement under which all represented employees, including those who do not wish to become union members, must pay the union "agency fees" in "amounts equal to the periodic dues" paid by union members. Plaintiffs' Complaint � 11 and Plaintiffs' Exhibit A-1, 1 Record. Under the clause, failure to tender the required fee may be grounds for discharge. In June 1976, respondents, 20 employees who chose not to become union members, initiated this suit challenging CWA's use of their agency fees for purposes other than collective bargaining, contract administration, or grievance adjustment Page 487 U. S. 740 (hereinafter "collective bargaining" or "representational" activities). Specifically, respondents alleged that the union's expenditure of their fees on activities such as organizing the employees of other employers, lobbying for labor legislation, and participating in social, charitable, and political events violated petitioners' duty of fair representation, § 8(a)(3) of the NLRA, the First Amendment, and various common law fiduciary duties. In addition to declaratory relief, respondents sought an injunction barring petitioners from exacting fees above those necessary to finance collective bargaining activities, as well as damages for the past collection of such excess fees. The District Court concluded that the union's collection and disbursement of agency fees for purposes other than bargaining unit representation violated the associational and free speech rights of objecting nonmembers, and therefore enjoined their future collection. 468 F. Supp. 93 (Md.1979). Applying a "clear and convincing" evidentiary standard, the District Court concluded that the union had failed to show that more than 21% of its funds were expended on collective bargaining matters. App. to Pet. for Cert. 119a. The court ordered reimbursement of all excess fees respondents had paid since January, 1976, and directed the union to institute a recordkeeping system to segregate accounts for representational and non-collective-bargaining activities. Id. at 125a, 108a-109a. A divided panel of the United States Court of Appeals for the Fourth Circuit agreed that respondents stated a valid claim for relief under the First Amendment, but, preferring to rest its judgment on a ground other than the Constitution, concluded that the collection of nonmembers' fees for purposes unrelated to collective bargaining violated § 8(a)(3). 776 F.2d 1187 (1985). Turning to the specific activities challenged, the majority noted that the District Court's adoption of a "clear and convincing" standard of proof was improper, but found that, for certain categories of expenditures, such Page 487 U. S. 741 as lobbying, organizing employees in other companies, and funding various community services, the error was harmless, inasmuch as the activities were indisputably unrelated to bargaining unit representation. The majority remanded the case for reconsideration of the remaining expenditures, which the union claimed were made in connection with valid collective bargaining activities. Chief Judge Winter dissented. Id. at 1214. He concluded that § 8(a)(3) authorized exaction of fees in amounts equivalent to full union dues, including fees expended on nonrepresentational activities, and that the negotiation and enforcement of agreements permitting such exactions was private conduct incapable of violating the constitutional rights of objecting nonmembers. On rehearing, the en banc court vacated the panel opinion and by a 6-to-4 vote again affirmed in part, reversed in part, and remanded for further proceedings. 800 F.2d 1280 (1986). The court explained in a brief per curiam opinion that five of the six judges believed there was federal jurisdiction over both the § 8(a)(3) and the duty of fair representation claims, and that respondents were entitled to judgment on both. Judge Murnaghan, casting the deciding vote, concluded that the court had jurisdiction over only the duty of fair representation claim; although he believed that § 8(a) (3) permits union security clauses requiring payment of full union dues, he concluded that the collection of such fees from nonmembers to finance activities unrelated to collective bargaining violates the union's duty of fair representation. All six of these judges agreed with the panel's resolution of the specific allocations issue, and accordingly remanded the action. Chief Judge Winter, joined by three others, again dissented for the reasons set out in his earlier panel dissent. The decision below directly conflicts with that of the United States Court of Appeals for the Second Circuit. See Price v. Auto Workers, 795 F.2d 1128 (1986). We granted certiorari to resolve the important question concerning the Page 487 U. S. 742 validity of such agreements, 482 U.S. 904 (1987), and now affirm. II At the outset, we address briefly the jurisdictional question that divided the Court of Appeals. Respondents sought relief on three separate federal claims: that the exaction of fees beyond those necessary to finance collective bargaining activities violates § 8(a)(3); that such exactions violate the judicially created duty of fair representation; and that such exactions violate respondents' First Amendment rights. We think it clear that the courts below properly exercised jurisdiction over the latter two claims, but that the National Labor Relations Board (NLRB or Board) had primary jurisdiction over respondents' § 8(a)(3) claim. In San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959), we held that "[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States, as well as the federal courts, must defer to the exclusive competence of the [Board] if the danger of state interference with national policy is to be averted." Id. at 359 U. S. 245 (emphasis added). A simple recitation of respondents' § 8(a)(3) claim reveals that it falls squarely within the primary jurisdiction of the Board: respondents contend that, by collecting and using agency fees for nonrepresentational purposes, the union has contravened the express terms of § 8(a)(3), which, respondents argue, provides a limited authorization for the collection of only those fees necessary to finance collective bargaining activities. There can be no doubt, therefore, that the challenged fee-collecting activity is "subject to" § 8. While the five-judge plurality of the en banc court did not explain the basis of its jurisdictional holding, the panel majority concluded that, because courts have jurisdiction over challenges to union security clauses negotiated under § 2, Eleventh of the Railway Labor Act (RLA), 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, which is in all material respects identical to § 8(a)(3), there must be a parity of federal jurisdiction Page 487 U. S. 743 over § 8(a)(3) claims. Unlike the NLRA, however, the RLA establishes no agency charged with administering its provisions, and instead leaves it to the courts to determine the validity of activities challenged under the Act. The primary jurisdiction of the NLRB, therefore, cannot be diminished by analogies to the RLA, for, in this regard, the two labor statutes do not parallel one another. The Court of Appeals erred, then, to the extent that it concluded it possessed jurisdiction to pass directly on respondents' § 8(a)(3) claim. The court was not precluded, however, from deciding the merits of this claim insofar as such a decision was necessary to the disposition of respondents' duty of fair representation challenge. Federal courts may resolve unfair labor practice questions that "emerge as collateral issues in suits brought under independent federal remedies," Connell Construction Co. v. Plumbers, 421 U. S. 616 , 421 U. S. 626 (1975), and one such remedy over which federal jurisdiction is well settled is the judicially implied duty of fair representation. Vaca v. Sipes, 386 U. S. 171 (1967). This jurisdiction to adjudicate fair representation claims encompasses challenges leveled not only at a union's contract administration and enforcement efforts, id. at 386 U. S. 176 -188, but at its negotiation activities as well. Ford Motor Co. v. Huffman, 345 U. S. 330 (1953). Employees, of course, may not circumvent the primary jurisdiction of the NLRB simply by casting statutory claims as violations of the union's duty of fair representation. Respondents, however, have done no such thing here; rather, they claim that the union failed to represent their interests fairly and without hostility by negotiating and enforcing an agreement that allows the exaction of funds for purposes that do not serve their interests, and in some cases are contrary to their personal beliefs. The necessity of deciding the scope of § 8(a)(3) arises because petitioners seek to defend themselves on the ground that the statute authorizes precisely this type of agreement. Under these circumstances, the Court of Appeals Page 487 U. S. 744 had jurisdiction to decide the § 8(a)(3) question raised by respondents' duty-of-fair-representation claim. [ Footnote 1 ] III Added as part of the 1947 Labor Management Relations Act, or Taft-Hartley Act, § 8(a)(3) makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in any labor organization." 29 U.S.C. § 158 (a)(3). The section contains two provisos without which all union security clauses would fall within this otherwise broad condemnation: the first states that nothing in the Act "preclude[s] an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein" 30 days after the employee attains employment, ibid.; the second, limiting the first, provides: "[N]o employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure . . . to tender the periodic Page 487 U. S. 745 dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Ibid. Taken as a whole, § 8(a)(3) permits an employer and a union [ Footnote 2 ] to enter into an agreement requiring all employees to become union members as a condition of continued employment, but the "membership" that may be so required has been "whittled down to its financial core." NLRB v. General Motors Corp., 373 U. S. 734 , 373 U. S. 742 (1963). The statutory question presented in this case, then, is whether this "financial core" includes the obligation to support union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment. We think it does not. Although we have never before delineated the precise limits § 8(a)(3) places on the negotiation and enforcement of union security agreements, the question the parties proffer is not an entirely new one. Over a quarter century ago, we held that § 2, Eleventh of the RLA does not permit a union, over the objections of nonmembers, to expend compelled agency fees on political causes. Machinists v. Street, 367 U. S. 740 (1961). Because the NLRA and RLA differ in certain crucial respects, we have frequently warned that decisions construing the latter often provide only the roughest of guidance when interpreting the former. See, e.g., supra, at 487 U. S. 743 ; First National Maintenance Corp. v. NLRB, 452 U. S. 666 , 452 U. S. 686 , n. 23 (1984). Our decision in Street, however, is far more than merely instructive here: we believe it is controlling, for § 8(a)(3) and § 2, Eleventh are in all material respects identical. [ Footnote 3 ] Indeed, we have previously described Page 487 U. S. 746 the two provisions as "statutory equivalent[s]," Ellis v. Railway Clerks, 466 U. S. 435 , 466 U. S. 452 , n. 13 (1984), and with good reason, because their nearly identical language reflects the fact that in both Congress authorized compulsory unionism only to the extent necessary to ensure that those who enjoy union-negotiated benefits contribute to their cost. Thus, in amending the RLA in 1951, Congress expressly modeled § 2, Eleventh on § 8(a)(3), which it had added to the NLRA only four years earlier, and repeatedly emphasized that it was extending "to railroad labor the same rights and privileges of the union shop that are contained in the Taft-Hartley Act." 96 Cong.Rec. 17055 (1951) (remarks of Rep. Brown). [ Footnote 4 ] In Page 487 U. S. 747 these circumstances, we think it clear that Congress intended the same language to have the same meaning in both statutes. A Both the structure and purpose of § 8(a)(3) are best understood in light of the statute's historical origins. Prior to the enactment of the Taft-Hartley Act of 1947, 61 Stat. 140, § 8(3) of the Wagner Act of 1935 (NLRA) permitted majority unions to negotiate "closed shop" agreements requiring employers to hire only persons who were already union members. Page 487 U. S. 748 See Algoma Plywood Co. v. Wisconsin Employment Relations Board, 336 U. S. 301 , 336 U. S. 307 -311 (1949). By 1947, such agreements had come under increasing attack, and after extensive hearings, Congress determined that the closed shop and the abuses associated with it "create[d] too great a barrier to free employment to be longer tolerated." S.Rep. No. 105, 80th Cong., 1st Sess., 6 (1947) (S.Rep.), Legislative History of Labor Management Relations Act, 1947 (Committee Print compiled for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), p. 412 (1974) (Leg.Hist.). The 1947 Congress was equally concerned, however, that without such agreements, many employees would reap the benefits that unions negotiated on their behalf without in any way contributing financial support to those efforts. As Senator Taft, one of the authors of the 1947 legislation, explained, "the argument . . . against abolishing the closed shop . . . is that, if there is not a closed shop, those not in the union will get a free ride, that the union does the work, gets the wages raised, then the man who does not pay dues rides along freely, without any expense to himself." 93 Cong.Rec. 4887 (1947), Leg.Hist. 1422. [ Footnote 5 ] Thus, the Taft-Hartley Act was Page 487 U. S. 749 intended to accomplish twin purposes. On the one hand, the most serious abuses of compulsory unionism were eliminated by abolishing the closed shop. On the other hand, Congress recognized that, in the absence of a union security provision, "many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost." NLRB v. General Motors Corp., 373 U.S. at 373 U. S. 740 -741 (quoting S.Rep. at 6, Leg.Hist. 412). The legislative solution embodied in § 8(a)(3) allows employers to enter into agreements requiring all the employees in a given bargaining unit to become members 30 days after being hired, as long as such membership is available to all workers on a nondiscriminatory basis, but it prohibits the mandatory discharge of an employee who is expelled from the union for any reason other than his or her failure to pay initiation fees or dues. As we have previously observed, Congress carefully tailored this solution to the evils at which it was aimed: "Th[e] legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purpose other than to compel payment of union dues and fees. Thus, Congress recognized the validity of unions' concerns about 'free riders,' i.e., employees who receive the benefits of union representation but are unwilling to contribute their fair share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason." Radio Officers v. NLRB, 347 U. S. 17 , 347 U. S. 41 (1954) (emphasis added). Page 487 U. S. 750 Indeed, "Congress' decision to allow union security agreements at all reflects its concern that . . . the parties to a collective bargaining agreement be allowed to provide that there be no employees who are getting the benefits of union representation without paying for them." Oil Workers v. Mobil Oil Corp., 426 U. S. 407 , 426 U. S. 416 (1976) (emphasis added). This same concern over the resentment spawned by "free riders" in the railroad industry prompted Congress, four years after the passage of the Taft-Hartley Act, to amend the RLA. As the House Report explained, 75 to 80 percent of the 1.2 million railroad industry workers belonged to one or another of the railway unions. H.R.Rep. No. 2811, 81st Cong., 2d Sess., 4 (1950). These unions, of course, were legally obligated to represent the interests of all workers, including those who did not become members; thus nonunion workers were able, at no expense to themselves, to share in all the benefits the unions obtained through collective bargaining. Ibid. Noting that the "principle of authorizing agreements for the union shop and the deduction of union dues has now become firmly established as a national policy for all industry subject to the Labor Management Relations Act of 1947," the House Report concluded that "[n]o sound reason exists for continuing to deny to labor organizations subject to the Railway Labor Act the right to negotiate agreements with railroads and airlines of a character permitted in the case of labor organizations in the other large industries of the country." Ibid. In drafting what was to become § 2, Eleventh, Congress did not look to § 8(a)(3) merely for guidance. Rather, as Senator Taft argued in support of the legislation, the amendment "inserts in the railway mediation law almost the exact provisions, so far as they fit, of the Taft-Hartley law, so that the conditions regarding the union shop and the check-off are carried into the relations between railroad unions and the railroads. " Page 487 U. S. 751 96 Cong.Rec. 16267 (1950). [ Footnote 6 ] This was the universal understanding, among both supporters and opponents, of the purpose and effect of the amendment. See n 4, supra. Indeed, railroad union representatives themselves proposed the amendment that incorporated in § 2, Eleventh, § 8(a)(3)'s prohibition against the discharge of employees who fail to obtain or maintain union membership for any reason other than nonpayment of periodic dues; in offering this proposal, the unions argued, in terms echoing the language of the Senate Report accompanying the Taft-Hartley Act, that such a prohibition "remedies the alleged abuses of compulsory union membership, . . . yet makes possible the elimination of the 'free rider' and the sharing of the burden of maintenance by all of the beneficiaries of union activity." Hearings on H.R. 7789 before the House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., 253 (1950). In Street, we concluded "that § 2, Eleventh contemplated compulsory unionism to force employees to share the costs of negotiating and administering collective agreements, and the costs of the adjustment and settlement of disputes," but that Congress did not intend "to provide the unions with a means for forcing employees, over their objection, to support political causes which they oppose." 367 U.S. at 367 U. S. 764 . Construing Page 487 U. S. 752 the statute in light of this legislative history and purpose, we held that, although § 2, Eleventh on its face authorizes the collection from nonmembers of "periodic dues, initiation fees, and assessments . . . uniformly required as a condition of acquiring or retaining membership" in a union, 45 U.S.C. § 152, Eleventh (b) (emphasis added), this authorization did not "ves[t] the unions with unlimited power to spend exacted money." 367 U.S. at 367 U. S. 768 . We have since reaffirmed that "Congress' essential justification for authorizing the union shop" limits the expenditures that may properly be charged to nonmembers under § 2, Eleventh to those "necessarily or reasonably incurred for the purpose of performing the duties of an exclusive [bargaining] representative." Ellis v. Railway Clerks, 466 U.S. at 466 U. S. 447 -448. Given the parallel purpose, structure, and language of § 8(a)(3), we must interpret that provision in the same manner. [ Footnote 7 ] Like § 2, Eleventh, Page 487 U. S. 753 § 8(a)(3) permits the collection of "periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership" in the union, [ Footnote 8 ] and, like its counterpart in the RLA, § 8(a)(3) was designed to remedy the inequities posed by "free riders" who would otherwise unfairly profit from the Page 487 U. S. 754 Taft-Hartley Act's abolition of the closed shop. In the face of such statutory congruity, only the most compelling evidence could persuade us that Congress intended the nearly identical language of these two provisions to have different meanings. Petitioners have not proffered such evidence here. B (1) Petitioners claim that the union security provisions of the RLA and NLRA can and should be read differently in light of the vastly different history of unionism in the industries the two statutes regulate. Thus, they note that, in Street, we emphasized the "longstanding tradition of voluntary unionism" in the railway industry prior to the 1951 amendment, and the fact that, in 1934, Congress had expressly endorsed an "open shop" policy in the RLA. 367 U.S. at 367 U. S. 750 . It was this historical background, petitioners contend, that led us to conclude that, in amending the RLA in 1951, Congress "did not completely abandon the policy of full freedom of choice embodied in the 1934 Act, but rather made inroads on it for the limited purpose of eliminating the problems created by the 'free rider.'" Id. at 367 U. S. 767 . The history of union security in industries governed by the NLRA was precisely the opposite: under the Wagner Act of 1935, all forms of compulsory unionism, including the closed shop, were permitted. Petitioners accordingly argue that the inroads Congress made in 1947 on the policy of compulsory unionism were likewise limited, and were designed to remedy only those "carefully defined" abuses of the union shop system that Congress had expressly identified. Brief for Petitioners 42. Because agreements requiring the payment of uniform dues were not among these specified abuses, petitioners contend that § 8(a) (3) cannot plausibly be read to prohibit the collection of fees in excess of those necessary to cover the costs of collective bargaining. Page 487 U. S. 755 We find this argument unpersuasive for several reasons. To begin with, the fact that Congress sought to remedy "the most serious abuses of compulsory union membership," S.Rep. at 7, Leg.Hist. 413, hardly suggests that the Taft-Hartley Act effected only limited changes in union security practices. Quite to the contrary, in Street. we concluded that Congress' purpose in amending the RLA was "limited" precisely because Congress did not perceive voluntary unionism as the source of widespread and flagrant abuses, and thus modified the railroad industry's open shop system only to the extent necessary to eliminate the problems associated with "free riders." That Congress viewed the Wagner Act's regime of compulsory unionism as seriously flawed, on the other hand, indicates that its purposes in overhauling that system were, if anything, far less limited, and not, as petitioners and the dissent contend, equally circumspect. Not surprisingly, therefore -- and in stark contrast to petitioners' "limited inroads" theory -- congressional opponents of the Taft-Hartley Act's union security provisions understood the Act to provide only the most grudging authorization of such agreements, permitting "union-shop agreement[s] only under limited and administratively burdensome conditions." S.Rep. pt. 2, p. 8, Leg.Hist. 470 (Minority Report). That understanding comports with our own recognition that "Congress' decision to allow union security agreements at all reflects its concern that . . . the parties to a collective bargaining agreement be allowed to provide that there be no employees who are getting the benefits of union representation without paying for them." Oil Workers v. Mobil Oil Corp., 426 U.S. at 426 U. S. 416 (emphasis added). Congress thus did not set out in 1947 simply to tinker in some limited fashion with the NLRA's authorization of union security agreements. Rather, to the extent Congress preserved the status quo, it did so because of the considerable evidence adduced at congressional hearings indicating that "such agreements promoted stability by eliminating free riders,'" S.Rep. at 7, Page 487 U. S. 756 Leg.Hist. 413, and Congress accordingly "gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason." Radio Officers v. NLRB, 347 U.S. at 347 U. S. 41 (emphasis added). We therefore think it not only permissible but altogether proper to read § 8(a)(3), as we read § 2, Eleventh, in light of this animating principle. Finally, however much union security practices may have differed between the railway and NLRA-governed industries prior to 1951, it is abundantly clear that Congress itself understood its actions in 1947 and 1951 to have placed these respective industries on an equal footing insofar as compulsory unionism was concerned. Not only did the 1951 proponents of the union shop propose adding to the RLA language nearly identical to that of § 8(a)(3), they repeatedly insisted that the purpose of the amendment was to confer on railway unions precisely the same right to negotiate and enter into union security agreements that all unions subject to the NLRA enjoyed. See n 4, supra. Indeed, a subtheme running throughout the comments of these supporters was that the inequity of permitting "free riders" in the railroad industry was especially egregious in view of the fact that the Taft-Hartley Act gave exclusive bargaining representatives in all other industries adequate means to redress such problems. It would surely come as a surprise to these legislators to learn that their efforts to provide these same means of redress to railway unions were frustrated by the very historical disparity they sought to eliminate. (2) Petitioners also rely on certain aspects of the Taft-Hartley Act's legislative history as evidence that Congress intended to permit the collection and use of full union dues, including those allocable to activities other than collective bargaining. Again, however, we find this history insufficient to compel a Page 487 U. S. 757 broader construction of § 8(a)(3) than that accorded § 2, Eleventh in Street. First and foremost, petitioners point to the fact that Congress expressly considered proposals regulating union finances, but ultimately placed only a few limitations on the collection and use of dues and fees, and otherwise left unions free to arrange their financial affairs as they saw fit. In light of this history and the specific prohibitions Congress did enact, petitioners argue that there is no warrant for implying any further limitations on the amount of dues equivalents that unions may collect or the manner in which they may use them. As originally passed, § 7(b) of the House bill guaranteed union members the "right to be free from unreasonable or discriminatory financial demands of" unions. Leg.Hist. 176. Similarly, § 8(c) of the bill, the so-called "bill of rights for union members," H.R.Rep. at 31, Leg.Hist. 322, set out 10 protections against arbitrary action by union officers, one of which made it an unfair labor practice for a union to impose initiation fees in excess of $25 without NLRB approval, or to fix dues in amounts that were unreasonable, nonuniform, or not approved by majority vote of the members. Id. at 53. In addition, § 304 of the bill prohibited unions from making contributions to or expenditures on behalf of candidates for federal office. Id. at 97-98. The conferees adopted the latter provision, see Pipefitters v. United States, 407 U. S. 385 , 407 U. S. 405 (1972), and agreed to a prohibition on "excessive" initiation fees, see § 8(b)(5), 29 U.S.C. § 158(b)(5), but the Senate steadfastly resisted any further attempts to regulate internal union affairs. Referring to the House provisions, Senator Taft explained: "[T]he Senate conferees refused to agree to the inclusion of this subsection in the conference agreement, since they felt that it was unwise to authorize an agency of the Government to undertake such elaborate policing of the internal affairs of unions as this section contemplated. . . . In the opinion of the Senate conferees, the language Page 487 U. S. 758 which protected an employee from losing his job if a union expelled him for some reason other than nonpayment of dues and initiation fees, uniformly required of all members, was considered sufficient protection." 93 Cong.Rec. 6443 (1947), Leg.Hist. 1540. Petitioners would have us infer from the demise of this "bill of rights" that Congress "'rejected . . . general federal restrictions on either the dues equivalents that employees may be required to pay or the uses to which unions may put such dues equivalents,'" and that, aside from the prohibition on political expenditures, Congress placed no limitations on union exactions other than the requirement that they be equal to uniform dues. Brief for Petitioners 39-40 (quoting Brief for United States as Amicus Curiae 19). We believe petitioners' reliance on this legislative compromise is misplaced. The House bill did not purport to set out the rights of nonmembers who are compelled to pay union dues, but rather sought to establish a "bill of rights for union members " vis-a-vis their union leaders. H.R.Rep. at 31, Leg.Hist. 322 (emphasis added). Thus, § 8(c) of the House bill sought to regulate, among other things, the ability of unions to fine, discipline, suspend, or expel members; the manner in which unions conduct certain elections or maintain financial records; and the extent to which they can compel contributions to insurance or other benefit plans, or encumber the rights of members to resign. Leg.Hist. 52-56. The debate over these provisions focused on the desirability of Government oversight of internal union affairs, and a myriad of reasons having nothing whatever to do with the rights of nonmembers accounted for Congress' decision to forgo such detailed regulation. In rejecting any limitation on dues, therefore, Congress was not concerned with restrictions on "dues equivalents," but rather with the administrative burdens and Page 487 U. S. 759 potential threat to individual liberties posed by Government regulation of purely internal union matters. [ Footnote 9 ] It simply does not follow from this that Congress left unions free to exact dues equivalents from nonmembers in any amount they please, no matter how unrelated those fees may be to collective bargaining activities. On the contrary, the complete lack of congressional concern for the rights of nonmembers in the debate surrounding the House "bill of rights" is perfectly consistent with the view that Congress understood § 8(a)(3) to afford nonmembers adequate protection by authorizing the collection of only those fees necessary to finance collective bargaining activities: because the amount of such fees would be fixed by their underlying purpose -- defraying the costs of collective bargaining -- Congress would have every reason to believe that the lack of any limitations on union dues was entirely irrelevant so far as the rights of nonmembers were concerned. In short, we think it far safer and far more appropriate to construe § 8(a)(3) in light of its legislative justification, i.e., ensuring that nonmembers who obtain the benefits of union representation can be made to pay for them, than by drawing inferences from Congress' rejection of a proposal that did not address the rights of nonmembers at all. Petitioners also deem it highly significant that, prior to 1947, unions " rather typically'" used their members' dues for a "`variety of purposes . . . in addition to meeting the . . . costs of collective bargaining,'" Retail Clerks v. Schermerhorn, 373 U. S. 746 , 373 U. S. 754 (1963), and yet Congress, which was presumably well aware of the practice, in no way limited the Page 487 U. S. 760 uses to which unions could put fees collected from nonmembers. This silence, petitioners suggest, should be understood as congressional acquiescence in these practices. The short answer to this argument is that Congress was equally well aware of the same practices by railway unions, see Street, 367 U.S. at 367 U. S. 767 ("We may assume that Congress was . . . fully conversant with the long history of intensive involvement of the railroad unions in political activities"); Ellis, 466 U.S. at 466 U. S. 446 ("Congress was adequately informed about the broad scope of union activities"), yet neither in Street nor in any of the cases that followed it have we deemed Congress' failure in § 2, Eleventh to prohibit or otherwise regulate such expenditures as an endorsement of fee collections unrelated to collective bargaining expenses. We see no reason to give greater weight to Congress' silence in the NLRA than we did in the RLA, particularly where such silence is again perfectly consistent with the rationale underlying § 8(a)(3): prohibiting the collection of fees that are not germane to representational activities would have been redundant if Congress understood § 8(a)(3) simply to enable unions to charge nonmembers only for those activities that actually benefit them. Finally, petitioners rely on a statement Senator Taft made during floor debate in which he explained how the provisos of § 8(a)(3) remedied the abuses of the closed shop. "The great difference [between the closed shop and the union shop]," the Senator stated, "is that [under the union shop] a man can get a job without joining the union or asking favors of the union. . . . The fact that the employee has to pay dues to the union seems to me to be much less important." 93 Cong.Rec. 4886 (1947), Leg.Hist. 1422. On its face, the statement -- made during a lengthy legislative debate -- is somewhat ambiguous, for the reference to "union dues" could connote "full union dues" or could as easily be a shorthand method of referring to "collective bargaining-related dues." In any event, as noted above, Senator Taft later described § 2, Eleventh as "almost the exact provisions . . . of the Taft-Hartley law," 96 Cong. Page 487 U. S. 761 Rec. 16267 (1950), and we have construed the latter statute as permitting the exaction of only those dues related to representational activities. In view of Senator Taft's own comparison of the two statutory provisions, his comment in 1947 fails to persuade us that Congress intended virtually identical language in two statutes to have different meanings. (3) We come then to petitioners' final reason for distinguishing Street. Five years prior to our decision in that case, we ruled in Railway Employees v. Hanson, 351 U. S. 225 (1956), that, because the RLA preempts all state laws banning union security agreements, the negotiation and enforcement of such provisions in railroad industry contracts involves "governmental action," and is therefore subject to constitutional limitations. Accordingly, in Street, we interpreted § 2, Eleventh to avoid the serious constitutional question that would otherwise be raised by a construction permitting unions to expend governmentally compelled fees on political causes that nonmembers find objectionable. See 367 U.S. at 367 U. S. 749 . No such constitutional questions lurk here, petitioners contend, for § 14(b) of the NLRA expressly preserves the authority of States to outlaw union security agreements. Thus, petitioners' argument runs, the federal preemption essential to Hanson's finding of governmental action is missing in the NLRA context, and we therefore need not strain to avoid the plain meaning of § 8(a)(3) as we did with § 2, Eleventh. We need not decide whether the exercise of rights permitted, though not compelled, by § 8(a)(3) involves state action. Cf. Steelworkers v. Sadlowski, 457 U. S. 102 , 457 U. S. 121 , n. 16 (1982) (union's decision to adopt an internal rule governing its elections does not involve state action); Steelworkers v. Weber, 443 U. S. 193 , 443 U. S. 200 (1979) (negotiation of collective bargaining agreement's affirmative action plan does not involve state action). Even assuming that it does not, and Page 487 U. S. 762 that the NLRA and RLA therefore differ in this respect, we do not believe that the absence of any constitutional concerns in this case would warrant reading the nearly identical language of § 8(a)(3) and § 2, Eleventh differently. It is of course true that federal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and that, when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568 (1988); Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932). But statutory construction may not be pressed " to the point of disingenuous evasion,'" United States v. Locke, 471 U. S. 84 , 471 U. S. 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 289 U. S. 379 (1933)), and in avoiding constitutional questions, the Court may not embrace a construction that "is plainly contrary to the intent of Congress." DeBartolo, supra, at 485 U. S. 575 . In Street, we concluded that our interpretation of § 2, Eleventh was "not only `fairly possible' but entirely reasonable," 367 U.S. at 367 U. S. 750 , and we have adhered to that interpretation since. We therefore decline to construe the language of § 8(a)(3) differently from that of § 2, Eleventh on the theory that our construction of the latter provision was merely constitutionally expedient. Congress enacted the two provisions for the same purpose, eliminating "free riders," and that purpose dictates our construction of § 8(a)(3) no less than it did that of § 2, Eleventh, regardless of whether the negotiation of union security agreements under the NLRA partakes of governmental action. We conclude that § 8(a)(3), like its statutory equivalent, § 2, Eleventh of the RLA, authorizes the exaction of only those fees and dues necessary to "performing the duties of an exclusive representative of the employees in dealing with the Page 487 U. S. 763 employer on labor-management issues." Ellis, 466 U.S. at 466 U. S. 448 . Accordingly, the judgment of the Court of Appeals is Affirmed. JUSTICE KENNEDY took no part in the consideration or decision of this case. [ Footnote 1 ] The courts below, of course, possessed jurisdiction over respondents' constitutional challenges. Whether or not the NLRB entertains constitutional claims, see Florida Gulf Coast Building & Construction Trades Council (Edward J. DeBartolo Corp.), 273 N.L.R.B. 1431, 1432 (1985) (Board "will presume the constitutionality of the Act [it] administer[s]"); Handy Andy, Inc., 228 N.L.R.B. 447, 452 (1977) (Board lacks the authority "to determine the constitutionality of mandatory language in the Act"); see also Johnson v. Robison, 415 U. S. 361 , 415 U. S. 368 (1974) ("Adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies"); cf. NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 , 440 U. S. 495 -499 (1979) (reviewing Board's history of determining its jurisdiction over religious schools in light of Free Exercise Clause concerns), such claims would not fall within the Board's primary jurisdiction. [ Footnote 2 ] Section 8(b)(2) makes it unlawful for unions "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3)," 29 U.S.C. § 158(b)(2); accordingly, the provisos to § 8(a)(3) also allow unions to seek and enter into union security agreements. [ Footnote 3 ] Section 2, Eleventh provides, in pertinent part: "Notwithstanding any other provisions of this chapter, or of any other statute or law of the United States, or Territory thereof, or of any State, any carrier or carriers as defined in this chapter and a labor organization or labor organizations duly designated and authorized to represent employees in accordance with the requirements of this chapter shall be permitted -- " "(a) to make agreements, requiring, as a condition of continued employment, that within sixty days following the beginning of such employment, or the effective date of such agreements, whichever is later, all employees shall become members of the labor organization representing their craft or class: Provided, That no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member or with respect to employees to whom membership was denied or terminated for any reason other than the failure of the employee to tender the periodic dues, initiation fees, and assessments (not including fines and penalties) uniformly required as a condition of acquiring or retaining membership." 45 U.S.C. § 152, Eleventh. Although § 2, Eleventh allows termination of an employee for failure to pay "periodic dues, initiation fees, and assessments (not including fines and penalties), " the italicized language was added to the RLA only because some railway unions required only nominal dues, and financed their bargaining activities through monthly assessments; having added "assessments" as a proper element of agency fees, Congress simply clarified that the term did not refer, as it often did in the parlance of other industries, to fines or penalties. See Machinists v. Street, 367 U. S. 740 , 367 U. S. 766 (1961). In addition, § 2, Eleventh preempts state laws that would otherwise ban union shops. This difference, however, has no bearing on the types of union security agreements that the statute permits, and thus does not distinguish the union shop authorization of § 2, Eleventh from that of § 8(a)(3). [ Footnote 4 ] See also S.Rep. No. 2262, 81st Cong., 2d Sess., 3 (1950) ("[T]he terms of [the bill] are substantially the same as those of the Labor-Management Relations Act"); H.R.Rep. No. 2811, 81st Cong., 2d Sess., 4 (1950) (the bill allows unions "to negotiate agreements with railroads and airlines of a character permitted in the case of labor organizations in the other large industries of the country"); 96 Cong.Rec. 15737 (1950) (remarks of Sen. Hill) ("The bill . . . is designed merely to extend to employees and employers subject to the [RLA] rights now possessed by employees and employers under the Taft-Hartley Act"); id. at 15740 (remarks of Sen. Lehman) ("The railroad brotherhoods should have the same right that any other union has to negotiate for the union shop"); id. at 16267 (remarks of Sen. Taft) ("[T]he bill inserts in the railway mediation law almost the exact provisions . . . of the Taft-Hartley law"); id. at 17049 (remarks of Rep. Beckworth) (the bill permits railway unions "to bring about agreements with carriers providing for union shops, a principle enacted into law in the Taft-Hartley bill"); id. at 17055 (remarks of Rep. Biemiller) ("[The] provision . . . gives to railway labor the right to bargain for the union shop just as any other labor group in the country may do"); id. at 17056 (remarks of Rep. Bennett) ("The purpose of the bill is to amend the [RLA] to give railroad workers . . . the same right to enjoy the benefits and privileges of a union shop arrangement that is now accorded to all workmen in most other types of employment"); ibid. (remarks of Rep. Heselton) ("[T]his bill primarily provides for the same kind of treatment of railroad and airline employees as is now accorded employees in all other industries under existing law"); id. at 17059 (remarks of Rep. Harris) ("The fundamental proposition involved in the bill [is to extend] the national policy expressed in the Taft-Hartley Act regarding the lawfulness of . . . the union shop . . . to . . . railroad and airline labor organizations"); id. at 17061 (remarks of Rep. Vursell) ("This bill simply extends to the railroad workers and employers the benefit of this provision now enjoyed by all other laboring men under the Taft-Hartley Act"). [ Footnote 5 ] This sentiment was repeated throughout the hearings and lengthy debate that preceded passage of the bill. See, e.g., 93 Cong.Rec. 3557 (1947), Leg.Hist. 740 (remarks of Rep. Jennings) (because members of the minority "would get the benefit of that contract made between the majority of their fellow workmen and the management, . . . it is not unreasonable that they should go along and contribute dues like the others"); 93 Cong Rec. 3558, Leg.Hist. 741 (remarks of Rep. Robison) ("If [union-negotiated] benefits come to the workers all alike, is it not only fair that the beneficiaries, whether the majority or the minority, contribute their equal share in securing these benefits?"); 93 Cong.Rec. 3837, Leg.Hist. 1010 (remarks of Sen. Taft) ([T]he legislation, "in effect, . . . say[s], that no one can get a free ride in such a shop. That meets one of the arguments for a union shop. The employee has to pay the union dues"); S.Rep. at 6, Leg.Hist. 412 ("In testifying before this Committee, . . . leaders of organized labor have stressed the fact that, in the absence of [union security] provisions, many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost"). See also H.R.Rep. No. 245, 80th Cong., 1st Sess., 80 (1947) (H.R.Rep.), Leg.Hist. 371 ("[Closed shop] agreements prevent nonunion workers from sharing in the benefits resulting from union activities without also sharing in the obligations"). [ Footnote 6 ] Although Senator Taft qualified his comparison by explaining that the provisions of the Taft-Hartley law were incorporated into the RLA "so far as they fit," this qualification merely reflected the fact that the laws were not identical in all respects, their chief difference inhering in their preemptive effect, or lack thereof, on all state regulation of union security agreements. See n 3, supra. This difference, of course, does not detract from the near identity of the provisions insofar as they confer on unions and employers authority to enter into union security agreements, nor does it in any way undermine the force of Senator Taft's comparison with respect to this authority. Indeed, Taft himself explained that he initially "objected to some of the original terms of the bill, but when the [bill's] proponents agreed to accept amendments which made the provisions identical with the Taft-Hartley law," he decided to support the law. 96 Cong.Rec. 16267 (1950) (emphasis added). [ Footnote 7 ] We note that the NLRB, at least for a time, also took the position that the uniform "periodic dues and initiation fees" required by § 8(a)(3) were limited by the congressional concern with free riders to those fees necessary to finance collective bargaining activities. In Teamsters Local No. 959, 167 N.L.R.B. 1042, 1045 (1967), the Board explained: "[T]he right to charge 'periodic dues' granted unions by the proviso to Section 8(a)(3) is concerned exclusively with the concept that those enjoying the benefits of collective bargaining should bear their fair share of the costs incurred by the collective bargaining agent in representing them. But it is manifest that dues that do not contribute, and are not intended to contribute, to the cost of operation of a union in its capacity as collective bargaining agent cannot be justified as necessary for the elimination of 'free riders.'" The Board, however, subsequently repudiated that view. See Detroit Mailers Union No. 40, 192 N.L.R.B. 951, 952 (1971). Notwithstanding this unequivocal language, the dissent advises us, post at 487 U. S. 767 , n. 5, that we have misread Teamsters Local. Choosing to ignore the above-quoted passage, the dissent asserts that the Board never "embraced . . . the view," post at 487 U. S. 767 , n. 5, that "periodic dues and initiation fees" are limited to those that finance the union in its capacity as collective bargaining agent, because, in Teamsters Local itself, the Board concluded that the dues in question "were actually special purpose funds,'" and were thus "`assessments' not contemplated by the proviso to § 8(a)(3)." Post at 487 U. S. 767 , n. 5 (quoting Teamsters Local, supra, at 1044). This observation, however, avails the dissent nothing; obviously, once the Board determined that the dues were not used for collective bargaining purposes, the conclusion that they were not dues within the meaning of § 8(a)(3) followed automatically. Under the dissent's reading, had the union simply built the increase into its dues base, rather than initially denominating it as a "special assessment," it would have been entitled to exact the fees as "periodic dues" and spend them for precisely the same purposes without running afoul of § 8(a)(3). The Board made entirely clear, however, that it was the purpose of the fee, not the manner in which it was collected, that controlled, and thus explained that "[m]onies collected for a credit union or building fund, even if regularly recurring, as here, are obviously not 'for the maintenance of the' [union] as an organization, but are for a 'special purpose,' and could be terminated without affecting the continued existence of [the union] as the bargaining representative. " Teamsters Local, supra, at 1045 (emphasis added). Finally, the dissent's portrayal of Teamsters Local as part of an unbroken string of consistent Board decisions on the issue is belied by the dissenting statement in Detroit Mailers, in which Member Jenkins, who joined the decision in Teamsters Local, charged that the Board had ignored the clear holding of that earlier case. 192 N.L.R.B. at 952-953. [ Footnote 8 ] Construing both § 8(a)(3) and § 2, Eleventh as permitting the collection and use of only those fees germane to collective bargaining does not, as petitioners seem to believe, read the term "uniform" out of the statutes. The uniformity requirement makes clear that the costs of representational activities must be borne equally by all those who benefit; without this language, unions could conceivably establish different dues rates both among members and between members and nonmembers, and thereby apportion the costs of collective bargaining unevenly. Indeed, the uniformity requirement inures to the benefit of dissident union members as well, by ensuring that, if the union discriminates against them by charging higher dues, their failure to pay such dues cannot be grounds for discharge. See § 8(b)(2), 29 U.S.C. § 158(b)(2) (making it an unfair labor practice for a union "to cause or attempt to cause an employer to discriminate against an employee . . . with respect to whom membership in [the union] has been denied or terminated on some ground other than [the] failure to tender the periodic dues and initiation fees uniformly required") (emphasis added). [ Footnote 9 ] See, e.g., H.R.Rep. at 76-77, Leg.Hist. 367-368 (Minority Views) (charging that Government regulation was essentially impossible; that the encroachment on the rights of voluntary organizations such as unions was "without parallel"; and that such regulation invited harassment by rival unions and employers, and ultimately complete governmental control over union affairs). JUSTICE BLACKMUN, with whom JUSTICE O'CONNOR and JUSTICE SCALIA join, concurring in part and dissenting in part. I agree that the District Court and the Court of Appeals properly exercised jurisdiction over respondents' duty of fair representation and First Amendment claims, and that the National Labor Relations Board had primary jurisdiction over respondents' claim brought under § 8(a)(3) of the National Labor Relations Act of 1935, 49 Stat. 452, as amended, 29 U.S.C. § 158(a)(3). I also agree that the Court of Appeals had jurisdiction to decide the § 8(a)(3) question raised by respondents' duty of fair representation claim. [ Footnote 2/1 ] I therefore join Parts I and II of the Court's opinion. My agreement with the majority ends there, however, for I cannot agree with its resolution of the § 8(a)(3) issue. Without the decision in Machinists v. Street, 367 U. S. 740 (1961), involving the Railway Labor Act, the Court could not reach the result it does today. Our accepted mode of resolving statutory questions would not lead to a construction of § 8(a)(3) so foreign to that section's express language and legislative history, which show that Congress did not intend to limit either the amount of "agency fees" (or what the majority labels "dues equivalents") a union may collect under a union security agreement, or the union's expenditure of such funds. The Court's excessive reliance on Street to reach a Page 487 U. S. 764 contrary conclusion is manifested by its unique line of reasoning. No sooner is the language of § 8(a)(3) intoned than the Court abandons all attempt at construction of this statute, and leaps to its interpretation over a quarter century ago of another statute enacted by a different Congress, a statute with a distinct history and purpose. See ante at 487 U. S. 744 -745. I am unwilling to offend our established doctrines of statutory construction and strain the meaning of the language used by Congress in § 8(a)(3) simply to conform § 8(a)(3)'s construction to the Court's interpretation of similar language in a different, later-enacted statute, an interpretation which is itself "not without its difficulties." Abood v. Detroit Board of Education, 431 U. S. 209 , 431 U. S. 232 (1977) (characterizing the Court's decision in Street ). I therefore dissent from Parts 487 U. S. S. 762|>IV of the Court's opinion. I As the Court observes, "we have never before delineated the precise limits § 8(a)(3) places on the negotiation and enforcement of union security agreements." Ante at 487 U. S. 745 . Unlike the majority, however, I think the issue is an entirely new one. I shall endeavor, therefore, to resolve it in accordance with our well-settled principles of statutory construction. A As with any question of statutory interpretation, the starting point is the language of the statute itself. Section 8(a)(3) makes it unlawful for an employer to "discriminat[e] in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3). Standing alone, this proscription, and thus § 8(b)(2)'s corollary proscription, [ Footnote 2/2 ] effectively would outlaw union security agreements. The proscription, however, is qualified by two provisos. The first, which appeared initially in § 8(3) of the Page 487 U. S. 765 NLRA as originally enacted in 1935, 49 Stat. 452, generally excludes union security agreements from statutory condemnation by explaining that "nothing in [ the NLRA] or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein . . . if such labor organization is the representative of the employees as provided in section 159(a) of this title. . . ." § 8(a)(3), 29 U.S.C. § 158(a)(3). The second proviso, incorporated in § 8(a)(3) by the Taft-Hartley Amendments of 1947, 61 Stat. 141, [ Footnote 2/3 ] circumscribes the first proviso's general exemption by the following limitations: "[N]o employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." The plain language of these statutory provisions, read together, permits an employer and union to enter into an agreement requiring all employees, as a condition of continued employment, to pay uniform periodic dues and initiation fees. [ Footnote 2/4 ] The second proviso expressly allows an employer to terminate any "employee," pursuant to the union security agreement permitted by the first proviso, if the employee Page 487 U. S. 766 fails "to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership" in the union. 29 U.S.C. § 158(a)(3). The term "employee," as statutorily defined, includes any employee, without regard to union membership. See 29 U.S.C. § 152(3). Union-member employees and non-union-member employees are treated alike under § 8(a)(3). "[W]e assume that the legislative purpose is expressed by the ordinary meaning of the words used.'" American Tobacco Co. v. Patterson, 456 U. S. 63 , 456 U. S. 68 (1982), quoting Richards v. United States, 369 U. S. 1 , 369 U. S. 9 (1962). The terms "dues" and "fees," as used in the proviso, can refer to nothing other than the regular, periodic dues and initiation fees paid by "voluntary" union members. This was the apparent understanding of the Court in those decisions in which it held that § 8(a)(3) permits union security agreements. See NLRB v. General Motors Corp., 373 U. S. 734 , 373 U. S. 736 (1963) (approving a union security proposal that would have conditioned employment "upon the payment of sums equal to the initiation fee and regular monthly dues paid by the union members"); Retail Clerks v. Schermerhorn, 373 U. S. 746 , 373 U. S. 753 (1963) (upholding agreement requiring nonmembers to pay a "service fee [which] is admittedly the exact equal of membership initiation fees and monthly dues"). It also has been the consistent view of the NLRB, [ Footnote 2/5 ] "the agency entrusted Page 487 U. S. 767 by Congress with the authority to administer the NLRA." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568 , 485 U. S. 574 (1988). The provisos do not give any employee, union member or not, the right to pay less than the full amount of regular dues and initiation fees charged to all other bargaining unit employees. Page 487 U. S. 768 The Court's conclusion that § 8(a)(3) prohibits petitioners from requiring respondents to pay fees for purposes other than those "germane" to collective bargaining, contract administration, and grievance adjustment simply cannot be derived from the plain language of the statute. In effect, the Court accepts respondents' contention that the words "dues" and "fees," as used in § 8(a)(3), refer not to the periodic amount a union charges its members, but to the portion of that amount that the union expends on statutory collective bargaining. [ Footnote 2/6 ] See Brief for Respondents 17-20. Not only is this reading implausible as a matter of simple English usage, but it is contradicted by the decisions of this Court and of the NLRB interpreting the section. Section 8(a)(3) does not speak of "dues" and "fees" that employees covered by a Page 487 U. S. 769 union security agreement may be required to tender to their union representative; rather, the section speaks only of "the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership " (emphasis added). Thus, the section, by its terms, defines "periodic dues" and "initiation fees" as those dues and fees "uniformly required" of all members, not as a portion of full dues. As recognized by this Court, "dues collected from members may be used for a variety of purposes, in addition to meeting the union's costs of collective bargaining. Unions rather typically use their membership dues to do those things which the members authorize the union to do in their interest and on their behalf." Retail Clerks v. Schermerhorn, 373 U.S. at 373 U. S. 753 -754 (internal quotations omitted). By virtue of § 8(a)(3), such dues may be required from any employee under a union security agreement. Nothing in § 8(a)(3) limits, or even addresses, the purposes to which a union may devote the moneys collected pursuant to such an agreement. [ Footnote 2/7 ] B The Court's attempt to squeeze support from the legislative history for its reading of congressional intent contrary to the plain language of § 8(a)(3) is unavailing. As its own discussion of the relevant legislative materials reveals, ante at 487 U. S. 747 -750, there is no indication that the 1947 Congress intended to limit the union's authority to collect from nonmembers the same periodic dues and initiation fees it collects from members. Indeed, on balance, the legislative history reinforces Page 487 U. S. 770 what the statutory language suggests: the provisos neither limit the uses to which agency fees may be put nor require nonmembers to be charged less than the "uniform" dues and initiation fees. In Machinists v. NLRB, 362 U. S. 411 (1960), the Court stated: "It is well known, and the legislative history of the 1947 Taft-Hartley amendments plainly shows, that § 8(a)(3) -- including its proviso -- represented the Congressional response to the competing demands of employee freedom of choice and union security. Had Congress thought one or the other overriding, it would doubtless have found words adequate to express that judgment. It did not do so; it accommodated both interests, doubtless in a manner unsatisfactory to the extreme partisans of each, by drawing a line it thought reasonable. It is not for the administrators of the Congressional mandate to approach either side of that line grudgingly." Id. at 362 U. S. 418 , n. 7. The legislative debates surrounding the adoption of § 8(a)(3) in 1947 show that, in crafting the proviso to § 8(a)(3), Congress was attempting "only to remedy the most serious abuses of compulsory union membership. . . .'" NLRB v. General Motors Corp., 373 U.S. at 373 U. S. 741 , quoting from the legislative history. The particular "abuses" Congress identified and attempted to correct were two: the closed shop, which "deprives management of any real choice of the men it hires" and gives union leaders "a method of depriving employees of their jobs, and in some cases [of] a means of securing a livelihood in their trade or calling, for purely capricious reasons," S.Rep. No. 105, 80th Cong., 1st Sess., 6 (1947) (S.Rep.), Legislative History of the Labor Management Relations Act, 1947 (Committee Print compiled for the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare), p. 412 (1974) (Leg.Hist.); and those union shops in which the union sought to obtain indirectly the same Page 487 U. S. 771 result as that obtained through a closed shop by negotiating a union-shop agreement and maintaining a "closed" union where it was free to deny membership to an individual arbitrarily or discriminatorily and then compel the discharge of that person because of his nonmembership, 93 Cong.Rec. 3836-3837, 4193, 4885-4886 (1947), Leg.Hist. 1010, 10961097, 1420-1421 (remarks of Sen. Taft); 93 Cong.Rec. 4135, Leg.Hist. 1061-1062 (remarks of Sen. Ellender). Senator Taft, the chief sponsor of the Senate bill, in arguing against an amendment to proscribe all forms of union security agreements, stated that it was unwise to outlaw union security agreements altogether, "since there had been for such a long time so many union shops in the United States, [and] since, in many trades, it was entirely customary, and had worked satisfactorily," and that therefore the appropriate approach was to "meet the problem of dealing with the abuses which had appeared." 93 Cong.Rec. 4885, Leg.Hist. 1420. [ Footnote 2/8 ] "Congress Page 487 U. S. 772 [also] recognized that, in the absence of a union security provision" "many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost." NLRB v. General Motors Corp., 373 U.S. at 373 U. S. 740 -741, quoting S.Rep. at 6, Leg.Hist. 412. Congress' solution was to ban the closed shop and to permit the enforcement of union shop agreements as long as union membership is available "on the same terms and conditions" to all employees, and mandatory discharge is required only for "nonpayment of regular dues and initiation fees." S.Rep. at 7, 20, Leg.Hist. 413, 426. Congress was of the view that, as Senator Taft stated, "[t]he fact that the employee will have to pay dues to the union seems . . . to be much less important. The important thing is that the man will have the job." 93 Cong.Rec. 4886 (1947), Leg.Hist. 1422. "[A] man can get a job with an employer, and can continue in that job if, in effect, he joins the union and pays the union dues." " * * * *" "If he pays the dues without joining the union, he has the right to be employed." 93 Cong.Rec. 4886 (1947), Leg.Hist. Page 487 U. S. 773 1421-1422. There is no serious doubt that what Congress had in mind was a situation in which the nonmember employee would "pay the same dues as other members of the union." 93 Cong.Rec. 4272 (1947), Leg.Hist. 1142 (remarks of Sen. Taft); accord, 93 Cong.Rec. 3557 (1947), Leg.Hist. 740 (remarks of Sen. Jennings) (members of the minority "should go along and contribute dues like the others"). In their financial obligations, therefore, these employees were, "in effect," union members, and could not be discharged pursuant to a union security agreement as long as they maintained this aspect of union "membership." [ Footnote 2/9 ] This solution was viewed as "tak[ing] care" of the free-rider issue. 93 Cong.Rec. 4887 (1947), Leg.Hist. 1422 (remarks of Sen. Taft). Throughout the hearings and lengthy debate on one of the most hotly contested issues that confronted the 1947 Congress, not once did any Member of Congress suggest that § 8(a)(3) did not leave employers and unions free to adopt and enforce union security agreements requiring all employees in the bargaining unit to pay an amount equal to full union dues and standard initiation fees. Nor did anyone suggest that § 8(a)(3) affected a union's expenditure of such funds. Indeed, the legislative history indicates that Congress affirmatively declined to place limitations on either the amount of dues a union could charge or the uses to which it could put these dues. The Court dismisses as irrelevant the fact that Congress expressly rejected the House proposal that would have empowered the NLRB to regulate the "reasonableness" of union dues and expenditures. The Court finds meaningful the fact that "[t]he House bill did not purport to set out the Page 487 U. S. 774 rights of nonmembers who are compelled to pay union dues, but rather sought to establish a 'bill of rights for union members ' vis-a-vis their union leaders. H.R.Rep. at 31, Leg.Hist. 322 (emphasis added)." Ante at 487 U. S. 758 . But this is a distinction without a difference. Contrary to the Court's view, Congress viewed this proposal as directly related to § 8(a)(3); Congress clearly saw the nonmembers' interests in this context as being represented by union members. [ Footnote 2/10 ] Thus, Senator Taft explained the Senate conferees' reasons for refusing to accept the provisions in the House bill: "In the opinion of the Senate conferees[,] the language which protected an employee from losing his job if a union expelled him for some reason other than nonpayment of dues and initiation fees, uniformly required of all members, was considered sufficient protection." 93 Cong.Rec. 6443 (1947), Leg.Hist. 1540. Congress' decision, in the course of the well-documented Senate-House compromise, not to place any general federal restrictions on the levels or uses of union dues, [ Footnote 2/11 ] indicates Page 487 U. S. 775 that it did not intend the provisos to limit the uses to which agency fees may be put. The Court invokes what it apparently sees as a single-minded legislative purpose, namely, the eradication of a "free-rider" problem, and then views the legislative history through this narrow prism. The legislative materials demonstrate, however, that, contrary to the impression left by the Court, Congress was not guided solely by a desire to eliminate "free riders." The 1947 Congress that carefully crafted § 8(a)(3) was focusing on a quite different problem -- the most serious abuses of compulsory unionism. As the majority observes, "Congress carefully tailored [its] solution to the evils at which it was aimed." Ante at 487 U. S. 749 . In serving its purpose, Congress went only so far in foreclosing compulsory unionism. It outlawed closed shops altogether, but banned unions from using union security provisions only where those provisions exact more than the initiation fees and "periodic dues" uniformly required as conditions of union Page 487 U. S. 776 membership. Otherwise, it determined that the regulation of union security agreements should be left to specific federal legislation and to the legislatures and courts of the several States. [ Footnote 2/12 ] Congress explicitly declined to mandate the kind of particularized regulation of union dues and fees which the Court attributes to it today. II By suggesting that the 1947 Congress was driven principally by a desire to eradicate a "free-rider" problem, the Court finds the means not only to distort the legislative justification for § 8(a)(3) and to ignore the provision's plain language, but also to draw a controlling parallelism to § 2, Eleventh of the Railway Labor Act (RLA), 64 Stat. 1238, 45 U.S.C. § 152. As mistaken as the Court is in its view of Congress' purpose in enacting § 8(a)(3), the Court is even more mistaken in its reliance on this Court's interpretation of § 2, Eleventh in Machinists v. Street, 367 U. S. 740 (1961). The text of § 8(a)(3) of the NLRA is, of course, very much like the text of the later-enacted § 2, Eleventh of the RLA. This similarity, however, does not dictate the conclusion that the 1947 Congress intended § 8(a)(3) to have a meaning identical to that which the 1951 Congress intended § 2, Eleventh to have. The Court previously has held that the scope of the RLA is not identical to that of the NLRA, and that courts should be wary of drawing parallels between the two statutes. Page 487 U. S. 777 See, e.g., First National Maintenance Corp. v. NLRB, 452 U. S. 666 , 452 U. S. 686 , n. 23 (1981); Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 , 394 U. S. 383 (1969). Thus, parallels between § 8(a)(3) and § 2, Eleventh, "like all parallels between the NLRA and the Railway Labor Act, should be drawn with the utmost care and with full awareness of the differences between the statutory schemes." Chicago & N.W. R. Co. v. Transportation Union, 402 U. S. 570 , 402 U. S. 579 , n. 11 (1971). Contrary to the majority's conclusion, ante at 487 U. S. 750 , the two provisions were not born of the "same concern[s]"; indeed, they were born of competing concerns. This Court's interpretation of § 2, Eleventh, therefore, provides no support for construing § 8(a)(3) in a fashion inconsistent with its plain language and legislative history. [ Footnote 2/13 ] The considerations that enabled the Court to conclude in Street, 367 U.S. at 367 U. S. 750 , that it is " fairly possible'" and "entirely reasonable" to read § 2, Eleventh to proscribe union security agreements requiring uniform payments from all bargaining unit employees are wholly absent with respect to § 8(a)(3). In Street, the Court stressed the fact that, from 1926, when the RLA was first enacted, until 1951, when § 2, Eleventh assumed its present form, that Act prohibited all forms of union security and declared a "policy of complete freedom of choice of employees to join or not to join a union." Ibid. By 1951, however, Congress recognized "the expenses and burdens incurred by the unions in the administration of the complex scheme of the [RLA]." 367 U.S. at 367 U. S. 751 . The purpose advanced for amending the RLA in 1951 to authorize union security agreements for the first time was "the elimination Page 487 U. S. 778 of the `free riders.'" 367 U.S. at 367 U. S. 761 . Given that background, the Court was persuaded that it was possible to conclude that "Congress did not completely abandon the policy of full freedom of choice embodied in the . . . Act, but rather made inroads on it for the limited purpose of eliminating the problems created by the 'free rider.'" Id. at 367 U. S. 767 . The NLRA does not share the RLA's underlying policy, which propelled the Court's interpretation of § 2, Eleventh in Street. Indeed, the history of the NLRA points in the opposite direction: the original policy of the Wagner Act was to permit all forms of union security agreements, and such agreements were commonplace in 1947. Thus, in enacting § 8(a)(3), the 1947 Congress, unlike the 1951 Congress, was not making inroads on a policy of full freedom of choice in order to provide "a specific response," id. at 367 U. S. 751 , to a particular problem facing unions. Rather, the 1947 amendments to § 8(a)(3) were designed to make an inroad into a preexisting policy of the absolute freedom of private parties under federal law to negotiate union security agreements. It was a "limited" inroad, responding to carefully defined abuses that Congress concluded had arisen in the union security agreements permitted by the Wagner Act. The 1947 Congress did not enact § 8(a)(3) for the "same purpose" as did the 1951 Congress in enacting § 2, Eleventh. Therefore, contrary to the Court's conclusion, ante at 487 U. S. 762 , the latter purpose, "eliminating free riders,'" does not dictate our construction of § 8(a)(3), regardless of its impact on our construction of § 2, Eleventh. In order to overcome this inevitable conclusion, the Court relies on remarks made by a few Members of the Congress in enacting the 1951 amendments to § 2, Eleventh of the RLA, which the Court contends show that the 1951 Congress viewed those amendments as identical to the amendments that had been made to § 8(a)(3) of the NLRA in 1947. See ante at 487 U. S. 756 ; see also ante at 487 U. S. 746 , and n. 4. But even assuming the Court's view of the legislative history of § 2, Eleventh Page 487 U. S. 779 is correct (and the legislative materials do not obviously impart the message the Court receives [ Footnote 2/14 ]), it does not provide support for the Court's strained reading of § 8(a)(3). Its only possible relevance in this case is to evidence the 1951 Congress' understanding of a statute that particular Congress did not enact. The relevant question here, however, is what the 1947 Congress intended by the statute that it enacted. "[I]t is well settled that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one."'" Russello v. United States, 464 U. S. 16 , 464 U. S. 26 (1983), quoting Jefferson County Pharmaceutical Assn. v. Abbott Laboratories, 460 U. S. 150 , 460 U. S. 165 , n. 27 (1983), in turn quoting United States v. Price, 361 U. S. 304 , 361 U. S. 313 (1960). See also United States v. Clark, 445 U. S. 23 , 445 U. S. 33 , n. 9 (1980). It Page 487 U. S. 780 would "surely come as a surprise" to the legislators who enacted § 8(a)(3) to learn that, in discerning their intent, the Court listens not to their voices, but to those of a later Congress. Ante at 487 U. S. 756 . Unlike the majority, I am unwilling to put the 1951 legislators' words into the 1947 legislators' mouths. The relevant sources for gleaning the 1947 Congress' intent are the plain language of § 8(a)(3), and, at least to the extent that it might reflect a clear intention contrary to the plain meaning of the statute, the legislative history of § 8(a)(3). Those sources show that the 1947 Congress did not intend § 8(a)(3) to have the same meaning the Court has attributed to § 2, Eleventh of the RLA. I therefore must disagree with the majority's assertion that the Court's decision in Street is "controlling" here. See ante at 487 U. S. 745 . III In sum, I conclude that, in enacting § 8(a)(3) of the NLRA, Congress did not intend to prohibit union security agreements that require the tender of full union dues and standard union initiation fees from nonmember employees, without regard to how the union expends the funds so collected. In finding controlling weight in this Court's interpretation of § 2, Eleventh of the RLA to reach a contrary conclusion, the Court has not only eschewed our well-established methods of statutory construction, but also interpreted the terms of § 8(a)(3) in a manner inconsistent with the congressional purpose clearly expressed in the statutory language and amply documented in the legislative history. I dissent. [ Footnote 2/1 ] Like the majority, I do not reach the First Amendment issue raised below by respondents, and therefore similarly do not address whether a union's exercise of rights pursuant to § 8(a)(3) involves state action. See ante at 487 U. S. 761 . [ Footnote 2/2 ] Section 8(b)(2) makes it unlawful for a union "to cause or attempt to cause an employer" to violate § 8(a)(3). 29 U.S.C. § 158(b)(2). [ Footnote 2/3 ] The Taft-Hartley Act also amended the first proviso to prohibit the application of a union security agreement to an individual until he has been employed for 30 days. See 29 U.S.C. § 158(a)(3). [ Footnote 2/4 ] This reading, of course, flows from the fact that "membership," as used in the first proviso, means not actual membership in the union, but rather "the payment of initiation fees and monthly dues." NLRB v. General Motors Corp., 373 U. S. 734 , 373 U. S. 742 (1963). [ Footnote 2/5 ] See, e.g., In re Union Starch & Refining Co., 87 N.L.R.B. 779, (1949), enf'd, 186 F.2d 1008 (CA7), cert. denied, 342 U.S. 815 (1951); Detroit Mailers Union No. 40, 192 N.L.R.B. 951, 951-952 (1971). In Detroit Mailers, the Board explained: "Neither on its face nor in the congressional purpose behind [§ 8(a)(3)] can any warrant be found for making any distinction here between dues which may be allocated for collective bargaining purposes and those earmarked for institutional expenses of the union. . . . '[D]ues collected from members may be used for a variety of purposes, in addition to meeting the union's costs of collective bargaining.' Unions 'rather typically' use their membership dues 'to do those things which the members authorized the union to do in their interest and on their behalf.' By virtue of Section 8(a)(3), such dues may be required from an employee under a union security contract so long as they are periodic and uniformly required and are not devoted to a purpose which would make their mandatory extraction otherwise inimical to public policy." Id. at 952, quoting Retail Clerks v. Schermerhorn, 373 U.S. at 373 U. S. 753 -754 (internal quotations omitted). The NLRB, appearing here as amicus curiae, maintains that position in this case. Contrary to the Court's suggestion, the NLRB has not embraced and then "repudiated" the view that, for purposes of § 8(a)(3), "periodic dues and initiation fees" mean only "those fees necessary to finance collective bargaining activities." Ante at 487 U. S. 752 , n. 7. Teamsters Local No. 959, 167 N.L.R.B. 1042 (1967), does not demonstrate otherwise. In Teamsters Local, the NLRB held that "working dues" designated to fund a union building program and a credit union were actually "assessments" not contemplated by the proviso to § 8(a)(3). Id. at 1044. The Board found that the union itself regarded the levy as a "temporary assessment," clearly distinct from its "regular dues." Ibid. Moreover, because the financing for the programs was constructed in such a way that the union treasury might never have received 90% of the moneys, the Board concluded that the "working dues" were actually "special purposes funds," and that "the support of such funds cannot come from periodic dues' as that term is used in § 8(a)(3)." Ibid. In Detroit Mailers, the NLRB distinguished such assessments from "periodic and uniformly required" dues, which, in its view, a union is not precluded from demanding of nonmembers pursuant to § 8(a)(3). 192 N.L.R.B. at 952. While the majority credits an interpretation of Teamsters Local propounded by a dissenting member of the Board in Detroit Mailers, ante at 487 U. S. 752 -753, n. 7, I prefer to take the Board's word at face value: Teamsters Local did not create "controlling precedent" endorsing the view of § 8(a)(3) enunciated by the Court today. 192 N.L.R.B. at 952. Significantly, the majority cannot cite one case in which the Board has held that uniformly required, periodic dues used for purposes other than "collective bargaining" are not dues within the meaning of § 8(a)(3). [ Footnote 2/6 ] The Court's insistence that it has not changed the meaning of the term "uniform," see ante at 487 U. S. 753 , n. 8, misses the point. The uniformity requirement obviously requires that the union can collect from nonmembers under a union security agreement only those "periodic dues and initiation fees" collected equally from its members. But this begs the question: what "periodic dues and initiation fees"? It is the meaning of those terms which the Court misconceives. Under our settled doctrines of statutory construction, were there any ambiguity in the meaning of § 8(a)(3) -- which there is not -- the Court would be constrained to defer to the interpretation of the NLRB, unless the agency's construction were contrary to the clear intent of Congress. Chevron U.S.A. Inc. v. National Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 842 -843, and n. 9 (1984). Although the Court apparently finds such ambiguity, it fails to apply this doctrine. By reference to a narrow view of congressional "purpose" gleaned from isolated statements in the legislative history, and in reliance upon this Court's interpretation of another statute, the Court constructs an interpretation that not only finds no support in the statutory language or legislative history of § 8(a)(3), but also contradicts the Board's settled interpretation of the statutory provision. The Court previously has directed: "Where the Board's construction of the Act is reasonable, it should not be rejected 'merely because the courts might prefer another view of the statute.'" Pattern Makers v. NLRB, 473 U. S. 95 , 473 U. S. 114 (1985), quoting Ford Motor Co. v. NLRB, 441 U. S. 488 , 441 U. S. 497 (1979). Here, the only apparent motivation for holding that the Board's interpretation of § 8(a)(3) is impermissible is the Court's view of another statute. [ Footnote 2/7 ] The Court's answer to the absolute lack of evidence that Congress intended to regulate such expenditures is no answer at all: the Court simply reiterates that, in Machinists v. Street, 367 U. S. 740 (1961), it did not give weight to congressional silence in the RLA on this issue. See ante at 760. The point, however, is not that the Court should give weight to Congress' silence in the NLRA; the point is that the Court must find some support in the NLRA for its proposition. Congress' silence simply highlights that there is no support for the Court's interpretation of the 1947 Congress' intent. [ Footnote 2/8 ] See also e.g., 93 Cong.Rec. 3837 (1947), Leg.Hist. 1010 (remarks of Sen. Taft) ("[B]ecause the union shop has been in force in many industries for so many years, . . . to upset it today probably would destroy relationships of long standing, and probably would bring on more strikes than it would cure"). Despite a legislative history rife with unequivocal statements to the contrary, the Court concludes that the 1947 Congress did not set out to restrict union security agreements in a "limited fashion." Ante at 487 U. S. 755 . Quite apart from the Court's unorthodox reliance on representations of those opposed to the Taft-Hartley amendments, the majority's observation that "Congress viewed the Wagner Act's regime of compulsory unionism as seriously flawed," ibid., begs the question. The perceived flaws were embedded in the closed shop system, not the union shop system. Thus, as is characteristic of the majority's opinion, its comparison to the RLA, under which there was no closed shop system, is beside the point. See ante at 487 U. S. 755 . Congress was aware that, under the NLRA, "the one system [the closed shop] ha[d] led to very serious abuses, and the other system [the union shop] ha[d] not led to such serious abuses." 93 Cong.Rec. 4886 (1947), Leg.Hist. 1421 (remarks of Sen. Taft). Accordingly, Congress banned closed shops altogether, but it made only limited inroads on the union shop system that had been in effect prior to 1947, carefully describing its limitations on such agreements. H.R.Rep. No. 245, 80th Cong., 1st Sess., 9 (1947), Leg.Hist. 300; S.Rep. at 6-7, Leg.Hist. 412-413. It could not be clearer from the legislative history that, in enacting the provisos to § 8(a)(3), Congress attempted to deal only with specific abuses in the union shop system, only the "actual problems that ha[d] arisen." 93 Cong.Rec. 4886 (1947), Leg.Hist. 1421 (remarks of Sen. Taft); accord, 93 Cong.Rec. 3836-3837 (1947), Leg.Hist. 1010-1011 (remarks of Sen. Taft). Congress' philosophy was that it had "to decree either an open shop or an open union. [It] decreed an open union . . . [which would] permit the continuation of existing relationships, and [would] not violently tear apart a great many long-existing relationships and make trouble in the labor movement; and yet, at the same time, it [would] meet the abuses which exist." 93 Cong.Rec. 4886 (1947), Leg.Hist. 1420 (remarks of Sen. Taft). Union security agreements requiring the payment of uniform periodic dues and standard initiation fees were not among the specified abuses. There was no testimony regarding problems arising from such arrangements. Indeed, the subtext of the entire debate was that such arrangements were acceptable. The Court's suggestion to the contrary is simply untenable. [ Footnote 2/9 ] The Senate Report explained: Congress "did not desire to limit the labor organization with respect to either its selection of membership or expulsion therefrom. But [it] did wish to protect the employee in his job if unreasonably expelled or denied membership. The tests provided by the amendment are based upon facts readily ascertainable, and do not require the employer to inquire into the internal affairs of the union." S.Rep. at 20, Leg.Hist. 426. [ Footnote 2/10 ] The Court appears to believe that Congress intended § 8(a)(3) to protect the interests of individual nonmembers in the uses to which the union puts their moneys. See ante at 487 U. S. 759 . It could not be clearer, however, that Congress did not have this in mind at all. As Senator Taft explained to his colleague who complained that requiring a man to join a union he does not wish to join (pursuant to § 8(a)(3)) was no less restrictive than a closed shop: in enacting § 8(a)(3), Congress was not trying "to go into the broader fields of the rights of particular persons." 93 Cong.Rec. 4886 (1947), Leg.Hist. 1421. The only "rights" protected by the § 8(a)(3) provisos are workers' employment rights. As the legislative debates reflect, Congress was principally concerned with insulating workers' jobs from capricious actions by union leaders. "The purpose of the union unfair labor practice provisions added to § 8(a)(3) was to 'preven[t] the union from inducing the employer to use the emoluments of the job to enforce the union's rules.'" Pattern Makers v. NLRB, 473 U.S. at 473 U. S. 126 (dissenting opinion), quoting Scofield v. NLRB, 394 U. S. 423 , 394 U. S. 429 (1969). [ Footnote 2/11 ] Congress placed only one limitation on the uses which can be made of union dues. "[W]ith little apparent discussion or opposition," the Senate conferees adopted the House bill's prohibition limiting what unions may spend from dues money on federal elections. Pipefitters v. United States, 407 U. S. 385 , 407 U. S. 405 (1972). In § 304 of the Labor Management Relations (Taft-Hartley) Act, 61 Stat. 159-160, which is now incorporated in the Federal Election Campaign Act of 1976, 90 Stat. 490, 2 U.S.C. § 441b(a), Congress made it unlawful for a union "to make a contribution or expenditure in connection with" certain political elections, primaries, or political conventions. The Senate conferees also agreed with the House that some safeguard was needed to prevent unions from charging new members exhorbitant initiation fees that effectively "close" the union, thereby "frustrat[ing] the intent of [§ 8(a)(3)]." 93 Cong.Rec. 6443 (1947), Leg.Hist. 1540 (remarks of Sen. Taft). Hence, § 8(b)(5) was added to the final bill, which makes it an unfair labor practice for a union which has negotiated a union security agreement to require initiation fees that the NLRB "finds excessive or discriminatory under all the circumstances." 29 U.S.C. § 158(b)(5). The Senate passed § 8(b)(5) only after receiving assurances from Senator Taft that it would not allow the NLRB to regulate union expenditures. See 93 Cong.Rec. 6859 (1947), Leg.Hist. 1623 (stressing that the provision "is limited to initiation fees, and does not cover dues"). [ Footnote 2/12 ] "It was never the intention of the [NLRA] . . . to preempt the field in this regard, so as to deprive the States of their powers to prevent compulsory unionism." H.R. Conf Rep. 510, 80th Cong., 1st Sess., 60 (1947), Leg.Hist. 564. Accordingly, Congress added § 14(b) to the final bill, which, as enacted, expressly preserves the authority of the States to regulate union security agreements, including the use of funds collected from employees pursuant to such an agreement. See Retail Clerks v. Schermerhorn, 373 U.S. at 373 U. S. 751 -752. Many States, in fact, have imposed limitations on the union security agreements that are permitted in their jurisdictions. See 2 C. Morris, The Developing Labor Law 1391-1392 (2d ed.1983). [ Footnote 2/13 ] The dissent in the original panel decision in this case appropriately observed: "If the legislative purposes behind § 8(a)(3) and § 2, Eleventh were identical, one would expect that [this] Court in Street would have looked to the NLRA for guidance in interpreting § 2, Eleventh. The Street opinion, however, does not significantly rely on or discuss either the NLRA or § 8(a)(3). Instead, it focuses on the distinctive features of the railroad industry and the Railway Labor Act in construing § 2, Eleventh." 776 F.2d 1187, 1220 (CA4 1985). [ Footnote 2/14 ] The Court overstates the clarity of what was said about § 8(a)(3) when § 2, Eleventh was amended in 1951. As the Court's recitation of various statements reflects, the extent to which the 1951 Congress saw itself engrafting onto the RLA terms identical, in all respects, to the terms of § 8(a)(3) is uncertain. See ante at 487 U. S. 746 -747, n. 4. The remarks are only general comments about the similarity of the NLRA union security provisions, rather than explicit comparisons of § 8(a)(3) with the provisions of the RLA. For example, Senator Taft explained: "In effect, the bill inserts in the railway mediation law almost the exact provisions, so far as they fit, of the Taft-Hartley law, so that the conditions regarding the union shop and the check-off are carried into the relations between railroad unions and the railroads." 96 Cong.Rec. 16267 (1950) (emphasis added). See also, e.g., H.R.Rep. No. 2811, 81st Cong., 2d Sess., 4 (1950) (§ 2, Eleventh allows agreements "of a character" permitted in § 8(a)(3)); 96 Cong.Rec. 17049 (1951) (remarks of Rep. Beckworth) (§ 2, Eleventh extends to railroads "a principle" embodied in § 8(a)(3)). Especially when it is remembered that Congress was extending to unions in the railroad industry the authority to enter into agreements for which they previously had no authority, whereas the 1947 Congress had rescinded authorization for certain kinds of union security agreements, the import of these statements is ambiguous. To borrow a phrase from the majority, I "think it far safer and far more appropriate to construe § 8(a)(3) in light of its" language and legislative history, "than by drawing inferences from" ambiguous statements made by Members of a later Congress in enacting a different statute. Ante at 487 U. S. 759 .

Here is a summary of the case: The Communications Workers of America (CWA) union entered into a collective bargaining agreement with an employer, including a union-security clause requiring non-member employees to pay "agency fees" equal to union dues. Non-member employees challenged the CWA's use of their fees for purposes beyond collective bargaining, contract administration, and grievance adjustment, arguing it violated their associational rights, free speech rights, and the union's duty of fair representation under the National Labor Relations Act (NLRA). The courts ruled that while the NLRA's Section 8(a)(3) allows unions to collect dues from non-members, it does not permit spending those fees on unrelated activities, violating the duty of fair representation and non-members' First Amendment rights. The union's collection and disbursement of agency fees for purposes beyond collective bargaining activities were deemed unlawful, and the non-member employees were granted injunctive relief and reimbursement of excess fees. This case established important limits on how unions can spend agency fees collected from non-members, balancing the rights of workers who choose not to join a union with the union's need for financial resources to carry out its collective bargaining functions effectively.

Labor & Employment

Price Waterhouse v. Hopkins

https://supreme.justia.com/cases/federal/us/490/228/

U.S. Supreme Court Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Price Waterhouse v. Hopkins No. 87-1167 Argued October 31, 1988 Decided May 1, 1989 490 U.S. 228 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Respondent was a senior manager in an office of petitioner professional accounting partnership when she was proposed for partnership in 1982. She was neither offered nor denied partnership, but instead her candidacy was held for reconsideration the following year. When the partners in her office later refused to repropose her for partnership, she sued petitioner in Federal District Court under Title VII of the Civil Rights Act of 1964, charging that it had discriminated against her on the basis of sex in its partnership decisions. The District Court ruled in respondent's favor on the question of liability, holding that petitioner had unlawfully discriminated against her on the basis of sex by consciously giving credence and effect to partners' comments about her that resulted from sex stereotyping. The Court of Appeals affirmed. Both courts held that an employer who has allowed a discriminatory motive to play a part in an employment decision must prove by clear and convincing evidence that it would have made the same decision in the absence of discrimination, and that petitioner had not carried this burden. Held: The judgment is reversed, and the case is remanded. 263 U.S.App.D.C. 321, 825 F.2d 458, reversed and remanded. JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS, concluded that, when a plaintiff in a Title VII case proves that her gender played a part in an employment decision, the defendant may avoid a finding of liability by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account. The courts below erred by requiring petitioner to make its proof by clear and convincing evidence. Pp. 490 U. S. 237 -258. (a) The balance between employee rights and employer prerogatives established by Title VII by eliminating certain bases for distinguishing among employees, while otherwise preserving employers' freedom of choice, is decisive in this case. The words "because of" in § 703(a)(1) of the Act, which forbids an employer to make an adverse decision against an employee "because of such individual's . . . sex," requires looking at all of the reasons, both legitimate and illegitimate, contributing to the decision at the time it is made. The preservation of employers' freedom of choice means that an employer will not be liable if it can prove that, if Page 490 U. S. 229 it had not taken gender into account, it would have come to the same decision. This Court's prior decisions demonstrate that the plaintiff who shows that an impermissible motive played a motivating part in an adverse employment decision thereby places the burden on the defendant to show that it would have made the same decision in the absence of the unlawful motive. Here, petitioner may not meet its burden by merely showing that respondent's interpersonal problems -- abrasiveness with staff members -- constituted a legitimate reason for denying her partnership; instead, petitioner must show that its legitimate reason, standing alone, would have induced petitioner to deny respondent partnership. Pp. 490 U. S. 239 -252. (b) Conventional rules of civil litigation generally apply in Title VII cases, and one of these rules is that the parties need only prove their case by a preponderance of the evidence. Pp. 490 U. S. 252 -255. (c) The District Court's finding that sex stereotyping was permitted to play a part in evaluating respondent as a candidate for partnership was not clearly erroneous. This finding is not undermined by the fact that many of the suspect comments made about respondent were made by partners who were supporters, rather than detractors. Pp. 490 U. S. 255 -258. JUSTICE WHITE, although concluding that the Court of Appeals erred in requiring petitioner to prove by clear and convincing evidence that it would have reached the same employment decision in the absence of the improper motive, rather than merely requiring proof by a preponderance of the evidence, as in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 , which sets forth the proper approach to causation in this case, also concluded that the plurality here errs in seeming to require, at least in most cases, that the employer carry its burden by submitting objective evidence that the same result would have occurred absent the unlawful motivation. In a mixed-motives case, where the legitimate motive found would have been ample grounds for the action taken, and the employer credibly testifies that the action would have been taken for the legitimate reasons alone, this should be ample proof, and there is no special requirement of objective evidence. This would even more plainly be the case where the employer denies any illegitimate motive in the first place, but the court finds that illegitimate, as well as legitimate, factors motivated the adverse action. Pp. 490 U. S. 258 -261. JUSTICE O'CONNOR, although agreeing that, on the facts of this case, the burden of persuasion should shift to petitioner to demonstrate by a preponderance of the evidence that it would have reached the same decision absent consideration of respondent's gender, and that this burden shift is properly part of the liability phase of the litigation, concluded that the plurality misreads Title VII's substantive causation requirement to command burden-shifting if the employer's decisional process is Page 490 U. S. 230 "tainted" by awareness of sex or race in any way, and thereby effectively eliminates the requirement. JUSTICE O'CONNOR also concluded that the burden-shifting rule should be limited to cases, such as the present, in which the employer has created uncertainty as to causation by knowingly giving substantial weight to an impermissible criterion. Pp. 490 U. S. 261 -279. (a) Contrary to the plurality's conclusion, Title VII's plain language making it unlawful for an employer to undertake an adverse employment action "because of" prohibited factors and the statute's legislative history demonstrate that a substantive violation only occurs when consideration of an illegitimate criterion is the "but-for" cause of the adverse action. However, nothing in the language, history, or purpose of the statute prohibits adoption of an evidentiary rule which places the burden of persuasion on the defendant to demonstrate that legitimate concerns would have justified an adverse employment action where the plaintiff has convinced the factfinder that a forbidden factor played a substantial role in the employment decision. Such a rule has been adopted in tort and other analogous types of cases, where leaving the burden of proof on the plaintiff to prove "but-for" causation would be unfair or contrary to the deterrent purposes embodied in the concept of duty of care. Pp. 490 U. S. 262 -269. (b) Although the burden-shifting rule adopted here departs from the careful framework established by McDonnell Douglas Corp. v. Green, 411 U. S. 792 , and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 -- which clearly contemplate that an individual disparate treatment plaintiff bears the burden of persuasion throughout the litigation -- that departure is justified in cases, such as the present, where the plaintiff, having presented direct evidence that the employer placed substantial, though unquantifiable, reliance on a forbidden factor in making an employment decision, has taken her proof as far as it could go, such that it is appropriate to require the defendant, which has created the uncertainty as to causation by considering the illegitimate criterion, to show that its decision would have been justified by wholly legitimate concerns. Moreover, a rule shifting the burden in these circumstances will not conflict with other Title VII policies, particularly its prohibition on preferential treatment based on prohibited factors. Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , distinguished. Pp. 490 U. S. 270 -276. (c) Thus, in order to justify shifting the burden on the causation issue to the defendant, a disparate treatment plaintiff must show by direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision. Such a showing entitles the factfinder to presume that the employer's discriminatory animus made a difference in the outcome, and, if the employer fails to carry its burden of persuasion, to conclude that the employer's decision was made "because of " consideration of the illegitimate factor, thereby satisfying Page 490 U. S. 231 the substantive standard for liability under Title VII. This burden-shifting rule supplements the McDonnell Douglas-Burdine framework, which continues to apply where the plaintiff has failed to satisfy the threshold standard set forth herein. Pp. 490 U. S. 276 -279. BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., post, p. 490 U. S. 258 , and O'CONNOR, J., post, p. 490 U. S. 261 , filed opinions concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 490 U. S. 279 . JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join. Ann Hopkins was a senior manager in an office of Price Waterhouse when she was proposed for partnership in 1982. She was neither offered nor denied admission to the partnership; instead, her candidacy was held for reconsideration the following year. When the partners in her office later refused Page 490 U. S. 232 to repropose her for partnership, she sued Price Waterhouse under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., charging that the firm had discriminated against her on the basis of sex in its decisions regarding partnership. Judge Gesell in the Federal District Court for the District of Columbia ruled in her favor on the question of liability, 618 F. Supp. 1109 (1985), and the Court of Appeals for the District of Columbia Circuit affirmed. 263 U.S.App.D.C. 321, 825 F.2d 458 (1987). We granted certiorari to resolve a conflict among the Courts of Appeals concerning the respective burdens of proof of a defendant and plaintiff in a suit under Title VII when it has been shown that an employment decision resulted from a mixture of legitimate and illegitimate motives. 485 U.S. 933 (1988). I At Price Waterhouse, a nationwide professional accounting partnership, a senior manager becomes a candidate for partnership when the partners in her local office submit her name as a candidate. All of the other partners in the firm are then invited to submit written comments on each candidate -- either on a "long" or a "short" form, depending on the partner's degree of exposure to the candidate. Not every partner in the firm submits comments on every candidate. After reviewing the comments and interviewing the partners who submitted them, the firm's Admissions Committee makes a recommendation to the Policy Board. This recommendation will be either that the firm accept the candidate for partnership, put her application on "hold," or deny her the promotion outright. The Policy Board then decides whether to submit the candidate's name to the entire partnership for a vote, to "hold" her candidacy, or to reject her. The recommendation of the Admissions Committee, and the decision of the Policy Board, are not controlled by fixed guidelines: a certain number of positive comments from partners will not guarantee a candidate's admission to the partnership, nor will a specific Page 490 U. S. 233 quantity of negative comments necessarily defeat her application. Price Waterhouse places no limit on the number of persons whom it will admit to the partnership in any given year. Ann Hopkins had worked at Price Waterhouse's Office of Government Services in Washington, D.C., for five years when the partners in that office proposed her as a candidate for partnership. Of the 662 partners at the firm at that time, 7 were women. Of the 88 persons proposed for partnership that year, only 1 -- Hopkins -- was a woman. Forty-seven of these candidates were admitted to the partnership, 21 were rejected, and 20 -- including Hopkins -- were "held" for reconsideration the following year. [ Footnote 1 ] Thirteen of the 32 partners who had submitted comments on Hopkins supported her bid for partnership. Three partners recommended that her candidacy be placed on hold, eight stated that they did not have an informed opinion about her, and eight recommended that she be denied partnership. In a jointly prepared statement supporting her candidacy, the partners in Hopkins' office showcased her successful 2-year effort to secure a $25 million contract with the Department of State, labeling it "an outstanding performance" and one that Hopkins carried out "virtually at the partner level." Plaintiff's Exh. 15. Despite Price Waterhouse's attempt at trial to minimize her contribution to this project, Judge Gesell Page 490 U. S. 234 specifically found that Hopkins had "played a key role in Price Waterhouse's successful effort to win a multimillion-dollar contract with the Department of State." 618 F. Supp. at 1112. Indeed, he went on, "[n]one of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership." Ibid. The partners in Hopkins' office praised her character as well as her accomplishments, describing her in their joint statement as "an outstanding professional" who had a "deft touch," a "strong character, independence and integrity." Plaintiff's Exh. 15. Clients appear to have agreed with these assessments. At trial, one official from the State Department described her as "extremely competent, intelligent," "strong and forthright, very productive, energetic and creative." Tr. 150. Another high-ranking official praised Hopkins' decisiveness, broadmindedness, and "intellectual clarity"; she was, in his words, "a stimulating conversationalist." Id. at 156-157. Evaluations such as these led Judge Gesell to conclude that Hopkins "had no difficulty dealing with clients and her clients appear to have been very pleased with her work" and that she "was generally viewed as a highly competent project leader who worked long hours, pushed vigorously to meet deadlines and demanded much from the multidisciplinary staffs with which she worked." 618 F. Supp. at 1112-1113. On too many occasions, however, Hopkins' aggressiveness apparently spilled over into abrasiveness. Staff members seem to have borne the brunt of Hopkins' brusqueness. Long before her bid for partnership, partners evaluating her work had counseled her to improve her relations with staff members. Although later evaluations indicate an improvement, Hopkins' perceived shortcomings in this important area eventually doomed her bid for partnership. Virtually all of the partners' negative remarks about Hopkins -- even those of partners supporting her -- had to do with her "interpersonal Page 490 U. S. 235 skills." Both "[s]upporters and opponents of her candidacy," stressed Judge Gesell, "indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with, and impatient with staff." Id. at 1113. There were clear signs, though, that some of the partners reacted negatively to Hopkins' personality because she was a woman. One partner described her as "macho" (Defendant's Exh. 30); another suggested that she "overcompensated for being a woman" (Defendant's Exh. 31); a third advised her to take "a course at charm school" (Defendant's Exh. 27). Several partners criticized her use of profanity; in response, one partner suggested that those partners objected to her swearing only "because it's a lady using foul language." Tr. 321. Another supporter explained that Hopkins "ha[d] matured from a tough-talking somewhat masculine hard-nosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate." Defendant's Exh. 27. But it was the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for the Policy Board's decision to place her candidacy on hold who delivered the coup de grace: in order to improve her chances for partnership, Thomas Beyer advised, Hopkins should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." 618 F. Supp. at 1117. Dr. Susan Fiske, a social psychologist and Associate Professor of Psychology at Carnegie-Mellon University, testified at trial that the partnership selection process at Price Waterhouse was likely influenced by sex stereotyping. Her testimony focused not only on the overtly sex-based comments of partners but also on gender-neutral remarks, made by partners who knew Hopkins only slightly, that were intensely critical of her. One partner, for example, baldly stated that Hopkins was "universally disliked" by staff (Defendant's Exh. 27), and another described her as "consistently annoying and irritating" ( ibid. ); yet these were people who had had very little contact with Hopkins. According to Page 490 U. S. 236 Fiske, Hopkins' uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping -- although Fiske admitted that she could not say with certainty whether any particular comment was the result of stereotyping. Fiske based her opinion on a review of the submitted comments, explaining that it was commonly accepted practice for social psychologists to reach this kind of conclusion without having met any of the people involved in the decisionmaking process. In previous years, other female candidates for partnership also had been evaluated in sex-based terms. As a general matter, Judge Gesell concluded, "[c]andidates were viewed favorably if partners believed they maintained their femin[in]ity while becoming effective professional managers"; in this environment, "[t]o be identified as a women's lib[b]er' was regarded as [a] negative comment." 618 F. Supp. at 1117. In fact, the judge found that, in previous years, "[o]ne partner repeatedly commented that he could not consider any woman seriously as a partnership candidate, and believed that women were not even capable of functioning as senior managers -- yet the firm took no action to discourage his comments, and recorded his vote in the overall summary of the evaluations." Ibid. Judge Gesell found that Price Waterhouse legitimately emphasized interpersonal skills in its partnership decisions, and also found that the firm had not fabricated its complaints about Hopkins' interpersonal skills as a pretext for discrimination. Moreover, he concluded, the firm did not give decisive emphasis to such traits only because Hopkins was a woman; although there were male candidates who lacked these skills but who were admitted to partnership, the judge found that these candidates possessed other, positive traits that Hopkins lacked. The judge went on to decide, however, that some of the partners' remarks about Hopkins stemmed from an impermissibly Page 490 U. S. 237 cabined view of the proper behavior of women, and that Price Waterhouse had done nothing to disavow reliance on such comments. He held that Price Waterhouse had unlawfully discriminated against Hopkins on the basis of sex by consciously giving credence and effect to partners' comments that resulted from sex stereotyping. Noting that Price Waterhouse could avoid equitable relief by proving by clear and convincing evidence that it would have placed Hopkins' candidacy on hold even absent this discrimination, the judge decided that the firm had not carried this heavy burden. The Court of Appeals affirmed the District Court's ultimate conclusion, but departed from its analysis in one particular: it held that, even if a plaintiff proves that discrimination played a role in an employment decision, the defendant will not be found liable if it proves, by clear and convincing evidence, that it would have made the same decision in the absence of discrimination. 263 U.S.App.D.C. at 333-334, 825 F.2d at 470-471. Under this approach, an employer is not deemed to have violated Title VII if it proves that it would have made the same decision in the absence of an impermissible motive, whereas, under the District Court's approach, the employer's proof in that respect only avoids equitable relief. We decide today that the Court of Appeals had the better approach, but that both courts erred in requiring the employer to make its proof by clear and convincing evidence. II The specification of the standard of causation under Title VII is a decision about the kind of conduct that violates that statute. According to Price Waterhouse, an employer violates Title VII only if it gives decisive consideration to an employee's gender, race, national origin, or religion in making a decision that affects that employee. On Price Waterhouse's theory, even if a plaintiff shows that her gender played a part in an employment decision, it is still her burden to show that the decision would have been different if the employer had Page 490 U. S. 238 not discriminated. In Hopkins' view, on the other hand, an employer violates the statute whenever it allows one of these attributes to play any part in an employment decision. Once a plaintiff shows that this occurred, according to Hopkins, the employer's proof that it would have made the same decision in the absence of discrimination can serve to limit equitable relief, but not to avoid a finding of liability. [ Footnote 2 ] We conclude that, as often happens, the truth lies somewhere in-between. Page 490 U. S. 239 A In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees. [ Footnote 3 ] Yet the statute does not purport to limit the other qualities and characteristics that employers may take into account in making employment decisions. The converse, therefore, of "for cause" legislation, [ Footnote 4 ] Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice. This balance between employee rights and employer prerogatives turns out to be decisive in the case before us. Congress' intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. In now-familiar language, the statute forbids Page 490 U. S. 240 an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex." 42 U.S.C. §§ 2000e-2(a)(1), (2) (emphasis added). [ Footnote 5 ] We take these words to mean that gender must be irrelevant to employment decisions. To construe the words "because of" as colloquial shorthand for "but-for causation," as does Price Waterhouse, is to misunderstand them. [ Footnote 6 ] But-for causation is a hypothetical construct. In determining whether a particular factor was a but-for cause of a given event, we begin by assuming that that factor was present at the time of the event, and then ask whether, even if that factor had been absent, the event nevertheless would have transpired in the same way. The present, active tense of the operative verbs of § 703(a)(1) ("to fail or refuse"), in contrast, turns our attention to the actual moment of the Page 490 U. S. 241 event in question, the adverse employment decision. The critical inquiry, the one commanded by the words of § 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made. Moreover, since we know that the words "because of" do not mean " solely because of," [ Footnote 7 ] we also know that Title VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate considerations. When, therefore, an employer considers both gender and legitimate factors at the time of making a decision, that decision was "because of " sex and the other, legitimate considerations -- even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account. To attribute this meaning to the words "because of" does not, as the dissent asserts, post at 490 U. S. 282 , divest them of causal significance. A simple example illustrates the point. Suppose two physical forces act upon and move an object, and suppose that either force acting alone would have moved the object. As the dissent would have it, neither physical force was a "cause" of the motion unless we can show that, but for one or both of them, the object would not have moved; apparently both forces were simply "in the air" unless we can identify at least one of them as a but-for cause of the object's movement. Post at 490 U. S. 282 . Events that are causally overdetermined, in other words, may not have any "cause" at all. This cannot be so. We need not leave our common sense at the doorstep when we interpret a statute. It is difficult for us to imagine that, in the simple words "because of," Congress meant Page 490 U. S. 242 to obligate a plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the employment decision she challenges. We conclude, instead, that Congress meant to obligate her to prove that the employer relied upon sex-based considerations in coming to its decision. Our interpretation of the words "because of" also is supported by the fact that Title VII does identify one circumstance in which an employer may take gender into account in making an employment decision, namely, when gender is a "bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of th[e] particular business or enterprise." 42 U.S.C. § 2000e-2(e). The only plausible inference to draw from this provision is that, in all other circumstances, a person's gender may not be considered in making decisions that affect her. Indeed, Title VII even forbids employers to make gender an indirect stumbling block to employment opportunities. An employer may not, we have held, condition employment opportunities on the satisfaction of facially neutral tests or qualifications that have a disproportionate, adverse impact on members of protected groups when those tests or qualifications are not required for performance of the job. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988); Griggs v. Duke Power Co., 401 U. S. 424 (1971). To say that an employer may not take gender into account is not, however, the end of the matter, for that describes only one aspect of Title VII. The other important aspect of the statute is its preservation of an employer's remaining freedom of choice. We conclude that the preservation of this freedom means that an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision regarding a particular person. The statute's maintenance of employer prerogatives is evident from the statute itself and from its history, both in Congress and in this Court. To begin with, the existence of the BFOQ exception shows Congress' unwillingness to require employers to change the very nature of their operations in response to the statute. And our emphasis on "business necessity" in disparate Page 490 U. S. 243 impact cases, see Watson and Griggs, and on "legitimate, nondiscriminatory reason[s]" in disparate treatment cases, see McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), results from our awareness of Title VII's balance between employee rights and employer prerogatives. In McDonnell Douglas, we described as follows Title VII's goal to eradicate discrimination while preserving workplace efficiency: "The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and racially neutral employment and personnel decisions. In the implementation of such decisions, it is abundantly clear that Title VII tolerates no racial discrimination, subtle or otherwise." 411 U.S. at 411 U. S. 801 . When an employer ignored the attributes enumerated in the statute, Congress hoped, it naturally would focus on the qualifications of the applicant or employee. The intent to drive employers to focus on qualifications rather, than on race, religion, sex, or national origin is the theme of a good deal of the statute's legislative history. An interpretive memorandum entered into the Congressional Record by Senators Case and Clark, comanagers of the bill in the Senate, is representative of this general theme. [ Footnote 8 ] According to their memorandum, Title VII "expressly protects the employer's right to insist that any prospective applicant, Negro or white, must meet the applicable job qualifications. Indeed, the very purpose of title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color. [ Footnote 9 ]" 110 Cong.Rec. 7247 (1964), quoted in Griggs v. Page 490 U. S. 244 Duke Power Co., supra, at 401 U. S. 434 . The memorandum went on: "To discriminate is to make a distinction, to make a difference in treatment or favor, and those distinctions or differences in treatment or favor which are prohibited by section 704 are those which are based on any five of the forbidden criteria: race, color, religion, sex, and national origin. Any other criterion or qualification for employment is not affected by this title." 110 Cong.Rec. 7213 (1964). Many other legislators made statements to a similar effect; we see no need to set out each remark in full here. The central point is this: while an employer may not take gender into account in making an employment decision (except in those very narrow circumstances in which gender is a BFOQ), it is free to decide against a woman for other reasons. We think these principles require that, once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability [ Footnote 10 ] only by proving that it would have made the same Page 490 U. S. 245 decision even if it had not allowed gender to play such a role. This balance of burdens is the direct result of Title VII's balance of rights. Our holding casts no shadow on Burdine, in which we decided that, even after a plaintiff has made out a prima facie case of discrimination under Title VII, the burden of persuasion does not shift to the employer to show that its stated legitimate reason for the employment decision was the true reason. 450 U.S. at 450 U. S. 256 -258. We stress, first, that neither Page 490 U. S. 246 court below shifted the burden of persuasion to Price Waterhouse on this question, and, in fact, the District Court found that Hopkins had not shown that the firm's stated reason for its decision was pretextual. 618 F. Supp. at 1114-1115. Moreover, since we hold that the plaintiff retains the burden of persuasion on the issue whether gender played a part in the employment decision, the situation before us is not the one of "shifting burdens" that we addressed in Burdine. Instead, the employer's burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and then the employer, if it wishes to prevail, must persuade it on another. See NLRB v. Transportation Management Corp., 462 U. S. 393 , 462 U. S. 400 (1983). [ Footnote 11 ] Price Waterhouse's claim that the employer does not bear any burden of proof (if it bears one at all) until the plaintiff has shown "substantial evidence that Price Waterhouse's explanation for failing to promote Hopkins was not the true reason' for its action" (Brief for Petitioner 20) merely restates its argument that the plaintiff in a mixed-motives case Page 490 U. S. 247 must squeeze her proof into Burdine 's framework. Where a decision was the product of a mixture of legitimate and illegitimate motives, however, it simply makes no sense to ask whether the legitimate reason was " the `true reason'" (Brief for Petitioner 20 (emphasis added)) for the decision -- which is the question asked by Burdine. See Transportation Management, supra, at 462 U. S. 400 , n. 5. [ Footnote 12 ] Oblivious to this last point, the dissent would insist that Burdine's framework perform work that it was never intended to perform. It would require a plaintiff who challenges an adverse employment decision in which both legitimate and illegitimate considerations played a part to pretend that the decision, in fact, stemmed from a single source -- for the premise of Burdine is that either a legitimate or an illegitimate set of considerations led to the challenged decision. To say that Burdine's evidentiary scheme will not help us decide a case admittedly involving both kinds of considerations is not to cast aspersions on the utility of that scheme in the circumstances for which it was designed. Page 490 U. S. 248 B In deciding as we do today, we do not traverse new ground. We have in the past confronted Title VII cases in which an employer has used an illegitimate criterion to distinguish among employees, and have held that it is the employer's burden to justify decisions resulting from that practice. When an employer has asserted that gender is a BFOQ within the meaning of § 703(e), for example, we have assumed that it is the employer who must show why it must use gender as a criterion in employment. See Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 332 -337 (1977). In a related context, although the Equal Pay Act expressly permits employers to pay different wages to women where disparate pay is the result of a "factor other than sex," see 29 U.S.C. § 206(d)(1), we have decided that it is the employer, not the employee, who must prove that the actual disparity is not sex-linked. See Corning Glass Works v. Brennan, 417 U. S. 188 , 417 U. S. 196 (1974). Finally, some courts have held that, under Title VII as amended by the Pregnancy Discrimination Act, it is the employer who has the burden of showing that its limitations on the work that it allows a pregnant woman to perform are necessary in light of her pregnancy. See, e.g., Hayes v. Shelby Memorial Hospital, 726 F.2d 1543, 1548 (CA11 1984); Wright v. Olin Corp., 697 F.2d 1172, 1187 (CA4 1982). As these examples demonstrate, our assumption always has been that, if an employer allows gender to affect its decisionmaking process, then it must carry the burden of justifying its ultimate decision. We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today. We have reached a similar conclusion in other contexts where the law announces that a certain characteristic is irrelevant to the allocation of burdens and benefits. In Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), the Page 490 U. S. 249 plaintiff claimed that he had been discharged as a public school teacher for exercising his free-speech rights under the First Amendment. Because we did not wish to "place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing," id. at 429 U. S. 285 , we concluded that such an employee "ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record." Id. at 429 U. S. 286 . We therefore held that, once the plaintiff had shown that his constitutionally protected speech was a "substantial" or "motivating factor" in the adverse treatment of him by his employer, the employer was obligated to prove "by a preponderance of the evidence that it would have reached the same decision as to [the plaintiff] even in the absence of the protected conduct." Id. at 429 U. S. 287 . A court that finds for a plaintiff under this standard has effectively concluded that an illegitimate motive was a "but-for" cause of the employment decision. See Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 , 439 U. S. 417 (1979). See also Arlington Heights v. Metropolitan Housing Corp., 429 U. S. 252 , 429 U. S. 270 -271, n. 21 (1977) (applying Mt. Healthy standard where plaintiff alleged that unconstitutional motive had contributed to enactment of legislation); Hunter v. Underwood, 471 U. S. 222 , 471 U. S. 228 (1985) (same). In Transportation Management, we upheld the NLRB's interpretation of § 10(c) of the National Labor Relations Act, which forbids a court to order affirmative relief for discriminatory conduct against a union member "if such individual was suspended or discharged for cause." 29 U.S.C. § 160(c). The Board had decided that this provision meant that, once an employee had shown that his suspension or discharge was based in part on hostility to unions, it was up to the employer to prove by a preponderance of the evidence that it would have made the same decision in the absence of this impermissible motive. In such a situation, we emphasized, Page 490 U. S. 250 "[t]he employer is a wrongdoer; he has acted out of a motive that is declared illegitimate by the statute. It is fair that he bear the risk that the influence of legal and illegal motives cannot be separated, because he knowingly created the risk and because the risk was created not by innocent activity, but by his own wrongdoing." 462 U.S. at 462 U. S. 403 . We have, in short, been here before. Each time, we have concluded that the plaintiff who shows that an impermissible motive played a motivating part in an adverse employment decision has thereby placed upon the defendant the burden to show that it would have made the same decision in the absence of the unlawful motive. Our decision today treads this well worn path. C In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. [ Footnote 13 ] In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender. Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of "sex stereotyping" in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities. Page 490 U. S. 251 As to the existence of sex stereotyping in this case, we are not inclined to quarrel with the District Court's conclusion that a number of the partners' comments showed sex stereotyping at work. See infra at 490 U. S. 255 -256. As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for, "'[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.'" Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 , 435 U. S. 707 , n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971). An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they do not. Title VII lifts women out of this bind. Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision. In making this showing, stereotyped remarks can certainly be evidence that gender played a part. In any event, the stereotyping in this case did not simply consist of stray remarks. On the contrary, Hopkins proved that Price Waterhouse invited partners to submit comments; that some of the comments stemmed from sex stereotypes; that an important part of the Policy Board's decision on Hopkins was an assessment of the submitted comments; and that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations. This is not, as Price Waterhouse suggests, "discrimination in the air"; rather, it is, as Hopkins puts it, "discrimination brought to ground and visited upon" an employee. Brief for Respondent 30. By focusing on Hopkins' specific proof, however, we do not suggest a limitation on the possible ways Page 490 U. S. 252 of proving that stereotyping played a motivating role in an employment decision, and we refrain from deciding here which specific facts, "standing alone," would or would not establish a plaintiff's case, since such a decision is unnecessary in this case. But see post at 490 U. S. 277 (O'CONNOR, J., concurring in judgment). As to the employer's proof, in most cases, the employer should be able to present some objective evidence as to its probable decision in the absence Page 490 U. S. 253 of an impermissible motive. [ Footnote 14 ] Moreover, proving " 'that the same decision would have been justified . . . is not the same as proving that the same decision would have been made.'" Givhan, 439 U.S. at 439 U. S. 416 , quoting Ayers v. Western Line Consolidated School District, 555 F.2d 1309, 1315 (CA5 1977). An employer may not, in other words, prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that, at the time of the decision, it was motivated only in part by a legitimate reason. The very premise of a mixed-motives case is that a legitimate reason was present, and indeed, in this case, Price Waterhouse already has made this showing by convincing Judge Gesell that Hopkins' interpersonal problems were a legitimate concern. The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision. III The courts below held that an employer who has allowed a discriminatory impulse to play a motivating part in an employment decision must prove by clear and convincing evidence that it would have made the same decision in the absence of discrimination. We are persuaded that the better rule is that the employer must make this showing by a preponderance of the evidence. Conventional rules of civil litigation generally apply in Title VII cases, see, e.g., United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 716 (1983) (discrimination not to be "treat[ed] . . . differently from other ultimate questions of fact"), and one of these rules is that parties to civil litigation need only prove their case by a preponderance of the evidence. See, e.g., Herman & MacLean v. Huddleston, 459 U. S. 375 , 459 U. S. 390 (1983). Exceptions to this standard are uncommon, and in fact are ordinarily recognized only when the government seeks to take unusual coercive action -- action more dramatic than entering an award of money damages or other conventional relief -- against an individual. See Santosky v. Kramer, 455 U. S. 745 , 455 U. S. 756 (1982) (termination of parental rights); Addington v. Texas, 441 U. S. 418 , 441 U. S. 427 (1979) (involuntary commitment); Woodby v. INS, 385 U. S. 276 (1966) (deportation); Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 122 , 320 U. S. 125 (1943) (denaturalization). Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief, see, e.g., Gertz v. Robert Welch, Inc., 418 U. S. 323 , 418 U. S. 342 (1974) (defamation), and we find it significant that, in such cases, it was the defendant, rather than the plaintiff, who sought the elevated standard of proof -- suggesting that this standard ordinarily serves as a shield, rather than, as Hopkins seeks to use it, as a sword. It is true, as Hopkins emphasizes, that we have noted the "clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage and the measure of proof necessary to enable the jury to fix the amount." Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555 , 282 U. S. 562 (1931). Likewise, an Equal Employment Opportunity Commission (EEOC) regulation does require federal agencies proved to have violated Page 490 U. S. 254 Title VII to show by clear and convincing evidence that an individual employee is not entitled to relief. See 29 CFR § 1613.271(c)(2) (1988). And finally, it is true that we have emphasized the importance of make-whole relief for victims of discrimination. See Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975). Yet each of these sources deals with the proper determination of relief, rather than with the initial finding of liability. This is seen most easily in the EEOC's regulation, which operates only after an agency or the EEOC has found that "an employee of the agency was discriminated against." See 29 CFR § 1613.271(c) (1988). Because we have held that, by proving that it would have made the same decision in the absence of discrimination, the employer may avoid a finding of liability altogether, and not simply avoid certain equitable relief, these authorities do not help Hopkins to show why we should elevate the standard of proof for an employer in this position. Significantly, the cases from this Court that most resemble this one, Mt. Healthy and Transportation Management, did not require clear and convincing proof. Mt. Healthy, 429 U.S. at 429 U. S. 287 ; Transportation Management, 462 U.S. at 462 U. S. 400 , 462 U. S. 403 . We are not inclined to say that the public policy against firing employees because they spoke out on issues of public concern or because they affiliated with a union is less important than the policy against discharging employees on the basis of their gender. Each of these policies is vitally important, and each is adequately served by requiring proof by a preponderance of the evidence. Although Price Waterhouse does not concretely tell us how its proof was preponderant, even if it was not clear and convincing, this general claim is implicit in its request for the less stringent standard. Since the lower courts required Price Waterhouse to make its proof by clear and convincing evidence, they did not determine whether Price Waterhouse had proved by a preponderance of the evidence that it would have placed Hopkins' candidacy on hold even if it had not permitted Page 490 U. S. 255 sex-linked evaluations to play a part in the decisionmaking process. Thus, we shall remand this case so that that determination can be made. IV The District Court found that sex stereotyping "was permitted to play a part" in the evaluation of Hopkins as a candidate for partnership. 618 F. Supp. at 1120. Price Waterhouse disputes both that stereotyping occurred and that it played any part in the decision to place Hopkins' candidacy on hold. In the firm's view, in other words, the District Court's factual conclusions are clearly erroneous. We do not agree. In finding that some of the partners' comments reflected sex stereotyping, the District Court relied in part on Dr. Fiske's expert testimony. Without directly impugning Dr. Fiske's credentials or qualifications, Price Waterhouse insinuates that a social psychologist is unable to identify sex stereotyping in evaluations without investigating whether those evaluations have a basis in reality. This argument comes too late. At trial, counsel for Price Waterhouse twice assured the court that he did not question Dr. Fiske's expertise (App. 25), and failed to challenge the legitimacy of her discipline. Without contradiction from Price Waterhouse, Fiske testified that she discerned sex stereotyping in the partners' evaluations of Hopkins, and she further explained that it was part of her business to identify stereotyping in written documents. Id. at 64. We are not inclined to accept petitioner's belated and unsubstantiated characterization of Dr. Fiske's testimony as "gossamer evidence" (Brief for Petitioner 20) based only on "intuitive hunches" ( id. at 44) and of her detection of sex stereotyping as "intuitively divined" ( id. at 43). Nor are we disposed to adopt the dissent's dismissive attitude toward Dr. Fiske's field of study and toward her own professional integrity, see post at 490 U. S. 293 -294, n. 5. Page 490 U. S. 256 Indeed, we are tempted to say that Dr. Fiske's expert testimony was merely icing on Hopkins' cake. It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course at charm school." Nor, turning to Thomas Beyer's memorable advice to Hopkins, does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex, and not her interpersonal skills, that has drawn the criticism. [ Footnote 15 ] Price Waterhouse also charges that Hopkins produced no evidence that sex stereotyping played a role in the decision to place her candidacy on hold. As we have stressed, however, Hopkins showed that the partnership solicited evaluations from all of the firm's partners; that it generally relied very heavily on such evaluations in making its decision; that some of the partners' comments were the product of stereotyping; and that the firm in no way disclaimed reliance on those particular comments, either in Hopkins' case or in the past. Certainly a plausible -- and, one might say, inevitable -- conclusion to draw from this set of circumstances is that the Policy Board, in making its decision, did in fact take into account all of the partners' comments, including the comments that were motivated by stereotypical notions about women's proper deportment. [ Footnote 16 ] Page 490 U. S. 257 Price Waterhouse concedes that the proof in Transportation Management adequately showed that the employer there had relied on an impermissible motivation in firing the plaintiff. Brief for Petitioner 45. But the only evidence in that case that a discriminatory motive contributed to the plaintiff's discharge was that the employer harbored a grudge toward the plaintiff on account of his union activity; there was, contrary to Price Waterhouse's suggestion, no direct evidence that that grudge had played a role in the decision, and, in fact, the employer had given other reasons in explaining the plaintiff's discharge. See 462 U.S. at 462 U. S. 396 . If the partnership considers that proof sufficient, we do not know why it takes such vehement issue with Hopkins' proof. Nor is the finding that sex stereotyping played a part in the Policy Board's decision undermined by the fact that many of the suspect comments were made by supporters, rather than detractors, of Hopkins. A negative comment, even when made in the context of a generally favorable review, nevertheless may influence the decisionmaker to think less highly of the candidate; the Policy Board, in fact, did not simply tally the "yesses" and "noes" regarding a candidate, but carefully reviewed the content of the submitted comments. The additional suggestion that the comments were made by "persons outside the decisionmaking chain" (Brief for Petitioner 48) -- and therefore could not have harmed Hopkins -- simply ignores the critical role that partners' comments played in the Policy Board's partnership decisions. Price Waterhouse appears to think that we cannot affirm the factual findings of the trial court without deciding that, instead of being overbearing and aggressive and curt, Hopkins is, in fact, kind and considerate and patient. If this is indeed its impression, petitioner misunderstands the theory Page 490 U. S. 258 on which Hopkins prevailed. The District Judge acknowledged that Hopkins' conduct justified complaints about her behavior as a senior manager. But he also concluded that the reactions of at least some of the partners were reactions to her as a woman manager. Where an evaluation is based on a subjective assessment of a person's strengths and weaknesses, it is simply not true that each evaluator will focus on, or even mention, the same weaknesses. Thus, even if we knew that Hopkins had "personality problems," this would not tell us that the partners who cast their evaluations of Hopkins in sex-based terms would have criticized her as sharply (or criticized her at all) if she had been a man. It is not our job to review the evidence and decide that the negative reactions to Hopkins were based on reality; our perception of Hopkins' character is irrelevant. We sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman. V We hold that, when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account. Because the courts below erred by deciding that the defendant must make this proof by clear and convincing evidence, we reverse the Court of Appeals' judgment against Price Waterhouse on liability and remand the case to that court for further proceedings. It is so ordered. [ Footnote 1 ] Before the time for reconsideration came, two of the partners in Hopkins' office withdrew their support for her, and the office informed her that she would not be reconsidered for partnership. Hopkins then resigned. Price Waterhouse does not challenge the Court of Appeals' conclusion that the refusal to repropose her for partnership amounted to a constructive discharge. That court remanded the case to the District Court for further proceedings to determine appropriate relief, and those proceedings have been stayed pending our decision. Brief for Petitioner 15, n. 3. We are concerned today only with Price Waterhouse's decision to place Hopkins' candidacy on hold. Decisions pertaining to advancement to partnership are, of course, subject to challenge under Title VII. Hishon v. King & Spalding, 467 U. S. 69 (1984). [ Footnote 2 ] This question has, to say the least, left the Circuits in disarray. The Third, Fourth, Fifth, and Seventh Circuits require a plaintiff challenging an adverse employment decision to show that, but for her gender (or race or religion or national origin), the decision would have been in her favor. See, e.g., Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 179 (CA3 1985), cert. denied, 475 U.S. 1035 (1986); Ross v. Communications Satellite Corp., 759 F.2d 355, 365-366 (CA4 1985); Peters v. Shreveport, 818 F.2d 1148, 1161 (CA5 1987); McQuillen v. Wisconsin Education Assn. Council, 830 F.2d 659, 664-665 (CA7 1987). The First, Second, Sixth, and Eleventh Circuits, on the other hand, hold that, once the plaintiff has shown that a discriminatory motive was a "substantial" or "motivating" factor in an employment decision, the employer may avoid a finding of liability only by proving that it would have made the same decision even in the absence of discrimination. These courts have either specified that the employer must prove its case by a preponderance of the evidence or have not mentioned the proper standard of proof. See, e.g., Fields v. Clark University, 817 F.2d 931, 936-937 (CA1 1987) ("motivating factor"); Berl v. Westchester County, 849 F.2d 712, 714-715 (CA2 1988) ("substantial part"); Terbovitz v. Fiscal Court of Adair County, Ky., 825 F.2d 111, 115 (CA6 1987) ("motivating factor"); Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (CA11 1983). The Court of Appeals for the District of Columbia Circuit, as shown in this case, follows the same rule, except that it requires that the employer's proof be clear and convincing, rather than merely preponderant. 263 U.S.App.D.C. 321, 333-334, 825 F.2d 458, 470-471 (1987); see also Toney v. Block, 227 U.S.App.D.C. 273, 275, 705 F.2d 1364, 1366 (1983) (Scalia, J.) (it would be "destructive of the purposes of [Title VII] to require the plaintiff to establish . . . the difficult hypothetical proposition that, had there been no discrimination, the employment decision would have been made in his favor"). The Court of Appeals for the Ninth Circuit also requires clear and convincing proof, but it goes further by holding that a Title VII violation is made out as soon as the plaintiff shows that an impermissible motivation played a part in an employment decision -- at which point the employer may avoid reinstatement and an award of backpay by proving that it would have made the same decision in the absence of the unlawful motive. See, e.g., Fadhl v. City and County of San Francisco, 741 F.2d 1163, 1165-1166 (1984) (Kennedy, J.) ("significant factor"). Last, the Court of Appeals for the Eighth Circuit draws the same distinction as the Ninth between the liability and remedial phases of Title VII litigation, but requires only a preponderance of the evidence from the employer. See, e.g., Bibbs v. Block, 778 F.2d 1318, 1320-1324 (1985) (en banc) ("discernible factor"). [ Footnote 3 ] We disregard, for purposes of this discussion, the special context of affirmative action. [ Footnote 4 ] Congress specifically declined to require that an employment decision have been "for cause" in order to escape an affirmative penalty (such as reinstatement or backpay) from a court. As introduced in the House, the bill that became Title VII forbade such affirmative relief if an "individual was . . . refused employment or advancement, or was suspended or discharged for cause. " H.R.Rep. No. 7152, 88th Cong., 1st Sess., 77 (1963) (emphasis added). The phrase "for cause" eventually was deleted in favor of the phrase "for any reason other than" one of the enumerated characteristics. See 110 Cong.Rec. 2567-2571 (1964). Representative Celler explained that this substitution "specif[ied] cause"; in his view, a court "cannot find any violation of the act which is based on facts other . . . than discrimination on the grounds of race, color, religion, or national origin." Id. at 2567. [ Footnote 5 ] In this Court, Hopkins for the first time argues that Price Waterhouse violated § 703(a)(2) when it subjected her to a biased decisionmaking process that "tended to deprive" a woman of partnership on the basis of her sex. Since Hopkins did not make this argument below, we do not address it. [ Footnote 6 ] We made passing reference to a similar question in McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 , 427 U. S. 282 , n. 10 (1976), where we stated that, when a Title VII plaintiff seeks to show that an employer's explanation for a challenged employment decision is pretextual, "no more is required to be shown than that race was a but for' cause." This passage, however, does not suggest that the plaintiff must show but-for cause; it indicates only that, if she does so, she prevails. More important, McDonald dealt with the question whether the employer's stated reason for its decision was the reason for its action; unlike the case before us today, therefore, McDonald did not involve mixed motives. This difference is decisive in distinguishing this case from those involving "pretext." See infra at 490 U. S. 247 , n. 12. [ Footnote 7 ] Congress specifically rejected an amendment that would have placed the word "solely" in front of the words "because of." 110 Cong.Rec. 2728, 13837 (1964). [ Footnote 8 ] We have in the past acknowledged the authoritativeness of this interpretive memorandum, written by the two bipartisan "captains" of Title VII. See, e.g., Firefighters v. Stotts, 467 U. S. 561 , 467 U. S. 581 , n. 14 (1984). [ Footnote 9 ] Many of the legislators' statements, such as the memorandum quoted in text, focused specifically on race, rather than on gender or religion or national origin. We do not, however, limit their statements to the context of race, but instead we take them as general statements on the meaning of Title VII. The somewhat bizarre path by which "sex" came to be included as a forbidden criterion for employment -- it was included in an attempt to defeat the bill, see C. & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115-117 (1985) -- does not persuade us that the legislators' statements pertaining to race are irrelevant to cases alleging gender discrimination. The amendment that added "sex" as one of the forbidden criteria for employment was passed, of course, and the statute on its face treats each of the enumerated categories exactly the same. By the same token, our specific references to gender throughout this opinion, and the principles we announce, apply with equal force to discrimination based on race, religion, or national origin. [ Footnote 10 ] Hopkins argues that, once she made this showing, she was entitled to a finding that Price Waterhouse had discriminated against her on the basis of sex; as a consequence, she says, the partnership's proof could only limit the relief she received. She relies on Title VII's § 706(g), which permits a court to award affirmative relief when it finds that an employer "has intentionally engaged in or is intentionally engaging in an unlawful employment practice," and yet forbids a court to order reinstatement of, or backpay to, "an individual . . . if such individual was refused . . . employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-5(g) (emphasis added). We do not take this provision to mean that a court inevitably can find a violation of the statute without having considered whether the employment decision would have been the same absent the impermissible motive. That would be to interpret § 706(g) -- a provision defining remedies -- to influence the substantive commands of the statute. We think that this provision merely limits courts' authority to award affirmative relief in those circumstances in which a violation of the statute is not dependent upon the effect of the employer's discriminatory practices on a particular employee, as in pattern-or-practice suits and class actions. "The crucial difference between an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual's claim is the reason for a particular employment decision, while," "at the liability stage of a pattern-or-practice trial, the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking." Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867 , 467 U. S. 876 (1984), quoting Teamsters v. United States, 431 U. S. 324 , 431 U. S. 360 , n. 46 (1977). Without explicitly mentioning this portion of § 706(g), we have in the past held that Title VII does not authorize affirmative relief for individuals as to whom, the employer shows, the existence of systemic discrimination had no effect. See Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 772 (1976); Teamsters v. United States, supra, at 431 U. S. 367 -371; East Texas Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395 , 431 U. S. 404 , n. 9 (1977). These decisions suggest that the proper focus of § 706(g) is on claims of systemic discrimination, not on charges of individual discrimination. Cf. NLRB v. Transportation Management Corp., 462 U. S. 393 (1983) (upholding the National Labor Relations Board's identical interpretation of § 10(c) of the National Labor Relations Act, 29 U.S.C. § 160(c), which contains language almost identical to § 706(g)). [ Footnote 11 ] Given that both the plaintiff and defendant bear a burden of proof in cases such as this one, it is surprising that the dissent insists that our approach requires the employer to bear "the ultimate burden of proof." Post at 490 U. S. 288 . It is, moreover, perfectly consistent to say both that gender was a factor in a particular decision when it was made and that, when the situation is viewed hypothetically and after the fact, the same decision would have been made even in the absence of discrimination. Thus, we do not see the "internal inconsistency" in our opinion that the dissent perceives. See post at 490 U. S. 285 -286. Finally, where liability is imposed because an employer is unable to prove that it would have made the same decision even if it had not discriminated, this is not an imposition of liability "where sex made no difference to the outcome." Post at 490 U. S. 285 . In our adversary system, where a party has the burden of proving a particular assertion and where that party is unable to meet its burden, we assume that that assertion is inaccurate. Thus, where an employer is unable to prove its claim that it would have made the same decision in the absence of discrimination, we are entitled to conclude that gender did make a difference to the outcome. [ Footnote 12 ] Nothing in this opinion should be taken to suggest that a case must be correctly labeled as either a "pretext" case or a "mixed-motives" case from the beginning in the District Court; indeed, we expect that plaintiffs often will allege, in the alternative, that their cases are both. Discovery often will be necessary before the plaintiff can know whether both legitimate and illegitimate considerations played a part in the decision against her. At some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives. If the plaintiff fails to satisfy the factfinder that it is more likely than not that a forbidden characteristic played a part in the employment decision, then she may prevail only if she proves, following Burdine, that the employer's stated reason for its decision is pretextual. The dissent need not worry that this evidentiary scheme, if used during a jury trial, will be so impossibly confused and complex as it imagines. See, e.g., post at 490 U. S. 292 . Juries long have decided cases in which defendants raised affirmative defenses. The dissent fails, moreover, to explain why the evidentiary scheme that we endorsed over 10 years ago in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), has not proved unworkable in that context, but would be hopelessly complicated in a case brought under federal antidiscrimination statutes. [ Footnote 13 ] After comparing this description of the plaintiff's proof to that offered by JUSTICE O'CONNOR'S opinion concurring in the judgment, post at 490 U. S. 276 -277, we do not understand why the concurrence suggests that they are meaningfully different from each other, see post at 490 U. S. 275 , 490 U. S. 277 -279. Nor do we see how the inquiry that we have described is "hypothetical," see post at 490 U. S. 283 , n. 1. It seeks to determine the content of the entire set of reasons for a decision, rather than shaving off one reason in an attempt to determine what the decision would have been in the absence of that consideration. The inquiry that we describe thus strikes us as a distinctly nonhypothetical one. [ Footnote 14 ] JUSTICE WHITE'S suggestion, post at 490 U. S. 261 , that the employer's own testimony as to the probable decision in the absence of discrimination is due special credence where the court has, contrary to the employer's testimony, found that an illegitimate factor played a part in the decision, is baffling. [ Footnote 15 ] We reject the claim, advanced by Price Waterhouse here and by the dissenting judge below, that the District Court clearly erred in finding that Beyer was "responsible for telling [Hopkins] what problems the Policy Board had identified with her candidacy." 618 F. Supp. at 1117. This conclusion was reasonable in light of the testimony at trial of a member of both the Policy Board and the Admissions Committee, who stated that he had "no doubt" that Beyer would discuss with Hopkins the reasons for placing her candidacy on hold, and that Beyer "knew exactly where the problems were" regarding Hopkins. Tr. 316. [ Footnote 16 ] We do not understand the dissenters' dissatisfaction with the District Judge's statements regarding the failure of Price Waterhouse to "sensitize" partners to the dangers of sexism. Post at 490 U. S. 294 . Made in the context of determining that Price Waterhouse had not disclaimed reliance on sex-based evaluations, and following the judge's description of the firm's history of condoning such evaluations, the judge's remarks seem to us justified. JUSTICE WHITE, concurring in the judgment. In my view, to determine the proper approach to causation in this case, we need look only to the Court's opinion in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977). In Mt. Healthy, a public employee was not rehired, in part Page 490 U. S. 259 because of his exercise of First Amendment rights and in part because of permissible considerations. The Court rejected a rule of causation that focused "solely on whether protected conduct played a part, substantial' or otherwise, in a decision not to rehire," on the grounds that such a rule could make the employee better off by exercising his constitutional rights than by doing nothing at all. Id. at 429 U. S. 285 . Instead, the Court outlined the following approach: "Initially, in this case, the burden was properly placed upon respondent to show that his conduct was constitutionally protected, and that his conduct was a 'substantial factor' -- or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent's reemployment even in the absence of the protected conduct." Id. at 429 U. S. 287 (footnote omitted). It is not necessary to get into semantic discussions on whether the Mt. Healthy approach is "but-for" causation in another guise or creates an affirmative defense on the part of the employer to see its clear application to the issues before us in this case. As in Mt. Healthy, the District Court found that the employer was motivated by both legitimate and illegitimate factors. And here, as in Mt. Healthy, and as the Court now holds, Hopkins was not required to prove that the illegitimate factor was the only, principal, or true reason for petitioner's action. Rather, as JUSTICE O'CONNOR states, her burden was to show that the unlawful motive was a substantial factor in the adverse employment action. The District Court, as its opinion was construed by the Court of Appeals, so found, 263 U.S.App.D.C. 321, 333, 334, 825 F.2d 458, 470, 471 (1987), and I agree that the finding was supported by the record. The burden of persuasion then Page 490 U. S. 260 should have shifted to Price Waterhouse to prove "by a preponderance of the evidence that it would have reached the same decision . . . in the absence of" the unlawful motive. Mt. Healthy, supra, at 429 U. S. 287 . I agree with JUSTICE BRENNAN that applying this approach to causation in Title VII cases is not a departure from, and does not require modification of, the Court's holdings in Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), and McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). The Court has made clear that "mixed-motives" cases such as the present one are different from pretext cases such as McDonnell Douglas and Burdine. In pretext cases, "the issue is whether either illegal or legal motives, but not both, were the true' motives behind the decision." NLRB v. Transportation Management Corp., 462 U. S. 393 , 462 U. S. 400 , n. 5 (1983). In mixed-motives cases, however, there is no one "true" motive behind the decision. Instead, the decision is a result of multiple factors, at least one of which is legitimate. It can hardly be said that our decision in this case is a departure from cases that are "inapposite." Ibid. I also disagree with the dissent's assertion that this approach to causation is inconsistent with our statement in Burdine that "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." 450 U.S. at 450 U. S. 253 . As we indicated in Transportation Management Corp., the showing required by Mt. Healthy does not improperly shift from the plaintiff the ultimate burden of persuasion on whether the defendant intentionally discriminated against him or her. See 462 U.S. at 462 U. S. 400 , n. 5. Because the Court of Appeals required Price Waterhouse to prove by clear and convincing evidence that it would have reached the same employment decision in the absence of the improper motive, rather than merely requiring proof by a preponderance of the evidence, as in Mt. Healthy, I concur in the judgment reversing this case in part and remanding. Page 490 U. S. 261 With respect to the employer's burden, however, the plurality seems to require, at least in most cases, that the employer submit objective evidence that the same result would have occurred absent the unlawful motivation. Ante at 490 U. S. 252 . In my view, however, there is no special requirement that the employer carry its burden by objective evidence. In a mixed-motives case, where the legitimate motive found would have been ample grounds for the action taken, and the employer credibly testifies that the action would have been taken for the legitimate reasons alone, this should be ample proof. This would even more plainly be the case where the employer denies any illegitimate motive in the first place, but the court finds that illegitimate, as well as legitimate, factors motivated the adverse action. * * I agree with the plurality that if the employer carries this burden, there has been no violation of Title VII. JUSTICE O'CONNOR, concurring in the judgment. I agree with the plurality that, on the facts presented in this case, the burden of persuasion should shift to the employer to demonstrate by a preponderance of the evidence that it would have reached the same decision concerning Ann Hopkins' candidacy absent consideration of her gender. I further agree that this burden shift is properly part of the liability phase of the litigation. I thus concur in the judgment of the Court. My disagreement stems from the plurality's conclusions concerning the substantive requirement of causation under the statute and its broad statements regarding the applicability of the allocation of the burden of proof applied in this case. The evidentiary rule the Court adopts today should be viewed as a supplement to the careful framework established by our unanimous decisions in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), for use in cases such as this one where the employer has created uncertainty as to causation by knowingly giving Page 490 U. S. 262 substantial weight to an impermissible criterion. I write separately to explain why I believe such a departure from the McDonnell Douglas standard is justified in the circumstances presented by this and like cases, and to express my views as to when and how the strong medicine of requiring the employer to bear the burden of persuasion on the issue of causation should be administered. I Title VII provides in pertinent part: "It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a) (emphasis added). The legislative history of Title VII bears out what its plain language suggests: a substantive violation of the statute only occurs when consideration of an illegitimate criterion is the "but-for" cause of an adverse employment action. The legislative history makes it clear that Congress was attempting to eradicate discriminatory actions in the employment setting, not mere discriminatory thoughts. Critics of the bill that became Title VII labeled it a "thought control bill," and argued that it created a "punishable crime that does not require an illegal external act as a basis for judgment." 100 Cong.Rec. 7254 (1964) (remarks of Sen. Ervin). Senator Case, whose views the plurality finds so persuasive elsewhere, responded: "The man must do or fail to do something in regard to employment. There must be some specific external act, more than a mental act. Only if he does the act because of the grounds stated in the bill would there be any legal consequences." Ibid. Thus, I disagree with the plurality's dictum that the words "because of" do not mean "but-for" causation; manifestly they Page 490 U. S. 263 do. See Sheet Metal Workers v. EEOC, 478 U. S. 421 , 478 U. S. 499 (1986) (WHITE, J., dissenting) ("[T]he general policy under Title VII is to limit relief for racial discrimination in employment practices to actual victims of the discrimination"). We should not, and need not, deviate from that policy today. The question for decision in this case is what allocation of the burden of persuasion on the issue of causation best conforms with the intent of Congress and the purposes behind Title VII. The evidence of congressional intent as to which party should bear the burden of proof on the issue of causation is considerably less clear. No doubt, as a general matter, Congress assumed that the plaintiff in a Title VII action would bear the burden of proof on the elements critical to his or her case. As the dissent points out, post at 287, n. 3, the interpretative memorandum submitted by sponsors of Title VII indicates that "the plaintiff, as in any civil case, would have the burden of proving that discrimination had occurred." 110 Cong.Rec. 7214 (1964) (emphasis added). But in the area of tort liability, from whence the dissent's "but-for" standard of causation is derived, see post at 282, the law has long recognized that, in certain "civil cases," leaving the burden of persuasion on the plaintiff to prove "but-for" causation would be both unfair and destructive of the deterrent purposes embodied in the concept of duty of care. Thus, in multiple causation cases, where a breach of duty has been established, the common law of torts has long shifted the burden of proof to multiple defendants to prove that their negligent actions were not the "but-for" cause of the plaintiff's injury. See e.g., Summers v. Tice, 33 Cal. 2d 80 , 84-87, 199 P.2d 1, 3-4 (1948). The same rule has been applied where the effect of a defendant's tortious conduct combines with a force of unknown or innocent origin to produce the harm to the plaintiff. See Kingston v. Chicago & N.W. R. Co., 191 Wis. 610, 616, 211 N.W. 913, 915 (1927) ("Granting that the union of that fire [caused by defendant's Page 490 U. S. 264 negligence] with another of natural origin, or with another of much greater proportions, is available as a defense, the burden is on the defendant to show that . . . the fire set by him was not the proximate cause of the damage"). See also 2 J. Wigmore, Select Cases on the Law of Torts, § 153, p. 865 (1912) ("When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that one of the two persons, or one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm"). While requiring that the plaintiff in a tort suit or a Title VII action prove that the defendant's "breach of duty" was the "but-for" cause of an injury does not generally hamper effective enforcement of the policies behind those causes of action, "at other times, the [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs. He is invited to make an estimate concerning facts that concededly never existed. The very uncertainty as to what might have happened opens the door wide for conjecture. But when conjecture is demanded it can be given a direction that is consistent with the policy considerations that underlie the controversy." Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60, 67 (1956). Like the common law of torts, the statutory employment "tort" created by Title VII has two basic purposes. The first is to deter conduct which has been identified as contrary to public policy and harmful to society as a whole. As we have noted in the past, the award of backpay to a Title VII plaintiff provides "the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as Page 490 U. S. 265 possible, the last vestiges" of discrimination in employment. Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 417 -418 (1975) (citation omitted). The second goal of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." Id. at 422 U. S. 418 . Both these goals are reflected in the elements of a disparate treatment action. There is no doubt that Congress considered reliance on gender or race in making employment decisions an evil in itself. As Senator Clark put it, "[t]he bill simply eliminates consideration of color [or other forbidden criteria] from the decision to hire or promote." 110 Cong.Rec. 7218 (1964). See also id. at 13088 (remarks of Sen. Humphrey) ("What the bill does . . . is simply to make it an illegal practice to use race as a factor in denying employment"). Reliance on such factors is exactly what the threat of Title VII liability was meant to deter. While the main concern of the statute was with employment opportunity, Congress was certainly not blind to the stigmatic harm which comes from being evaluated by a process which treats one as an inferior by reason of one's race or sex. This Court's decisions under the Equal Protection Clause have long recognized that, whatever the final outcome of a decisional process, the inclusion of race or sex as a consideration within it harms both society and the individual. See Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). At the same time, Congress clearly conditioned legal liability on a determination that the consideration of an illegitimate factor caused a tangible employment injury of some kind. Where an individual disparate treatment plaintiff has shown by a preponderance of the evidence that an illegitimate criterion was a substantial factor in an adverse employment decision, the deterrent purpose of the statute has clearly been triggered. More importantly, as an evidentiary matter, a reasonable factfinder could conclude that, absent further explanation, the employer's discriminatory motivation "caused" the employment decision. The employer has Page 490 U. S. 266 not yet been shown to be a violator, but neither is it entitled to the same presumption of good faith concerning its employment decisions which is accorded employers facing only circumstantial evidence of discrimination. Both the policies behind the statute and the evidentiary principles developed in the analogous area of causation in the law of torts suggest that, at this point, the employer may be required to convince the factfinder that, despite the smoke, there is no fire. We have given recognition to these principles in our cases which have discussed the "remedial phase" of class action disparate treatment cases. Once the class has established that discrimination against a protected group was essentially the employer's "standard practice," there has been harm to the group, and injunctive relief is appropriate. But, as to the individual members of the class, the liability phase of the litigation is not complete. See Dillon v. Coles, 746 F.2d 998, 1004 (CA3 1984) ("It is misleading to speak of the additional proof required by an individual class member for relief as being a part of the damage phase; that evidence is actually an element of the liability portion of the case") (footnote omitted). Because the class has already demonstrated that, as a rule, illegitimate factors were considered in the employer's decisions, the burden shifts to the employer "to demonstrate that the individual applicant was denied an employment opportunity for legitimate reasons." Teamsters v. United States, 431 U. S. 324 , 431 U. S. 362 (1977). See also Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 772 (1976). The individual members of a class action disparate treatment case stand in much the same position as Ann Hopkins here. There has been a strong showing that the employer has done exactly what Title VII forbids, but the connection between the employer's illegitimate motivation and any injury to the individual plaintiff is unclear. At this point, calling upon the employer to show that despite consideration of illegitimate factors the individual plaintiff would not have been hired or promoted in any event hardly seems "unfair" or Page 490 U. S. 267 contrary to the substantive command of the statute. In fact, an individual plaintiff who has shown that an illegitimate factor played a substantial role in the decision in her case has proved more than the class member in a Teamsters -type action. The latter receives the benefit of a burden-shift to the defendant based on the likelihood that an illegitimate criterion was a factor in the individual employment decision. There is a tension between the Franks and Teamsters line of decisions and the individual disparate treatment cases cited by the dissent. See post at 490 U. S. 286 -289. Logically, under the dissent's view, each member of a disparate treatment class action would have to show "but-for" causation as to his or her individual employment decision, since it is not an element of the pattern or practice proof of the entire class and it is statutorily mandated that the plaintiff bear the burden of proof on this issue throughout the litigation. While the Court has properly drawn a distinction between the elements of a class action claim and an individual disparate treatment claim, see Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867 , 467 U. S. 873 -878 (1984), and I do not suggest the wholesale transposition of rules from one setting to the other, our decisions in Teamsters and Franks do indicate a recognition that presumptions shifting the burden of persuasion based on evidentiary probabilities and the policies behind the statute are not alien to our Title VII jurisprudence. Moreover, placing the burden on the defendant in this case to prove that the same decision would have been justified by legitimate reasons is consistent with our interpretation of the constitutional guarantee of equal protection. Like a disparate treatment plaintiff, one who asserts that governmental action violates the Equal Protection Clause must show that he or she is "the victim of intentional discrimination." Burdine, 450 U.S. at 450 U. S. 256 . Compare post at 490 U. S. 286 , 490 U. S. 289 (KENNEDY, J., dissenting), with Washington v. Davis, 426 U. S. 229 , 426 U. S. 240 (1976). In Alexander v. Louisiana, 405 U. S. 625 (1972), we dealt with a criminal defendant's allegation that Page 490 U. S. 268 members of his race had been invidiously excluded from the grand jury which indicted him, in violation of the Equal Protection Clause. In addition to the statistical evidence presented by petitioner in that case, we noted that the State's "selection procedures themselves were not racially neutral." Id. at 405 U. S. 630 . Once the consideration of race in the decisional process had been established, we held that "the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result." Id. at 405 U. S. 632 . We adhered to similar principles in Arlington Heights v. Metropolitan Housing Corp., 429 U. S. 252 (1977), a case which, like this one, presented the problems of motivation and causation in the context of a multimember decisionmaking body authorized to consider a wide range of factors in arriving at its decisions. In Arlington Heights, a group of minority plaintiffs claimed that a municipal governing body's refusal to rezone a plot of land to allow for the construction of low-income integrated housing was racially motivated. On the issue of causation, we indicated that the plaintiff was not required "to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the 'dominant' or 'primary' one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, Page 490 U. S. 269 this judicial deference is no longer justified." Id. at 429 U. S. 265 -266 (citation omitted). If the strong presumption of regularity and rationality of legislative decisionmaking must give way in the face of evidence that race has played a significant part in a legislative decision, I simply cannot believe that Congress intended Title VII to accord more deference to a private employer in the face of evidence that its decisional process has been substantially infected by discrimination. Indeed, where a public employee brings a "disparate treatment" claim under 42 U.S.C. § 1983 and the Equal Protection Clause, the employee is entitled to the favorable evidentiary framework of Arlington Heights. See, e.g., Hervey v. Little Rock, 787 F.2d 1223, 1233-1234 (CA8 1986) (applying Arlington Heights to public employee's claim of sex discrimination in promotion decision); Lee v. Russell County Bd. of Education, 684 F.2d 769, 773-774 (CA11 1982) (applying Arlington Heights to public employees' claims of race discrimination in discharge case). Under the dissent's reading of Title VII, Congress' extension of the coverage of the statute to public employers in 1972 has placed these employees under a less favorable evidentiary regime. In my view, nothing in the language, history, or purpose of Title VII prohibits adoption of an evidentiary rule which places the burden of persuasion on the defendant to demonstrate that legitimate concerns would have justified an adverse employment action where the plaintiff has convinced the factfinder that a forbidden factor played a substantial role in the employment decision. Even the dissenting judge below "[had] no quarrel with [the] principle" that "a party with one permissible motive and one unlawful one may prevail only by affirmatively proving that it would have acted as it did even if the forbidden motive were absent." 263 U.S.App.D.C. 321, 341, 825 F.2d 458, 478 (1987) (Williams, J. dissenting). Page 490 U. S. 270 II The dissent's summary of our individual disparate treatment cases to date is fair and accurate, and amply demonstrates that the rule we adopt today is at least a change in direction from some of our prior precedents. See post at 490 U. S. 286 -289. We have indeed emphasized in the past that, in an individual disparate treatment action, the plaintiff bears the burden of persuasion throughout the litigation. Nor have we confined the word "pretext" to the narrow definition which the plurality attempts to pin on it today. See ante at 490 U. S. 244 -247. McDonnell Douglas and Burdine clearly contemplated that a disparate treatment plaintiff could show that the employer's proffered explanation for an event was not "the true reason," either because it never motivated the employer in its employment decisions or because it did not do so in a particular case. McDonnell Douglas and Burdine assumed that the plaintiff would bear the burden of persuasion as to both these attacks, and we clearly depart from that framework today. Such a departure requires justification, and its outlines should be carefully drawn. First, McDonnell Douglas itself dealt with a situation where the plaintiff presented no direct evidence that the employer had relied on a forbidden factor under Title VII in making an employment decision. The prima facie case established there was not difficult to prove, and was based only on the statistical probability that, when a number of potential causes for an employment decision are eliminated, an inference arises that an illegitimate factor was, in fact, the motivation behind the decision. See Teamsters, 431 U.S. at 431 U. S. 358 , n. 44 ("[T]he McDonnell Douglas formula does not require direct proof of discrimination"). In the face of this inferential proof, the employer's burden was deemed to be only one of production; the employer must articulate a legitimate reason for the adverse employment action. See Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 577 (1978). The plaintiff must then be given an "opportunity to demonstrate Page 490 U. S. 271 by competent evidence that the presumptively valid reasons for his rejection were, in fact, a coverup for a racially discriminatory decision." McDonnell Douglas, 411 U.S. at 411 U. S. 805 . Our decision in Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), also involved the "narrow question" whether, after a plaintiff had carried the "not onerous" burden of establishing the prima facie case under McDonnell Douglas, the burden of persuasion should be shifted to the employer to prove that a legitimate reason for the adverse employment action existed. 450 U.S. at 450 U. S. 250 . As the discussion of Teamsters and Arlington Heights indicates, I do not think that the employer is entitled to the same presumption of good faith where there is direct evidence that it has placed substantial reliance on factors whose consideration is forbidden by Title VII. The only individual disparate treatment case cited by the dissent which involved the kind of direct evidence of discriminatory animus with which we are confronted here is United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 713 -714, n. 2 (1983). The question presented to the Court in that case involved only a challenge to the elements of the prima facie case under McDonnell Douglas and Burdine, see Pet. for Cert. in United States Postal Service Bd. of Governors v. Aikens, O.T. 1981, No. 81-1044, and the question we confront today was neither briefed nor argued to the Court. As should be apparent, the entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by. That the employer's burden in rebutting such an inferential case of discrimination is only one of production does not mean that the scales should be weighted in the same manner where there is direct evidence of intentional discrimination. Indeed, in one Age Discrimination in Employment Act case, the Court seemed to indicate that "the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination." Trans World Page 490 U. S. 272 Airlines, Inc. v. Thurston, 469 U. S. 111 , 469 U. S. 121 (1985). See also East Texas Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395 , 431 U. S. 403 -404, n. 9 (1977). Second, the facts of this case, and a growing number like it decided by the Courts of Appeals, convince me that the evidentiary standard I propose is necessary to make real the promise of McDonnell Douglas that, "[i]n the implementation of [employment] decisions, it is abundantly clear that Title VII tolerates no . . . discrimination, subtle or otherwise." 411 U.S. at 411 U. S. 801 . In this case, the District Court found that a number of the evaluations of Ann Hopkins submitted by partners in the firm overtly referred to her failure to conform to certain gender stereotypes as a factor militating against her election to the partnership. 618 F. Supp. 1109 , 1116-1117 (DC 1985). The District Court further found that these evaluations were given "great weight" by the decisionmakers at Price Waterhouse. Id. at 1118. In addition, the District Court found that the partner responsible for informing Hopkins of the factors which caused her candidacy to be placed on hold indicated that her "professional" problems would be solved if she would "walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewelry." Id. at 1117 (footnote omitted). As the Court of Appeals characterized it, Ann Hopkins proved that Price Waterhouse "permitt[ed] stereotypical attitudes towards women to play a significant, though unquantifiable, role in its decision not to invite her to become a partner." 263 U.S.App.D.C. at 324, 825 F.2d at 461. At this point, Ann Hopkins had taken her proof as far as it could go. She had proved discriminatory input into the decisional process, and had proved that participants in the process considered her failure to conform to the stereotypes credited by a number of the decisionmakers had been a substantial factor in the decision. It is as if Ann Hopkins were sitting in the hall outside the room where partnership decisions were being made. As the partners filed in to consider Page 490 U. S. 273 her candidacy, she heard several of them make sexist remarks in discussing her suitability for partnership. As the decisionmakers exited the room, she was told by one of those privy to the decisionmaking process that her gender was a major reason for the rejection of her partnership bid. If, as we noted in Teamsters, "[p]resumptions shifting the burden of proof are often created to reflect judicial evaluations of probabilities and to conform with a party's superior access to the proof," 431 U.S. at 431 U. S. 359 , n. 45, one would be hard-pressed to think of a situation where it would be more appropriate to require the defendant to show that its decision would have been justified by wholly legitimate concerns. Moreover, there is mounting evidence in the decisions of the lower courts that respondent here is not alone in her inability to pinpoint discrimination as the precise cause of her injury, despite having shown that it played a significant role in the decisional process. Many of these courts, which deal with the evidentiary issues in Title VII cases on a regular basis, have concluded that placing the risk of nonpersuasion on the defendant in a situation where uncertainty as to causation has been created by its consideration of an illegitimate criterion makes sense as a rule of evidence, and furthers the substantive command of Title VII. See, e.g., Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (CA11 1983) (Tjoflat, J.) ("It would be illogical, indeed ironic, to hold a Title VII plaintiff presenting direct evidence of a defendant's intent to discriminate to a more stringent burden of proof, or to allow a defendant to meet that direct proof by merely articulating, but not proving, legitimate, nondiscriminatory reasons for its action"). Particularly in the context of the professional world, where decisions are often made by collegial bodies on the basis of largely subjective criteria, requiring the plaintiff to prove that any one factor was the definitive cause of the decisionmakers' action may be tantamount to declaring Title VII inapplicable to such decisions. See, e.g., Fields v. Clark University, 817 F.2d 931, 935-937 Page 490 U. S. 274 (CA1 1987) (where plaintiff produced "strong evidence" that sexist attitudes infected faculty tenure decision, burden properly shifted to defendant to show that it would have reached the same decision absent discrimination); Thompkins v. Morris Brown College, 752 F.2d 558, 563 (CA11 1985) (direct evidence of discriminatory animus in decision to discharge college professor shifted burden of persuasion to defendant). Finally, I am convinced that a rule shifting the burden to the defendant where the plaintiff has shown that an illegitimate criterion was a "substantial factor" in the employment decision will not conflict with other congressional policies embodied in Title VII. Title VII expressly provides that an employer need not give preferential treatment to employees or applicants of any race, color, religion, sex, or national origin in order to maintain a workforce in balance with the general population. See 42 U.S.C. § 2000e-2(j). The interpretive memorandum, whose authoritative force is noted by the plurality, see ante at 490 U. S. 243 , n. 8, specifically provides: "There is no requirement in title VII that an employer maintain a racial balance in his workforce. On the contrary, any deliberate attempt to maintain a racial balance, whatever such a balance may be, would involve a violation of title VII because maintaining such a balance would require an employer to hire or refuse to hire on the basis of race." 110 Cong.Rec. 7213 (1964). Last Term, in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988), the Court unanimously concluded that the disparate impact analysis first enunciated in Griggs v. Duke Power Co., 401 U. S. 424 (1971), should be extended to subjective or discretionary selection processes. At the same time, a plurality of the Court indicated concern that the focus on bare statistics in the disparate impact setting could force employers to adopt "inappropriate prophylactic measures" in violation of § 2000e-2(j). The plurality went on to emphasize that, in a disparate impact case, the plaintiff may not simply Page 490 U. S. 275 point to a statistical disparity in the employer's workforce. Instead, the plaintiff must identify a particular employment practice and "must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group." 487 U.S. at 487 U. S. 994 . The plurality indicated that "the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times." Id. at 487 U. S. 997 . I believe there are significant differences between shifting the burden of persuasion to the employer in a case resting purely on statistical proof, as in the disparate impact setting, and shifting the burden of persuasion in a case like this one, where an employee has demonstrated by direct evidence that an illegitimate factor played a substantial role in a particular employment decision. First, the explicit consideration of race, color, religion, sex, or national origin in making employment decisions "was the most obvious evil Congress had in mind when it enacted Title VII." Teamsters, 431 U.S. at 431 U. S. 335 , n. 15. While the prima facie case under McDonnell Douglas and the statistical showing of imbalance involved in a disparate impact case may both be indicators of discrimination or its "functional equivalent," they are not, in and of themselves, the evils Congress sought to eradicate from the employment setting. Second, shifting the burden of persuasion to the employer in a situation like this one creates no incentive to preferential treatment in violation of § 2000e(2)(j). To avoid bearing the burden of justifying its decision, the employer need not seek racial or sexual balance in its workforce; rather, all it need do is avoid substantial reliance on forbidden criteria in making its employment decisions. While the danger of forcing employers to engage in unwarranted preferential treatment is thus less dramatic in this setting than in the situation the Court faced in Watson, it is far from wholly illusory. Based on its misreading of Page 490 U. S. 276 the words "because of " in the statute, see ante at 490 U. S. 240 -242, the plurality appears to conclude that, if a decisional process is "tainted" by awareness of sex or race in any way, the employer has violated the statute, and Title VII thus commands that the burden shift to the employer to justify its decision. Ante at 490 U. S. 250 -252. The plurality thus effectively reads the causation requirement out of the statute and then replaces it with an "affirmative defense." Ante at 490 U. S. 244 -247. In my view, in order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision. As the Court of Appeals noted below: "While most circuits have not confronted the question squarely, the consensus among those that have is that, once a Title VII plaintiff has demonstrated by direct evidence that discriminatory animus played a significant or substantial role in the employment decision, the burden shifts to the employer to show that the decision would have been the same absent discrimination." 263 U.S.App.D.C. at 333-344, 825 F.2d at 470-471. Requiring that the plaintiff demonstrate that an illegitimate factor played a substantial role in the employment decision identifies those employment situations where the deterrent purpose of Title VII is most clearly implicated. As an evidentiary matter, where a plaintiff has made this type of strong showing of illicit motivation, the factfinder is entitled to presume that the employer's discriminatory animus made a difference to the outcome, absent proof to the contrary from the employer. Where a disparate treatment plaintiff has made such a showing, the burden then rests with the employer to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor. The employer need not isolate the sole cause for the decision; rather it must demonstrate that, with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same employment Page 490 U. S. 277 action. This evidentiary scheme essentially requires the employer to place the employee in the same position he or she would have occupied absent discrimination. Cf. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 , 429 U. S. 286 (1977). If the employer fails to carry this burden, the factfinder is justified in concluding that the decision was made "because of " consideration of the illegitimate factor, and the substantive standard for liability under the statute is satisfied. Thus, stray remarks in the workplace, while perhaps probative of sexual harassment, see Meritor Savings Bank v. Vinson, 477 U. S. 57 , 477 U. S. 63 -69 (1986), cannot justify requiring the employer to prove that its hiring or promotion decisions were based on legitimate criteria. Nor can statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself, suffice to satisfy the plaintiff's burden in this regard. In addition, in my view testimony such as Dr. Fiske's in this case, standing alone, would not justify shifting the burden of persuasion to the employer. Race and gender always "play a role" in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and about which they may comment in a perfectly neutral and nondiscriminatory fashion. For example, in the context of this case, a mere reference to "a lady candidate" might show that gender "played a role" in the decision, but by no means could support a rational factfinder's inference that the decision was made "because of" sex. What is required is what Ann Hopkins showed here: direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision. It should be obvious that the threshold standard I would adopt for shifting the burden of persuasion to the defendant differs substantially from that proposed by the plurality, the plurality's suggestion to the contrary notwithstanding. See ante at 490 U. S. 250 , n. 13. The plurality proceeds from the premise that the words "because of" in the statute do not embody any Page 490 U. S. 278 causal requirement at all. Under my approach, the plaintiff must produce evidence sufficient to show that an illegitimate criterion was a substantial factor in the particular employment decision such that a reasonable factfinder could draw an inference that the decision was made "because of" the plaintiff's protected status. Only then would the burden of proof shift to the defendant to prove that the decision would have been justified by other, wholly legitimate considerations. See also ante at 490 U. S. 259 -260 (WHITE, J., concurring in judgment). In sum, because of the concerns outlined above, and because I believe that the deterrent purpose of Title VII is disserved by a rule which places the burden of proof on plaintiffs on the issue of causation in all circumstances, I would retain, but supplement, the framework we established in McDonnell Douglas and subsequent cases. The structure of the presentation of evidence in an individual disparate treatment case should conform to the general outlines we established in McDonnell Douglas and Burdine. First, the plaintiff must establish the McDonell Douglas prima facie case by showing membership in a protected group, qualification for the job, rejection for the position, and that, after rejection, the employer continued to seek applicants of complainant's general qualifications. McDonnell Douglas, 411 U.S. at 411 U. S. 802 . The plaintiff should also present any direct evidence of discriminatory animus in the decisional process. The defendant should then present its case, including its evidence as to legitimate, nondiscriminatory reasons for the employment decision. As the dissent notes, under this framework, the employer "has every incentive to convince the trier of fact that the decision was lawful." Post at 490 U. S. 292 , citing Burdine, 450 U.S. at 450 U. S. 258 . Once all the evidence has been received, the court should determine whether the McDonnell Douglas or Price Waterhouse framework properly applies to the evidence before it. If the plaintiff has failed to satisfy the Price Waterhouse threshold, the case should be decided under the principles enunciated in McDonnell Douglas and Burdine, Page 490 U. S. 279 with the plaintiff bearing the burden of persuasion on the ultimate issue whether the employment action was taken because of discrimination. In my view, such a system is both fair and workable, and it calibrates the evidentiary requirements demanded of the parties to the goals behind the statute itself. I agree with the dissent, see post at 490 U. S. 293 , n. 4, that the evidentiary framework I propose should be available to all disparate treatment plaintiffs where an illegitimate consideration played a substantial role in an adverse employment decision. The Court's allocation of the burden of proof in Johnson v. Transportation Agency, Santa Clara County, 480 U. S. 616 , 480 U. S. 626 -627 (1987), rested squarely on "the analytical framework set forth in McDonnell Douglas, " id. at 480 U. S. 626 , which we alter today. It would be odd, to say the least, if the evidentiary rules applicable to Title VII actions were themselves dependent on the gender or the skin color of the litigants. But see ante at 490 U. S. 239 , n. 3. In this case, I agree with the plurality that petitioner should be called upon to show that the outcome would have been the same if respondent's professional merit had been its only concern. On remand, the District Court should determine whether Price Waterhouse has shown by a preponderance of the evidence that, if gender had not been part of the process, its employment decision concerning Ann Hopkins would nonetheless have been the same. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. Today the Court manipulates existing and complex rules for employment discrimination cases in a way certain to result in confusion. Continued adherence to the evidentiary scheme established in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), is a wiser course than creation of more disarray in an area of the law already difficult for the bench and bar, and so I must dissent. Page 490 U. S. 280 Before turning to my reasons for disagreement with the Court's disposition of the case, it is important to review the actual holding of today's decision. I read the opinions as establishing that, in a limited number of cases Title VII plaintiffs, by presenting direct and substantial evidence of discriminatory animus, may shift the burden of persuasion to the defendant to show that an adverse employment decision would have been supported by legitimate reasons. The shift in the burden of persuasion occurs only where a plaintiff proves by direct evidence that an unlawful motive was a substantial factor actually relied upon in making the decision. Ante at 490 U. S. 276 -277 (opinion of O'CONNOR, J.); ante at 490 U. S. 259 -260 (opinion of WHITE, J.). As the opinions make plain, the evidentiary scheme created today is not for every case in which a plaintiff produces evidence of stray remarks in the workplace. Ante at 490 U. S. 251 (opinion of BRENNAN, J.); ante at 490 U. S. 277 (opinion of O'CONNOR, J.). Where the plaintiff makes the requisite showing, the burden that shifts to the employer is to show that legitimate employment considerations would have justified the decision without reference to any impermissible motive. Ante at 490 U. S. 260 -261 (opinion of WHITE, J.); ante at 490 U. S. 278 (opinion of O'CONNOR, J.). The employer's proof on the point is to be presented and reviewed just as with any other evidentiary question: the Court does not accept the plurality's suggestion that an employer's evidence need be "objective" or otherwise out of the ordinary. Ante at 490 U. S. 261 (opinion of WHITE, J.). In sum, the Court alters the evidentiary framework of McDonnell Douglas and Burdine for a closely defined set of cases. Although JUSTICE O'CONNOR advances some thoughtful arguments for this change, I remain convinced that it is unnecessary and unwise. More troubling is the plurality's rationale for today's decision, which includes a number of unfortunate pronouncements on both causation and methods of proof in employment discrimination cases. To demonstrate the defects in the plurality's reasoning, it is necessary Page 490 U. S. 281 to discuss, first, the standard of causation in Title VII cases, and, second, the burden of proof. I The plurality describes this as a case about the standard of causation under Title VII, ante at 490 U. S. 237 , but I respectfully suggest that the description is misleading. Much of the plurality's rhetoric is spent denouncing a "but-for" standard of causation. The theory of Title VII liability the plurality adopts, however, essentially incorporates the but-for standard. The importance of today's decision is not the standard of causation it employs, but its shift to the defendant of the burden of proof. The plurality's causation analysis is misdirected, for it is clear that, whoever bears the burden of proof on the issue, Title VII liability requires a finding of but-for causation. See also ante at 490 U. S. 261 , and n. (opinion of WHITE, J.); ante at 490 U. S. 262 -263 (opinion of O'CONNOR, J.). The words of Title VII are not obscure. The part of the statute relevant to this case provides: "It shall be an unlawful employment practice for an employer -- " "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added). By any normal understanding, the phrase "because of " conveys the idea that the motive in question made a difference to the outcome. We use the words this way in everyday speech. And assuming, as the plurality does, that we ought to consider the interpretive memorandum prepared by the statute's drafters, we find that this is what the words meant to them as well. "To discriminate is to make a distinction, to make a difference in treatment or favor." 110 Cong.Rec. 7213 (1964). Congress could not have chosen a clearer way Page 490 U. S. 282 to indicate that proof of liability under Title VII requires a showing that race, color, religion, sex, or national origin caused the decision at issue. Our decisions confirm that Title VII is not concerned with the mere presence of impermissible motives; it is directed to employment decisions that result from those motives. The verbal formulae we have used in our precedents are synonymous with but-for causation. Thus, we have said that providing different insurance coverage to male and female employees violates the statute by treating the employee " in a manner which, but for that person's sex, would be different.'" Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 , 462 U. S. 683 (1983), quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 , 435 U. S. 711 (1978). We have described the relevant question as whether the employment decision was "based on" a discriminatory criterion, Teamsters v. United States, 431 U. S. 324 , 431 U. S. 358 (1977), or whether the particular employment decision at issue was "made on the basis of " an impermissible factor, Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867 , 467 U. S. 875 (1984). What we term "but-for" cause is the least rigorous standard that is consistent with the approach to causation our precedents describe. If a motive is not a but-for cause of an event, then by definition it did not make a difference to the outcome. The event would have occurred just the same without it. Common law approaches to causation often require proof of but-for cause as a starting point toward proof of legal cause. The law may require more than but-for cause, for instance proximate cause, before imposing liability. Any standard less than but-for, however, simply represents a decision to impose liability without causation. As Dean Prosser puts it, "[a]n act or omission is not regarded as a cause of an event if the particular event would have occurred without it." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed.1984). Page 490 U. S. 283 One of the principal reasons the plurality decision may sow confusion is that it claims Title VII liability is unrelated to but-for causation, yet it adopts a but-for standard once it has placed the burden of proof as to causation upon the employer. This approach conflates the question whether causation must be shown with the question of how it is to be shown. Because the plurality's theory of Title VII causation is ultimately consistent with a but-for standard, it might be said that my disagreement with the plurality's comments on but-for cause is simply academic. See ante at 490 U. S. 259 (opinion of WHITE, J.). But since those comments seem to influence the decision, I turn now to that part of the plurality's analysis. The plurality begins by noting the quite unremarkable fact that Title VII is written in the present tense. Ante at 490 U. S. 240 -241. It is unlawful "to fail" or "to refuse" to provide employment benefits on the basis of sex, not "to have failed" or "to have refused" to have done so. The plurality claims that the present tense excludes a but-for inquiry as the relevant standard because but-for causation is necessarily concerned with a hypothetical inquiry into how a past event would have occurred absent the contested motivation. This observation, however, tells us nothing of particular relevance to Title VII or the cause of action it creates. I am unaware of any federal prohibitory statute that is written in the past tense. Every liability determination, including the novel one constructed by the plurality, necessarily is concerned with the examination of a past event. [ Footnote 2/1 ] The plurality's analysis of verb tense serves only to divert attention from the causation requirement that is made part of the statute by the "because Page 490 U. S. 284 of" phrase. That phrase, I respectfully submit, embodies a rather simple concept that the plurality labors to ignore. [ Footnote 2/2 ] We are told next that but-for cause is not required, since the words "because of" do not mean " solely because of." Ante at 490 U. S. 241 . No one contends, however, that sex must be the sole cause of a decision before there is a Title VII violation. This is a separate question from whether consideration of sex must be a cause of the decision. Under the accepted approach to causation that I have discussed, sex is a cause for the employment decision whenever, either by itself or in combination with other factors, it made a difference to the decision. Discrimination need not be the sole cause in order for liability to arise, but merely a necessary element of the set of factors that caused the decision, i.e., a but-for cause. See McDonald v. Santa Fe Trail Tranportation Co., 427 U. S. 273 , 427 U. S. 282 , n. 10 (1976). The plurality seems to say that, since we know the words "because of " do not mean "solely because of," they must not mean "because of " at all. This does not follow, as a matter of either semantics or logic. The plurality's reliance on the "bona fide occupational qualification" (BFOQ) provisions of Title VII, 42 U.S.C. § 2000e-2(e), is particularly inapt. The BFOQ provisions allow an employer, in certain cases, to make an employment decision of which it is conceded that sex is the cause. That sex may be the legitimate cause of an employment decision where gender is a BFOQ is consistent with the opposite command Page 490 U. S. 285 that a decision caused by sex in any other case justifies the imposition of Title VII liability. This principle does not support, however, the novel assertion that a violation has occurred where sex made no difference to the outcome. The most confusing aspect of the plurality's analysis of causation and liability is its internal inconsistency. The plurality begins by saying: "When . . . an employer considers both gender and legitimate factors at the time of making a decision, that decision was 'because of' sex and the other, legitimate considerations -- even if we may say later, in the context of litigation, that the decision would have been the same if gender had not been taken into account." Ante at 490 U. S. 241 . Yet it goes on to state that "an employer shall not be liable if it can prove that, even if it had not taken gender into account, it would have come to the same decision." Ante at 490 U. S. 242 . Given the language of the statute, these statements cannot both be true. Title VII unambiguously states that an employer who makes decisions "because of" sex has violated the statute. The plurality's first statement therefore appears to indicate that an employer who considers illegitimate reasons when making a decision is a violator. But the opinion then tells us that the employer who shows that the same decision would have been made absent consideration of sex is not a violator. If the second statement is to be reconciled with the language of Title VII, it must be that a decision that would have been the same absent consideration of sex was not made "because of " sex. In other words, there is no violation of the statute absent but-for causation. The plurality's description of the "same decision" test it adopts supports this view. The opinion states that "[a] court that finds for a plaintiff under this standard has effectively concluded that an illegitimate motive was a 'but-for' cause of the employment decision," ante at 19, and that this "is not an imposition of liability where sex made no difference to the outcome,'" ante at 490 U. S. 246 , n. 11. Page 490 U. S. 286 The plurality attempts to reconcile its internal inconsistency on the causation issue by describing the employer's showing as an "affirmative defense." This is nothing more than a label, and one not found in the language or legislative history of Title VII. Section 703(a)(1) is the statutory basis of the cause of action, and the Court is obligated to explain how its disparate treatment decisions are consistent with the terms of § 703(a)(1), not with general themes of legislative history or with other parts of the statute that are plainly inapposite. While the test ultimately adopted by the plurality may not be inconsistent with the terms of § 703(a)(1), see infra, at 490 U. S. 292 , the same cannot be said of the plurality's reasoning with respect to causation. As JUSTICE O'CONNOR describes it, the plurality "reads the causation requirement out of the statute, and then replaces it with an affirmative defense.'" Ante at 490 U. S. 276 . Labels aside, the import of today's decision is not that Title VII liability can arise without but-for causation, but that, in certain cases, it is not the plaintiff who must prove the presence of causation, but the defendant who must prove its absence. II We established the order of proof for individual Title VII disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and reaffirmed this allocation in Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). Under Burdine, once the plaintiff presents a prima facie case, an inference of discrimination arises. The employer must rebut the inference by articulating a legitimate nondiscriminatory reason for its action. The final burden of persuasion, however, belongs to the plaintiff. Burdine makes clear that the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 450 U. S. 253 . See also Board of Trustees of Keene State College v. Page 490 U. S. 287 Sweeney, 439 U. S. 24 , 439 U. S. 29 (1978) (STEVENS, J., dissenting). [ Footnote 2/3 ] I would adhere to this established evidentiary framework, which provides the appropriate standard for this and other individual disparate treatment cases. Today's creation of a new set of rules for "mixed-motives" cases is not mandated by the statute itself. The Court's attempt at refinement provides limited practical benefits at the cost of confusion and complexity, with the attendant risk that the trier of fact will misapprehend the controlling legal principles and reach an incorrect decision. In view of the plurality's treatment of Burdine and our other disparate treatment cases, it is important first to state why those cases are dispositive here. The plurality tries to reconcile its approach with Burdine by announcing that it applies only to a "pretext" case, which it defines as a case in which the plaintiff attempts to prove that the employer's proffered explanation is itself false. Ante at 490 U. S. 245 -247, and n. 11. This ignores the language of Burdine, which states that a plaintiff may succeed in meeting her ultimate burden of persuasion " either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." 450 U.S. at 450 U. S. 256 (emphasis added). Under the first of these two alternative methods, a plaintiff meets her burden if she can "persuade the court that the employment decision more likely than not was motivated by a discriminatory reason." United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 717 -718 (1983) Page 490 U. S. 288 (BLACKMUN, J., concurring). The plurality makes no attempt to address this aspect of our cases. Our opinions make plain that Burdine applies to all individual disparate treatment cases, whether the plaintiff offers direct proof that discrimination motivated the employer's actions or chooses the indirect method of showing that the employer's proffered justification is false, that is to say, a pretext. See Aikens, 460 U.S. at 460 U. S. 714 , n. 3 ("As in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence"). The plurality is mistaken in suggesting that the plaintiff in a so-called "mixed-motives" case will be disadvantaged by having to "squeeze her proof into Burdine's framework." Ante at 490 U. S. 247 . As we acknowledged in McDonnell Douglas, "[t]he facts necessarily will vary in Title VII cases," and the specification of the prima facie case set forth there "is not necessarily applicable in every respect to differing factual situations." 411 U.S. at 411 U. S. 802 , n. 13. The framework was "never intended to be rigid, mechanized, or ritualistic." Aikens, 460 U.S. at 460 U. S. 715 . Burdine compels the employer to come forward with its explanation of the decision and permits the plaintiff to offer evidence under either of the logical methods for proof of discrimination. This is hardly a framework that confines the plaintiff; still less is it a justification for saying that the ultimate burden of proof must be on the employer in a mixed-motives case. Burdine provides an orderly and adequate way to place both inferential and direct proof before the factfinder for a determination whether intentional discrimination has caused the employment decision. Regardless of the character of the evidence presented, we have consistently held that the ultimate burden "remains at all times with the plaintiff." Burdine, 450 U.S. at 450 U. S. 253 . Aikens illustrates the point. There, the evidence showed that the plaintiff, a black man, was far more qualified than any of the white applicants promoted ahead of him. More important, the testimony showed that "the person responsible for the promotion decisions at issue had made numerous Page 490 U. S. 289 derogatory comments about blacks in general and Aikens in particular." 460 U.S. at 460 U. S. 713 -714, n. 2. Yet the Court in Aikens reiterated that the case was to be tried under the proof scheme of Burdine. JUSTICE BRENNAN and JUSTICE BLACKMUN concurred to stress that the plaintiff could prevail under the Burdine scheme in either of two ways, one of which was directly to persuade the court that the employment decision was motivated by discrimination. 460 U.S. at 460 U. S. 718 . Aikens leaves no doubt that the so-called "pretext" framework of Burdine has been considered to provide a flexible means of addressing all individual disparate treatment claims. Downplaying the novelty of its opinion, the plurality claims to have followed a "well worn path" from our prior cases. The path may be well worn, but it is in the wrong forest. The plurality again relies on Title VII's BFOQ provisions, under which an employer bears the burden of justifying the use of a sex-based employment qualification. See Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 332 -337 (1977). In the BFOQ context, this is a sensible, indeed necessary, allocation of the burden, for there, by definition, sex is the but-for cause of the employment decision, and the only question remaining is how the employer can justify it. The same is true of the plurality's citations to Pregnancy Discrimination Act cases, ante at 490 U. S. 248 . In such cases, there is no question that pregnancy was the cause of the disputed action. The Pregnancy Discrimination Act and BFOQ cases tell us nothing about the case where the employer claims not that a sex-based decision was justified, but that the decision was not sex-based at all. Closer analogies to the plurality's new approach are found in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and NRLB v. Transportation Management Corp., 462 U. S. 393 (1983), but these cases were decided in different contexts. Mt. Healthy was a First Amendment case involving the firing of a teacher, and Transportation Management involved review of the NLRB's interpretation of the National Labor Relations Act. Page 490 U. S. 290 The Transportation Management decision was based on the deference that the Court traditionally accords NLRB interpretations of the statutes it administers. See 462 U.S. at 462 U. S. 402 -403. Neither case therefore tells us why the established Burdine framework should not continue to govern the order of proof under Title VII. In contrast to the plurality, JUSTICE O'CONNOR acknowledges that the approach adopted today is a "departure from the McDonnell Douglas standard." Ante at 490 U. S. 262 . Although her reasons for supporting this departure are not without force, they are not dispositive. As JUSTICE O'CONNOR states, the most that can be said with respect to the Title VII itself is that "nothing in the language, history, or purpose of Title VII prohibits adoption" of the new approach. Ante at 490 U. S. 269 (emphasis added). JUSTICE O'CONNOR also relies on analogies from the common law of torts, other types of Title VII litigation, and our equal protection cases. These analogies demonstrate that shifts in the burden of proof are not unprecedented in the law of torts or employment discrimination. Nonetheless, I believe continued adherence to the Burdine framework is more consistent with the statutory mandate. Congress' manifest concern with preventing imposition of liability in cases where discriminatory animus did not actually cause an adverse action, see ante at 490 U. S. 262 (opinion of O'CONNOR, J.), suggests to me that an affirmative showing of causation should be required. And the most relevant portion of the legislative history supports just this view. See n 3, supra. The limited benefits that are likely to be produced by today's innovation come at the sacrifice of clarity and practical application. The potential benefits of the new approach, in my view, are overstated. First, the Court makes clear that the Price Waterhouse scheme is applicable only in those cases where the plaintiff has produced direct and substantial proof that an impermissible motive was relied upon in making the decision at issue. The burden shift properly will be found to apply in Page 490 U. S. 291 only a limited number of employment discrimination cases. The application of the new scheme, furthermore, will make a difference only in a smaller subset of cases. The practical importance of the burden of proof is the "risk of nonpersuasion," and the new system will make a difference only where the evidence is so evenly balanced that the factfinder cannot say that either side's explanation of the case is "more likely" true. This category will not include cases in which the allocation of the burden of proof will be dispositive because of a complete lack of evidence on the causation issue. Cf. Summers v. Tice, 33 Cal. 2d 80 , 199 P.2d 1 (1948) (allocation of burden dispositive because no evidence of which of two negligently fired shots hit plaintiff). Rather, Price Waterhouse will apply only to cases in which there is substantial evidence of reliance on an impermissible motive, as well as evidence from the employer that legitimate reasons supported its action. Although the Price Waterhouse system is not for every case, almost every plaintiff is certain to ask for a Price Waterhouse instruction, perhaps on the basis of "stray remarks" or other evidence of discriminatory animus. Trial and appellate courts will therefore be saddled with the task of developing standards for determining when to apply the burden shift. One of their new tasks will be the generation of a jurisprudence of the meaning of "substantial factor." Courts will also be required to make the often subtle and difficult distinction between "direct" and "indirect" or "circumstantial" evidence. Lower courts long have had difficulty applying McDonnell Douglas and Burdine. Addition of a second burden-shifting mechanism, the application of which itself depends on assessment of credibility and a determination whether evidence is sufficiently direct and substantial, is not likely to lend clarity to the process. The presence of an existing burden-shifting mechanism distinguishes the individual disparate treatment case from the tort, classaction discrimination, and equal protection cases on which Page 490 U. S. 292 JUSTICE O'CONNOR relies. The distinction makes JUSTICE WHITE'S assertions that one "need look only to" Mt. Healthy and Transportation Management to resolve this case, and that our Title VII cases in this area are "inapposite," ante at 490 U. S. 258 -260, at best hard to understand. Confusion in the application of dual burden-shifting mechanisms will be most acute in cases brought under § 1981 or the Age Discrimination in Employment Act (ADEA), where courts borrow the Title VII order of proof for the conduct of jury trials. See, e.g., Note, The Age Discrimination in Employment Act of 1967 and Trial by Jury: Proposals for Change, 73 Va.L.Rev. 601 (1987) (noting high reversal rate caused by use of Title VII burden-shifting in a jury setting). Perhaps such cases in the future will require a bifurcated trial, with the jury retiring first to make the credibility findings necessary to determine whether the plaintiff has proved that an impermissible factor played a substantial part in the decision, and later hearing evidence on the "same decision" or "pretext" issues. Alternatively, perhaps the trial judge will have the unenviable task of formulating a single instruction for the jury on all of the various burdens potentially involved in the case. I do not believe the minor refinement in Title VII procedures accomplished by today's holding can justify the difficulties that will accompany it. Rather, I "remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination." Burdine, 450 U.S. at 450 U. S. 258 . Although the employer does not bear the burden of persuasion under Burdine, it must offer clear and reasonably specific reasons for the contested decision, and has every incentive to persuade the trier of fact that the decision was lawful. Ibid. Further, the suggestion that the employer should bear the burden of persuasion due to superior access to evidence has little force in the Title VII context, where the liberal discovery rules available to all litigants are supplemented by EEOC investigatory files. Ibid. Page 490 U. S. 293 In sum, the Burdine framework provides a "sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination," Aikens, 460 U.S. at 460 U. S. 715 , and it should continue to govern the order of proof in Title VII disparate treatment cases. [ Footnote 2/4 ] III The ultimate question in every individual disparate treatment case is whether discrimination caused the particular decision at issue. Some of the plurality's comments with respect to the District Court's findings in this case, however, are potentially misleading. As the plurality notes, the District Court based its liability determination on expert evidence that some evaluations of respondent Hopkins were based on unconscious sex stereotypes, [ Footnote 2/5 ] and on the fact that Page 490 U. S. 294 Price Waterhouse failed to disclaim reliance on these comments when it conducted the partnership review. The District Court also based liability on Price Waterhouse's failure to "make partners sensitive to the dangers [of stereotyping], to discourage comments tainted by sexism, or to investigate comments to determine whether they were influenced by stereotypes." 618 F. Supp. 1109 , 1119 (DC 1985). Although the District Court's version of Title VII liability is improper under any of today's opinions, I think it important to stress that Title VII creates no independent cause of action for sex stereotyping. Evidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent. The ultimate question, however, is whether discrimination caused the plaintiff's harm. Our cases do not support the suggestion that failure to "disclaim reliance" on stereotypical comments itself violates Title VII. Neither do they support creation of a "duty to sensitize." As the dissenting judge in the Court of Appeals observed, acceptance of such theories would turn Title VII "from a prohibition of discriminatory conduct into an engine for rooting out sexist thoughts." 263 U.S.App.D.C. 321, 340, 825 F.2d 458, 477 (1987) (Williams, J., dissenting). Employment discrimination claims require factfinders to make difficult and sensitive decisions. Sometimes this may mean that no finding of discrimination is justified even though a qualified employee is passed over by a less than admirable employer. In other cases, Title VII's protections properly extend to plaintiffs who are by no means model employees. As JUSTICE BRENNAN notes, ante at 490 U. S. 258 , courts do not sit to determine whether litigants are nice. In this Page 490 U. S. 295 case, Hopkins plainly presented a strong case both of her own professional qualifications and of the presence of discrimination in Price Waterhouse's partnership process. Had the District Court found on this record that sex discrimination caused the adverse decision, I doubt it would have been reversible error. Cf. Aikens, 460 U.S. at 460 U. S. 714 , n. 2. That decision was for the finder of fact, however, and the District Court made plain that sex discrimination was not a but-for cause of the decision to place Hopkins' partnership candidacy on hold. Attempts to evade tough decisions by erecting novel theories of liability or multitiered systems of shifting burdens are misguided. IV The language of Title VII and our well considered precedents require this plaintiff to establish that the decision to place her candidacy on hold was made "because of" sex. Here the District Court found that the "comments of the individual partners and the expert evidence of Dr. Fiske do not prove an intentional discriminatory motive or purpose," 618 F. Supp. at 1118, and that, "[b]ecause plaintiff has considerable problems dealing with staff and peers, the Court cannot say that she would have been elected to partnership if the Policy Board's decision had not been tainted by sexually based evaluations," id. at 1120. Hopkins thus failed to meet the requisite standard of proof after a full trial. I would remand the case for entry of judgment in favor of Price Waterhouse. [ Footnote 2/1 ] The plurality's description of its own standard is both hypothetical and retrospective. The inquiry seeks to determine whether, "if we asked the employer at the moment of decision what its reasons were, and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman." Ante at 490 U. S. 250 . [ Footnote 2/2 ] The plurality's discussion of overdetermined causes only highlights the error of its insistence that but-for is not the substantive standard of causation under Title VII. The opinion discusses the situation where two physical forces move an object, and either force acting alone would have moved the object. Ante at 490 U. S. 241 . Translated to the context of Title VII, this situation would arise where an employer took an adverse action in reliance both on sex and on legitimate reasons, and either the illegitimate or the legitimate reason, standing alone, would have produced the action. If this state of affairs is proved to the factfinder, there will be no liability under the plurality's own test, for the same decision would have been made had the illegitimate reason never been considered. [ Footnote 2/3 ] The interpretive memorandum on which the plurality relies makes plain that "the plaintiff, as in any civil case, would have the burden of proving that discrimination had occurred." 110 Cong.Rec. 7214 (1964). Coupled with its earlier definition of discrimination, the memorandum tells us that the plaintiff bears the burden of showing that an impermissible motive "made a difference" in the treatment of the plaintiff. This is none other than the traditional requirement that the plaintiff show but-for cause. [ Footnote 2/4 ] The plurality states that it disregards the special context of affirmative action. Ante at 490 U. S. 239 , n. 3. It is not clear that this is possible. Some courts have held that, in a suit challenging an affirmative action plan, the question of the plan's validity need not be reached unless the plaintiff shows that the plan was a but-for cause of the adverse decision. See McQuillen v. Wisconsin Education Association Council, 830 F.2d 659, 665 (CA7 1987), cert. denied, 485 U. S. 914 (1988). Presumably it will be easier for a plaintiff to show that consideration of race or sex pursuant to an affirmative action plan was a substantial factor in a decision, and the court will need to move on to the question of a plan's validity. Moreover, if the structure of the burdens of proof in Title VII suits is to be consistent, as might be expected given the identical statutory language involved, today's decision suggests that plaintiffs should no longer bear the burden of showing that affirmative action plans are illegal. See Johnson v. Transportation Agency, Santa Clara County, 480 U. S. 616 , 480 U. S. 626 -627 (1987). [ Footnote 2/5 ] The plaintiff who engages the services of Dr. Susan Fiske should have no trouble showing that sex discrimination played a part in any decision. Price Waterhouse chose not to object to Fiske's testimony, and at this late stage we are constrained to accept it, but I think the plurality's enthusiasm for Fiske's conclusions unwarranted. Fiske purported to discern stereotyping in comments that were gender neutral -- e.g., "overbearing and abrasive" -- without any knowledge of the comments' basis in reality and without having met the speaker or subject. "To an expert of Dr. Fiske's qualifications, it seems plain that no woman could be overbearing, arrogant, or abrasive: any observations to that effect would necessarily be discounted as the product of stereotyping. If analysis like this is to prevail in federal courts, no employer can base any adverse action as to a woman on such attributes." 263 U.S.App.D.C. 321, 340, 825 F.2d 458, 477 (1987) (Williams, J., dissenting). Today's opinions cannot be read as requiring factfinders to credit testimony based on this type of analysis. See also ante at 490 U. S. 277 (opinion of O'CONNOR, J.).

In the case of Price Waterhouse v. Hopkins (1989), the U.S. Supreme Court ruled that when a plaintiff in a Title VII case proves that their gender played a role in an employment decision, the defendant can avoid liability by proving that they would have made the same decision regardless of the plaintiff's gender. The Court held that the employer must prove this by a preponderance of the evidence, rather than by clear and convincing evidence as the lower courts had ruled. This case established the burden of proof for employers accused of discrimination to show that their decision would have been the same regardless of the protected characteristic in question.

Labor & Employment

Massachusetts v. Morash

https://supreme.justia.com/cases/federal/us/490/107/

U.S. Supreme Court Massachusetts v. Morash, 490 U.S. 107 (1989) Massachusetts v. Morash No. 88-32 Argued February 21, 1989 Decided April 18, 1989 490 U.S. 107 CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS Syllabus Petitioner Commonwealth issued criminal complaints charging that, in failing to compensate two discharged bank vice presidents for vacation time they accrued but did not use, respondent bank president had violated a Massachusetts statute making it unlawful for an employer not to pay a discharged employee his full wages, including vacation payments, on the date of his discharge. Respondent moved to dismiss on the ground that the bank's vacation policy constituted an "employee welfare benefit plan" under § 3(1) of the Employee Retirement Income Security Act of 1974 (ERISA), and that the prosecution therefore ran afoul of § 514(a) of ERISA, which preempts "any and all State laws insofar as they . . . relate to any employee benefit plan." The trial court reported the preemption question to the Massachusetts Appeals Court for decision. For the purpose of answering the reported question, the parties stipulated that the bank had agreed to pay employees in lieu of unused vacation time, and that such payments were made out of general assets in lump sums upon employment termination. The Supreme Judicial Court of Massachusetts transferred the case to its docket on its own initiative and held that the bank's policy constituted an "employee welfare benefit plan" and that the prosecution was therefore preempted. Held: A policy of paying discharged employees for their unused vacation time does not constitute an "employee welfare benefit plan" within the meaning of § 3(1) of ERISA, and a criminal action to enforce that policy is therefore not foreclosed by § 514(a). Pp. 490 U. S. 112 -121. (a) Although § 3(1) defines an "employee welfare benefit plan" as "any plan . . . maintained for the purpose of providing . . . vacation benefits," the reference to such benefits -- when viewed in the context of the many other, related types of welfare benefits listed in the section and in light of ERISA's primary purposes of preventing the mismanagement of accumulated plan funds and the failure to pay benefits from such funds -- must be understood not to relate to ordinary vacation payments, which typically are fixed, due at known times, not dependent on contingencies outside the employee's control, and payable from the employer's general assets; rather, it encompasses only those vacation benefit funds which accumulate over a period of time and in which either the employee's right to a benefit is contingent upon some future occurrence or the employee Page 490 U. S. 108 bears a risk different from his ordinary employment risk. The regulations of the Secretary of Labor, which are entitled to deference as the reasonable interpretations of the official specifically authorized to define ERISA's terms, adopt this understanding of the statute by providing that numerous "payroll practices" are not "employee welfare benefit plans," including the payment of (1) vacation benefits out of an employer's general assets, rather than from a trust fund and (2) premium rates for work during special periods such as holidays and weekends, which position the Secretary has consistently followed even when the premium pay is accumulated and carried over to later years. Pp. 490 U. S. 112 -119. (b) There is no merit to respondent's argument that the bank's policy did not constitute an exempted "payroll practice" under the Secretary's regulations because employees were allowed at their option to accumulate vacation time and defer payment for such time until termination. Although neither regulation explicitly covers this precise practice, the reasons for treating premium and vacation payments as payroll practices are equally applicable here, and the vacation benefit cannot be transformed into an "employee welfare benefit plan" solely because the employees did not use their vacation days prior to their formal termination. Moreover, except for the fact of deferral, the payments in question are as much a part of regular basic compensation as overtime pay or salary payments made while the employee is on vacation; amount to the same kind of premium pay that is available for holiday or weekend work; and, unlike normal severance pay, are not contingent upon employment termination. Pp. 490 U. S. 119 -121. 402 Mass. 287, 522 N.E.2d 409 , reversed and remanded. STEVENS, J., delivered the opinion for a unanimous Court. Page 490 U. S. 109 JUSTICE STEVENS delivered the opinion of the Court. This case requires us to determine whether a company's policy of paying its discharged employees for their unused vacation time constitutes an "employee welfare benefit plan" within the meaning of § 3(1) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 88 Stat. 833, as amended, 29 U.S.C. § 1002(1), and whether a criminal action to enforce that policy is foreclosed by the Act's broad preemption provision. I In May, 1986, petitioner, the Commonwealth of Massachusetts, issued two complaints in the Boston Municipal Court against respondent, Richard N. Morash, president of the Yankee Bank for Finance and Savings (Bank). The complaints charged Morash with criminal violations of the Massachusetts Payment of Wages Statute, Mass.Gen.Laws § 149:148 (1987). [ Footnote 1 ] Under the Massachusetts law, an employer is required to pay a discharged employee his full wages, including holiday or vacation payments, on the date of discharge. Similar wage payment statutes have been enacted by 47 other States, [ Footnote 2 ] the Page 490 U. S. 110 District of Columbia, [ Footnote 3 ] and the United States, [ Footnote 4 ] and over half of these include vacation pay. The complaints filed in the Boston Municipal Court alleged that respondent had failed to compensate two discharged bank vice presidents for vacation time they accrued but did not use. Respondent moved to dismiss the criminal complaints on the ground that the Massachusetts statute, insofar as it applied to these complaints, had been preempted by ERISA. He argued that the Bank's vacation policy constituted an "employee welfare benefit plan" under the Act, and that the State's prosecution of him for failure to comply with the policy therefore ran afoul of § 514(a) of the Act, 29 U.S.C. Page 490 U. S. 111 § 1144(a), which preempts "any and all State laws insofar as they . . . relate to any employee benefit plan." [ Footnote 5 ] Without ruling on the motion, the trial judge reported the preemption question to the Massachusetts Appeals Court for decision; the Supreme Judicial Court then transferred the case to its docket on its own initiative. For the purpose of answering the reported question, the parties stipulated that the Bank had made oral or written agreements stemming from handbooks, manuals, memoranda, and practices to pay employees in lieu of unused vacation time, and that "such payments are made out of the Bank's general assets" in lump sums upon termination of employment. The Supreme Judicial Court held that the policy constituted an employee welfare benefit plan, and that the prosecution was preempted by ERISA. 402 Mass. 287, 522 N.E.2d 409 (1988). The court found that, under the plain language of the statute and its earlier decision in Barry v. Dymo Graphic Systems, Inc., 394 Mass. 830, 478 N.E.2d 707 (1985), the Bank's policy constituted a plan, fund, or program for the purpose of providing its participants vacation benefits. It rejected the Commonwealth's argument that a regulation promulgated by the Secretary of Labor (Secretary), [ Footnote 6 ] Page 490 U. S. 112 had excepted payments out of an employer's general assets for unused vacation time from the definition of a welfare plan because, even if regular vacation pay was not included in ERISA, the lump-sum payment for unused vacation time upon discharge was akin to severance pay covered by ERISA. The fact that it would be necessary for an employer to maintain records relating to its employees' unused vacation time, plus the need to accumulate funds to pay the benefits, made it appropriate to treat the employer's promise to its employees as a "plan." The court concluded that the Massachusetts statute related to the plan within the meaning of § 514, and was not excluded from its coverage by the provision saving from preemption a "generally applicable criminal law." ERISA § 514(b)(4), 29 U.S.C. § 1144(b)(4). Because the federal question decided by the Supreme Judicial Court is an important one over which the courts have disagreed, [ Footnote 7 ] we granted certiorari, 488 U.S. 815 (1988). We now reverse. II ERISA was passed by Congress in 1974 to safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 , 482 U. S. 15 Page 490 U. S. 113 (1987). The "comprehensive and reticulated statute," Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 , 446 U. S. 361 (1980), contains elaborate provisions for the regulation of employee benefit plans. It sets forth reporting and disclosure obligations for plans, imposes a fiduciary standard of care for plan administrators, and establishes schedules for the vesting and accrual of pension benefits. Metropolitan Life Insurance Co. v. Massachusetts, 471 U. S. 724 , 471 U. S. 732 (1985). Suits to enforce the terms of the statute and to recover welfare benefits wrongfully withheld arise under federal law, and can be brought in federal court without regard for the amount in controversy. See Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101 , 489 U. S. 108 (1989). The precise coverage of ERISA is not clearly set forth in the Act. ERISA covers "employee benefit plans," which it defines as plans that are either "an employee welfare benefit plan," or "an employee pension benefit plan," or both. ERISA § 3(3), 29 U.S.C. § 1002(3). An employee welfare benefit plan, in turn, is defined as: "[A]ny plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions)." ERISA § 3(1), as codified, 29 U.S.C. § 1002(1). [ Footnote 8 ] Page 490 U. S. 114 The Act does not further define "plan, fund, or program" or "vacation benefits," and does not specify whether every policy to provide vacation benefits falls within its ambit. The words "any plan, fund, or program . . . maintained for the purpose of providing . . . vacation benefits" may surely be read to encompass any form of regular vacation payments to an employee. A multi-employer fund created to provide vacation benefits for union members who typically work for several employers during the course of a year, see, e.g., Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 , 463 U. S. 4 , n. 2 (1983), undoubtedly falls within the scope of the Act. In addition, the creation of a separate fund to pay employees vacation benefits would subject a single employer to the regulatory provisions of ERISA. See California Hospital Assn. v. Henning, 770 F.2d 856, 861 (1985), modified, 783 F.2d 946 (CA9), cert. denied, 477 U.S. 904 (1986). [ Footnote 9 ] We do not believe, however, that the policy here to pay employees for unused vacation time constitutes an employee welfare benefit plan. The interpretation of § 3(1) is governed by the familiar principles that " words grouped in a list should be given related meaning,'" Page 490 U. S. 115 Schreiber v. Burlington Northern, Inc., 472 U. S. 1 , 472 U. S. 8 (1985) (quoting Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 207 , 468 U. S. 218 (1984)), and that, "in expounding a statute, we [are] not . . . guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Pilot Life Insurance Co. v. Dedeaux, 481 U. S. 41 , 481 U. S. 51 (1987). In enacting ERISA, Congress' primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds. California Hospital Assn., supra, at 859. [ Footnote 10 ] To that end, it established extensive reporting, disclosure, and fiduciary duty requirements to insure against the possibility that the employee's expectation of the benefit would be defeated through poor management by the plan administrator. Because ordinary vacation payments are typically fixed, due at known times, and do not depend on contingencies outside the employee's control, they present none of the risks that ERISA is intended to address. If there is a danger of defeated expectations, it is no different from the danger of defeated expectations of wages for services performed -- a danger Congress chose not to regulate in ERISA. This conclusion is supported by viewing the reference to vacation benefits not in isolation, but in light of the words that accompany it and give the provision meaning. Section 3(1) subjects to ERISA regulation plans to provide medical, sickness, accident, disability, and death benefits, training programs, day care centers, scholarship funds, and legal services. The distinguishing feature of most of these benefits is Page 490 U. S. 116 that they accumulate over a period of time and are payable only upon the occurrence of a contingency outside of the control of the employee. See 40 Fed.Reg. 24642 (1975). Thus, for example, plans to pay employees severance benefits, which are payable only upon termination of employment, are employee welfare benefit plans within the meaning of the Act. See Holland v. Burlington Industries, Inc., 772 F.2d 1140 (CA4 1985), summarily aff'd sub nom. Brooks v. Burlington Industries, Inc., 477 U.S. 901 (1986); Gilbert v. Burlington Industries, Inc., 765 F.2d 320 (CA2 1985), summarily aff'd sub nom. Roberts v. Burlington Industries, Inc., 477 U.S. 901 (1986). The reference to vacation payments in § 3(1) should be understood to include within the scope of ERISA those vacation benefit funds, analogous to other welfare benefits, in which either the employee's right to a benefit is contingent upon some future occurrence or the employee bears a risk different from his ordinary employment risk. It is unlikely that Congress intended to subject to ERISA's reporting and disclosure requirements those vacation benefits which, by their nature, are payable on a regular basis from the general assets of the employer and are accumulated over time only at the election of the employee. The Secretary, who is specifically authorized to define ERISA's "accounting, technical, and trade terms," ERISA § 505, 29 U.S.C. § 1135, [ Footnote 11 ] and to whose reasonable views we give deference, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 843 (1984); Watt v. Alaska, 451 U. S. 259 , 451 U. S. 272 -273 (1981); Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 (1965), has also so understood the statute. In a Notice of Proposed Rulemaking published shortly after the effective date of the Act, the Secretary identified a basic Page 490 U. S. 117 distinction between the benefit programs covered by the Act and the types of regular compensation, including vacation pay, that are not covered: "The Secretary also anticipates issuance of regulations that will make it clear that other programs, including certain employer practices (whether pursuant to a collective bargaining agreement or not) under which employees are paid as a part of their regular compensation directly by the employer and under which no separate fund is established will not subject the employer to any filing or disclosure duties under Title I of the Act. Examples of the employer practices that may receive this treatment are payment of overtime pay, vacation pay, shift premiums, Sunday premiums, holiday premiums, jury duty or military duty, make-up pay, and pay while absent on account of illness or excused absences." 39 Fed.Reg. 42236 (1974) (emphasis added). The Secretary subsequently proposed regulations excluding payment of compensation for work performed at night or during holidays and paid sick leave and vacation leave from the definition of an employee benefit. 40 Fed.Reg. 24642-24643 (1975). He explained: "[P]aid vacations . . . are not treated as employee benefit plans, because they are associated with regular wages or salary, rather than benefits triggered by contingencies such as hospitalization. Moreover, the abuses which created the impetus for the reforms in Title I were not in this area, and there is no indication that Congress intended to subject these practices to Title I coverage." Ibid. The proposed regulations promulgated by the Secretary were adopted without significant modification. They provide that numerous "payroll practices," including the payment of vacation benefits "out of [an] employer's general assets" rather than from a trust fund, are not employee Page 490 U. S. 118 welfare benefit plans within the meaning of ERISA. [ Footnote 12 ] In addition, under the regulations, the term "employee welfare benefit plan" does not include the payment by an employer of premium rates for work performed during special periods such as holidays and weekends. [ Footnote 13 ] The Secretary has consistently adhered to this position even when the premium pay is accumulated and carried over to later years. [ Footnote 14 ] A contrary interpretation, including routine vacation pay policies within ERISA, would have profound consequences. Most employers in the United States provide some type of vacation benefit to their employees. [ Footnote 15 ] ERISA coverage would put all these employers to the choice of complying with the statute's detailed requirements for reporting and disclosure or discontinuing the practice of compensating employees for unused vacation time. In addition, the extension of ERISA to claims for vacation benefits would vastly expand the jurisdiction of the federal courts, providing a federal Page 490 U. S. 119 forum for any employee with a vacation grievance. [ Footnote 16 ] Finally, such an interpretation would also displace the extensive state regulation of the vesting, funding, and participation rights of vacation benefits; because ERISA's vesting and funding requirements do not apply to welfare benefit plans, ERISA §§ 201(1), 301(a), as amended, 29 U.S.C. §§ 1051(1), 1081(a), employees would actually receive less protection if ERISA were applied to ordinary vacation wages paid from the employer's general assets. See Note, 87 Colum.L.Rev. 1702, 1718 (1987). [ Footnote 17 ] The States have traditionally regulated the payment of wages, including vacation pay. Absent any indication that Congress intended such far-reaching consequences, we are reluctant to so significantly interfere with "the separate spheres of governmental authority preserved in our federalist system." Fort Halifax Packing Co. v. Coyne, 482 U.S. at 482 U. S. 19 . III Respondent argues that, even if the Department of Labor regulation exempting vacation payments from ERISA constitutes a reasonable construction of the Act, the Bank's policy did not constitute a payroll practice under the regulation because employees were allowed, at their option, to accumulate vacation time and defer payment for such time until termination. See Brief for Respondent 11. We do not agree. Although neither of the Secretary's regulations explicitly covers the precise practice at issue in this case, the reasons for treating holiday and weekend premiums and payments of compensation while an employee is on vacation as "payroll Page 490 U. S. 120 practices" are equally applicable to the payment of an employee's regular wages for accrued and unused vacation time upon discharge. If the employees in this case had chosen to take a vacation, the vacation days would have been available and the vacation benefit would have been excluded under the regulation; the benefit cannot be transformed into an employee welfare benefit plan under ERISA solely because the employees did not use their vacation days prior to their formal termination of employment. See Shea v. Wells Fargo Armored Service Corp., 810 F.2d 372, 377 (CA2 1987). Moreover, except for the fact that the payment has been deferred, such payments are as much a part of the employees' regular basic compensation as overtime pay or the payment of salary while the employee is absent on vacation. If in the end the employee elects to receive additional compensation instead of a paid vacation, he or she is receiving the same kind of premium pay that is available for holiday or weekend work. The fact that the payments in this case were due at the time of the employee's termination does not affect their character as a part of regular compensation. Unlike normal severance pay, the employees' right to compensation for accrued vacation time is not contingent upon the termination of their employment. In reaching this conclusion, we emphasize that the case before us -- and the Secretary's regulations on which we rely -- concern payments by a single employer out of its general assets. An entirely different situation would be presented if a separate fund had been created by a group of employers to guarantee the payment of vacation benefits to laborers who regularly shift their jobs from one employer to another. Employees who are beneficiaries of such a trust face far different risks and have far greater need for the reporting and disclosure requirements that the federal law imposes than those whose vacation benefits come from the same fund from which they receive their paychecks. It is sufficient for this case that the Secretary's determination that a single employer's Page 490 U. S. 121 administration of a vacation pay policy from its general assets does not possess the characteristics of a welfare benefit plan constitutes a reasonable construction of the statute. [ Footnote 18 ] The judgment of the Massachusetts Supreme Judicial Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Mass.Gen.Laws § 149:148 (1987) provides, in pertinent part: "Every person having employees in his service shall pay weekly each such employee the wages earned by him. . . ; and any employee discharged from such employment shall be paid in full on the day of his discharge. . . . The word 'wages' shall include any holiday or vacation payments due an employee under an oral or written agreement." [ Footnote 2 ] See Alaska Stat.Ann. §§ 23.05.140 to 23.05.340 (1984 and Supp.1988); Ariz. Rev.Stat.Ann. §§ 23-350 to 23-361 (1983 and Supp.1988); Ark.Code Ann. § 11-4-401 (1987); Cal.Lab.Code Ann. § 227.3 (West Supp.1989); Colo.Rev.Stat. §§ 8-4-101 to 8-4-126 (1986); Conn.Gen.Stat. §§ 31-71a to 31-71i (1987 and Supp.1988); Del.Code Ann., Tit.19, §§ 1101-1115 (1985); Ga.Code Ann. § 34-7-2 (1988); Haw.Rev.Stat. §§ 388-1 to 388-13 (1988); Idaho Code §§ 45-601 to 45-615 (1977 and Supp.1988); Ill.Rev.Stat., ch. 48, �� 39m-1 to 39m-15 (1987); Ind.Code §§ 22-2-9-1 to 22-2-9-7 (1988); Iowa Code §§ 91 A. 2 to 91 A. 13 (1985); Kan.Stat.Ann. §§ 44-313 to 44-327 (1986); Ky.Rev.Stat.Ann. §§ 337.010 to 337.070 (Baldwin 1986); La.Rev.Stat.Ann. § 631 (West 1985 and Supp.1989); Me.Rev.Stat.Ann., Tit. 26, §§ 621-626 (1988); Md.Ann.Code, Art. 100, § 94 (1985); Mich.Comp.Laws §§ 408.471 to 408.475 (1985); Minn.Stat. § 181.74 (1988); Miss.Code Ann. §§ 71-1-35 to 71-1-53 (1972 and Supp.1988); Mo.Rev.Stat. §§ 290.080 to 290.110 (1986); Mont.Code Ann. §§ 39-3-201 to 39-3-215 (1987); Neb.Rev.Stat. § 48-1228 to 48-1232 (1988); Nev.Rev.Stat. §§ 608.005 to 608.060 (1987); N.H.Rev.Stat.Ann. §§ 275:42 to 275:55 (1987); N.J. Stat.Ann. §§ 34:11-4.1 to 34 :11-4.11 (West 1988); N.M.Stat.Ann. §§ 50-4-1 to 50-4-12 (1988); N.Y.Lab. Law §§ 190 to 198-c (McKinney 1986 and Supp.1989); N.C.Gen.Stat. §§ 95-25.2 to 95-25.25 (1985); N.D.Cent.Code §§ 34-14-01 to 34-14-13 (1987); Ohio Rev.Code Ann. § 4113.15 (1980); Okla.Stat., Tit. 40, §§ 165.1 to 165.9 (1986); Ore.Rev.Stat. §§ 652.110 to 652.405 (1987); Pa. Stat.Ann., Tit. 43, §§ 260.2a to 260.11a (Purdon Supp.1988); R.I.Gen.Laws §§ 28-14-1 to 28-14-30 (1986); S.C.Code §§ 41-10-10 to 41-10-110 (Supp.1988); S.D.Codified Laws §§ 60-11-9 to 60-11-15 (1978); Tenn.Code Ann. § 50-2-103 (1983); Tex.Rev.Civ.Stat.Ann., Art. 5155 to 5159 (Vernon 1987); Utah Code Ann. §§ 34-28-2 to 34-28-14 (1988); Vt.Stat.Ann., Tit. 21, §§ 341-345 (1987); Va.Code § 40.1-29 (1986); Wash.Rev.Code §§ 49.48.010, 49.48.020 (1987); W.Va.Code §§ 21-5-1, 21-5-4 (1985 and Supp.1988); Wis.Stat. §§ 109.01 to 109.11 (1987-1988); Wyo. Stat. §§ 27-4-101 to 27-4105 (1987). [ Footnote 3 ] See D.C. Code §§ 36-101 to 36-110 (1981). [ Footnote 4 ] See, e.g., 46 U.S.C. § 596. See also Griffin v. Oceanic Contractors, Inc., 458 U. S. 564 , 458 U. S. 572 (1982). [ Footnote 5 ] Section 514 of ERISA, as codified, provides, in pertinent part: "(a) Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . . " "(b) . . ." " * * * *" "(4) Subsection (a) of this section shall not apply to any generally applicable criminal law of a State." [ Footnote 6 ] The Secretary's payroll practice regulation provides, in part: "(b) Payroll practices. For purposes of Title I of the Act and this chapter, the terms 'employee welfare benefit plan' and 'welfare plan' shall not include -- " " * * * *" "(3) Payment of compensation, out of the employer's general assets, on account of periods of time during which the employee, although physically and mentally able to perform his or her duties and not absent for medical reasons (such as pregnancy, a physical examination or psychiatric treatment) performs no duties; for example -- " "(i) Payment of compensation while an employee is on vacation or absent on a holiday, including payment of premiums to induce employees to take vacations at a time favorable to the employer for business reasons." 29 CFR § 2510.3-1(b)(3) (1987). [ Footnote 7 ] Compare Holland v. National Steel Corp., 791 F.2d 1132 (CA4 1986); Blakeman v. Mead Containers, 779 F.2d 1146 (CA6 1985) (both holding that vacation benefits constitute employee welfare benefit plan) with Shea v. Wells Fargo Armored Service Corp., 810 F.2d 372 (CA2 1987); California Hospital Assn. v. Henning, 770 F.2d 856 (1985), modified, 783 F.2d 946 (CA9), cert. denied, 477 U.S. 904 (1986); Golden Bear Family Restaurants, Inc. v. Murray, 144 Ill.App.3d 616, 494 N.E.2d 581 (1986) (all holding that vacation pay from employer's general assets not covered by ERISA). [ Footnote 8 ] The benefits described "in section 186(c) of this title" include "pooled vacation, holiday, severance or similar benefits." See 29 U.S.C. § 186(c)(6). [ Footnote 9 ] Respondent argues that, because a pooled vacation benefit plan is "a benefit described in section 186(c) of this title" and thus constitutes an employee welfare benefit plan under 29 U.S.C. § 1002(1)(B), the exclusion of ordinary vacation pay plans from ERISA coverage would render the reference to vacation pay in clause (A) surplusage. Clause (A), however, also includes within ERISA vacation wages paid from a separate fund, rather than from general assets. See United States Dept. of Labor, ERISA Opinion Letter No. 77-84A (Nov. 7, 1977). The fact that a benefit covered by clause (B) is also covered by clause (A) is not dispositive of the meaning of clause (A). As the Court of Appeals for the Ninth Circuit noted: "Many of the benefits incorporated in section 1002(1) by the cross-reference to section 186(c) are already found in section 1002(1). Thus it is evident that Congress was not concerned with duplication, but only with assuring that all benefits covered by section 186(c) were also covered by section 1002(1)." California Hospital Assn. v. Henning, 770 F.2d 856, 861 (1985), modified, 783 F.2d 946 (CA9), cert. denied, 477 U.S. 904 (1986). [ Footnote 10 ] See e.g., Private Welfare and Pension Plan Legislation: Hearings on H.R. 1045 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 91st Cong., 1st and 2d Sess., 470-472 (1970) (testimony of Secretary of Labor concerning mismanagement of 22 pension and welfare funds); 120 Cong.Rec. 4279-4280 (1974) (remarks of Rep. Brademas); id. at 4277-4278 (remarks of Rep. Perkins); 119 Cong.Rec. 30003 (1973) (remarks of Sen. Williams). [ Footnote 11 ] Section 505, 88 Stat. 894, provides,in part: "Subject to title III and section 109, the Secretary may prescribe such regulations as he finds necessary or appropriate to carry out the provisions of this title. Among other things, such regulations may define accounting, technical, and trade terms used in such provisions. . . ." [ Footnote 12 ] See n 6, supra. [ Footnote 13 ] The Secretary's regulation provides, in part: "(b)(1) Payment by an employer of compensation on account of work performed by an employee, including compensation at a rate in excess of the normal rate of compensation on account of performance of duties under other than ordinary circumstances, such as -- " "(i) Overtime pay," "(ii) Shift premiums," "(iii) Holiday premiums," "(iv) Weekend premiums." 29 CFR § 2510.3-1(b)(1) (1987). [ Footnote 14 ] See United States Dept. of Labor, ERISA Opinion Letter No. 79-48A (July 30, 1979) (sick leave). [ Footnote 15 ] A 1988 survey reflects that paid vacations are provided to 98 percent of the 31,000,000 employees in medium and large establishments. United States Dept. of Labor, Bureau of Labor Statistics, BLS Reports on Employee Benefits in Medium and Large Firms in 1988, pp. 1, 4 (Apr. 4, 1989) (press release). Another survey of 833 companies in manufacturing and nonmanufacturing industries found that 86 percent of them provided payments for, or in lieu of, vacations. United States Chamber of Commerce, Employee Benefits 1986, p. 21 (1987). [ Footnote 16 ] A 1983 survey found that state agencies each year resolve more than 19,000 vacation pay claims, involving more than $7.5 million. Note, 16 Loyola U.Chi.L.J. 387, 422 (1985). [ Footnote 17 ] Many States have provisions for the vesting of vacation benefits, see Note, 87 Colum.L.Rev. 1702, 1714 (1987), and for the administrative resolution of vacation pay claims, Note, 16 Loyola U.Chi.L.J. at 421-422. An interpretation of ERISA to include ordinary vacation pay would imperil these mechanisms designed for the benefit of employees. [ Footnote 18 ] We therefore have no occasion to address the Commonwealth's alternative argument that Mass.Gen.Laws § 149:148 (1987) is a "generally applicable criminal law of a State" within the meaning of ERISA § 514(b)(4), 29 U.S.C. § 1144(b)(4).

Here is a summary of the case: The Supreme Court ruled that a company policy of paying employees for their unused vacation time upon termination does not constitute an "employee welfare benefit plan" under the Employee Retirement Income Security Act of 1974 (ERISA). The Court interpreted the meaning of "vacation benefits" in ERISA's definition of a benefit plan, concluding that it refers only to vacation benefit funds that accumulate over time and are contingent on future events or risks beyond regular employment risks. Ordinary vacation payments, which are typically fixed, due at known times, and payable from the employer's general assets, do not fall under ERISA's preemption clause. This decision upholds state laws and mechanisms designed to protect employees' rights to receive their earned vacation pay upon termination.

Labor & Employment

Nationwide Mutual Ins. Co. v. Darden

https://supreme.justia.com/cases/federal/us/503/318/

OCTOBER TERM, 1991 Syllabus NATIONWIDE MUTUAL INSURANCE CO. ET AL. v. DARDEN CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 90-1802. Argued January 21, 1992-Decided March 24,1992 Contracts between petitioners Nationwide Mutual Insurance Co. et al. and respondent Darden provided, among other things, that Darden would sell only Nationwide policies, that Nationwide would enroll him in a company retirement plan for agents, and that he would forfeit his entitlement to plan benefits if, within a year of his termination and 25 miles of his prior business location, he sold insurance for Nationwide's competitors. After his termination, Darden began selling insurance for those competitors. Nationwide charged that Darden's new business activities disqualified him from receiving his retirement plan benefits, for which he then sued under the Employee Retirement Income Security Act of 1974 (ERISA). The District Court granted summary judgment to Nationwide on the ground that Darden was not a proper ERISA plaintiff because, under common-law agency principles, he was an independent contractor rather than, as ERISA requires, an "employee," a term the Act defines as "any individual employed by an employer." Although agreeing that he "most probably would not qualify as an employee" under traditional agency law principles, the Court of Appeals reversed, finding the traditional definition inconsistent with ERISA's policy and purposes, and holding that an ERISA plaintiff can qualify as an "employee" simply by showing (1) that he had a reasonable expectation that he would receive benefits, (2) that he relied on this expectation, and (3) that he lacked the economic bargaining power to contract out of benefit plan forfeiture provisions. Applying this standard, the District Court found on remand that Darden had been Nationwide's "employee," and the Court of Appeals affirmed. Held: 1. The term "employee" as used in ERISA incorporates traditional agency law criteria for identifying master-servant relationships. Where a statute containing that term does not helpfully define it, this Court presumes that Congress means an agency law definition unless it clearly indicates otherwise. See, e. g., Community for Creative NonViolence v. Reid, 490 U. S. 730 , 739-740. ERISA's nominal definition of "employee" is completely circular and explains nothing, and the Act contains no other provision that either gives specific guidance on the term's 319 meaning or suggests that construing it to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results. Since the multifactor common-law test here adopted, see, e. g., id., at 751-752, contains no shorthand formula for determining who is an "employee," all of the incidents of the employment relationship must be assessed and weighed with no one factor being decisive. NLRB v. Hearst Publications, Inc., 322 U. S. 111 ; United States v. Silk, 331 U. S. 704; Rutherford Food Corp. v. McComb, 331 U. S. 722 , distinguished. Pp.322-327. 2. The case is remanded for a determination whether Darden qualifies as an "employee" under traditional agency law principles. P. 328. 922 F.2d 203 , reversed and remanded. SOUTER, J., delivered the opinion for a unanimous Court. George Robinson Ragsdale argued the cause for petitioners. With him on the briefs were Gordon E. McCutchan, Robert M. Parsons, Craig G. Dalton, Jr., Francis M. Gregory, Jr., and Margaret M. Richardson. Christopher J. Wright argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Deputy Solicitor General Mahoney, Allen H. Feldman, and Elizabeth Hopkins. Marion G. Follin III argued the cause and filed a brief for respondent. * JUSTICE SOUTER delivered the opinion of the Court. In this case we construe the term "employee" as it appears in § 3(6) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 834, 29 U. S. C. § 1002(6), and read it to incorporate traditional agency law criteria for identifying master-servant relationships. I From 1962 through 1980, respondent Robert Darden operated an insurance agency according to the terms of several *Edward N. Delaney and Russell A. Hollrah filed a brief for the National Association of Independent Insurers as amicus curiae urging reversal. 320 contracts he signed with petitioners Nationwide Mutual Insurance Co. et al. Darden promised to sell only Nationwide insurance policies, and, in exchange, Nationwide agreed to pay him commissions on his sales and enroll him in a company retirement scheme called the "Agent's Security Compensation Plan" (Plan). The Plan consisted of two different programs: the "Deferred Compensation Incentive Credit Plan," under which Nationwide annually credited an agent's retirement account with a sum based on his business performance, and the "Extended Earnings Plan," under which Nationwide paid an agent, upon retirement or termination, a sum equal to the total of his policy renewal fees for the previous 12 months. Such were the contractual terms, however, that Darden would forfeit his entitlement to the Plan's benefits if, within a year of his termination and 25 miles of his prior business location, he sold insurance for Nationwide's competitors. The contracts also disqualified him from receiving those benefits if, after he stopped representing Nationwide, he ever induced a Nationwide policyholder to cancel one of its policies. In November 1980, Nationwide exercised its contractual right to end its relationship with Darden. A month later, Darden became an independent insurance agent and, doing business from his old office, sold insurance policies for several of Nationwide's competitors. The company reacted with the charge that his new business activities disqualified him from receiving the Plan benefits to which he would have been entitled otherwise. Darden then sued for the benefits, which he claimed were nonforfeitable because already vested under the terms of ERISA. 29 U. S. C. § 1053(a). Darden brought his action under 29 U. S. C. § 1132(a), which enables a benefit plan "participant" to enforce the substantive provisions of ERISA. The Act elsewhere defines "participant" as "any employee or former employee of an employer ... who is or may become eligible to receive a benefit 321 of any type from an employee benefit plan .... " § 1002(7). Thus, Darden's ERISA claim can succeed only if he was Nationwide's "employee," a term the Act defines as "any individual employed by an employer." § 1002(6). It was on this point that the District Court granted summary judgment to Nationwide. After applying common-law agency principles and, to an extent unspecified, our decision in United States v. Silk, 331 U. S. 704 (1947), the court found that" 'the total factual context' of Mr. Darden's relationship with Nationwide shows that he was an independent contractor and not an employee." App. to Pet. for Cert. 47a, 50a, quoting NLRB v. United Ins. Co. of America, 390 U. S. 254 (1968). The United States Court of Appeals for the Fourth Circuit vacated. Darden v. Nationwide Mutual Ins. Co., 796 F.2d 701 (1986). After observing that "Darden most probably would not qualify as an employee" under traditional principles of agency law, id., at 705, it found the traditional definition inconsistent with the "'declared policy and purposes'" of ERISA, id., at 706, quoting Silk, supra, at 713, and NLRB v. Hearst Publications, Inc., 322 U. S. 111 , 131-132 (1944), and specifically with the congressional statement of purpose found in § 2 of the Act, 29 U. S. C. § 1001.1 It therefore held that an ERISA plaintiff can qualify as an "employee" simply by showing "(1) that he had a reasonable expectation that he would receive [pension] benefits, (2) that he relied on this expectation, and (3) that he lacked the economic bargaining power to contract out of [benefit plan] forfeiture provisions." 1 The Court of Appeals cited Congress's declaration that "many employees with long years of employment are losing anticipated retirement benefits," that employee benefit plans "have become an important factor affecting the stability of employment and the successful development of industrial relations," and that ERISA was necessary to "assur[e] the equitable character of such plans and their financial soundness." 796 F. 2d, at 706, quoting 29 U. S. C. § 1001. None of these passages deals specifically with the scope of ERISA's class of beneficiaries. 322 922 F.2d 203 , 205 (CA4 1991) (summarizing 796 F.2d 701 (CA4 1986)). The court remanded the case to the District Court, which then found that Darden had been Nationwide's "employee" under the standard set by the Court of Appeals. 717 F. Supp. 388 (EDNC 1989). The Court of Appeals affirmed. 922 F.2d 203 (1991).2 In due course, Nationwide filed a petition for certiorari, which we granted on October 15, 1991. 502 U. S. 905. We now reverse. II We have often been asked to construe the meaning of "employee" where the statute containing the term does not helpfully define it. Most recently we confronted this problem in Community for Creative Non-Violence v. Reid, 490 U. S. 730 (1989), a case in which a sculptor and a nonprofit group each claimed copyright ownership in a statue the group had commissioned from the artist. The dispute ultimately turned on whether, by the terms of § 101 of the Copyright Act of 1976, 17 U. S. C. § 101, the statue had been "prepared by an employee within the scope of his or her employment." Because the Copyright Act nowhere defined the term "employee," we unanimously applied the "well established" principle that "[w]here Congress uses terms that have accumulated settled meaning under ... the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms .... In the past, when Congress has used the term 'employee' without defining it, we have concluded that Congress intended to describe the conven- 2 The Court of Appeals also held that the Deferred Compensation Plan was a pension plan subject to regulation under ERISA, but that the Extended Earnings Plan was not. 922 F. 2d, at 208. We denied Darden's cross-petition for certiorari, which sought review of that conclusion. 502 U. S. 906 (1991). 323 tional master-servant relationship as understood by common-law agency doctrine. See, e. g., Kelley v. Southern Pacific Co., 419 U. S. 318 , 322-323 (1974); Baker v. Texas & Pacific R. Co., 359 U. S. 227 , 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 94 (1915)." 490 U. S., at 739-740 (internal quotation marks omitted). While we supported this reading of the Copyright Act with other observations, the general rule stood as independent authority for the decision. So too should it stand here. ERISA's nominal definition of "employee" as "any individual employed by an employer," 29 U. S. C. § 1002(6), is completely circular and explains nothing. As for the rest of the Act, Darden does not cite, and we do not find, any provision either giving specific guidance on the term's meaning or suggesting that construing it to incorporate traditional agency law principles would thwart the congressional design or lead to absurd results. Thus, we adopt a common-law test for determining who qualifies as an "employee" under ERISA,3 a test we most recently summarized in Reid: "In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired 3 As in Reid, we construe the term to incorporate "the general common law of agency, rather than ... the law of any particular State." Commu nity for Creative Non-Violence v. Reid, 490 U. S. 730 , 740 (1989). 324 party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party." 490 U. S., at 751-752 (footnotes omitted). Cf. Restatement (Second) of Agency § 220(2) (1958) (listing nonexhaustive criteria for identifying master-servant relationship); Rev. Rul. 87-41, 1987-1 Cum. Bull. 296, 298-299 (setting forth 20 factors as guides in determining whether an individual qualifies as a common-law "employee" in various tax law contexts). Since the common-law test contains "no shorthand formula or magic phrase that can be applied to find the answer, ... all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. of America, 390 U. S., at 258. In taking its different tack, the Court of Appeals cited NLRB v. Hearst Publications, Inc., 322 U. S., at 120-129, and United States v. Silk, 331 U. S., at 713, for the proposition that "the content of the term 'employee' in the context of a particular federal statute is 'to be construed "in the light of the mischief to be corrected and the end to be attained."'" Darden, 796 F. 2d, at 706, quoting Silk, supra, at 713, in turn quoting Hearst, supra, at 124. But Hearst and Silk, which interpreted "employee" for purposes of the National Labor Relations Act and Social Security Act, respectively, are feeble precedents for unmooring the term from the common law. In each case, the Court read "employee," which neither statute helpfully defined,4 to imply something broader than the common-law definition; after each opinion, Congress 4 The National Labor Relations Act simply defined "employee" to mean (in relevant part) "any employee." 49 Stat. 450 (1935). The Social Security Act defined the term to "include," among other, unspecified occupations, "an officer of a corporation." 49 Stat. 647. 325 amended the statute so construed to demonstrate that the usual common-law principles were the keys to meaning. See United Ins. Co., supra, at 256 ("Congressional reaction to [Hearst] was adverse and Congress passed an amendment ... [t]he obvious purpose of [which] was to have the ... courts apply general agency principles in distinguishing between employees and independent contractors under the Act"); Social Security Act of 1948, ch. 468, § l(a), 62 Stat. 438 (1948) (amending statute to provide that term "employee" "does not include ... any individual who, under the usual common-law rules applicable in determining the employeremployee relationship, has the status of an independent contractor") (emphasis added); see also United States v. W M. Webb, Inc., 397 U. S. 179 , 183-188 (1970) (discussing congressional reaction to Silk). To be sure, Congress did not, strictly speaking, "overrule" our interpretation of those statutes, since the Constitution invests the Judiciary, not the Legislature, with the final power to construe the law. But a principle of statutory construction can endure just so many legislative revisitations, and Reid's presumption that Congress means an agency law definition for "employee" unless it clearly indicates otherwise signaled our abandonment of Silk's emphasis on construing that term "'in the light of the mischief to be corrected and the end to be attained.''' Silk, supra, at 713, quoting Hearst, supra, at 124. At oral argument, Darden tried to subordinate Reid to Rutherford Food Corp. v. McComb, 331 U. S. 722 (1947), which adopted a broad reading of "employee" under the Fair Labor Standards Act (FLSA). And amicus United States, while rejecting Darden's position, also relied on Rutherford Food for the proposition that, when enacting ERISA, Congress must have intended a modified common-law definition of "employee" that would advance, in a way not defined, the Act's "remedial purposes." Brief for United States as Ami- 326 cus Curiae 15-21.5 But Rutherfood Food supports neither position. The definition of "employee" in the FLSA evidently derives from the child labor statutes, see Rutherford Food, supra, at 728, and, on its face, goes beyond its ERISA counterpart. While the FLSA, like ERISA, defines an "employee" to include "any individual employed by an employer," it defines the verb "employ" expansively to mean "suffer or permit to work." 52 Stat. 1060, § 3, codified at 29 U. S. C. §§ 203(e), (g). This latter definition, whose striking breadth we have previously noted, Rutherford Food, supra, at 728, stretches the meaning of "employee" to cover some parties who might not qualify as such under a strict application of traditional agency law principles. ERISA lacks any such provision, however, and the textual asymmetry between the two statutes precludes reliance on FLSA cases when construing ERISA's concept of "employee." Quite apart from its inconsistency with our precedents, the Fourth Circuit's analysis reveals an approach infected with circularity and unable to furnish predictable results. Applying the first element of its test, which ostensibly enquires into an employee's "expectations," the Court of Appeals concluded that Nationwide had "created a reasonable expectation on the 'employees' part that benefits would be paid to them in the future," Darden, 796 F. 2d, at 706, by establishing "a comprehensive retirement benefits program for its insurance agents," id., at 707. The court thought it was simply irrelevant that the forfeiture clause in Darden's contract "limited" his expectation of receiving pension benefits, since "it is precisely that sort of employer-imposed condition on the employee's anticipations that Congress intended to out- 5While both Darden and the United States cite a Department of Labor "Opinion Letter" as support for their separate positions, see Brief for Respondent 34-35, Brief for United States as Amicus Curiae 16-18, neither suggests that we owe that letter's legal conclusions any deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). 327 law with the enactment of ERISA." Id., at 707, n. 7 (emphasis added). Thus, the Fourth Circuit's test would turn not on a claimant's actual "expectations," which the court effectively deemed inconsequential, ibid., but on his statutory entitlement to relief, which itself depends on his very status as an "employee." This begs the question. This circularity infects the test's second prong as well, which considers the extent to which a claimant has relied on his "expectation" of benefits by "remaining for 'long years,' or a substantial period of time, in the 'employer's' service, and by foregoing other significant means of providing for [his] retirement." Id., at 706. While this enquiry is ostensibly factual, we have seen already that one of its objects may not be: to the extent that actual "expectations" are (as in Darden's case) unnecessary to relief, the nature of a claimant's required "reliance" is left unclear. Moreover, any enquiry into "reliance," whatever it might entail, could apparently lead to different results for claimants holding identical jobs and enrolled in identical plans. Because, for example, Darden failed to make much independent provision for his retirement, he satisfied the "reliance" prong of the Fourth Circuit's test, see 922 F. 2d, at 206, whereas a more provident colleague who signed exactly the same contracts, but saved for a rainy day, might not. Any such approach would severely compromise the capacity of companies like Nationwide to figure out who their "employees" are and what, by extension, their pension-fund obligations will be. To be sure, the traditional agency law criteria offer no paradigm of determinacy. But their application generally turns on factual variables within an employer's knowledge, thus permitting categorical judgments about the "employee" status of claimants with similar job descriptions. Agency law principles comport, moreover, with our recent precedents and with the common understanding, reflected in those precedents, of the difference between an employee and an independent contractor. 328 III While the Court of Appeals noted that "Darden most probably would not qualify as an employee" under traditional agency law principles, Darden, supra, at 705, it did not actually decide that issue. We therefore reverse the judgment and remand the case to that court for proceedings consistent with this opinion. So ordered.

The Supreme Court ruled that the term "employee" in ERISA (Employee Retirement Income Security Act) incorporates traditional agency law criteria for identifying master-servant relationships. The Court presumed that Congress intended an agency law definition unless otherwise indicated, and ERISA's circular definition of "employee" did not provide specific guidance. The Court rejected a test created by the Fourth Circuit Court of Appeals, which considered a claimant's expectations of receiving benefits and their reliance on those expectations, as it begged the question and led to inconsistent results. The traditional agency law criteria, while not perfect, allowed for more consistent and categorical judgments about "employee" status. The case was remanded to the Fourth Circuit to determine if the respondent qualified as an "employee" under traditional agency law principles.

Labor & Employment

Harris v. Forklift Systems, Inc.

https://supreme.justia.com/cases/federal/us/510/17/

OCTOBER TERM, 1993 Syllabus HARRIS v. FORKLIFT SYSTEMS, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 92-1168. Argued October 13, 1993-Decided November 9,1993 Petitioner Harris sued her former employer, respondent Forklift Systems, Inc., claiming that the conduct of Forklift's president toward her constituted "abusive work environment" harassment because of her gender in violation of Title VII of the Civil Rights Act of 1964. Declaring this to be "a close case," the District Court found, among other things, that Forklift's president often insulted Harris because of her gender and often made her the target of unwanted sexual innuendos. However, the court concluded that the comments in question did not create an abusive environment because they were not "so severe as to ... seriously affect [Harris'] psychological well-being" or lead her to "suffe[r] injury." The Court of Appeals affirmed. Held: To be actionable as "abusive work environment" harassment, conduct need not "seriously affect [an employee's] psychological well-being" or lead the plaintiff to "suffe[r] injury." Pp. 21-23. (a) The applicable standard, here reaffirmed, is stated in Meritor Sav ings Bank, FSB v. Vinson, 477 U. S. 57 : Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment, id., at 64, 67. This standard requires an objectively hostile or abusive environment--one that a reasonable person would find hostile or abusive-as well as the victim's subjective perception that the environment is abusive. Pp.21-22. (b) Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is relevant in determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. pp. 22-23. (c) Reversal and remand are required because the District Court's erroneous application of the incorrect legal standard may well have influenced its ultimate conclusion that the work environment was not in- 18 timidating or abusive to Harris, especially given that the court found this to be a "close case." P. 23. 976 F.2d 733 , reversed and remanded. O'CONNOR, J., delivered the opinion for a unanimous Court. SCALIA, J., post, p. 24, and GINSBURG, J., post, p. 25, filed concurring opinions. Irwin Venick argued the cause for petitioner. With him on the briefs were Robert Belton and Rebecca L. Brown. Jeffrey P. Minear argued the cause for the United States et al. as amici curiae in support of petitioner. With him on the brief were Acting Solicitor General Bryson, Acting Assistant Attorney General Turner, Dennis J. Dimsey, Thomas E. Chandler, Donald R. Livingston, Gwendolyn Young Reams, and Carolyn L. Wheeler. Stanley M. Chernau argued the cause for respondent. With him on the brief were Paul F. Mickey, Jr., Michael A. Carvin, and W Eric Pilsk. * JUSTICE O'CONNOR delivered the opinion of the Court. In this case we consider the definition of a discriminatorily "abusive work environment" (also known as a "hostile work *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Steven R. Shapiro, John A. Powell, and Lois C. Waldman; for Feminists for Free Expression by Cathy E. Crosson; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Elaine R. Jones and Eric Schnapper; for the National Conference of Women's Bar Associations et al. by Edith Barnett; for the National Employment Lawyers Association by Margaret A. Harris, Katherine L. Butler, and William J. Smith; for the NOW Legal Defense and Education Fund et al. by Deborah A. Ellis, Sarah E. Burns, Richard F. Ziegler, and Shari Siegel; for the Southern States Police Benevolent Association et al. by J. Michael McGuinness; and for the Women's Legal Defense Fund et al. by Carolyn F. Corwin, Judith L. Lichtman, Donna R. Lenhoff, and Susan Deller Ross. Robert E. Williams, Douglas S. McDowell, and Ann Elizabeth Reesman filed a brief for the Equal Employment Advisory Council as amicus curiae urging affirmance. Briefs of amici curiae were filed for the American Psychological Association by Dort S. Bigg; and for the Employment Law Center et al. by Patricia A. Shiu. 19 environment") under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1988 ed., Supp. III). I Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from April 1985 until October 1987. Charles Hardy was Forklift's president. The Magistrate found that, throughout Harris' time at Forklift, Hardy often insulted her because of her gender and often made her the target of unwanted sexual innuendos. Hardy told Harris on several occasions, in the presence of other employees, "You're a woman, what do you know" and "We need a man as the rental manager"; at least once, he told her she was "a dumb ass woman." App. to Pet. for Cert. A-13. Again in front of others, he suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise." Id., at A-14. Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket. Ibid. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. Id., at A-14 to A-15. He made sexual innuendos about Harris' and other women's clothing. Id., at A-15. In mid-August 1987, Harris complained to Hardy about his conduct. Hardy said he was surprised that Harris was offended, claimed he was only joking, and apologized. Id., at A-16. He also promised he would stop, and based on this assurance Harris stayed on the job. Ibid. But in early September, Hardy began anew: While Harris was arranging a deal with one of Forklift's customers, he asked her, again in front of other employees, "What did you do, promise the guy ... some [sex] Saturday night?" Id., at A-17. On October 1, Harris collected her paycheck and quit. Harris then sued Forklift, claiming that Hardy's conduct had created an abusive work environment for her because of her gender. The United States District Court for the Middle District of Tennessee, adopting the report and recom- 20 mendation of the Magistrate, found this to be "a close case," id., at A-31, but held that Hardy's conduct did not create an abusive environment. The court found that some of Hardy's comments "offended [Harris], and would offend the reasonable woman," id., at A-33, but that they were not "so severe as to be expected to seriously affect [Harris'] psychological well-being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance. "Neither do I believe that [Harris] was subjectively so offended that she suffered injury .... Although Hardy may at times have genuinely offended [Harris], I do not believe that he created a working environment so poisoned as to be intimidating or abusive to [Harris]." Id., at A-34 to A-35. In focusing on the employee's psychological well-being, the District Court was following Circuit precedent. See Rabidue v. Osceola Refining Co., 805 F.2d 611 , 620 (CA6 1986), cert. denied, 481 U. S. 1041 (1987). The United States Court of Appeals for the Sixth Circuit affirmed in a brief unpublished decision. Judgt. order reported at 976 F.2d 733 (1992). We granted certiorari, 507 U. S. 959 (1993), to resolve a conflict among the Circuits on whether conduct, to be actionable as "abusive work environment" harassment (no quid pro quo harassment issue is present here), must "seriously affect [an employee's] psychological well-being" or lead the plaintiff to "suffe[r] injury." Compare Rabidue (requiring serious effect on psychological well-being); Vance v. Southern Bell Telephone & Telegraph Co., 863 F.2d 1503 , 1510 (CA111989) (same); and Downes v. FAA, 775 F.2d 288 , 292 (CA Fed. 1985) (same), with Ellison v. Brady, 924 F.2d 872 , 877-878 (CA9 1991) (rejecting such a requirement). 21 II Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U. s. C. § 2000e-2(a)(1). As we made clear in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), this language "is not limited to 'economic' or 'tangible' discrimination. The phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment," which includes requiring people to work in a discriminatorily hostile or abusive environment. Id., at 64, quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 , 707, n. 13 (1978) (some internal quotation marks omitted). When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," 477 U. S., at 65, that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," id., at 67 (internal brackets and quotation marks omitted), Title VII is violated. This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, "mere utterance of an ... epithet which engenders offensive feelings in a employee," ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the 22 conditions of the victim's employment, and there is no Title VII violation. But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII's broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments "'so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,'" id., at 66, quoting Rogers v. EEOC, 454 F.2d 234 , 238 (CA5 1971), cert. denied, 406 U. S. 957 (1972), merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable. We therefore believe the District Court erred in relying on whether the conduct "seriously affect[ed] plaintiff's psychological well-being" or led her to "suffe[r] injury." Such an inquiry may needlessly focus the factfinder's attention on concrete psychological harm, an element Title VII does not require. Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, Meritor, supra, at 67, there is no need for it also to be psychologically injurious. This is not, and by its nature cannot be, a mathematically precise test. We need not answer today all the potential 23 questions it raises, nor specifically address the Equal Employment Opportunity Commission's new regulations on this subject, see 58 Fed. Reg. 51266 (1993) (proposed 29 CFR §§ 1609.1, 1609.2); see also 29 CFR § 1604.11 (1993). But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. III Forklift, while conceding that a requirement that the conduct seriously affect psychological well-being is unfounded, argues that the District Court nonetheless correctly applied the Meritor standard. We disagree. Though the District Court did conclude that the work environment was not "intimidating or abusive to [Harris]," App. to Pet. for Cert. A-35, it did so only after finding that the conduct was not "so severe as to be expected to seriously affect plaintiff's psychological well-being," id., at A-34, and that Harris was not "subjectively so offended that she suffered injury," ibid. The District Court's application of these incorrect standards may well have influenced its ultimate conclusion, especially given that the court found this to be a "close case," id., at A-31. We therefore reverse the judgment of the Court of Appeals, and remand the case for further proceedings consistent with this opinion. So ordered. 24 JUSTICE SCALIA, concurring. Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), held that Title VII prohibits sexual harassment that takes the form of a hostile work environment. The Court stated that sexual harassment is actionable if it is "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id., at 67 (quoting Henson v. Dundee, 682 F.2d 897 , 904 (CAll 1982)). Today's opinion elaborates that the challenged conduct must be severe or pervasive enough "to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive." Ante, at 21. "Abusive" (or "hostile," which in this context I take to mean the same thing) does not seem to me a very clear standard-and I do not think clarity is at all increased by adding the adverb "objectively" or by appealing to a "reasonable person['s]" notion of what the vague word means. Today's opinion does list a number of factors that contribute to abusiveness, see ante, at 23, but since it neither says how much of each is necessary (an impossible task) nor identifies any single factor as determinative, it thereby adds little certitude. As a practical matter, today's holding lets virtually unguided juries decide whether sex-related conduct engaged in (or permitted by) an employer is egregious enough to warrant an award of damages. One might say that what constitutes "negligence" (a traditional jury question) is not much more clear and certain than what constitutes "abusiveness." Perhaps so. But the class of plaintiffs seeking to recover for negligence is limited to those who have suffered harm, whereas under this statute "abusiveness" is to be the test of whether legal harm has been suffered, opening more expansive vistas of litigation. Be that as it may, I know of no alternative to the course the Court today has taken. One of the factors mentioned in the Court's nonexhaustive list-whether the conduct unrea- 25 sonably interferes with an employee's work performancewould, if it were made an absolute test, provide greater guidance to juries and employers. But I see no basis for such a limitation in the language of the statute. Accepting Meritor's interpretation of the term "conditions of employment" as the law, the test is not whether work has been impaired, but whether working conditions have been discriminatorily altered. I know of no test more faithful to the inherently vague statutory language than the one the Court today adopts. For these reasons, I join the opinion of the Court. JUSTICE GINSBURG, concurring. Today the Court reaffirms the holding of Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 66 (1986): "[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. See 42 U. S. C. § 2000e-2(a)(1) (declaring that it is unlawful to discriminate with respect to, inter alia, "terms" or "conditions" of employment). As the Equal Employment Opportunity Commission emphasized, see Brief for United States and Equal Employment Opportunity Commission as Amici Curiae 9-14, the adjudicator's inquiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work performance. To show such interference, "the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment." Davis v. Monsanto Chemical Co., 858 F.2d 345 , 349 (CA6 1988). It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to "ma[k]e it more difficult to do the job." See ibid. Davis concerned race-based discrimination, but that differ- 26 ence does not alter the analysis; except in the rare case in which a bona fide occupational qualification is shown, see Au tomobile Workers v. Johnson Controls, Inc., 499 U. S. 187 , 200-207 (1991) (construing 42 U. S. C. § 2000e-2(e)(1)), Title VII declares discriminatory practices based on race, gender, religion, or national origin equally unlawful. * The Court's opinion, which I join, seems to me in harmony with the view expressed in this concurring statement. *Indeed, even under the Court's equal protection jurisprudence, which requires "an exceedingly persuasive justification" for a gender-based classification, Kirchberg v. Feenstra, 450 U. S. 455 , 461 (1981) (internal quotation marks omitted), it remains an open question whether "classifications based upon gender are inherently suspect." See Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 724, and n. 9 (1982).

The Supreme Court held that to establish a hostile work environment claim under Title VII, a plaintiff must prove that the harassing conduct was severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and that the victim subjectively perceived it as such. The Court rejected the idea that a plaintiff must prove that the harassment caused psychological injury or affected their work performance. Instead, the Court emphasized that the test is whether a reasonable person in the plaintiff's position would find the environment hostile or abusive, considering all the circumstances, including the frequency and severity of the conduct. The Court remanded the case for reconsideration under the correct legal standard.

Labor & Employment

Hazen Paper Co. v. Biggins

https://supreme.justia.com/cases/federal/us/507/604/

OCTOBER TERM, 1992 Syllabus HAZEN PAPER CO. ET AL. v. BIGGINS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 91-1600. Argued January 13, 1993-Decided April 20, 1993 Petitioners fired respondent Biggins when he was 62 years old and apparently a few weeks short of the years of service he needed for his pension to vest. In his ensuing lawsuit, a jury found, inter alia, a willful violation of the Age Discrimination in Employment Act of 1967 (ADEA), which gave rise to liquidated damages. The District Court granted petitioners' motion for judgment notwithstanding the verdict on the "willfulness" finding, but the Court of Appeals reversed, giving considerable emphasis to evidence of pension interference in upholding ADEA liability and finding that petitioners' conduct was willful because, under the standard of Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 , 128, they knew or showed reckless disregard for the matter of whether their conduct contravened the ADEA. Held: 1. An employer does not violate the ADEA by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. In a disparate treatment case, liability depends on whether the protected trait-under the ADEA, age-actually motivated the employer's decision. When that decision is wholly motivated by factors other than age, the problem that prompted the ADEA's passage-inaccurate and stigmatizing stereotypes about older workers' productivity and competence-disappears. Thus, it would be incorrect to say that a decision based on years of service-which is analytically distinct from age-is necessarily age based. None of this Court's prior decisions should be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect. The foregoing holding does not preclude the possibility of liability where an employer uses pension status as a proxy for age, of dual liability under the Employee Retirement Income Security Act of 1974 and the ADEA, or of liability where vesting is based on age rather than years of service. Because the Court of Appeals cited additional evidentiary support for ADEA liability, this case is remanded for that court to reconsider whether the jury had sufficient evidence to find such liability. Pp. 608-614. 605 2. The Thurston "knowledge or reckless disregard" standard for liquidated damages applies not only where the predicate ADEA violation is a formal, facially discriminatory policy, as in Thurston, but also where it is an informal decision by the employer that was motivated by the employee's age. Petitioners have not persuaded this Court that Thurston was wrongly decided or that the Court should part from the rule of stare decisis. Applying the Thurston standard to cases of individual discrimination will not defeat the two-tiered system of liability intended by Congress. Since the ADEA affords an employer a "bona fide occupational qualification" defense, and exempts certain subject matters and persons, an employer could incorrectly but in good faith and nonrecklessly believe that the statute permits a particular age-based decision. Nor is there some inherent difference between this case and Thurston to cause a shift in the meaning of the word "willful." The distinction between the formal, publicized policy in Thurston and the undisclosed factor here is not such a difference, since an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. Pp. 614-617. 953 F.2d 1405 , vacated and remanded. O'CONNOR, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 617. Robert B. Gordon argued the cause for petitioners. With him on the briefs were John M. Harrington, Jr., and John H. Mason. Maurice M. Cahillane, Jr., argued the cause for respondent. With him on the briefs were John J. Egan, Edward J. McDonough, Jr., and Eileen Z. Sorrentino. John R. Dunne argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Starr, Deputy Solicitor Gen- 606 eral Roberts, Edward C. DuMont, Donald R. Livingston, and Gwendolyn Young Reams.* JUSTICE O'CONNOR delivered the opinion of the Court. In this case we clarify the standards for liability and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. I Petitioner Hazen Paper Company manufactures coated, laminated, and printed paper and paperboard. The company is owned and operated by two cousins, petitioners Robert Hazen and Thomas N. Hazen. The Hazens hired respondent Walter F. Biggins as their technical director in 1977. They fired him in 1986, when he was 62 years old. Respondent brought suit against petitioners in the United States District Court for the District of Massachusetts, alleging a violation of the ADEA. He claimed that age had been a determinative factor in petitioners' decision to fire him. Petitioners contested this claim, asserting instead that respondent had been fired for doing business with competitors of Hazen Paper. The case was tried before a jury, which rendered a verdict for respondent on his ADEA claim and also found violations of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, § 510, 29 U. S. C. § 1140, and state law. On the ADEA count, the jury specifically found that petitioners "willfully" violated the statute. Under § 7(b) of the ADEA, 29 U. S. C. § 626(b), a "willful" violation gives rise to liquidated damages. *Robert E. Williams, Douglas S. McDowell, and Mona C. Zeiberg filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Steven S. Zaleznick and Cathy VentrellMonsees; and for the National Employment Lawyers Association by Paul H. Tobias. 607 Petitioners moved for judgment notwithstanding the verdict. The District Court granted the motion with respect to a state-law claim and the finding of "willfulness" but otherwise denied it. An appeal ensued. 953 F.2d 1405 (CA1 1992). The United States Court of Appeals for the First Circuit affirmed judgment for respondent on both the ADEA and ERISA counts, and reversed judgment notwithstanding the verdict for petitioners as to "willfulness." In affirming the judgments of liability, the Court of Appeals relied heavily on the evidence that petitioners had fired respondent in order to prevent his pension benefits from vesting. That evidence, as construed most favorably to respondent by the court, showed that the Hazen Paper pension plan had a 10-year vesting period and that respondent would have reached the 10-year mark had he worked "a few more weeks" after being fired. Id., at 1411. There was also testimony that petitioners had offered to retain respondent as a consultant to Hazen Paper, in which capacity he would not have been entitled to receive pension benefits. Id., at 1412. The Court of Appeals found this evidence of pension interference to be sufficient for ERISA liability, id., at 1416, and also gave it considerable emphasis in upholding ADEA liability. After summarizing all the testimony tending to show age discrimination, the court stated: "Based on the foregoing evidence, the jury could reasonably have found that Thomas Hazen decided to fire [respondent] before his pension rights vested and used the confidentiality agreement [that petitioners had asked respondent to sign] as a means to that end. The jury could also have reasonably found that age was inextricably intertwined with the decision to fire [respondent]. If it were not for [respondent's] age, sixty-two, his pension rights would not have been within a hairbreadth of vesting. [Respondent] was fifty-two years old when he was hired; his pension rights vested in ten years." Id., at 1412. 608 As to the issue of "willfulness" under § 7(b) of the ADEA, the Court of Appeals adopted and applied the definition set out in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 (1985). In Thurston, we held that the airline's facially discriminatory job-transfer policy was not a "willful" ADEA violation because the airline neither "knew [nor] showed reckless disregard for the matter of whether" the policy contravened the statute. Id., at 128 (internal quotation marks omitted). The Court of Appeals found sufficient evidence to satisfy the Thurston standard, and ordered that respondent be awarded liquidated damages equal to and in addition to the underlying damages of $419,454.38. 953 F. 2d, at 1415-1416. We granted certiorari to decide two questions. 505 U. S. 1203 (1992). First, does an employer's interference with the vesting of pension benefits violate the ADEA? Second, does the Thurston standard for liquidated damages apply to the case where the predicate ADEA violation is not a formal, facially discriminatory policy, as in Thurston, but rather an informal decision by the employer that was motivated by the employee's age? II A The Courts of Appeals repeatedly have faced the question whether an employer violates the ADEA by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age. Compare White v. Westinghouse Electric Co., 862 F.2d 56 , 62 (CA3 1988) (firing of older employee to prevent vesting of pension benefits violates ADEA); Metz v. Transit Mix, Inc., 828 F. 2d 1202 (CA71987) (firing of older employee to save salary costs resulting from seniority violates ADEA), with Williams v. General Motors Corp., 656 F.2d 120 , 130, n. 17 (CA5 1981) ("[S]eniority and age discrimination are unrelated .... We state without equivocation that the seniority a given 609 plaintiff has accumulated entitles him to no better or worse treatment in an age discrimination suit"), cert. denied, 455 U. S. 943 (1982); EEOC v. Clay Printing Co., 955 F.2d 936 , 942 (CA4 1992) (emphasizing distinction between employee's age and years of service). We now clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age. We long have distinguished between "disparate treatment" and "disparate impact" theories of employment discrimination. "'Disparate treatment' ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment .... "[C]laims that stress 'disparate impact' [by contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive ... is not required under a disparate-impact theory." Teamsters v. United States, 431 U. S. 324 , 335336, n. 15 (1977) (citation omitted) (construing Title VII of Civil Rights Act of 1964). The disparate treatment theory is of course available under the ADEA, as the language of that statute makes clear. "It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. § 623(a)(1) (emphasis added). See Thurston, supra, at 120-125 (affirming ADEA 610 liability under disparate treatment theory). By contrast, we have never decided whether a disparate impact theory of liability is available under the ADEA, see Markham v. Geller, 451 U. S. 945 (1981) (REHNQUIsT, J., dissenting from denial of certiorari), and we need not do so here. Respondent claims only that he received disparate treatment. In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision. See, e. g., United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 (1983); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252-256 (1981); Furnco Constr. Corp. v. Waters, 438 U. S. 567 , 576-578 (1978). The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. See, e. g., Thurston, supra; Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 , 704-718 (1978). Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. See, e. g., Anderson v. Bessemer City, 470 U. S. 564 (1985); Teamsters, supra, at 334-343. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome. Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. As we explained in EEOC v. Wyoming, 460 U. S. 226 (1983), Congress' promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes. "Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsup- 611 ported by objective fact .... Moreover, the available empirical evidence demonstrated that arbitrary age lines were in fact generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers." Id., at 231. Thus the ADEA commands that "employers are to evaluate [older] employees ... on their merits and not their age." Western Air Lines, Inc. v. Criswell, 472 U. S. 400 , 422 (1985). The employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly. When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee's accrued benefits will become nonforfeitable, or "vested," once the employee completes a certain number of years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law § 5.03 (1992). On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U. S. C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age based." The instant case is illustrative. Under the Hazen Paper pension plan, as construed by the Court of Appeals, an employee's pension benefits vest after the employee completes 10 years of service with the company. Perhaps it is true 612 that older employees of Hazen Paper are more likely to be "close to vesting" than younger employees. Yet a decision by the company to fire an older employee solely because he has nine-plus years of service and therefore is "close to vesting" would not constitute discriminatory treatment on the basis of age. The prohibited stereotype ("Older employees are likely to be -") would not have figured in this decision, and the attendant stigma would not ensue. The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee-that he indeed is "close to vesting." We do not mean to suggest that an employer lawfully could fire an employee in order to prevent his pension benefits from vesting. Such conduct is actionable under § 510 of ERISA, as the Court of Appeals rightly found in affirming judgment for respondent under that statute. See IngersollRand Co. v. McClendon, 498 U. S. 133 , 142-143 (1990). But it would not, without more, violate the ADEA. That law requires the employer to ignore an employee's age (absent a statutory exemption or defense); it does not specify further characteristics that an employer must also ignore. Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 802 (1973) (creating proof framework applicable to ADEA) (employer must have "legitimate, nondiscriminatory reason" for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee's race is an improper reason, but it is improper under Title VII, not the ADEA. We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older 613 thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent, cf. Metz, 828 F. 2d, at 1208 (using "proxy" to mean statutory equivalence), but in the sense that the employer may suppose a correlation between the two factors and act accordingly. Nor do we rule out the possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status. Finally, we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, see 1 Mamorsky, supra, at § 5.02[2], and the employer fires the employee in order to prevent vesting. That case is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. Besides the evidence of pension interference, the Court of Appeals cited some additional evidentiary support for ADEA liability. Although there was no direct evidence of petitioners' motivation, except for two isolated comments by the Hazens, the Court of Appeals did note the following indirect evidence: Respondent was asked to sign a confidentiality agreement, even though no other employee had been required to do so, and his replacement was a younger man who was given a less onerous agreement. 953 F. 2d, at 1411. In the ordinary ADEA case, indirect evidence of this kind may well suffice to support liability if the plaintiff also shows that the employer's explanation for its decision-here, that respondent had been disloyal to Hazen Paper by doing business with its competitors-is" 'unworthy of credence.'" Ai kens, 460 U. S., at 716 (quoting Burdine, 450 U. S., at 256). But inferring age motivation from the implausibility of the employer's explanation may be problematic in cases where other unsavory motives, such as pension interference, were present. This issue is now before us in the Title VII con- 614 text, see Hicks v. St. Mary's Honor Center, 970 F.2d 487 (CA8 1992), cert. granted, 506 U. S. 1042 (1993), and we will not address it prematurely. We therefore remand the case for the Court of Appeals to reconsider whether the jury had sufficient evidence to find an ADEA violation. B Because we remand for further proceedings, we also address the second question upon which certiorari was granted: the meaning of "willful" in § 7(b) of the ADEA, which provides for liquidated damages in the case of a "willful" violation. In Thurston, we thoroughly analyzed § 7(b) and concluded that "a violation of the Act [would be] 'willful' if the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA." 469 U. S., at 126 (internal quotation marks and ellipsis omitted). We sifted through the legislative history of § 7(b), which had derived from § 16(a) of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1069, as amended, 29 U. S. C. § 216(a), and determined that the accepted judicial interpretation of § 16(a) at the time of the passage of the ADEA supported the "knowledge or reckless disregard" standard. See 469 U. S., at 126. We found that this standard was consistent with the meaning of "willful" in other criminal and civil statutes. See id., at 126-127. Finally, we observed that Congress aimed to create a "two-tiered liability scheme," under which some, but not all, ADEA violations would give rise to liquidated damages. We therefore rejected a broader definition of "willful" providing for liquidated damages whenever the employer knew that the ADEA was "in the picture." See id., at 127-128. In McLaughlin v. Richland Shoe Co., 486 U. S. 128 (1988), an FLSA case, we reaffirmed the Thurston standard. The question in Richland Shoe was whether the limitations pro- 615 vision of the FLSA, creating a 3-year period for "willful" violations, should be interpreted consistently with Thurston. We answered that question in the affirmative. "The word 'willful' is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute-is surely a fair reading of the plain language of the Act." 486 U. S., at 133. Once again we rejected the "in the picture standard" because it would "virtually obliterat[e] any distinction between willful and nonwillful violations." Id., at 132-133. Surprisingly, the Courts of Appeals continue to be confused about the meaning of the term "willful" in § 7(b) of the ADEA. A number of Circuits have declined to apply Thurston to what might be called an informal disparate treatment case-where age has entered into the employment decision on an ad hoc, informal basis rather than through a formal policy. At least one Circuit refuses to impose liquidated damages in such a case unless the employer's conduct was "outrageous." See, e. g., Lockhart v. Westinghouse Credit Corp., 879 F.2d 43 , 57-58 (CA3 1989). Another requires that the underlying evidence of liability be direct rather than circumstantial. See, e. g., Neufeld v. Searle Laboratories, 884 F.2d 335 , 340 (CA8 1989). Still others have insisted that age be the "predominant," rather than simply a determinative, factor. See, e. g., Spulak v. K Mart Corp., 894 F.2d 1150 , 1159 (CAlO 1990); Schrand v. Federal Pacific Elec. Co., 851 F.2d 152 , 158 (CA6 1988). The chief concern of these Circuits has been that the application of Thurston would defeat the two-tiered system of liability intended by Congress, because every employer that engages in informal age 616 discrimination knows or recklessly disregards the illegality of its conduct. We believe that this concern is misplaced. The ADEA does not provide for liquidated damages "where consistent with the principle of a two-tiered liability scheme." It provides for liquidated damages where the violation was "willful." That definition must be applied here unless we overrule Thurston, or unless there is some inherent difference between this case and Thurston to cause a shift in the meaning of the word "willful." As for the first possibility, petitioners have not persuaded us that Thurston was wrongly decided, let alone that we should depart from the rule of stare decisis. The two-tiered liability principle was simply one interpretive tool among several that we used in Thurston to decide what Congress meant by the word "willful," and in any event we continue to believe that the "knowledge or reckless disregard" standard will create two tiers of liability across the range of ADEA cases. It is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA. The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a "bona fide occupational qualification" defense, see 29 U. S. C. § 623(f)(1), and exempts certain subject matters and persons, see, e. g., § 623(f)(2) (exemption for bona fide seniority systems and employee benefit plans); § 631(c) (exemption for bona fide executives and high policymakers). If an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed. See Richland Shoe, supra, at 135, n. 13. Indeed, in Thurston itself we upheld liability but reversed an award of liquidated damages because the employer "acted [nonrecklessly] and in good faith in attempting to determine whether [its] plan would violate the ADEA." 469 U. S., at 129. 617 Nor do we see how the instant case can be distinguished from Thurston, assuming that petitioners did indeed fire respondent because of his age. The only distinction between Thurston and the case before us is the existence of formal discrimination. Age entered into the employment decision there through a formal and publicized policy, and not as an undisclosed factor motivating the employer on an ad hoc basis, which is what respondent alleges occurred here. But surely an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages. We therefore reaffirm that the Thurston definition of "willful"that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute-applies to all disparate treatment cases under the ADEA. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concurring. I agree with the Court that the Court of Appeals placed improper reliance on respondent's evidence of pension interference and that the standard for determining willfulness announced in Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 (1985), applies to individual acts of age discrimination as 618 well as age discrimination manifested in formal, companywide policy. I write to underscore that the only claim based upon the Age Discrimination in Employment Act (ADEA), 29 U. S. C. § 621 et seq., asserted by respondent in this litigation is that petitioners discriminated against him because of his age. He has advanced no claim that petitioners' use of an employment practice that has a disproportionate effect on older workers violates the ADEA. See App. 29-30 (amended complaint); 5 Record 71-76 (jury instructions). As a result, nothing in the Court's opinion should be read as incorporating in the ADEA context the so-called "disparate impact" theory of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §§ 2000e to 2000e-17. As the Court acknowledges, ante, at 610, we have not yet addressed the question whether such a claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA. See Markham v. Geller, 451 U. S. 945 (1981) (REHNQUIsT, J., dissenting from denial of certiorari); Metz v. Transit Mix, Inc., 828 F.2d 1202 , 1216-1220 (CA7 1987) (Easterbrook, J., dissenting); Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan. L. Rev. 837 (1982). It is on the understanding that the Court does not reach this issue that I join in its opinion.

Here is a summary of the case verdict: The Supreme Court ruled that an employer does not violate the Age Discrimination in Employment Act (ADEA) by interfering with an older employee's pension benefits that would have vested based on their years of service. The Court found that liability under the ADEA depends on whether age was the motivating factor in the employer's decision and that a decision based on years of service is distinct from age. The Court also upheld the "knowledge or reckless disregard" standard for liquidated damages in cases of individual age discrimination. The case was remanded to the lower court to reconsider the evidence for ADEA liability.

Labor & Employment

Wards Cove Packing Co. v. Atonio

https://supreme.justia.com/cases/federal/us/490/642/

U.S. Supreme Court Wards Cove Packing v. Atonio, 490 U.S. 642 (1989) Wards Cove Packing Co., Inc. v. Atonio No. 87-1387 Argued January 18, 1989 Decided June 5, 1989 490 U.S. 642 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Jobs at petitioners' Alaskan salmon canneries are of two general types: unskilled "cannery jobs" on the cannery lines, which are filled predominantly by nonwhites; and "noncannery jobs," most of which are classified as skilled positions and filled predominantly with white workers, and virtually all of which pay more than cannery positions. Respondents, a class of nonwhite cannery workers at petitioners' facilities, filed suit in the District Court under Title VII of the Civil Rights Act of 1964, alleging, inter alia, that various of petitioners' hiring/promotion practices were responsible for the workforce's racial stratification and had denied them employment as noncannery workers on the basis of race. The District Court rejected respondents' claims, finding, among other things, that nonwhite workers were overrepresented in cannery jobs because many of those jobs were filled under a hiring hall agreement with a predominantly nonwhite union. The Court of Appeals ultimately reversed in pertinent part, holding, inter alia, that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled noncannery jobs, relying solely on respondents' statistics showing a high percentage of nonwhite workers in cannery jobs and a low percentage of such workers in noncannery positions. The court also concluded that, once a plaintiff class has shown disparate impact caused by specific, identifiable employment practices or criteria, the burden shifts to the employer to prove the challenged practice's business necessity. Held: 1. The Court of Appeals erred in ruling that a comparison of the percentage of cannery workers who are nonwhite and the percentage of noncannery workers who are nonwhite makes out a prima facie disparate impact case. Rather, the proper comparison is generally between the racial composition of the at-issue jobs and the racial composition of the qualified population in the relevant labor market. Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 308 . With respect to the skilled noncannery jobs at issue, the cannery workforce in no way reflected the pool of job applicants or the qualified labor force population. Petitioners' selection methods or employment practices cannot be said to have had a disparate impact on nonwhites if Page 490 U. S. 643 the absence of minorities holding such skilled jobs reflects a dearth of qualified nonwhite applicants for reasons that are not petitioners' fault. With respect to the unskilled noncannery jobs, as long as there are no barriers or practices deterring qualified nonwhites from applying, the employer's selection mechanism probably does not have a disparate impact on minorities if the percentage of selected nonwhite applicants is not significantly less than the percentage of qualified nonwhite applicants. Where this is the case, the percentage of nonwhite workers found in other positions in the employer's labor force is irrelevant to a prima facie statistical disparate impact case. Moreover, isolating the cannery workers as the potential labor force for unskilled noncannery jobs is both too broad -- because the majority of cannery workers did not seek noncannery jobs -- and too narrow -- because there are many qualified persons in the relevant labor market who are not cannery workers. Under the Court of Appeals' method of comparison, any employer having a racially imbalanced segment of its workforce could be haled into court and made to undertake the expensive and time-consuming task of defending the business necessity of its selection methods. For many employers, the only practicable option would be the adoption of racial quotas, which has been rejected by this Court and by Congress in drafting Title VII. The Court of Appeals' theory is also flawed because, if minorities are overrepresented in cannery jobs by virtue of petitioners' having contracted with a predominantly nonwhite union to fill those positions, as the District Court found, petitioners could eliminate respondents' prima facie case simply by ceasing to use the union, without making any change whatsoever in their hiring practices for the noncannery positions at issue. Pp. 490 U. S. 650 -655. 2. On remand for a determination whether the record will support a prima facie disparate impact case on some basis other than the racial disparity between cannery and noncannery workers, a mere showing that nonwhites are underrepresented in the at-issue jobs in a manner that is acceptable under the standards set forth herein will not alone suffice. Rather, the courts below must also require, as part of respondents' prima facie case, a demonstration that the statistical disparity complained of is the result of one or more of the employment practices respondents are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. This specific causation requirement is not unduly burdensome, since liberal discovery rules give plaintiffs broad access to employers' records, and since employers falling within the scope of the Uniform Guidelines on Employee Selection Procedures must maintain records disclosing the impact of tests and selection procedures Page 490 U. S. 644 on employment opportunities of persons by identifiable race, sex, or ethnic group. Pp. 490 U. S. 656 -658. 3. If, on remand, respondents establish a prima facie disparate impact case with respect to any of petitioners' practices, the burden of producing evidence of a legitimate business justification for those practices will shift to petitioners, but the burden of persuasion will remain with respondents at all times. This rule conforms with the usual method for allocating persuasion and production burdens in the federal courts and with the rule in disparate treatment cases that the plaintiff bears the burden of disproving an employer's assertion that the adverse employment practice was based solely on a legitimate, neutral consideration. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 256 -258. To the extent that some of this Court's decisions speak of an employer's "burden of proof" with respect to the business justification defense, they should be understood to mean an employer's burden of production, not persuasion. Even if respondents cannot persuade the trier of fact on the business necessity question, they may still prevail by coming forward with alternatives that reduce the disparate impact of petitioners' current practices, provided such alternatives are equally effective in achieving petitioners' legitimate employment goals in light of the alternatives' costs and other burdens. Pp. 490 U. S. 658 -661. 827 F. 2d 439, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 490 U. S. 661 . STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 490 U. S. 662 . Page 490 U. S. 645 JUSTICE WHITE delivered the opinion of the Court. Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §2000e et seq., makes it an unfair employment practice for an employer to discriminate against any individual with respect to hiring or the terms and condition of employment because of such individual's race, color, religion, sex, or national origin; or to limit, segregate, or classify his employees in ways that would adversely affect any employee because of the employee's race, color, religion, sex, or national origin. [ Footnote 1 ] § 2000e-2(a). Griggs v. Duke Power Co., 401 U. S. 424 , 401 U. S. 431 (1971), construed Title VII to proscribe "not only overt discrimination, but also practices that are fair in form, but discriminatory in practice." Under this basis for liability, which is known as the "disparate impact" theory and which is involved in this case, a facially neutral Page 490 U. S. 646 employment practice may be deemed violative of Title VII without evidence of the employer's subjective intent to discriminate that is required in a "disparate treatment" case. I The claims before us are disparate impact claims, involving the employment practices of petitioners, two companies that operate salmon canneries in remote and widely separated areas of Alaska. The canneries operate only during the salmon runs in the summer months. They are inoperative and vacant for the rest of the year. In May or June of each year, a few weeks before the salmon runs begin, workers arrive and prepare the equipment and facilities for the canning operation. Most of these workers possess a variety of skills. When salmon runs are about to begin, the workers who will operate the cannery lines arrive, remain as long as there are fish to can, and then depart. The canneries are then closed down, winterized, and left vacant until the next spring. During the off-season, the companies employ only a small number of individuals at their headquarters in Seattle and Astoria, Oregon, plus some employees at the winter shipyard in Seattle. The length and size of salmon runs vary from year to year, and hence the number of employees needed at each cannery also varies. Estimates are made as early in the winter as possible; the necessary employees are hired, and when the time comes, they are transported to the canneries. Salmon must be processed soon after they are caught, and the work during the canning season is therefore intense. [ Footnote 2 ] For this Page 490 U. S. 647 reason, and because the canneries are located in remote regions, all workers are housed at the canneries and have their meals in company-owned mess halls. Jobs at the canneries are of two general types: "cannery jobs" on the cannery line, which are unskilled positions; and "noncannery jobs," which fall into a variety of classifications. Most noncannery jobs are classified as skilled positions. [ Footnote 3 ] Cannery jobs are filled predominantly by nonwhites: Filipinos and Alaska Natives. The Filipinos are hired through, and dispatched by, Local 37 of the International Longshoremen's and Warehousemen's Union pursuant to a hiring hall agreement with the local. The Alaska Natives primarily reside in villages near the remote cannery locations. Noncannery jobs are filled with predominantly white workers, who are hired during the winter months from the companies' offices in Washington and Oregon. Virtually all of the noncannery jobs pay more than cannery positions. The predominantly white noncannery workers and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate mess halls. In 1974, respondents, a class of nonwhite cannery workers who were (or had been) employed at the canneries, brought this Title VII action against petitioners. Respondents alleged that a variety of petitioners' hiring/promotion practices -- e. g., nepotism, a rehire preference, a lack of objective hiring criteria, separate hiring channels, a practice of not promoting from within -- were responsible for the racial stratification Page 490 U. S. 648 of the workforce, and had denied them and other nonwhites employment as noncannery workers on the basis of race. Respondents also complained of petitioners' racially segregated housing and dining facilities. All of respondents' claims were advanced under both the disparate treatment and disparate impact theories of Title VII liability. The District Court held a bench trial, after which it entered 172 findings of fact. App. to Pet. for Cert. I-1 to I-94. It then rejected all of respondents' disparate treatment claims. It also rejected the disparate impact challenges involving the subjective employment criteria used by petitioners to fill these noncannery positions, on the ground that those criteria were not subject to attack under a disparate impact theory. Id. at I-102. Petitioners' "objective" employment practices ( e.g., an English language requirement, alleged nepotism in hiring, failure to post noncannery openings, the rehire preference, etc.) were found to be subject to challenge under the disparate impact theory, but these claims were rejected for failure of proof. Judgment was entered for petitioners. On appeal, a panel of the Ninth Circuit affirmed, 768 F.2d 1120 (1985), but that decision was vacated when the Court of Appeals agreed to hear the case en banc, 787 F.2d 462 (1985). The en banc hearing was ordered to settle an intracircuit conflict over the question whether subjective hiring practices could be analyzed under a disparate impact model; the Court of Appeals held -- as this Court subsequently ruled in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988) -- that disparate impact analysis could be applied to subjective hiring practices. 810 F.2d 1477, 1482 (1987). The Ninth Circuit also concluded that, in such a case, "[o]nce the plaintiff class has shown disparate impact caused by specific, identifiable employment practices or criteria, the burden shifts to the employer," id. at 1485, to "prov[e the] business necessity" of the challenged practice, id. at 1486. Because the en banc holding on subjective employment practices reversed Page 490 U. S. 649 the District Court's contrary ruling, the en banc Court of Appeals remanded the case to a panel for further proceedings. On remand, the panel applied the en banc ruling to the facts of this case. 827 F.2d 439 (1987). It held that respondents had made out a prima facie case of disparate impact in hiring for both skilled and unskilled noncannery positions. The panel remanded the case for further proceedings, instructing the District Court that it was the employer's burden to prove that any disparate impact caused by its hiring and employment practices was justified by business necessity. Neither the en banc court nor the panel disturbed the District Court's rejection of the disparate treatment claims. [ Footnote 4 ] Petitioners sought review of the Court of Appeals' decision in this Court, challenging it on several grounds. Because some of the issues raised by the decision below were matters Page 490 U. S. 650 on which this Court was evenly divided in Watson v. Fort Worth Bank & Trust, supra, we granted certiorari, 487 U.S. 1264 (1988), for the purpose of addressing these disputed questions of the proper application of Title VII's disparate impact theory of liability. II In holding that respondents had made out a prima facie case of disparate impact, the Court of Appeals relied solely on respondents' statistics showing a high percentage of nonwhite workers in the cannery jobs and a low percentage of such workers in the noncannery positions. [ Footnote 5 ] Although statistical proof can alone make out a prima facie case, see Teamsters v. United States, 431 U. S. 324 , 431 U. S. 339 (1977); Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 307 -308 (1977), the Court of Appeals' ruling here misapprehends our precedents and the purposes of Title VII, and we therefore reverse. "There can be no doubt," as there was when a similar mistaken analysis had been undertaken by the courts below in Hazelwood, supra, at 433 U. S. 308 , "that the . . . comparison . . . fundamentally misconceived the role of statistics in employment discrimination cases." The "proper comparison [is] between the racial composition of [the at-issue jobs] and the racial composition of the qualified . . . population in the relevant labor market." Ibid. It is such a comparison -- between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs -- that generally forms Page 490 U. S. 651 the proper basis for the initial inquiry in a disparate impact case. Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics -- such as measures indicating the racial composition of "otherwise-qualified applicants" for at-issue jobs -- are equally probative for this purpose. See, e.g., New York City Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 585 (1979). [ Footnote 6 ] It is clear to us that the Court of Appeals' acceptance of the comparison between the racial composition of the cannery workforce and that of the noncannery workforce, as probative of a prima facie case of disparate impact in the selection of the latter group of workers, was flawed for several reasons. Most obviously, with respect to the skilled noncannery jobs at issue here, the cannery workforce in no way reflected "the pool of qualified job applicants" or the " qualified population in the labor force." Measuring alleged discrimination in the selection of accountants, managers, boat captains, electricians, doctors, and engineers -- and the long list of other "skilled" noncannery positions found to exist by the District Court, see App. to Pet. for Cert. I-56 to I-58 -- by comparing the number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners' fault), [ Footnote 7 ] Page 490 U. S. 652 petitioners' selection methods or employment practices cannot be said to have had a "disparate impact" on nonwhites. One example illustrates why this must be so. Respondents' own statistics concerning the noncannery workforce at one of the canneries at issue here indicate that approximately 17% of the new hires for medical jobs, and 15% of the new hires for officer worker positions, were nonwhite. See App. to Brief for Respondents B-l. If it were the case that less than 15 to 17% of the applicants for these jobs were nonwhite and that nonwhites made up a lower percentage of the relevant qualified labor market, it is hard to see how respondents, without more, cf. Connecticut v. Teal, 457 U. S. 440 (1982), would have made out a prima facie case of disparate impact. Yet, under the Court of Appeals' theory, simply because nonwhites comprise 52% of the cannery workers at the cannery in question, see App. to Brief for Respondents B-1, respondents would be successful in establishing a prima facie case of racial discrimination under Title VII. Such a result cannot be squared with our cases or with the goals behind the statute. The Court of Appeals' theory, at the very least, would mean that any employer who had a segment of his workforce that was -- for some reason -- racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming task of defending the "business necessity" of the methods used to select the other members of his workforce. The only practicable option for many employers would be to adopt racial quotas, insuring that no portion of their workforces deviated in racial composition from the other portions thereof; this is a result that Congress expressly rejected in drafting Title VII. See 42 U.S. C. § 2000e-2(j); see also Watson v. Fort Worth Bank & Trust, 487 U.S. at 487 U. S. 922 -994, and n. 2 (opinion of O'CONNOR, J.). The Court of Appeals' theory would "leave the employer little choice . . . but to engage in a subjective quota system of employment selection. This, of course, is far from the intent of Title VII." Albemarle Paper Co. v. Moody, Page 490 U. S. 653 422 U. S. 405 , 422 U. S. 449 (1975) (BLACKMUN, J., concurring in judgment). The Court of Appeals also erred with respect to the unskilled noncannery positions. Racial imbalance in one segment of an employer's workforce does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer's other positions, even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). As long as there are no barriers or practices deterring qualified nonwhites from applying for noncannery positions, see n 6, supra, if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer's selection mechanism probably does not operate with a disparate impact on minorities [ Footnote 8 ] Where this is the case, the percentage of nonwhite workers found in other positions in the employer's labor force is irrelevant to the question of a prima facie statistical case of disparate impact. As noted above, a contrary ruling on this point would almost inexorably lead to the use of numerical quotas in the workplace, a result that Congress and this Court have rejected repeatedly in the past. Moreover, isolating the cannery workers as the potential "labor force" for unskilled noncannery positions is at once both too broad and too narrow in its focus. It is too broad because the vast majority of these cannery workers did not Page 490 U. S. 654 seek jobs in unskilled noncannery positions; there is no showing that many of them would have done so even if none of the arguably "deterring" practices existed. Thus, the pool of cannery workers cannot be used as a surrogate for the class of qualified job applicants, because it contains many persons who have not (and would not) be noncannery job applicants. Conversely, if respondents propose to use the cannery workers for comparison purposes because they represent the "qualified labor population" generally, the group is too narrow, because there are obviously many qualified persons in the labor market for noncannery jobs who are not cannery workers. The peculiar facts of this case further illustrate why a comparison between the percentage of nonwhite cannery workers and nonwhite noncannery workers is an improper basis for making out a claim of disparate impact. Here, the District Court found that nonwhites were "overrepresent[ed]" among cannery workers because petitioners had contracted with a predominantly nonwhite union (local 37) to fill these positions. See App. to Pet. for Cert. I-42. As a result, if petitioners (for some permissible reason) ceased using local 37 as its hiring channel for cannery positions, it appears (according to the District Court's findings) that the racial stratification between the cannery and noncannery workers might diminish to statistical insignificance. Under the Court of Appeals' approach, therefore, it is possible that, with no change whatsoever in their hiring practices for noncannery workers -- the jobs at issue in this lawsuit -- petitioners could make respondents' prima facie case of disparate impact "disappear." But if there would be no prima facie case of disparate impact in the selection of noncannery workers absent petitioners' use of local 37 to hire cannery workers, surely petitioners' reliance on the union to fill the cannery jobs not at issue here (and its resulting "overrepresentation" of nonwhites in those positions) does not -- standing alone -- make out a prima facie case of disparate impact. Yet it is precisely Page 490 U. S. 655 such an ironic result that the Court of Appeals reached below. Consequently, we reverse the Court of Appeals' ruling that a comparison between the percentage of cannery workers who are nonwhite and the percentage of noncannery workers who are nonwhite makes out a prima facie case of disparate impact. Of course, this leaves unresolved whether the record made in the District Court will support a conclusion that a prima facie case of disparate impact has been established on some basis other than the racial disparity between cannery and noncannery workers. This is an issue that the Court of Appeals or the District Court should address in the first instance. III Since the statistical disparity relied on by the Court of Appeals did not suffice to make out a prima facie case, any inquiry by us into whether the specific challenged employment practices of petitioners caused that disparity is pretermitted, as is any inquiry into whether the disparate impact that any employment practice may have had was justified by business considerations. [ Footnote 9 ] Because we remand for further proceedings, however, on whether a prima facie case of disparate impact has been made in defensible fashion in this case, we address two other challenges petitioners have made to the decision of the Court of Appeals. Page 490 U. S. 656 A First is the question of causation in a disparate impact case. The law in this respect was correctly stated by JUSTICE O'CONNOR'S opinion last Term in Watson v. Fort Worth Bank & Trust, 487 U.S. at 487 U. S. 994 : "[W]e note that the plaintiff's burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer's workforce. The plaintiff must begin by identifying the specific employment practice that is challenged. . . . Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Cf. also id. at 487 U. S. 1000 (BLACKMUN, J., concurring in part and concurring in judgment). Indeed, even the Court of Appeals -- whose decision petitioners assault on this score -- noted that "it is . . . essential that the practices identified by the cannery workers be linked causally with the demonstrated adverse impact." 827 F.2d at 445. Notwithstanding the Court of Appeals' apparent adherence to the proper inquiry, petitioners contend that that court erred by permitting respondents to make out their case by offering "only [one] set of cumulative comparative statistics as evidence of the disparate impact of each and all of [petitioners' hiring] practices." Brief for Petitioners 31. Our disparate impact cases have always focused on the impact of particular hiring practices on employment opportunities for minorities. Just as an employer cannot escape liability under Title VII by demonstrating that, "at the bottom line," his workforce is racially balanced (where particular hiring practices may operate to deprive minorities of employment opportunities), see Connecticut v. Teal, 457 U.S. at Page 490 U. S. 657 457 U. S. 450 , a Title VII plaintiff does not make out a case of disparate impact simply by showing that, "at the bottom line," there is racial imbalance in the workforce. As a general matter, a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack. Such a showing is an integral part of the plaintiff's prima facie case in a disparate impact suit under Title VII. Here, respondents have alleged that several "objective" employment practices ( e.g., nepotism, separate hiring channels, rehire preferences), as well as the use of "subjective decision making" to select noncannery workers, have had a disparate impact on nonwhites. Respondents base this claim on statistics that allegedly show a disproportionately low percentage of nonwhites in the at-issue positions. However, even if, on remand, respondents can show that nonwhites are underrepresented in the at-issue jobs in a manner that is acceptable under the standards set forth in Part II, supra, this alone will not suffice to make out a prima facie case of disparate impact. Respondents will also have to demonstrate that the disparity they complain of is the result of one or more of the employment practices that they are attacking here, specifically showing that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites. To hold otherwise would result in employers being potentially liable for "the myriad of innocent causes that may lead to statistical imbalances in the composition of their workforces." Watson v. Fort Worth Bank & Trust, supra, at 487 U. S. 992 . Some will complain that this specific causation requirement is unduly burdensome on Title VII plaintiffs. But liberal civil discovery rules give plaintiffs broad access to employers' records in an effort to document their claims. Also, employers falling within the scope of the Uniform Guidelines on Employee Selection Procedures, 29 CFR §1607.1 et seq. (1988), Page 490 U. S. 658 are required to "maintain . . . records or other information which will disclose the impact which its tests and other selection procedures have upon employment opportunities of persons by identifiable race, sex, or ethnic group[s]." See §1607.4(A). This includes records concerning "the individual components of the selection process" where there is a significant disparity in the selection rates of whites and nonwhites. See §1607.4(C). Plaintiffs as a general matter will have the benefit of these tools to meet their burden of showing a causal link between challenged employment practices and racial imbalances in the workforce; respondents presumably took full advantage of these opportunities to build their case before the trial in the District Court was held. [ Footnote 10 ] Consequently, on remand, the courts below are instructed to require, as part of respondents' prima facie case, a demonstration that specific elements of the petitioners' hiring process have a significantly disparate impact on nonwhites. B If, on remand, respondents meet the proof burdens outlined above, and establish a prima facie case of disparate impact with respect to any of petitioners' employment practices, the case will shift to any business justification petitioners offer for their use of these practices. This phase of the disparate impact case contains two components: first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. at 422 U. S. 425 . We consider these two components in turn. Page 490 U. S. 659 (1) Though we have phrased the query differently in different cases, it is generally well established that, at the justification stage of such a disparate impact case, the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. at 487 U. S. 997 -999; New York City Transit Authority v. Beazer, 440 U.S. at 440 U. S. 587 , n. 31; Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 432 . The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be "essential" or "indispensable" to the employer's business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above. See supra at 490 U. S. 652 -653. In this phase, the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate impact plaintiff. To the extent that the Ninth Circuit held otherwise in its en banc decision in this case, see 810 F.2d at 1485-1486, or in the panel's decision on remand, see 827 F.2d at 445, 447 -- suggesting that the persuasion burden should shift to petitioners once respondents established a prima facie case of disparate impact -- its decisions were erroneous. "[T]he ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains with the plaintiff at all times. " Watson, supra, at 487 U. S. 997 (O'CoNNOR, J.) (emphasis added). This rule conforms with the usual method for allocating persuasion and production burdens Page 490 U. S. 660 in the federal courts, see Fed.Rule Evid. 301, and more specifically, it conforms to the rule in disparate treatment cases that the plaintiff bears the burden of disproving an employer's assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 450 U. S. 256 -258 (1981). We acknowledge that some of our earlier decisions can be read as suggesting otherwise. See Watson, supra, at 487 U. S. 1006 -1008 (BLACKMUN, J., concurring). But to the extent that those cases speak of an employer's "burden of proof " with respect to a legitimate business justification defense, see, e.g., Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977), they should have been understood to mean an employer's production -- but not persuasion -- burden. Cf., e.g., NLRB v. Transportation Management Corp., 462 U. S. 393 , 462 U. S. 404 , n. 7 (1983). The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was "because of such individual's race, color," etc., that he was denied a desired employment opportunity. See 42 U.S. C. §2000e-2(a). (2) Finally, if on remand the case reaches this point, and respondents cannot persuade the trier of fact on the question of petitioners' business necessity defense, respondents may still be able to prevail. To do so, respondents will have to persuade the factfinder that "other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate [hiring] interest[s];" by so demonstrating, respondents would prove that "[petitioners were] using [their] tests merely as a pretext' for discrimination." Albemarle Paper Co., supra, at 422 U. S. 425 ; see also Watson, 487 U.S. at 487 U. S. 998 (O'CONNOR, J.); id. at 487 U. S. 1005 -1006 (BLACKMUN, J., concurring in part and concurring in judgment). If respondents, having established a prima facie case, come forward with alternatives to petitioners' hiring practices that Page 490 U. S. 661 reduce the racially disparate impact of practices currently being used, and petitioners refuse to adopt these alternatives, such a refusal would belie a claim by petitioners that their incumbent practices are being employed for nondiscriminatory reasons. Of course, any alternative practices which respondents offer up in this respect must be equally effective as petitioners' chosen hiring procedures in achieving petitioners' legitimate employment goals. Moreover, "[f]actors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals." Watson, supra, at 487 U. S. 998 (O'CONNOR, J.). "Courts are generally less competent than employers to restructure business practices," Furnco Construction Corp. v. Waters, 438 U. S. 567 , 438 U. S. 578 (1978); consequently, the judiciary should proceed with care before mandating that an employer must adopt a plaintiff 's alternative selection or hiring practice in response to a Title VII suit. IV For the reasons given above, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] Title 42 U.S.C. § 2000e-2(a), provides: "(a) It shall be an unlawful employment practice for an employer -- " "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or" "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." [ Footnote 2 ] "Independent fishermen catch the salmon and turn them over to company-owned boats called 'tenders,' which transport the fish from the fishing grounds to the canneries. Once at the cannery, the fish are eviscerated, the eggs pulled, and they are cleaned. Then, operating at a rate of approximately four cans per second, the salmon are filled into cans. Next, the canned salmon are cooked under precise time-temperature requirement established by the FDA, and the cans are inspected to ensure that proper seals are maintained on the top, bottom and sides." 768 F. 2d 1120, 1123, vacated, 787 F. 2d 462 (CA9 1985). [ Footnote 3 ] The noncannery jobs were described as follows by the Court of Appeals: "Machinists and engineers are hired to maintain the smooth and continuous operation of the canning equipment. Quality control personnel conduct the FDA-required inspections and recordkeeping. Tenders are staffed with a crew necessary to operate the vessel. A variety of support personnel are employed to operate the entire cannery community, including, for example, cooks, carpenters, storekeepers, bookkeepers, beach gangs for dock yard labor and construction, etc." 768 F. 2d at 1123. [ Footnote 4 ] The fact that neither the District Court, nor the Ninth Circuit en banc , nor the subsequent Court of Appeals panel ruled for respondents on their disparate treatment claims -- i.e., their allegations of intentional racial discrimination -- warrants particular attention in light of the dissents' comment that the canneries "bear an unsettling resemblance to aspects of a plantation economy." Post at 490 U. S. 664 , n. 4 (STEVENS, J., dissenting); post at 490 U. S. 662 (BLACKMUN, J., dissenting). Whatever the "resemblance," the unanimous view of the lower courts in this litigation has been that respondents did not prove that the canneries practice intentional racial discrimination. Consequently, JUSTICE BLACKMUN's hyperbolic allegation that our decision in this case indicates that this Court no longer "believes that race discrimination . . . against nonwhites . . . is a problem in our society," post at 490 U. S. 662 , is inapt. Of course, it is unfortunately true that race discrimination exists in our country. That does not mean, however, that it exists at the canneries -- or more precisely, that it has been proved to exist at the canneries. Indeed, JUSTICE STEVENS concedes that respondents did not press before us the legal theories under which the aspects of cannery life that he finds to most resemble a "plantation economy" might be unlawful. Post at 490 U. S. 664 , n. 4. Thus, the question here is not whether we "approve" of petitioners' employment practices or the society that exists at the canneries, but, rather, whether respondents have properly established that these practices violate Title VII. [ Footnote 5 ] The parties dispute the extent to which there is a discrepancy between the percentage of nonwhites employed as cannery workers and those employed in noncannery positions. Compare, e.g., Brief for Petitioners 4-9 with Brief for Respondents 4-6. The District Court made no precise numerical findings in this regard, but simply noted that there were "significant disparities between the at-issue jobs [ i.e., noncannery jobs] and the total workforce at the canneries" which were explained by the fact that "nearly all employed in the cannery worker' department are nonwhite." See App. to Pet. for Cert. I-111, I-42. For reasons explained below, the degree of disparity between these groups is not relevant to our decision here. [ Footnote 6 ] In fact, where "figures for the general population might . . . accurately reflect the pool of qualified job applicants," cf. Teamsters v. United States, 431 U. S. 324 , 431 U. S. 340 , n. 20 (1977), we have even permitted plaintiffs to rest their prima facie cases on such statistics as well. See, e.g., Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 -330 (1977). [ Footnote 7 ] Obviously, the analysis would be different if it were found that the dearth of qualified nonwhite applicants was due to practices on petitioners' part which -- expressly or implicitly -- deterred minority group members from applying for noncannery positions. See, e.g., Teamsters v. United States, supra, at 431 U. S. 365 . [ Footnote 8 ] We qualify this conclusion -- observing that it is only "probable" that there has been no disparate impact on minorities in such circumstances -- because bottom-line racial balance is not a defense under Title VII. See Connecticut v. Teal, 457 U. S. 440 (1982). Thus, even if petitioners could show that the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, respondents would still have a case under Title VII, if they could prove that some particular hiring practice has a disparate impact on minorities, notwithstanding the bottom-line racial balance in petitioners' workforce. See Teal, supra, at 457 U. S. 450 ; see also n 8, infra. [ Footnote 9 ] As we understand the opinions below, the specific employment practices were challenged only insofar as they were claimed to have been responsible for the overall disparity between the number of minority cannery and noncannery workers. The Court of Appeals did not purport to hold that any specified employment practice produced its own disparate impact that was actionable under Title VII. This is not to say that a specific practice, such as nepotism, if it were proved to exist, could not itself be subject to challenge if it had a disparate impact on minorities. Nor is it to say that segregated dormitories and eating facilities in the workplace may not be challenged under 42 U.S. C. § 2000e-2(a)(2) without showing a disparate impact on hiring or promotion. [ Footnote 10 ] Of course, petitioners' obligation to collect or retain any of these data may be limited by the Guidelines themselves. See 29 CFR §1602.14(b) (1988) (exempting "seasonal" jobs from certain recordkeeping requirements). JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. I fully concur in JUSTICE STEVENS' analysis of this case. Today a bare majority of the Court takes three major strides backwards in the battle against race discrimination. It reaches out to make last Term's plurality opinion in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 (1988), the law, thereby upsetting the longstanding distribution of burdens of proof in Title VII disparate impact cases. It bars the use of internal workforce comparisons in the making of a prima Page 490 U. S. 662 facie case of discrimination, even where the structure of the industry in question renders any other statistical comparison meaningless. And it requires practice-by-practice statistical proof of causation, even where, as here, such proof would be impossible. The harshness of these results is well demonstrated by the facts of this case. The salmon industry as described by this record takes us back to a kind of overt and institutionalized discrimination we have not dealt with in years: a total residential and work environment organized on principles of racial stratification and segregation, which, as JUSTICE STEVENS points out, resembles a plantation economy. Post at 490 U. S. 664 , n. 4. This industry long has been characterized by a taste for discrimination of the old-fashioned sort: a preference for hiring nonwhites to fill its lowest level positions, on the condition that they stay there. The majority's legal rulings essentially immunize these practices from attack under a Title VII disparate impact analysis. Sadly, this comes as no surprise. One wonders whether the majority still believes that race discrimination -- or, more accurately, race discrimination against nonwhites -- is a problem in our society, or even remembers that it ever was. Cf. Richmond v. J. A. Croson Co., 488 U. S. 469 (1989). JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting. Fully 18 years ago, this Court unanimously held that Title VII of the Civil Rights Act of 1964 [ Footnote 2/1 ] prohibits employment practices that have discriminatory effects, as well as those that are intended to discriminate. Griggs v. Duke Power Co., 401 U. S. 424 (1971). Federal courts and agencies consistently have enforced that interpretation, thus promoting our national goal of eliminating barriers that define economic opportunity not by aptitude and ability, but by race, color, national Page 490 U. S. 663 origin, and other traits that are easily identified but utterly irrelevant to one's qualification for a particular job. [ Footnote 2/2 ] Regrettably, the Court retreats from these efforts in its review of an interlocutory judgment respecting the "peculiar facts" of this lawsuit. [ Footnote 2/3 ] Turning a blind eye to the meaning and purpose of Title VII, the majority's opinion perfunctorily rejects a longstanding rule of law and underestimates the probative value of evidence of a racially stratified workforce. [ Footnote 2/4 ] I cannot join this latest sojourn into judicial activism. Page 490 U. S. 664 I I would have thought it superfluous to recount at this late date the development of our Title VII jurisprudence, but the majority's facile treatment of settled law necessitates such a primer. This Court initially considered the meaning of Title VII in Griggs v. Duke Power Co., 401 U. S. 424 (1971), in which a class of utility company employees challenged the conditioning of entry into higher paying jobs upon a high school education or passage of two written tests. Despite evidence that "these two requirements operated to render ineligible a markedly disproportionate number of Negroes," [ Footnote 2/5 ] the Court of Appeals had held that because Page 490 U. S. 665 there was no showing of an intent to discriminate on account of race, there was no Title VII violation. Id. at 401 U. S. 429 . Chief Justice Burger's landmark opinion established that an employer may violate the statute even when acting in complete good faith without any invidious intent. [ Footnote 2/6 ] Focusing on § 703(a)(2), [ Footnote 2/7 ] he explained: "The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs, 401 U.S. at 401 U. S. 429 -430. The opinion in Griggs made it clear that a neutral practice that operates to exclude minorities is nevertheless lawful if it serves a valid business purpose. "The touchstone is business necessity," the Court stressed. Id. at 401 U. S. 431 . Because "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation[,] . . . Congress has placed on the employer the burden of showing Page 490 U. S. 666 that any given requirement must have a manifest relationship to the employment in question. [ Footnote 2/8 ]" Id. at 401 U. S. 432 (emphasis in original). Congress has declined to act -- as the Court now sees fit -- to limit the reach of this "disparate impact" theory, see Teamsters v. United States, 431 U. S. 324 , 431 U. S. 335 , n. 15 (1977); indeed, it has extended its application. [ Footnote 2/9 ] This approval lends added force to the Griggs holding. The Griggs framework, with its focus on ostensibly neutral qualification standards, proved inapposite for analyzing an individual employee's claim, brought under § 703(a)(1), [ Footnote 2/10 ] that an employer intentionally discriminated on account of race. [ Footnote 2/11 ] Page 490 U. S. 667 The means for determining intent absent direct evidence was outlined in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), two opinions written by Justice Powell for unanimous Courts. In such a "disparate treatment" case, see Teamsters, 431 U.S. at 431 U. S. 335 , n. 15, the plaintiff's initial burden, which is "not onerous," 450 U.S. at 450 U. S. 253 , is to establish "a prima facie case of racial discrimination," 411 U.S. at 411 U. S. 802 ; that is, to create a presumption of unlawful discrimination by "eliminat[ing] the most common nondiscriminatory reasons for the plaintiff's rejection." [ Footnote 2/12 ] 450 U.S. at 450 U. S. 254 . "The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." 411 U.S. at 411 U. S. 802 ; see 450 U.S. at 450 U. S. 254 . Finally, Page 490 U. S. 668 because "Title VII does not . . . permit [the employer] to use [the employee's] conduct as a pretext for the sort of discrimination prohibited by § 703(a)(1)," the employee "must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." 411 U.S. at 411 U. S. 804 -805; see 450 U.S. at 450 U. S. 256 . While the burdens of producing evidence thus shift, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. [ Footnote 2/13 ]" 450 U.S. at 450 U. S. 253 . Decisions of this Court and other federal courts repeatedly have recognized that, while the employer's burden in a disparate treatment case is simply one of coming forward with evidence of legitimate business purpose, its burden in a disparate impact case is proof of an affirmative defense of business necessity. [ Footnote 2/14 ] Although the majority's opinion blurs Page 490 U. S. 669 that distinction, thoughtful reflection on common law pleading principles clarifies the fundamental differences between the two types of "burdens of proof." [ Footnote 2/15 ] In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her. See, e.g., 2 Restatement (Second) of Torts §§ 328 A, 433 B (1965) (hereinafter Restatement). The defendant may undercut plaintiff's efforts both by confronting plaintiff's evidence during her case in chief and by submitting countervailing evidence during its own case. [ Footnote 2/16 ] But if the plaintiff proves the existence of the harmful act, the defendant can escape liability only by persuading the factfinder that the act was justified or excusable. See, e.g., Restatement §§454-461, 463-467. The plaintiff in turn may try to refute this affirmative defense. Although the burdens of producing evidence regarding the existence of harm or excuse thus shift between the plaintiff Page 490 U. S. 670 and the defendant, the burden of proving either proposition remains throughout on the party asserting it. In a disparate treatment case, there is no "discrimination" within the meaning of Title VII unless the employer intentionally treated the employee unfairly because of race. Therefore, the employee retains the burden of proving the existence of intent at all times. If there is direct evidence of intent, the employee may have little difficulty persuading the factfinder that discrimination has occurred. But in the likelier event that intent has to be established by inference, the employee may resort to the McDonnell/Burdine inquiry. In either instance, the employer may undermine the employee's evidence, but has no independent burden of persuasion. In contrast, intent plays no role in the disparate impact inquiry. The question, rather, is whether an employment practice has a significant adverse effect on an identifiable class of workers -- regardless of the cause or motive for the practice. The employer may attempt to contradict the factual basis for this effect; that is, to prevent the employee from establishing a prima facie case. But when an employer is faced with sufficient proof of disparate impact, its only recourse is to justify the practice by explaining why it is necessary to the operation of business. Such a justification is a classic example of an affirmative defense. [ Footnote 2/17 ] Page 490 U. S. 671 Failing to explore the interplay between these distinct orders of proof, the Court announces that our frequent statements that the employer shoulders the burden of proof respecting business necessity "should have been understood to mean an employer's production -- but not persuasion -- burden." [ Footnote 2/18 ] Ante at 490 U. S. 660 . Our opinions always have emphasized that, in a disparate impact case, the employer's burden is weighty. "The touchstone," the Court said in Griggs, "is business necessity." 401 U.S. at 401 U. S. 431 . Later, we held that prison administrators had failed to "rebu[t] the prima facie case of discrimination by showing that the height and weight requirements are . . . essential to effective job performance," Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 331 (1977). Cf. n. 14, supra. I am thus astonished to read that the "touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. . . . [T]here is no requirement that the challenged practice be . . . 'essential,'" ante at 490 U. S. 659 . This casual -- almost summary -- rejection Page 490 U. S. 672 of the statutory construction that developed in the wake of Griggs is most disturbing. I have always believed that the Griggs opinion correctly reflected the intent of the Congress that enacted Title VII. Even if I were not so persuaded, I could not join a rejection of a consistent interpretation of a federal statute. Congress frequently revisits this statutory scheme, and can readily correct our mistakes if we misread its meaning. Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 , 480 U. S. 644 (1987) (STEVENS, J., concurring); Runyon v. McCrary, 427 U. S. 160 , 427 U. S. 190 -192 (1976) (STEVENS, J., concurring). See McNally v. United States, 483 U. S. 350 , 483 U. S. 376 (1987) (STEVENS, J., dissenting); Commissioner v. Fink, 483 U. S. 89 , 483 U. S. 102 -105 (1987) (STEVENS, J., dissenting); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 , 490 U. S. 486 (1989) (STEVENS, J., dissenting). Also troubling is the Court's apparent redefinition of the employees' burden of proof in a disparate impact case. No prima facie case will be made, it declares, unless the employees " isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.'" Ante at 490 U. S. 656 (quoting Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , 487 U. S. 994 (1988) (plurality opinion)). This additional proof requirement is unwarranted. [ Footnote 2/19 ] It is elementary that a plaintiff cannot recover upon proof of injury alone; rather, the plaintiff must connect the injury to an act of the defendant in order to establish prima facie that the defendant is liable. E.g., Restatement § 430. Although the causal link must have substance, the act Page 490 U. S. 673 need not constitute the sole or primary cause of the harm. §§431-433; cf. Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). Thus in a disparate impact case, proof of numerous questionable employment practices ought to fortify an employee's assertion that the practices caused racial disparities. [ Footnote 2/20 ] Ordinary principles of fairness require that Title VII actions be tried like "any lawsuit." Cf. United States Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 460 U. S. 714 , n. 3 (1983). The changes the majority makes today, tipping the scales in favor of employers, are not faithful to those principles. II Petitioners seek reversal of the Court of Appeals and dismissal of this suit on the ground that respondents' statistical evidence failed to prove a prima facie case of discrimination. Brief for Petitioners 48. The District Court concluded "there were significant disparities'" between the racial composition of the cannery workers and the noncannery workers, but it "made no precise numerical findings" on this and other critical points. See ante at 490 U. S. 650 , n. 5. Given this dearth of findings and the Court's newly articulated preference for individualized proof of causation, it would be manifestly unfair to consider respondents' evidence in the aggregate and deem it insufficient. Thus, the Court properly rejects petitioners' request for a final judgment and remands for further determination of the strength of respondents' prima facie case. See ante at 490 U. S. 655 . Even at this juncture, however, I believe that respondents' evidence deserves greater credit than the majority allows. Page 490 U. S. 674 Statistical evidence of discrimination should compare the racial composition of employees in disputed jobs to that " of the qualified . . . population in the relevant labor market.'" Ante at 490 U. S. 650 (quoting Hazelwood School Dist. v. United States, 433 U. S. 299 , 433 U. S. 308 (1977)). That statement leaves open the definition of the qualified population and the relevant labor market. Our previous opinions, e.g., New York City Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 584 -586 (1979); Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 -330 (1977); Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 (1975); Griggs, 401 U.S. at 401 U. S. 426 , 401 U. S. 430 , n. 6, demonstrate that, in reviewing statistical evidence, a court should not strive for numerical exactitude at the expense of the needs of the particular case. The District Court's findings of fact depict a unique industry. Canneries often are located in remote, sparsely populated areas of Alaska. 34 EPD � 34,437, p. 33,825 (WD Wash. 1983). Most jobs are seasonal, with the season's length and the canneries' personnel needs varying not just year to year, but day to day. Ibid. To fill their employment requirements, petitioners must recruit and transport many cannery workers and noncannery workers from States in the Pacific Northwest. Id. at 33,828. Most cannery workers come from a union local based outside Alaska or from Native villages near the canneries. Ibid. Employees in the noncannery positions -- the positions that are "at issue" -- learn of openings by word of mouth; the jobs seldom are posted or advertised, and there is no promotion to noncannery jobs from within the cannery workers' ranks. Id. at 33,827-33,828. In general, the District Court found the at-issue jobs to require "skills," ranging from English literacy, typing, and "ability to use seam micrometers, gauges, and mechanic's hand tools" to "good health" and a driver's license. [ Footnote 2/21 ] Id. at Page 490 U. S. 675 33,833-33,834. All cannery workers' jobs, like a handful of at-issue positions, are unskilled, and the court found that the intensity of the work during canning season precludes on-the-job training for skilled noncannery positions. Id. at 33,825. It made no findings regarding the extent to which the cannery workers already are qualified for at-issue jobs: individual plaintiffs testified persuasively that they were fully qualified for such jobs, [ Footnote 2/22 ] but the court neither credited nor discredited this testimony. Although there are no findings concerning wage differentials, the parties seem to agree that wages for cannery workers are lower than those for noncannery workers, skilled or unskilled. The District Court found that "nearly all" cannery workers are nonwhite, while the percentage of nonwhites employed in the entire Alaska salmon canning industry "has stabilized at about 47% to 50%." Id. at 33,829. The precise stratification of the workforce is not described in the findings, but the parties seem to agree that the noncannery jobs are predominantly held by whites. Petitioners contend that the relevant labor market in this case is the general population of the " external' labor market for the jobs at issue." Brief for Petitioners 17. While they would rely on the District Court's findings in this regard, those findings are ambiguous. At one point, the District Court specifies "Alaska, the Pacific Northwest, and California" as "the geographical region from which [petitioners] draw their employees," but its next finding refers to "this relevant geographical area for cannery worker, laborer, and other nonskilled jobs," 34 EPD � 34,437, p. 33,828. There Page 490 U. S. 676 is no express finding of the relevant labor market for noncannery Jobs. Even assuming that the District Court properly defined the relevant geographical area, its apparent assumption that the population in that area constituted the "available labor supply," ibid., is not adequately founded. An undisputed requirement for employment either as a cannery or noncannery worker is availability for seasonal employment in the far reaches of Alaska. Many noncannery workers, furthermore, must be available for preseason work. Id. at 33,829, 33,833-33,834. Yet the record does not identify the portion of the general population in Alaska, California, and the Pacific Northwest that would accept this type of employment. [ Footnote 2/23 ] This deficiency respecting a crucial job qualification diminishes the usefulness of petitioners' statistical evidence. In contrast, respondents' evidence, comparing racial compositions within the workforce, identifies a pool of workers willing to work during the relevant times and familiar with the workings of the industry. Surely this is more probative than the untailored general population statistics on which petitioners focus. Cf. Hazelwood, 433 U.S. at 433 U. S. 308 , n. 13; Teamsters, 431 U.S. at 431 U. S. 339 -340, n. 20. Page 490 U. S. 677 Evidence that virtually all the employees in the major categories of at-issue jobs were white, [ Footnote 2/24 ] whereas about two-thirds of the cannery workers were nonwhite, [ Footnote 2/25 ] may not by itself suffice to establish a prima facie case of discrimination. [ Footnote 2/26 ] But such evidence of racial stratification puts the specific employment practices challenged by respondents into perspective. Petitioners recruit employees for at-issue jobs from outside the workforce, rather than from lower paying, overwhelmingly nonwhite cannery worker positions. 34 EPD � 34,437, p. 33,828-33,829. Information about availability of at-issue positions is conducted by word of mouth; [ Footnote 2/27 ] therefore, Page 490 U. S. 678 the maintenance of housing and mess halls that separate the largely white noncannery workforce from the cannery workers, id. at 33,836, 33,843-33,844, coupled with the tendency toward nepotistic hiring, [ Footnote 2/28 ] are obvious barriers to employment opportunities for nonwhites. Putting to one side the issue of business justifications, it would be quite wrong to conclude that these practices have no discriminatory consequence. [ Footnote 2/29 ] Thus, I agree with the Court of Appeals, 827 F.2d 439, 444-445 (CA9 1987), that, when the District Court makes the additional findings prescribed today, it should treat the evidence of racial stratification in the workforce as a significant element of respondents' prima facie case. III The majority's opinion begins with recognition of the settled rule that that "a facially neutral employment practice may be deemed violative of Title VII without evidence of the employer's subjective intent to discriminate that is required in a 'disparate treatment' case." Ante at 490 U. S. 645 -646. It then departs from the body of law engendered by this disparate Page 490 U. S. 679 impact theory, reformulating the order of proof and the weight of the parties' burdens. Why the Court undertakes these unwise changes in elementary and eminently fair rules is a mystery to me. I respectfully dissent. [ Footnote 2/1 ] 178 Stat. 253, as amended, 42 U.S. C. § 2000e et seq. [ Footnote 2/2 ] Title VII also bars discrimination because of religion or sex. 42 U.S. C. § 2000e-2(a). Discrimination based on other characteristics has been challenged under other statutes. See, e.g., School Board of Nassau County v. Arline, 480 U. S. 273 (1987) (determining scope of protection for handicapped schoolteacher under § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U.S. C. § 794); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 (1983) (Pregnancy Discrimination Act of 1978, Pub. L. 95-555, §1, 92 Stat. 2076, 42 U.S. C. §2000e-(k)); Lorillard v. Pons, 434 U. S. 575 (1978) (Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U.S. C. § 621 et seq. ); Corning Glass Works v. Brennan, 417 U. S. 188 (1974) (Equal Pay Act of 1963, 77 Stat. 56, §3, enacted as §6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. §206(d)). [ Footnote 2/3 ] See ante at 490 U. S. 654 . The majority purports to reverse the Court of Appeals, but in fact directs the District Court to make additional findings, some of which had already been ordered by the Court of Appeals. Compare 827 F.2d 439, 445 (CA9 1987), with ante at 490 U. S. 657 -658. Furthermore, nearly half the majority's opinion is devoted to two questions not fairly raised at this point: "the question of causation in a disparate impact case," ante at 490 U. S. 656 , and the nature of the employer's defense, ante at 490 U. S. 658 . Because I perceive no urgency to decide "these disputed questions," ante at 490 U. S. 650 , at an interlocutory stage of such a factually complicated case, I believe the Court should have denied certiorari and allowed the District Court to make the additional findings directed by the Court of Appeals. [ Footnote 2/4 ] Respondents constitute a class of present and former employees of petitioners, two Alaskan salmon canning companies. The class members, described by the parties as "nonwhite," include persons of Samoan, Chinese, Filipino, Japanese, and Alaska Native descent, all but one of whom are United States citizens. 34 EPD � 34,437, pp. 33,822, 33,836-33,838 (WD Wash. 1983). Fifteen years ago, they commenced this suit, alleging that petitioners engage in hiring, job assignment, housing, and messing practices that segregate nonwhites from whites in violation of Title VII. Evidence included this response in 1971 by a foreman to a college student's inquiry about cannery employment: "We are not in a position to take many young fellows to our Bristol Bay canneries, as they do not have the background for our type of employees. Our cannery labor is either Eskimo or Filipino, and we do not have the facilities to mix others with these groups." Id. at 33,836. Some characteristics of the Alaska salmon industry described in this litigation -- in particular, the segregation of housing and dining facilities and the stratification of jobs along racial and ethnic lines -- bear an unsettling resemblance to aspects of a plantation economy. See generally Plantation, Town, and County, Essays on the Local History of American Slave Society 163-334 (E. Miller & E. Genovese eds. 1974). Indeed the maintenance of inferior, segregated facilities for housing and feeding nonwhite employees, see 34 EPD n 34,437, pp. 33,836, 33,843-33,844, strikes me as a form of discrimination that, although it does not necessarily fit neatly into a disparate impact or disparate treatment mold, nonetheless violates Title VII. See generally Brief for National Association for the Advancement of Colored People as Amicus Curiae. Respondents, however, do not press this theory before us. [ Footnote 2/5 ] This Court noted that census statistics showed that in the employer's State, North Carolina, "while 34% of white males had completed high school, only 12% of Negro males had done so. . . . Similarly, with respect to standardized tests, the EEOC in one case found that use of a battery of tests, including the Wonderlic and Bennett tests used by the Company in the instant case, resulted in 58% of whites passing the tests, as compared with only 6% of the blacks." Griggs, 401 U.S. at 401 U. S. 430 , n. 6. [ Footnote 2/6 ] "The Court of Appeals held that the Company had adopted the diploma and test requirements without any 'intention to discriminate against Negro employees.' We do not suggest that either the District Court or the Court of Appeals erred in examining the employer's intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups, and are unrelated to measuring job capability. " Id. at 401 U. S. 432 (emphasis added) (citation omitted). [ Footnote 2/7 ] See id. at 401 U. S. 426 , n. 1. This subsection provides that "[i]t shall be an unlawful employment practice for an employer -- " "(a) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S. C. § 2000e-2(a)(2). [ Footnote 2/8 ] The opinion concluded: "Nothing in the Act precludes the use of testing or measuring procedures; obviously, they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less-qualified be preferred over the better-qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job, and not the person in the abstract. " 401 U.S. at 401 U. S. 436 (emphasis added). [ Footnote 2/9 ] Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, 134, as amended, codified at 42 U.S. C. §§1973,1973b (1982 ed. and Supp. V). Legislative reports leading to 1972 amendments to Title VII also evince support for disparate impact analysis. H.R.Rep. No. 92-238, pp. 8, 20-22 (1971); S.Rep. No. 92-415, p. 5, and n. 1 (1971); accord, Connecticut v. Teal, 457 U. S. 440 , 447, n. 8 (1982). Moreover, the theory is employed to enforce fair housing and age discrimination statutes. See Note, Business Necessity in Title VIII: Importing an Employment Discrimination Doctrine into the Fair Housing Act, 54 Ford.L.Rev. 563 (1986); Note, Disparate Impact Analysis and the Age Discrimination in Employment Act, 68 Minn.L.Rev. 1038 (1984). [ Footnote 2/10 ] This subsection makes it unlawful for an employer: "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S. C. §2000e-2(a)(1). [ Footnote 2/11 ] In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), Justice Powell explained: " Griggs differs from the instant case in important respects. It dealt with standardized testing devices which, however neutral on their face, operated to exclude many blacks who were capable of performing effectively in the desired positions. Griggs was rightly concerned that childhood deficiencies in the education and background of minority citizens, resulting from forces beyond their control, not be allowed to work a cumulative and invidious burden on such citizens for the remainder of their lives. Respondent, however, appears in different clothing. He had engaged in a seriously disruptive act against the very one from whom he now seeks employment. And petitioner does not seek his exclusion on the basis of a testing device which overstates what is necessary for competent performance, or through some sweeping disqualification of all those with any past record of unlawful behavior, however remote, insubstantial, or unrelated to applicant's personal qualifications as an employee. Petitioner assertedly rejected respondent for unlawful conduct against it, and, in the absence of proof of pretext or discriminatory application of such a reason, this cannot be thought the kind of 'artificial, arbitrary, and unnecessary barriers to employment' which the Court found to be the intention of Congress to remove." Id. at 411 U. S. 806 (citations omitted). [ Footnote 2/12 ] "This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id. at 411 U. S. 802 . [ Footnote 2/13 ] Although disparate impact and disparate treatment are the most prevalent modes of proving discrimination violative of Title VII, they are by no means exclusive. See generally B. Schlei & P. Grossman, Employment Discrimination Law 13-289 (2d ed. 1983) (four chapters discussing "disparate treatment," "present effects of past discrimination," "adverse impact," and "reasonable accommodation" as "categories" of discrimination). Cf. n. 4, supra. Moreover, either or both of the primary theories may be applied to a particular set of facts. See Teamsters v. United States, 431 U. S. 324 , 431 U. S. 336 , n. 15 (1977). [ Footnote 2/14 ] See McDonnell Douglas, 411 U.S. at 411 U. S. 802 , n. 14. See also, e.g., Teal, 457 U.S. at 457 U. S. 446 ("employer must . . . demonstrate that any given requirement [has] a manifest relationship to the employment in question'"); New York City Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 587 (1979) (employer "rebutted" prima facie case by "demonstration that its narcotics rule . . . `is job-related'"); Dothard v. Rawlinson, 433 U. S. 321 , 433 U. S. 329 (1977) (employer has to "prov[e] that the challenged requirements are job related"); Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 425 (1975) (employer has "burden of proving that its tests are `job-related'"); Griggs, 401 U.S. at 401 U. S. 432 (employer has "burden of showing that any given requirement must have a manifest relationship to the employment"). Court of Appeals opinions properly treating the employer's burden include Bunch v. Bullard, 795 F.2d 384, 393-394 (CA5 1986); Lewis v. Bloomsburg Mills, Inc., 773 F.2d 561, 572 (CA4 1985); Nash v. Jacksonville, 763 F.2d 1393, 1397 (CA11 1985); Segar v. Smith, 238 U.S.App.D.C. 103, 121, 738 F.2d 1249, 1267 (1984), cert. denied sub nom. Meese v. Segar, 471 U.S. 1115 (1985); Moore v. Hughes Helicopters, Inc., Div. of Summa Corp., 708 F.2d 475, 481 (CA9 1983); Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810, 815 (CA8 1983); Johnson v. Uncle Ben's, Inc., 657 F.2d 750 (CA5 1981), cert. denied, 459 U.S. 967 (1982); contra, Croker v. Boeing Co., 662 F.2d 975, 991 (CA3 1981) ( en banc ). Cf. Equal Employment Opportunity Comm'n, Uniform Guidelines on Employee Selection Procedures, 29 CFR §1607.1 et seq. (1988). [ Footnote 2/15 ] See, e.g., 9 J. Wigmore, Evidence §§2485-2498 (J. Chadbourn rev. 1981); D. Louisell & C. Mueller, Federal Evidence §§ 65-70 (1977) (hereinafter Louisell); 21 C. Wright & K. Graham, Federal Practice and Procedure § 5122 (1977) (hereinafter Wright); J. Thayer, A Preliminary Treatise on Evidence 353-389 (1898) (hereinafter Thayer); C. Langdell, Equity Pleading 108-115 (2d ed. 1883). [ Footnote 2/16 ] Cf. Thayer 357 (quoting Caldwell v. New Jersey S. B. Co., 47 N.Y. 282, 290 (1872)) (" The burden of maintaining the affirmative of the issue, and, properly speaking, the burden of proof, remained upon the plaintiff throughout the trial; but the burden or necessity was cast upon the defendant to relieve itself from the presumption of negligence raised by the plaintiff's evidence'"). [ Footnote 2/17 ] Accord, Fed.Rule Civ.Proc. 8(c) ("In pleading to a preceding pleading, a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense"). Cf. Thayer 368-369: "An admission may, of course, end the controversy; but such an admission may be, and yet not end it; and if that be so, it is because the party making the admission sets up something that avoids the apparent effect of it. . . . When this happens, the party defending becomes, in so far, the actor or plaintiff. In general, he who seeks to move a court in his favor, whether as an original plaintiff whose facts are merely denied, or as a defendant, who, in admitting his adversary's contention and setting up an affirmative defence, takes the role of actor ( reus excipiendo fit actor ), must satisfy the court of the truth and adequacy of the grounds of his claim, both in point of fact and law." Similarly, in suits alleging price discrimination in violation of § 2 of the Clayton Act, as amended by the Robinson Patman Act, 15 U.S. C. §13, it is well settled that the defendant has the burden of affirmatively establishing as a defense either a cost justification, under the proviso to subsection (a), United States v. Borden Co., 370 U. S. 460 , 370 U. S. 467 (1962), or a good faith effort to meet a competitor's equally low price, pursuant to subsection (b), Standard Oil Co. v. FTC, 340 U. S. 231 , 340 U. S. 250 (1951). [ Footnote 2/18 ] The majority's only basis for this proposition is the plurality opinion in Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , 487 U. S. 997 (1988), which in turn cites no authority. As JUSTICE BLACKMUN explained in Watson, 487 U.S. at 487 U. S. 1001 -1002 (concurring in part and concurring in judgment), and as I have shown here, the assertion profoundly misapprehends the difference between disparate impact and disparate treatment claims. The Court also makes passing reference to Federal Rule of Evidence 301. Ante at 490 U. S. 660 . That Rule pertains only to shifting of evidentiary burdens upon establishment of a presumption, and has no bearing on the substantive burdens of proof. See Louisell §§ 65-70; Wright § 5122. [ Footnote 2/19 ] The Solicitor General's brief amicus curiae on behalf of the employers agrees: "[A] decision rule for selection may be complex: it may, for example, involve consideration of multiple factors. And certainly if the factors combine to produce a single ultimate selection decision and it is not possible to challenge each one, that decision may be challenged (and defended) as a whole." Brief for United States as Amicus Curiae 22 (footnote omitted). [ Footnote 2/20 ] The Court discounts the difficulty its causality requirement presents for employees, reasoning that they may employ "liberal civil discovery rules" to obtain the employer's statistical personnel records. Ante at 490 U. S. 657 . Even assuming that this generally is true, it has no bearing in this litigation, since it is undisputed that petitioners did not preserve such records. Brief for Respondents 42-43; Reply Brief for Petitioners 18-19. [ Footnote 2/21 ] The District Court found that, of more than 100 at-issue job titles, all were skilled except these 15: kitchen help, waiter/waitress, janitor, oil dock crew, night watchman, tallyman, laundry, gasman, roustabout, store help, stockroom help, assistant caretaker (winter watchman and watchman's assistant), machinist helper/trainee, deckhand, and apprentice carpenter/carpenter's helper. 34 EPD � 34,437, p. 33,835. [ Footnote 2/22 ] Some cannery workers later became architects, an Air Force officer, and a graduate student in public administration. Some had college training at the time they were employed in the canneries. See id. at 33,837-33,838; App. 38, 52-53; Tr. 76, 951-952, 1036, 1050, 2214. [ Footnote 2/23 ] The District Court's justification for use of general population statistics occurs in these findings of fact: "119. Most of the jobs at the canneries entail migrant, seasonal labor. While, as a general proposition, most people prefer full-year, fixed location employment near their homes, seasonal employment in the unique salmon industry is not comparable to most other types of migrant work, such as fruit and vegetable harvesting which, for example, may or may not involve a guaranteed wage." "120. Thus, while census data is [ sic ] dominated by people who prefer full-year, fixed-location employment, such data is [ sic ] nevertheless appropriate in defining labor supplies for migrant, seasonal work." 34 EPD � 34,437, p. 33,829. The court's rather confusing distinction between work in the cannery industry and other "migrant, seasonal work" does not support its conclusion that the general population composes the relevant labor market. [ Footnote 2/24 ] For example, from 1971 to 1980, there were 443 persons hired in the job departments labeled "machinists," "company fishing boat," and "tender" at petitioner Castle & Cooke, Inc.'s Bumble Bee cannery; only 3 of them were nonwhites. Joint Excerpt of Record 35 (Exh. 588). In the same categories at the Red Salmon cannery of petitioner Wards Cove Packing Co., Inc., 488 whites and 42 nonwhites were hired. Id. at 36 (Exh. 589). [ Footnote 2/25 ] The Court points out that nonwhites are "overrepresented" among the cannery workers. Ante at 490 U. S. 654 . Such an imbalance will be true in any racially stratified workforce; its significance becomes apparent only upon examination of the pattern of segregation within the workforce. In the cannery industry, nonwhites are concentrated in positions offering low wages and little opportunity for promotion. Absent any showing that the "underrepresentation" of whites in this stratum is the result of a barrier to access, the "overrepresentation" of nonwhites does not offend Title VII. [ Footnote 2/26 ] The majority suggests that at-issue work demands the skills possessed by "accountants, managers, boat captains, electricians, doctors, and engineers." See ante at 490 U. S. 651 . It is at least theoretically possible that a disproportionate number of white applicants possessed the specialized skills required by some at-issue jobs. In fact, of course, many at-issue jobs involved skills not at all comparable to these selective examples. See 34 EPD � 34,437, p. 33,833-33,834. Even the District Court recognized that, in a year-round employment setting, "some of the positions which this court finds to be skilled, e.g., truckdriving on the beach, [would] fit into the category of jobs which require skills that are readily acquirable by persons in the general public." Id. at 33,841. [ Footnote 2/27 ] As the Court of Appeals explained in its remand opinion: "Specifically, the companies sought cannery workers in Native villages and through dispatches from ILWU Local 37, thus securing a workforce for the lowest paying jobs which was predominantly Alaska Native and Filipino. For other departments, the companies relied on informal word-of-mouth recruitment by predominantly white superintendents and foremen, who recruited primarily white employees. That such practices can cause a discriminatory impact is obvious." 827 F.2d at 446. [ Footnote 2/28 ] The District Court found, but downplayed the fact, that relatives of employees are given preferential consideration. See 34 EPD � 34,437, p. 33,840. But "of 349 nepotistic hires in four upper-level departments during 1970-75, 332 were of whites, 17 of nonwhites," the Court of Appeals noted. "If nepotism exists, it is by definition a practice of giving preference to relatives, and where those doing the hiring are predominantly white, the practice necessarily has an adverse impact on nonwhites." 827 F.2d at 445. [ Footnote 2/29 ] The Court suggests that the discrepancy in economic opportunities for white and nonwhite workers does not amount to disparate impact within the meaning of Title VII unless respondents show that it is "petitioners' fault." Ante at 490 U. S. 651 ; see also ante at 490 U. S. 653 -654. This statement distorts the disparate impact theory, in which the critical inquiry is whether an employer's practices operate to discriminate. E.g., Griggs, 401 U.S. at 401 U. S. 431 . Whether the employer intended such discrimination is irrelevant.

The Supreme Court case Wards Cove Packing v. Atonio (1989) concerned allegations of racial discrimination in hiring and promotion practices at Alaskan salmon canneries. The case was brought by a class of nonwhite cannery workers who claimed that they were denied employment in better-paying "noncannery jobs" due to their race. The Court's key holdings were: 1. To establish a prima facie case of disparate impact, the correct comparison is between the racial composition of the "at-issue jobs" (those alleged to be discriminatory) and the racial composition of the qualified population in the relevant labor market, not simply between different types of jobs within the company. 2. The absence of minorities in skilled positions may reflect a lack of qualified nonwhite applicants, and employers cannot be held responsible for racial imbalances that occur for reasons beyond their control. 3. With respect to unskilled noncannery jobs, the employer's selection process likely does not have a disparate impact on minorities if there are no barriers deterring qualified nonwhites from applying. 4. The concentration of nonwhites in low-wage, low-opportunity positions does not violate Title VII unless it is shown that this is due to a barrier to access for minorities. The case addressed the interpretation of Title VII of the Civil Rights Act and the standards for proving disparate impact in employment discrimination cases.

Labor & Employment

McKennon v. Nashville Banner Publishing Co.

https://supreme.justia.com/cases/federal/us/513/352/

OCTOBER TERM, 1994 Syllabus McKENNON v. NASHVILLE BANNER PUBLISHING CO. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 93-1543. Argued November 2, 1994-Decided January 23,1995 Alleging that her discharge by respondent Nashville Banner Publishing Company violated the Age Discrimination in Employment Act of 1967 (ADEA), petitioner McKennon filed suit seeking a variety of legal and equitable remedies available under the ADEA, including backpay. After she admitted in her deposition that she had copied several of the Banner's confidential documents during her final year of employment, the District Court granted summary judgment for the company, holding that McKennon's misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. The Court of Appeals affirmed on the same rationale. Held: An employee discharged in violation of the ADEA is not barred from all relief when, after her discharge, her employer discovers evidence of wrongdoing that, in any event, would have led to her termination on lawful and legitimate grounds had the employer known of it. Pp. 356-363. (a) Such after-acquired evidence is not a complete bar to ADEA recovery. Even if the employee's misconduct may be considered to be supervening grounds for termination, the ADEA violation that prompted the discharge cannot be altogether disregarded. The Act's remedial provisions, 29 U. S. C. § 626(b); see also § 216(b), are designed both to compensate employees for injuries caused by prohibited discrimination and to deter employers from engaging in such discrimination. The private litigant who seeks redress for his or her injuries vindicates both of these objectives, and it would not accord with this scheme if after-acquired evidence of wrongdoing barred all relief. Mt. Healthy City Ed. of Ed. v. Doyle, 429 U. S. 274 , 284-287, distinguished. Pp. 356-360. (b) Nevertheless, after-acquired evidence of the employee's wrongdoing must be taken into account in determining the specific remedy, lest the employer's legitimate concerns be ignored. Because the ADEA simply prohibits discrimination, and does not constrain employers from exercising significant other prerogatives and discretions in the usual course of hiring, promoting, and discharging employees, employee wrongdoing is relevant in taking due account of such lawful preroga- 353 tives and the employer's corresponding equities arising from the wrongdoing. pp.360-361. (c) The proper boundaries of remedial relief in cases of this type must be addressed on a case-by-case basis. However, as a general rule, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, it cannot be required to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if it might have gone undiscovered absent the suit. The beginning point in formulating a remedy should therefore be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. The court can also consider any extraordinary equitable circumstances that affect the legitimate interests of either party. Pp.361-362. (d) Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone had the employer known of it at the time of the discharge. The concern that employers might routinely undertake extensive discovery into an employee's background or job performance to resist ADEA claims is not insubstantial, but the courts' authority to award attorney's fees under §§ 216(b) and 626(b) and to invoke the appropriate provisions of the Federal Rules of Civil Procedure will likely deter most abuses. Pp. 362-363. 9 F.3d 539 , reversed and remanded. KENNEDY, J., delivered the opinion for a unanimous Court. Michael E. Terry argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. Shaw, Charles Stephen Ralston, and Eric Schnapper. Irving L. Gornstein argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, Kent L. Jones, Dennis J. Dimsey, Mark L. Gross, James R. Neely, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler. 354 354 McKENNON v. NASHVILLE BANNER PUBLISHING CO. R. Eddie Wayland argued the cause for respondent. With him on the brief was Elizabeth B. Marney.* JUSTICE KENNEDY delivered the opinion of the Court. The question before us is whether an employee discharged in violation of the Age Discrimination in Employment Act of 1967 is barred from all relief when, after her discharge, the employer discovers evidence of wrongdoing that, in any event, would have led to the employee's termination on lawful and legitimate grounds. I For some 30 years, petitioner Christine McKennon worked for respondent Nashville Banner Publishing Company. She was discharged, the Banner claimed, as part of a work force reduction plan necessitated by cost considerations. McKennon, who was 62 years old when she lost her job, thought another reason explained her dismissal: her age. She filed suit in the United States District Court for the Middle District of Tennessee, alleging that her discharge violated the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. (1988 *Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon and Laurence Gold; for the Lawyers' Committee for Civil Rights Under Law et al. by William F. Sheehan, Steven R. Shapiro, Helen Hershkoff, Michael A. Cooper, Norman Redlich, Thomas J. Henderson, Richard T. Seymour, Sharon R. Vinick, and Cathy Ventrell-Monsees; and for the Women's Legal Defense Fund et al. by Judith L. Lichtman and Donna R. Lenhoff Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Zachary D. Fasman, Charles A. Shanor, Kelly J. Koelker, Stephen A. Bokat, and Robin S. Conrad; and for the Equal Employment Advisory Council et al. by Douglas S. McDowell, Ann Elizabeth Reesman, Lee T. Paterson, Dwight H. Vincent, John F. Sturm, Rene P. Milam, and Peter G. Stone. Jeffrey Robert White, Nancy Erika Smith, and Neil Mullin filed a brief for the National Employment Lawyers Association et al. as amici curiae. 355 ed. and Supp. V). The ADEA makes it unlawful for any employer: "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. § 623(a)(1). McKennon sought a variety of legal and equitable remedies available under the ADEA, including backpay. App. lOa-lla. In preparation of the case, the Banner took McKennon's deposition. She testified that, during her final year of employment, she had copied several confidential documents bearing upon the company's financial condition. She had access to these records as secretary to the Banner's comptroller. McKennon took the copies home and showed them to her husband. Her motivation, she averred, was an apprehension she was about to be fired because of her age. When she became concerned about her job, she removed and copied the documents for "insurance" and "protection." Deposition, Dec. 18, 1991, Record, Docket Entry No. 39, Vol. 2, p. 241. A few days after these deposition disclosures, the Banner sent McKennon a letter declaring that removal and copying of the records was in violation of her job responsibilities and advising her (again) that she was terminated. The Banner's letter also recited that had it known of McKennon's misconduct it would have discharged her at once for that reason. For purposes of summary judgment, the Banner conceded its discrimination against McKennon. The District Court granted summary judgment for the Banner, holding that McKennon's misconduct was grounds for her termination and that neither backpay nor any other remedy was available to her under the ADEA. 797 F. Supp. 604 (MD Tenn. 1992). The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale. 9 F.3d 539 (1993). We 356 356 McKENNON v. NASHVILLE BANNER PUBLISHING CO. granted certiorari, 511 U. S. 1106 (1994), to resolve conflicting views among the Courts of Appeals on the question whether all relief must be denied when an employee has been discharged in violation of the ADEA and the employer later discovers some wrongful conduct that would have led to discharge if it had been discovered earlier. Compare Welch v. Liberty Machine Works, Inc., 23 F.3d 1403 (CA8 1994); O'Driscoll v. Hercules Inc., 12 F.3d 176 (CAlO 1994); 9 F.3d 539 (CA6 1993) (case below); Washington v. Lake County, 969 F.2d 250 (CA71992); Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (CA6 1992); Summers v. State Farm Mutual Automobile Ins. Co., 864 F.2d 700 (CAlO 1988); Smallwood v. United Air Lines, Inc., 728 F.2d 614 (CA4), cert. denied, 469 U. S. 832 (1984), with Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221 (CA3 1994); Kristufek v. Hussman Foodservice Co., Toastmaster Div., 985 F.2d 364 (CA7 1993); Wallace v. Dunn Construction Co., 968 F.2d 1174 (CAll 1992), vacated pending rehearing en banc, 32 F.3d 1489 (1994). We now reverse. II We shall assume, as summary judgment procedures require us to assume, that the sole reason for McKennon's initial discharge was her age, a discharge violative of the ADEA. Our further premise is that the misconduct revealed by the deposition was so grave that McKennon's immediate discharge would have followed its disclosure in any event. The District Court and the Court of Appeals found no basis for contesting that proposition, and for purposes of our review we need not question it here. We do question the legal conclusion reached by those courts that afteracquired evidence of wrongdoing which would have resulted in discharge bars employees from any relief under the ADEA. That ruling is incorrect. The Court of Appeals considered McKennon's misconduct, in effect, to be supervening grounds for termination. That 357 may be so, but it does not follow, as the Court of Appeals said in citing one of its own earlier cases, that the misconduct renders it "'irrelevant whether or not [McKennon] was discriminated against.'" 9 F. 3d, at 542, quoting MilliganJensen v. Michigan Technological Univ., 975 F.2d 302 , 305 (CA6 1992), cert. granted, 509 U. S. 943, cert. dism'd, 509 U. S. 903 (1993). We conclude that a violation of the ADEA cannot be so altogether disregarded. The ADEA, enacted in 1967 as part of an ongoing congressional effort to eradicate discrimination in the workplace, reflects a societal condemnation of invidious bias in employment decisions. The ADEA is but part of a wider statutory scheme to protect employees in the workplace nationwide. See Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. (1988 ed. and Supp. V) (race, color, sex, national origin, and religion); the Americans with Disabilities Act of 1990, 42 U. S. C. § 12101 et seq. (1988 ed., Supp. V) (disability); the National Labor Relations Act, 29 U. S. C. § 158(a) (union activities); the Equal Pay Act of 1963, 29 U. S. C. § 206(d) (sex). The ADEA incorporates some features of both Title VII and the Fair Labor Standards Act of 1938, which has led us to describe it as "something of a hybrid." Lorillard v. Pons, 434 U. S. 575 , 578 (1978). The substantive, antidiscrimination provisions of the ADEA are modeled upon the prohibitions of Title VII. See Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 , 121 (1985); Lorillard v. Pons, supra, at 584. Its remedial provisions incorporate by reference the provisions of the Fair Labor Standards Act of 1938. 29 U. S. C. § 626(b). When confronted with a violation of the ADEA, a district court is authorized to afford relief by means of reinstatement, backpay, injunctive relief, declaratory judgment, and attorney's fees. Ibid.; see also Lorillard v. Pons, supra, at 584. In the case of a willful violation of the Act, the ADEA authorizes an award of liquidated damages equal to the backpay award. 29 U. S. C. § 626(b). The Act also gives federal courts the 358 358 McKENNON v. NASHVILLE BANNER PUBLISHING CO. discretion to "grant such legal or equitable relief as may be appropriate to effectuate the purposes of [the Act]." Ibid. The ADEA and Title VII share common substantive features and also a common purpose: "the elimination of discrimination in the workplace." Oscar Mayer & Co. v. Evans, 441 U. S. 750 , 756 (1979). Congress designed the remedial measures in these statutes to serve as a "spur or catalyst" to cause employers "to self-examine and to selfevaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges" of discrimination. Albemarle Paper Co. v. Moody, 422 U. S. 405 , 417-418 (1975) (internal quotation marks and citation omitted); see also Franks v. Bowman Transp. Co., 424 U. S. 747 , 763 (1976). Deterrence is one object of these statutes. Compensation for injuries caused by the prohibited discrimination is another. Albemarle Paper Co. v. Moody, supra, at 418; Franks v. Bowman Transp. Co., supra, at 763-764. The ADEA, in keeping with these purposes, contains a vital element found in both Title VII and the Fair Labor Standards Act: It grants an injured employee a right of action to obtain the authorized relief. 29 U. S. C. § 626(c). The private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the ADEA. See Alexander v. Gardner-Denver Co., 415 U. S. 36 , 45 (1974) ("[T]he private litigant [in Title VII] not only redresses his own injury but also vindicates the important congressional policy against discriminatory employment practices"); see also Teamsters v. United States, 431 U. S. 324 , 364 (1977). It would not accord with this scheme if afteracquired evidence of wrongdoing that would have resulted in termination operates, in every instance, to bar all relief for an earlier violation of the Act. The objectives of the ADEA are furthered when even a single employee establishes that an employer has discriminated against him or her. The disclosure through litigation of incidents or practices that violate national policies re- 359 specting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry-wide significance. The efficacy of its enforcement mechanisms becomes one measure of the success of the Act. The Court of Appeals in this case relied upon two of its earlier decisions, Johnson v. Honeywell Information Systems, Inc., 955 F.2d 409 (CA6 1992); Milligan-Jensen v. Michigan Technological Univ., 975 F.2d 302 (CA6 1992), and the opinion of the Court of Appeals for the Tenth Circuit in Summers v. State Farm Mutual Automobile Ins. Co., 864 F. 2d 700 (1988). Consulting those authorities, it declared that it had "firmly endorsed the principle that after-acquired evidence is a complete bar to any recovery by the former employee where the employer can show it would have fired the employee on the basis of the evidence." 9 F. 3d, at 542. Summers, in turn, relied upon our decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), but that decision is inapplicable here. In Mt. Healthy we addressed a mixed-motives case, in which two motives were said to be operative in the employer's decision to fire an employee. One was lawful, the other (an alleged constitutional violation) unlawful. We held that if the lawful reason alone would have sufficed to justify the firing, the employee could not prevail in a suit against the employer. The case was controlled by the difficulty, and what we thought was the lack of necessity, of disentangling the proper motive from the improper one where both played a part in the termination and the former motive would suffice to sustain the employer's action. Id., at 284-287. That is not the problem confronted here. As we have said, the case comes to us on the express assumption that an unlawful motive was the sole basis for the firing. McKennon's misconduct was not discovered until after she had been 360 360 McKENNON v. NASHVILLE BANNER PUBLISHING CO. fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed-motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer's motives in ordering the discharge, an essential element in determining whether the employer violated the federal antidiscrimination law. See Price Waterhouse v. Hopkins, 490 U. S. 228 , 252 (1989) (plurality opinion) (employer's legitimate reason for discharge in mixed-motive case will not suffice "if that reason did not motivate it at the time of the decision"); id., at 260-261 (White, J., concurring in judgment); id., at 261 (O'CONNOR, J., concurring in judgment). As has been observed, "proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made." Id., at 252 (plurality opinion) (internal quotation marks and citations omitted); see also id., at 260-261 (White, J., concurring in judgment). Our inquiry is not at an end, however, for even though the employer has violated the Act, we must consider how the after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered. Equity's maxim that a suitor who engaged in his own reprehensible conduct in the course of the transaction at issue must be denied equitable relief because of unclean hands, a rule which in conventional formulation operated in limine to bar the suitor from invoking the aid of the equity court, 2 S. Symons, Pomeroy's Equity Jurisprudence § 397, pp. 90-92 (5th ed. 1941), has not been applied where Congress authorizes broad equitable relief to serve important national policies. We have rejected the unclean hands defense "where a private suit serves important public purposes." Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134 , 138 (1968) (Sherman and Clayton Antitrust Acts). That does not mean, however, the employee's own misconduct is irrelevant to all the reme- 361 dies otherwise available under the statute. The statute controlling this case provides that "the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for [amounts owing to a person as a result of a violation of this chapter]." 29 U. S. C. § 626(b); see also § 216(b). In giving effect to the ADEA, we must recognize the duality between the legitimate interests of the employer and the important claims of the employee who invokes the national employment policy mandated by the Act. The employee's wrongdoing must be taken into account, we conclude, lest the employer's legitimate concerns be ignored. The ADEA, like Title VII, is not a general regulation of the workplace but a law which prohibits discrimination. The statute does not constrain employers from exercising significant other prerogatives and discretions in the course of the hiring, promoting, and discharging of their employees. See Price Waterhouse v. Hopkins, supra, at 239 ("Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice"). In determining appropriate remedial action, the employee's wrongdoing becomes relevant not to punish the employee, or out of concern "for the relative moral worth of the parties," Perma Life Mufflers, Inc. v. International Parts Corp., supra, at 139, but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee's wrongdoing. The proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. We do conclude that here, and as a general rule in cases of this type, 362 362 McKENNON v. NASHVILLE BANNER PUBLISHING CO. neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The proper measure of backpay presents a more difficult problem. Resolution of this question must give proper recognition to the fact that an ADEA violation has occurred which must be deterred and compensated without undue infringement upon the employer's rights and prerogatives. The object of compensation is to restore the employee to the position he or she would have been in absent the discrimination, Franks v. Bowman Transp. Co., 424 U. S., at 764, but that principle is difficult to apply with precision where there is after-acquired evidence of wrongdoing that would have led to termination on legitimate grounds had the employer known about it. Once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer and even if the information might have gone undiscovered absent the suit. The beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. In determining the appropriate order for relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party. An absolute rule barring any recovery of backpay, however, would undermine the ADEA's objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from age discrimination. Where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would 363 have been terminated on those grounds alone if the employer had known of it at the time of the discharge. The concern that employers might as a routine matter undertake extensive discovery into an employee's background or performance on the job to resist claims under the Act is not an insubstantial one, but we think the authority of the courts to award attorney's fees, mandated under the statute, 29 U. S. C. §§ 216(b), 626(b), and to invoke the appropriate provisions of the Federal Rules of Civil Procedure will deter most abuses. The judgment is reversed, and the case is remanded to the Court of Appeals for the Sixth Circuit for further proceedings consistent with this opinion. It is so ordered.

The Supreme Court ruled that an employee fired in violation of the Age Discrimination in Employment Act (ADEA) cannot be completely barred from legal relief if their employer later discovers evidence of wrongdoing that would have led to their termination anyway. While the employee's misconduct is relevant and must be considered in determining the appropriate remedy, it does not negate the initial ADEA violation. The Court suggested that reinstatement or front pay is generally not appropriate in such cases, but backpay may be considered from the date of unlawful discharge to the date the new information was discovered. The employer must establish that the employee's wrongdoing was severe enough to warrant termination on those grounds alone.

Labor & Employment

O'Connor v. Consolidated Coin Caterers Corp.

https://supreme.justia.com/cases/federal/us/517/308/

OCTOBER TERM, 1995 Syllabus O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 95-354. Argued February 27, 1996-Decided April 1, 1996 At age 56, petitioner was fired by respondent corporation and replaced by a 40-year-old worker. He then filed this suit, alleging that his discharge violated the Age Discrimination in Employment Act of 1967 (ADEA). The District Court granted respondent's summary judgment motion, and the Court of Appeals affirmed, holding that petitioner failed to make out a prima facie case of age discrimination under McDonnell Douglas Corp. v. Green, 411 U. S. 792 , because he failed to show that he was replaced by someone outside the age group protected by the ADEA. Held: Assuming that Title VII's McDonnell Douglas framework is applicable to ADEA cases, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination. Replacement by someone under 40 fails this requirement. Although the ADEA limits its protection to those who are 40 or older, it prohibits discrimination against those protected employees on the basis of age, not class membership. That one member of the protected class lost out to another member is irrelevant, so long as he lost out because of his age. The latter is more reliably indicated by the fact that his replacement was substantially younger than by the fact that his replacement was not a member of the protected class. 56 F.3d 542 , reversed and remanded. SCALIA, J., delivered the opinion for a unanimous Court. George Daly argued the cause for petitioner. With him on the briefs were Paul Alan Levy and Alan B. Morrison. Paul R. Q. Wolfson argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Deputy Solicitor General Bender, C. Gregory Stewart, Gwendolyn Young Reams, Lorraine C. Davis, and Barbara L. Sloan. 309 James B. Spears, Jr., argued the cause for respondent. With him on the brief were Jacob J. Modla and Robert JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether a plaintiff alleging that he was discharged in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., must show that he was replaced by someone outside the age group protected by the ADEA to make out a prima facie case under the framework established by McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). Petitioner James O'Connor was employed by respondent Consolidated Coin Caterers Corporation from 1978 until August 10, 1990, when, at age 56, he was fired. Claiming that he had been dismissed because of his age in violation of the ADEA, petitioner brought suit in the United States District Court for the Western District of North Carolina. After discovery, the District Court granted respondent's motion for summary judgment, 829 F. Supp. 155 (1993), and peti- *Steven S. Zaleznick and Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Tarra DeShields-Minnis and Andrew H. Baida, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, M. Jane Brady of Delaware, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Mark Barnett of South Dakota, and W A. Drew Edmondson of Oklahoma; for the Chamber of Commerce of the United States by Marshall B. Babson, Stanley R. Strauss, Sue J. Henry, Stephen A. Bokat, Robin S. Conrad, and Mona C. Zeiberg; for the Equal Employment Advisory Council by Douglas S. McDowell; and for the New England Legal Foundation by Steven S. Ostrach and Cynthia L. Amara. Jack L. Whitacre filed a brief for the National Retail Federation as amicus curiae. 310 310 O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. tioner appealed. The Court of Appeals for the Fourth Circuit stated that petitioner could establish a prima facie case under McDonnell Douglas only if he could prove that (1) he was in the age group protected by the ADEA; (2) he was discharged or demoted; (3) at the time of his discharge or demotion, he was performing his job at a level that met his employer's legitimate expectations; and (4) following his discharge or demotion, he was replaced by someone of comparable qualifications outside the protected class. Since petitioner's replacement was 40 years old, the Court of Appeals concluded that the last element of the prima facie case had not been made out.1 56 F.3d 542 , 546 (1995). Finding that petitioner's claim could not survive a motion for summary judgment without benefit of the McDonnell Douglas presumption (i. e., "under the ordinary standards of proof used in civil cases," 56 F. 3d, at 548), the Court of Appeals affirmed the judgment of dismissal. We granted O'Connor's petition for certiorari. 516 U. S. 973 (1995). In McDonnell Douglas, we "established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatory-treatment cases." St. Mary's Honor Center v. Hicks, 509 U. S. 502 , 506 (1993). We held that a plaintiff alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., could establish a prima facie case by showing "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [the] complainant's qualifications." McDonnell Douglas, 1 The court also concluded that even under a modified version of the McDonnell Douglas prima facie standard which the Fourth Circuit applies to reduction-in-force cases, see Mitchell v. Data General Corp., 12 F.3d 1310 , 1315 (1993), petitioner could not prevail. We limit our review to the Fourth Circuit's treatment of this case as a non-reduction-in-force case. 311 411 U. S., at 802. Once the plaintiff has met this initial burden, the burden of production shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Ibid. If the trier of fact finds that the elements of the prima facie case are supported by a preponderance of the evidence and the employer remains silent, the court must enter judgment for the plaintiff. St. Mary's Honor Center, supra, at 509-510, and n. 3; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 254 (1981). In assessing claims of age discrimination brought under the ADEA, the Fourth Circuit, like others,2 has applied some variant of the basic evidentiary framework set forth in Mc Donnell Douglas. We have never had occasion to decide whether that application of the Title VII rule to the ADEA context is correct, but since the parties do not contest that point, we shall assume it. Cf. St. Mary's Honor Center, supra, at 506, n. 1 (assuming that "the McDonnell Douglas framework is fully applicable to racial-discrimination-inemployment claims under 42 U. S. C. § 1983"). On that assumption, the question presented for our determination is what elements must be shown in an ADEA case to establish the prima facie case that triggers the employer's burden of production. As the very name "prima facie case" suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it 2 See, e. g., Roper v. Peabody Coal Co., 47 F.3d 925 , 926-927 (CA7 1995); Rinehart v. Independence, 35 F.3d 1263 , 1265 (CA8 1994), cert. denied, 514 U. S. 1096 (1995); Seman v. Coplay Cement Co., 26 F.3d 428 , 432, n. 7 (CA3 1994); Roush v. KFC Nat. Mgt. Co., 10 F.3d 392 , 396 (CA6 1993), cert. denied, 513 U. S. 808 (1994); Lindsey v. Prive Corp., 987 F.2d 324 , 326, n. 5 (CA5 1993); Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435 , 1442 (CAll), cert. denied, 474 U. S. 1005 (1985); Haskell v. Kaman Corp., 743 F.2d 113 , 119, and n. 1 (CA2 1984); Cuddy v. Carmen, 694 F.2d 853 ,856-857 (CADC 1982); Douglas v. Anderson, 656 F.2d 528 , 531-532 (CA9 1981); Loeb v. Textron, Inc., 600 F.2d 1003 , 1014-1016 (CA1 1979); Schwager v. Sun Oil Co. of Pa., 591 F.2d 58 , 60-61 (CAW 1979). 312 312 O'CONNOR v. CONSOLIDATED COIN CATERERS CORP. establishes a "legally mandatory, rebuttable presumption," Burdine, supra, at 254, n. 7. The element of replacement by someone under 40 fails this requirement. The discrimination prohibited by the ADEA is discrimination "because of [an] individual's age," 29 U. s. C. § 623(a)(1), though the prohibition is "limited to individuals who are at least 40 years of age," § 631(a). This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to "40 or over" discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old. Because it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case. Perhaps some courts have been induced to adopt the principle urged by respondent in order to avoid creating a prima facie case on the basis of very thin evidence-for example, the replacement of a 68-year-old by a 65-year-old. While the respondent's principle theoretically permits such thin evidence (consider the example above of a 40-year-old replaced by a 39-year-old), as a practical matter it will rarely do so, since the vast majority of age-discrimination claims come from older employees. In our view, however, the proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion .... " Teamsters v. United States, 431 U. S. 324 , 358 (1977) (empha- 313 sis added). In the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. The judgment of the Fourth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

The Supreme Court ruled that a plaintiff alleging they were fired due to age discrimination under the Age Discrimination in Employment Act (ADEA) does not need to prove they were replaced by someone outside the age group protected by the ADEA (under 40) to make a prima facie case. The Court held that the discrimination prohibited by the ADEA is based on an individual's age, not class membership, and that the replacement's age is irrelevant as long as the plaintiff can prove they were fired because of their age. The Court also stated that the inference of age discrimination is more reliably indicated by the replacement being substantially younger than by them being outside the protected class.

Labor & Employment

FMC Corp. v. Holliday

https://supreme.justia.com/cases/federal/us/498/52/

U.S. Supreme Court FMC Corp. v. Holliday, 498 U.S. 52 (1990) FMC Corporation v. Holliday No. 89-1048 Argued Oct. 2, 1990 Decided Nov. 27, 1990 498 U.S. 52 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus After petitioner FMC Corporation's self-funded health care plan (Plan) paid a portion of respondent's medical expenses resulting from an automobile accident, FMC informed respondent that it would seek reimbursement under the Plan's subrogation provision from any recovery she realized in her Pennsylvania negligence action against the driver of the vehicle in which she was injured. Respondent obtained a declaratory judgment in Federal District Court that § 1720 of Pennsylvania's Motor Vehicle Financial Responsibility Law -- which precludes reimbursement from a claimant's tort recovery for benefit payments by a program, group contract, or other arrangement -- prohibits FMC's exercise of subrogation rights. The Court of Appeals affirmed, holding that the Employee Retirement Income Security Act of 1974 (ERISA), which applies to employee welfare benefit plans such as FMC's, does not preempt § 1720. Held: ERISA preempts the application of § 1720 to FMC's Plan. (a) ERISA's preemption clause broadly establishes as an area of exclusive federal concern the subject of every state law that "relate[s] to" a covered employee benefit plan. Although the statute's saving clause returns to the States the power to enforce those state laws that "regulat[e] insurance," the deemer clause provides that a covered plan shall not be "deemed to be an insurance company or other insurer . . . or to be engaged in the business of insurance" for purposes of state laws "purporting to regulate" insurance companies or insurance contracts. Pp. 498 U. S. 56 -58. (b) Section 1720 "relate[s] to" an employee benefit plan within the meaning of ERISA's preemption provision, since it has both a "connection with" and a "reference to" such a plan. See Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , 463 U. S. 96 -97. Moreover, although there is no dispute that § 1720 "regulates insurance," ERISA's deemer clause demonstrates Congress' clear intent to exclude from the reach of the saving clause self-funded ERISA plans by relieving them from state laws "purporting to regulate insurance." Thus, such plans are exempt from state regulation insofar as it "relates to" them. State laws directed toward such plans are preempted because they relate to an employee benefit plan but are not "saved" because they do not regulate insurance. Page 498 U. S. 53 State laws that directly regulate insurance are "saved," but do not reach self-funded plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such laws. On the other hand, plans that are insured are subject to indirect state insurance regulation insofar as state laws "purporting to regulate insurance" apply to the plans' insurers and the insurers' insurance contracts. This reading of the deemer clause is consistent with Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 471 U. S. 735 , n. 14, 471 U. S. 747 , and is respectful of the presumption that Congress does not intend to preempt areas of traditional state regulation, see Jones v. Rath Packing Co., 430 U. S. 519 , 430 U. S. 525 , including regulation of the "business of insurance," see Metropolitan Life Ins. Co. v. Massachusetts, supra, 471 U.S. at 471 U. S. 742 -744. Narrower readings of the deemer clause -- which would interpret the clause to except from the saving clause only state insurance regulations that are pretexts for impinging on core ERISA concerns or to preclude States from deeming plans to be insurers only for purposes of state laws that apply to insurance as a business, such as laws relating to licensing and capitalization requirements -- are unsupported by ERISA's language, and would be fraught with administrative difficulties, necessitating definition of core ERISA concerns and of what constitutes business activity and thereby undermining Congress' expressed desire to avoid endless litigation over the validity of state action and requiring plans to expend funds in such litigation. Pp. 498 U. S. 58 -65. 885 F.2d 79 (CA3 1989), vacated and remanded. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 498 U. S. 65 . SOUTER, J., took no part in the consideration or decision of the case. Page 498 U. S. 54 Justice O'CONNOR delivered the opinion of the Court. This case calls upon the Court to decide whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C. § 1001 et seq., preempts a Pennsylvania law precluding employee welfare benefit plans from exercising subrogation rights on a claimant's tort recovery. I Petitioner, FMC Corporation (FMC), operates the FMC Salaried Health Care Plan (Plan), an employee welfare benefit plan within the meaning of ERISA, § 3(1), 29 U.S.C. § 1002(1), that provides health benefits to FMC employees and their dependents. The Plan is self-funded; it does not purchase an insurance policy from any insurance company in order to satisfy its obligations to its participants. Among its provisions is a subrogation clause under which a Plan member agrees to reimburse the Plan for benefits paid if the member recovers on a claim in a liability action against a third party. Respondent, Cynthia Ann Holliday, is the daughter of FMC employee and Plan member Gerald Holliday. In 1987, Page 498 U. S. 55 she was seriously injured in an automobile accident. The Plan paid a portion of her medical expenses. Gerald Holliday brought a negligence action on behalf of his daughter in Pennsylvania state court against the driver of the automobile in which she was injured. The parties settled the claim. While the action was pending, FMC notified the Hollidays that it would seek reimbursement for the amounts it had paid for respondent's medical expenses. The Hollidays replied that they would not reimburse the Plan, asserting that § 1720 of Pennsylvania's Motor Vehicle Financial Responsibility Law, 75 Pa.Cons.Stat. § 1720 (1987), precludes subrogation by FMC. Section 1720 states that "[i]n actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant's tort recovery with respect to . . . benefits . . . payable under section 1719. [ Footnote 1 ]" Section 1719 refers to benefit payments by "[a]ny program, group contract or other arrangement." [ Footnote 2 ] Page 498 U. S. 56 Respondent, proceeding in diversity, then sought and received a declaratory judgment in Federal District Court that § 1720 prohibits FMC's exercise of subrogation rights on Holliday's claim against the driver. The United States Court of Appeals for the Third Circuit affirmed. 885 F.2d 79 (1989). The court held that § 1720, unless preempted, bars FMC from enforcing its contractual subrogation provision. According to the court, ERISA preempts § 1720 if ERISA's "deemer clause," § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B), exempts the Plan from state subrogation laws. The Court of Appeals, citing Northern Group Services, Inc. v. Auto Owners Ins. Co., 833 F.2d 85, 91-94 (CA6 1987), cert. denied, 486 U.S. 1017 (1988), determined that "the deemer clause [was] meant mainly to reach back-door attempts by states to regulate core ERISA concerns in the guise of insurance regulation." 885 F.2d at 86. Pointing out that the parties had not suggested that the Pennsylvania antisubrogation law addressed "a core type of ERISA matter which Congress sought to protect by the preemption provision," id. at 90, the court concluded that the Pennsylvania law is not preempted. The Third Circuit's holding conflicts with decisions of other Circuit Courts that have construed ERISA's deemer clause to protect self-funded plans from all state insurance regulation. See, e.g., Baxter v. Lynn, 886 F.2d 182, 186 (CA8 1989); Reilly v. Blue Cross and Blue Shield United of Wisconsin, 846 F.2d 416, 425-426 (CA7), cert. denied, 488 U.S. 856 (1988). We granted certiorari to resolve this conflict. 493 U.S. 1068 (1990), and now reverse. II In determining whether federal law preempts a state statute, we look to congressional intent. ""Preemption may be either express or implied, and is compelled whether Congress' Page 498 U. S. 57 command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." " Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , 463 U. S. 95 (1983) (quoting Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141 , 458 U. S. 152 -153 (1982), in turn quoting Jones v. Rath Packing Co., 430 U. S. 519 , 430 U. S. 525 (1977)); See also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 842 -843 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court . . . must give effect to the unambiguously expressed intent of Congress" (footnote omitted)). We "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189 , 469 U. S. 194 (1985). Three provisions of ERISA speak expressly to the question of preemption: "Except as provided in subsection (b) of this section [the saving clause], the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." § 514(a), as set forth in 29 U.S.C. § 1144(a) (preemption clause). "Except as provided in subparagraph (B) [the deemer clause], nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." § 514(b)(2)(A), as set forth in 29 U.S.C. § 1144(b)(2)(A) (saving clause). "Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or Page 498 U. S. 58 investment companies." § 514(b)(2)(B), as set forth in 29 U.S.C. § 1144(b)(2)(B) (deemer clause). We indicated in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), that these provisions "are not a model of legislative drafting." Id. at 471 U. S. 739 . Their operation is nevertheless discernible. The preemption clause is conspicuous for its breadth. It establishes as an area of exclusive federal concern the subject of every state law that "relate[s] to" an employee benefit plan governed by ERISA. The saving clause returns to the States the power to enforce those state laws that "regulat[e] insurance," except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be "deemed" an insurance company, an insurer, or engaged in the business of insurance for purposes of state laws "purporting to regulate" insurance companies or insurance contracts. III Pennsylvania's antisubrogation law "relate[s] to" an employee benefit plan. We made clear in Shaw v. Delta Air Lines, supra, that a law relates to an employee welfare plan if it has "a connection with or reference to such a plan." Id., 463 U.S. at 463 U. S. 96 -97 (footnote omitted). We based our reading in part on the plain language of the statute. Congress used the words " relate to' in § 514(a) [the preemption clause] in their broad sense." Id. at 463 U. S. 98 . It did not mean to preempt only state laws specifically designed to affect employee benefit plans. That interpretation would have made it unnecessary for Congress to enact ERISA § 514(b)(4), 29 U.S.C. § 1144(b)(4), which exempts from preemption "generally" applicable criminal laws of a State. We also emphasized that to interpret the preemption clause to apply only to state laws dealing with the subject matters covered by ERISA, such as reporting, disclosure, and fiduciary duties, would be incompatible with the provision's legislative history because the House and Senate versions of the bill that became ERISA Page 498 U. S. 59 contained limited preemption clauses, applicable only to state laws relating to specific subjects covered by ERISA. [ Footnote 3 ] These were rejected in favor of the present language in the Act, "indicat[ing] that the section's preemptive scope was as broad as its language." Shaw v. Delta Air Lines, 463 U.S. at 463 U. S. 98 . Pennsylvania's antisubrogation law has a "reference" to benefit plans governed by ERISA. The statute states that "[i]n actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant's tort recovery with respect to . . . benefits . . . paid or payable under section 1719." 75 Pa.Cons.Stat. § 1720 (1987). Section 1719 refers to "[a]ny program, group contract or other arrangement for payment of benefits." These terms "includ[e], but [are] not limited to, benefits payable by a hospital plan corporation or a professional health service corporation." § 1719 (emphasis added). The Pennsylvania statute also has a "connection" to ERISA benefit plans. In the past, we have not hesitated to apply ERISA's preemption clause to state laws that risk subjecting plan administrators to conflicting state regulations. See, e.g., Shaw v. Delta Air Lines, supra, at 463 U. S. 95 -100 (state laws making unlawful plan provisions that discriminate on the basis of pregnancy and requiring plans to provide specific benefits "relate to" benefit plans); Alessi v. Raybestos-Manhattan, Page 498 U. S. 60 Inc., 451 U. S. 504 , 451 U. S. 523 -526 (1981) (state law prohibiting plans from reducing benefits by amount of workers' compensation awards "relate[s] to" employee benefit plan). To require plan providers to design their programs in an environment of differing State regulations would complicate the administration of nationwide plans, producing inefficiencies that employers might offset with decreased benefits. See Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 , 482 U. S. 10 (1987). Thus, where a "patchwork scheme of regulation would introduce considerable inefficiencies in benefit program operation," we have applied the preemption clause to ensure that benefit plans will be governed by only a single set of regulations. Id. at 482 U. S. 11 . Pennsylvania's antisubrogation law prohibits plans from being structured in a manner requiring reimbursement in the event of. recovery from a third party. It requires plan providers to calculate benefit levels in Pennsylvania based on expected liability conditions that differ from those in States that have not enacted similar antisubrogation legislation. Application of differing state subrogation laws to plans would therefore frustrate plan administrators' continuing obligation to calculate uniform benefit levels nationwide. Accord, Alessi v. Raybestos-Manhattan, Inc., supra, (state statute prohibiting offsetting worker compensation payments against pension benefits preempted, since statute would force employer either to structure all benefit payments in accordance with state statute or adopt different payment formulae for employers inside and outside State). As we stated in Fort Halifax, "[t]he most efficient way to meet these [administrative] responsibilities is to establish a uniform administrative scheme which provides a set of standard procedures to guide processing of claims and disbursement of benefits." Fort Halifax Packing Co. v. Coyne, supra, at 482 U. S. 9 . There is no dispute that the Pennsylvania law falls within ERISA's insurance saving clause, which provides, " [e]xcept as provided in [the deemer clause], nothing in this subchapter Page 498 U. S. 61 shall be construed to exempt or relieve any person from any law of any State which regulates insurance," § 514(b)(2)(A), 29 U.S.C. § 1144(b)(2)(A) (emphasis added). Section 1720 directly controls the terms of insurance contracts by invalidating any subrogation provisions that they contain. See Metropolitan Life, 471 U.S. at 471 U. S. 740 -741. It does not merely have an impact on the insurance industry; it is aimed at it. See Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 481 U. S. 50 (1987). This returns the matter of subrogation to state law. Unless the statute is excluded from the reach of the saving clause by virtue of the deemer clause, therefore, it is not preempted. We read the deemer clause to exempt self-funded ERISA plans from state laws that "regulat[e] insurance" within the meaning of the saving clause. By forbidding States to deem employee benefit plans "to be an insurance company or other insurer . . . or to be engaged in the business of insurance," the deemer clause relieves plans from state laws "purporting to regulate insurance." As a result, self-funded ERISA plans are exempt from state regulation insofar as that regulation "relate[s] to" the plans. State laws directed toward the plans are preempted because they relate to an employee benefit plan but are not "saved" because they do not regulate insurance. State laws that directly regulate insurance are "saved" but do not reach self-funded employee benefit plans because the plans may not be deemed to be insurance companies, other insurers, or engaged in the business of insurance for purposes of such state laws. On the other hand, employee benefit plans that are insured are subject to indirect state insurance regulation. An insurance company that insures a plan remains an insurer for purposes of state laws "purporting to regulate insurance" after application of the deemer clause. The insurance company is therefore not relieved from state insurance regulation. The ERISA plan is consequently bound by state insurance regulations insofar as they apply to the plan's insurer. Page 498 U. S. 62 Our reading of the deemer clause is consistent with Metropolitan Life Ins. Co. v. Massachusetts, supra. That case involved a Massachusetts statute requiring certain self-funded benefit plans and insurers issuing group health policies to plans to provide minimum mental health benefits. Id. 471 U.S. at 471 U. S. 734 . In pointing out that Massachusetts had never tried to enforce the portion of the statute pertaining directly to benefit plans, we stated "[i]n light of ERISA's 'deemer clause,' which states that a benefit plan shall not 'be deemed an insurance company' for purposes of the insurance saving clause, Massachusetts has never tried to enforce [the statute] as applied to benefit plans directly, effectively conceding that such an application of [the statute] would be preempted by ERISA's preemption clause." Id. at 471 U. S. 735 , n. 14 (citations omitted). We concluded that the statute, as applied to insurers of plans, was not preempted because it regulated insurance and was therefore saved. Our decision, we acknowledged, "results in a distinction between insured and uninsured plans, leaving the former open to indirect regulation while the latter are not." Id. at 471 U. S. 747 . "By so doing, we merely give life to a distinction created by Congress in the 'deemer clause,' a distinction Congress is aware of, and one it has chosen not to alter." Ibid. (footnote omitted). Our construction of the deemer clause is also respectful of the presumption that Congress does not intend to preempt areas of traditional state regulation. See Jones v. Rath Packing Co., 430 U.S. at 430 U. S. 625 . In the McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq., Congress provided that the "business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business." 15 U.S.C. § 1012(a). We have identified laws governing the "business of insurance" in the Act to include not only direct regulation of the insurer but also regulation of the substantive terms of insurance contracts. Metropolitan Life Ins. Co. v. Massachusetts, supra, 471 U.S. at 471 U. S. 742 -744. Page 498 U. S. 63 By recognizing a distinction between insurers of plans and the contracts of those insurers, which are subject to direct state regulation, and self-insured employee benefit plans governed by ERISA, which are not, we observe Congress' presumed desire to reserve to the States the regulation of the "business of insurance." Respondent resists our reading of the deemer clause, and would attach to it narrower significance. According to the deemer clause, "[n]either an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies [or] insurance contracts." § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B) (emphasis added). Like the Court of Appeals, respondent would interpret the deemer clause to except from the saving clause only state insurance regulations that are pretexts for impinging upon core ERISA concerns. The National Conference of State Legislatures et al. as amici curiae in support of respondent, offer an alternative interpretation of the deemer clause. In their view, the deemer clause precludes States from deeming plans to be insurers only for purposes of state laws that apply to insurance as a business, such as laws relating to licensing and capitalization requirements. These views are unsupported by ERISA's language. Laws that purportedly regulate insurance companies or insurance contracts are laws having the "appearance of" regulating or "intending" to regulate insurance companies or contracts. Black's Law Dictionary 1236 (6th ed.1990). Congress' use of the word does not indicate that it directed the deemer clause solely at deceit that it feared state legislatures would practice. Indeed, the Conference Report, in describing the deemer clause, omits the word "purporting," stating, "an employee benefit plan is not to be considered as an insurance company, bank, trust company, or investment Page 498 U. S. 64 company (and is not to be considered as engaged in the business of insurance or banking) for purposes of any State law that regulates insurance companies, insurance contracts, banks, trust companies, or investment companies." H.R.Conf.Rep. No. 93-1280, p. 383 (1974), U.S.Code Cong. & Admin.News 1974, pp. 4639, 5162. Nor, in our view, is the deemer clause directed solely at laws governing the business of insurance. It is plainly directed at "any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." § 514(b)(2)(B), 29 U.S.C. § 1144(b)(2)(B). Moreover, it is difficult to understand why Congress would have included insurance contracts in the preemption clause if it meant only to preempt state laws relating to the operation of insurance as a business. To be sure, the saving and deemer clauses employ differing language to achieve their ends -- the former saving, except as provided in the deemer clause, "any law of any State which regulates insurance" and the latter referring to "any law of any State purporting to regulate insurance companies [or] insurance contracts." We view the language of the deemer clause, however, to be either coextensive with or broader, not narrower, than that of the saving clause. Our rejection of a restricted reading of the deemer clause does not lead to the deemer clause's engulfing the saving clause. As we have pointed out, supra at ___, the saving clause retains the independent effect of protecting state insurance regulation of insurance contracts purchased by employee benefit plans. Congress intended by ERISA to "establish pension plan regulation as exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U.S. at 451 U. S. 523 (footnote omitted). Our interpretation of the deemer clause makes clear that, if a plan is insured, a State may regulate it indirectly through regulation of its insurer and its insurer's insurance contracts; if the plan is uninsured, the State may not regulate it. As a result, employers will not face " conflicting or inconsistent State and local regulation of employee benefit plans.'" Page 498 U. S. 65 Shaw v. Delta Air Lines, Inc., 463 U.S. at 463 U. S. 99 (quoting remarks of Sen. Williams). A construction of the deemer clause that exempts employee benefit plans from only those state regulations that encroach upon core ERISA concerns or that apply to insurance as a business would be fraught with administrative difficulties, necessitating definition of core ERISA concerns and of what constitutes business activity. It would therefore undermine Congress' desire to avoid "endless litigation over the validity of State action," see 120 Cong.Rec. 29942 (1974) (remarks of Sen. Javits), and instead lead to employee benefit plans' expenditure of funds in such litigation. In view of Congress' clear intent to exempt from direct state insurance regulation ERISA employee benefit plans, we hold that ERISA preempts the application of § 1720 of Pennsylvania's Motor Vehicle Financial Responsibility Law to the FMC Salaried Health Care Plan. We therefore vacate the judgment of the United States Court of Appeals for the Third Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice SOUTER took no part in the consideration or decision of this case. [ Footnote 1 ] Section 1720 of Pennsylvania's Motor Vehicle Financial Responsibility Law is entitled "[s]ubrogation" and provides: "In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant's tort recovery with respect to workers' compensation benefits, benefits available under section 1711 (relating to required benefits), 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits in lieu thereof paid or payable under section 1719 (relating to coordination of benefits)." [ Footnote 2 ] Section 1719, entitled "[c]oordination of benefits," reads: "(a) General rule. -- Except for workers' compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits), 1712(1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first party benefits provided in section 1711, 1712 or 1715 or workers' compensation." "(b) Definition. -- As used in this section the term 'program, group contract or other arrangement' includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation subject to 40 Pa.C.S. Ch. 61 (relating to hospital plan corporations) or 63 (relating to professional health services plan corporations)." [ Footnote 3 ] The bill introduced in the Senate and reported out of the Committee on Labor and Public Welfare would have preempted "any and all laws of the States and of political subdivisions thereof insofar as they may now or hereafter relate to the subject matters regulated by this Act." S. 4, 93d Cong., 1st Sess., § 609(a) (1973). As introduced in the House, the bill that became ERISA would have superseded "any and all laws of the States and of the political subdivisions thereof insofar as they may now or hereafter relate to the fiduciary, reporting, and disclosure responsibilities of persons acting on behalf of employee benefit plans." H.R. 2, 93d Cong., 1st Sess., § 114 (1973). The bill was approved by the Committee on Education and Labor in a slightly modified form. See H.R. 2, 93d Cong., 1st Sess., § 514(a) (1973). Justice STEVENS, dissenting. The Court's construction of the statute draws a broad and illogical distinction between benefit plans that are funded by the employer (self-insured plans) and those that are insured by regulated insurance companies (insured plans). Had Congress intended this result, it could have stated simply that "all State laws are preempted insofar as they relate to any self-insured employee plan." There would then have been no need for the "saving clause" to exempt state insurance laws from the preemption clause, or the "deemer clause," which the Court today reads as merely reinjecting Page 498 U. S. 66 into the scope of ERISA's preemption clause those same exempted state laws insofar as they relate to self-insured plans. From the standpoint of the beneficiaries of ERISA plans -- who after all are the primary beneficiaries of the entire statutory program -- there is no apparent reason for treating self-insured plans differently from insured plans. Why should a self-insured plan have a right to enforce a subrogation clause against an injured employee, while an insured plan may not? The notion that this disparate treatment of similarly situated beneficiaries is somehow supported by an interest in uniformity is singularly unpersuasive. If Congress had intended such an irrational result, surely it would have expressed it in straightforward English. At least one would expect that the reasons for drawing such an apparently irrational distinction would be discernible in the legislative history, or in the literature discussing the legislation. The Court's anomalous result would be avoided by a correct and narrower reading of either the basic preemption clause or the deemer clause. I The Court has endorsed an unnecessarily broad reading of the words "relate to any employee benefit plan" as they are used in the basic preemption clause of § 514(a). I acknowledge that this reading is supported by language in some of our prior opinions. It is not, however, dictated by any prior holding, and I am persuaded that Congress did not intend this clause to cut nearly so broad a swath in the field of state laws as the Court's expansive construction will create. The clause surely does not preempt a host of general rules of tort, contract, and procedural law that relate to benefit plans as well as to other persons and entities. It does not, for example, preempt general state garnishment rules insofar as they relate to ERISA plans. Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 (1988). Moreover, the legislative history of the provision indicates that, Page 498 U. S. 67 throughout most of its consideration of preemption, Congress was primarily concerned about areas of possible overlap between federal and state requirements. Thus, the bill that was introduced in the Senate would have preempted state laws insofar as they "relate to the subject matters regulated by this Act," [ Footnote 2/1 ] and the House bill more specifically identified state laws relating "to the fiduciary, reporting, and disclosure responsibilities of persons acting on behalf of employee benefit plans." [ Footnote 2/2 ] Although the compromise that produced the statutory language "relate to any employee benefit plan" is not discussed in the legislative history, the final version is perhaps best explained as an editorial amalgam of the two bills, rather than as a major expansion of the section's coverage. When there is ambiguity in a statutory provision preempting state law, we should apply a strong presumption against the invalidation of well-settled, generally applicable state rules. In my opinion, this presumption played an important role in our decisions in Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 (1987), and Mackey v. Lanier Collection Agency & Service, Inc., supra. Application of that presumption leads me to the conclusion that the preemption clause should apply only to those state laws that purport to regulate subjects regulated by ERISA or that are inconsistent with ERISA's central purposes. I do not think Congress intended to foreclose Pennsylvania from enforcing the antisubrogation provisions of its state Motor Vehicle Financial Responsibility Act against ERISA plans -- most certainly, it did not intend to preempt enforcement of that statute against self-insured plans while preserving enforcement against insured plans. Page 498 U. S. 68 II Even if the "relate to" language in the basic preemption clause is read broadly, a proper interpretation of the carefully drafted text of the deemer clause would caution against finding preemption in this case. Before identifying the key words in that text, it is useful to comment on the history surrounding enactment of the deemer clause. The number of self-insured employee benefit plans grew dramatically in the 1960's and early 1970's. [ Footnote 2/3 ] The question whether such plans were, or should be, subject to state regulation remained unresolved when ERISA was enacted. It was, however, well recognized as early as 1967 that requiring self-insured plans to comply with the regulatory requirements in state insurance codes would stifle their growth: "Application of state insurance laws to uninsured plans would make direct payment of benefits pointless, and in most cases not feasible. This is because a welfare plan would have to be operated as an insurance company in order to comply with the detailed regulatory requirements of state insurance codes designed with the typical operations of insurance companies in mind. It presumably would be necessary to form a captive insurance company with prescribed capital and surplus, capable of obtaining a certificate of authority from the insurance department of all states in which the plan was 'doing business,' establish premium rates subject to approval by the insurance department, issue policies in the form approved by the insurance department, pay commissions and premium taxes required by the insurance law, hold and deposit reserves established by the insurance department, make investments permitted under the law, and comply with all filing and examination requirements of the insurance department. The result would be to reintroduce Page 498 U. S. 69 an insurance company, which the direct payment plan was designed to dispense with. Thus it can be seen that the real issue is not whether uninsured plans are to be regulated under state insurance laws, but whether they are to be permitted. " Goetz, Regulation of Uninsured Employee Welfare Plans Under State Insurance Laws, 1967 Wis.L.Rev. 319, 320-321 (emphasis in original). In 1974, while ERISA was being considered in Congress, the first state court to consider the applicability of state insurance laws to self-insured plans held that a self-insured plan could not pay out benefits until it had satisfied the licensing requirements governing insurance companies in Missouri, and thereby had subjected itself to the regulations contained in the Missouri insurance code. Missouri v. Monsanto Co., Cause No. 259774 (St. Louis Cty.Cir. Ct., Jan. 4, 1973), rev'd, 517 S.W.2d 129 (Mo.1974). Although it is true that the legislative history of ERISA or the deemer clause makes no reference to the Missouri case, or to this problem -- indeed, it contains no explanation whatsoever of the reason for enacting the deemer clause -- the text of the clause itself plainly reveals that it was designed to protect pension plans from being subjected to the detailed regulatory provisions that typically apply to all state-regulated insurance companies -- laws that purport to regulate insurance companies and insurance contracts. The key words in the text of the deemer clause are "deemed," "insurance company," and "purporting." [ Footnote 2/4 ] It provides Page 498 U. S. 70 that an employee welfare plan shall not be deemed to be an insurance company or to be engaged in the business of insurance for the purpose of determining whether it is an entity that is regulated by any state law purporting to regulate insurance companies and insurance contracts. Pennsylvania's insurance code purports, in so many words, to regulate insurance companies and insurance contracts. It governs the certification of insurance companies, Pa.Stat.Ann., Tit. 40, § 400 (Purdon 1971), their minimum capital stock and financial requirements to do business, § 386 (Purdon 1971 and Supp.199-1991), their rates, e.g., § 532.9 (Purdon 1971) (authorizing Insurance Commissioner to regulate minimum premiums charged by life insurance companies), and the terms that insurance policies must, or may, include, e.g., § 510 (Purdon 1971 and Supp.199-1991) (life insurance policies), § 753 (Purdon 1971) (health and accident insurance policies). The deemer clause prevents a State from enforcing such laws purporting to regulate insurance companies and insurance contracts against ERISA plans merely by deeming ERISA plans to be insurance companies. But the fact that an ERISA plan is not deemed to be an insurance company for the purpose of deciding whether it must comply with a statute that purports to regulate "insurance contracts" or entities that are defined as "insurance companies" simply does not speak to the question whether it must nevertheless comply with a statute that expressly regulates subject matters other than insurance. There are many state laws that apply to insurance companies as well as to other entities. Such laws may regulate some aspects of the insurance business, but do not require one to be an insurance company in order to be subject to their terms. Pennsylvania's Motor Vehicle Financial Responsibility Act is such a law. The fact that petitioner's plan is not deemed to be an insurance company or an insurance contract does not have any bearing on the question whether petitioner, Page 498 U. S. 71 like all other persons, must nevertheless comply with the Motor Vehicle Financial Responsibility Act. If one accepts the Court's broad reading of the "relate to" language in the basic preemption clause, the answer to the question whether petitioner must comply with state laws regulating entities including, but not limited to, insurance companies depends on the scope of the saving clause. [ Footnote 2/5 ] In this case, I am prepared to accept the Court's broad reading of that clause, but it is of critical importance to me that the category of state laws described in the saving clause is broader than the category described in the deemer clause. A state law "which regulates insurance," and is therefore exempted from ERISA's preemption provision by operation of the saving clause, does not necessarily have as its purported subject of regulation an "insurance company" or an activity that is engaged in by persons who are insurance companies. Rather, such a law may aim to regulate another matter altogether, but also have the effect of regulating insurance. The deemer clause, by contrast, reinjects into the scope of ERISA preemption only those state laws that "purport to" regulate insurance companies or contracts -- laws such as those which set forth the licensing and capitalization requirements for insurance companies or the minimum required provisions in insurance contracts. While the saving clause thus exempts from the preemption clause all state laws that have the broad effect of regulating insurance, the deemer clause simply allows preemption of those state laws that expressly regulate insurance and that would therefore be applicable to ERISA plans only if States were allowed to deem such plans to be insurance companies. Page 498 U. S. 72 Pennsylvania's Motor Vehicle Financial Responsibility Act fits into the broader category of state laws that fall within the saving clause only. The Act regulates persons in addition to insurance companies, and affects subrogation and indemnity agreements that are not necessarily insurance contracts. Yet because it most assuredly is not a law "purporting" to regulate any of the entities described in the deemer clause -- "insurance companies, insurance contracts, banks, trust companies, or investment companies," the deemer clause does not, by its plain language, apply to this state law. Thus, although the Pennsylvania law is exempted from ERISA's preemption provision by the broad saving clause because it "regulates insurance," it is not brought back within the scope of ERISA preemption by operation of the narrower deemer clause. I therefore would conclude that petitioner is subject to Pennsylvania's Motor Vehicle Financial Responsibility Act. I respectfully dissent. [ Footnote 2/1 ] S. 4, 93d Cong., 1st Sess., § 609(a) (1973), reprinted at 1 Legislative History of the Employee Retirement Income Security Act of 1974 (Committee Print compiled by the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare) 93, 186 (1976) (Leg.Hist.). [ Footnote 2/2 ] H.R. 2, 93d Cong., 1st Sess., § 114 (1973), 1 Leg.Hist. 51. [ Footnote 2/3 ] See Comment, State Regulation of Noninsured Employee Welfare Benefit Plans, 62 Geo.L.J. 339, 340 (1973). [ Footnote 2/4 ] Section 514(b)(2)(B), as set forth in 29 U.S.C. § 1144(b)(2)(B), provides: "Neither an employee benefit plan . . . nor any trust established under such a plan, shall be deemed to be an insurance company or other insurer, bank, trust company, or investment company or to be engaged in the business of insurance or banking for purposes of any law of any State purporting to regulate insurance companies, insurance contracts, banks, trust companies, or investment companies." (Emphasis added). [ Footnote 2/5 ] Section 514(b)(2)(A) of ERISA as set forth in 29 U.S.C. § 1144(b)(2)(A), provides: "Except as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities."

In FMC Corp. v. Holliday (1990), the U.S. Supreme Court ruled that ERISA (Employee Retirement Income Security Act of 1974) preempts state laws that "relate to" employee benefit plans, even if those state laws also "regulate insurance." The case centered around FMC Corporation's self-funded health care plan and its attempt to exercise subrogation rights to recover medical expenses paid on behalf of an employee injured in an automobile accident. The employee argued that a Pennsylvania state law, § 1720 of the Motor Vehicle Financial Responsibility Law, prohibited FMC's recovery. The Court held that while § 1720 does "relate to" an employee benefit plan and regulates insurance, ERISA's deemer clause exempts self-funded ERISA plans from state laws that expressly regulate insurance. Therefore, FMC's plan was exempt from § 1720, and ERISA preemption applied.

Labor & Employment

New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.

https://supreme.justia.com/cases/federal/us/514/645/

OCTOBER TERM, 1994 Syllabus NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS ET AL. v. TRAVELERS INSURANCE CO. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 93-1408. Argued January 18, 1995-Decided April 26, 1995* A New York statute requires hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan, and also subjects certain health maintenance organizations (HMO's) to surcharges. Several commercial insurers and their trade associations filed actions against state officials, claiming that § 514(a) of the Employee Retirement Income Security Act of 1974 (ERISA)-under which state laws that "relate to" any covered employee benefit plan are superseded-pre-empts the imposition of surcharges on bills of patients whose commercial insurance coverage is purchased by an ERISA plan, and on HMO's insofar as their membership fees are paid by an ERISA plan. Blue Cross/Blue Shield plans (collectively the Blues) and a hospital association intervened as defendants, and several HMO's and an HMO conference intervened as plaintiffs. The District Court consolidated the actions and granted the plaintiffs summary judgment. The Court of Appeals affirmed, relying on this Court's decisions in Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , and District of Columbia v. Greater Washington Ed. of Trade, 506 U. S. 125 , holding that ERISA's pre-emption clause must be read broadly to reach any state law having a connection with, or reference to, covered benefit plans. The court decided that the surcharges were meant to increase the costs of certain insurance and HMO health care and held that this purposeful interference with the choices that ERISA plans make for health care coverage constitutes a "connection with" ERISA plans triggering pre-emption. Held: New York's surcharge provisions do not "relate to" employee benefit plans within the meaning of § 514(a) and, thus, are not pre-empted. Pp. 654-668. *Together with No. 93-1414, Pataki, Governor of New York, et al. v. Travelers Insurance Co. et al., and No. 93-1415, Hospital Association of New York State v. Travelers Insurance Co. et al., also on certiorari to the same court. 646 646 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. Syllabus (a) Under Shaw, supra, the provisions "relate to" ERISA plans if they have a "connection with," or make "reference to," the plans. They clearly make no reference to ERISA plans, and ERISA's text is unhelpful in determining whether they have a "connection with" them. Thus, the Court must look to ERISA's objectives as a guide to the scope of the state law that Congress understood would survive. Pp. 654-656. (b) The basic thrust of the pre-emption clause was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans. Thus, ERISA pre-empts state laws that mandate employee benefit structures or their administration as well as those that provide alternative enforcement mechanisms. The purpose and effects of New York's statute are quite different, however. The principal reason for charge differentials is that the Blues provide coverage to many subscribers whom the commercial insurers would reject. Since the differentials make the Blues more attractive, they have an indirect economic effect on choices made by insurance buyers, including ERISA plans. However, an indirect economic influence does not bind plan administrators to any particular choice or preclude uniform administrative practice or the provision of a uniform interstate benefit package. It simply bears on the costs of benefits and the relative costs of competing insurance to provide them. Cost uniformity almost certainly is not an object of pre-emption. Rate differentials are common even in the absence of state action, and therefore it is unlikely that ERISA meant to bar such indirect influences under state law. The existence of other common state actions with indirect economic effects on a plan's cost-such as quality control standards and workplace regulation-leaves the intent to pre-empt even less likely, since such laws would have to be superseded as well. New York's surcharges leave plan administrators where they would be in any case, with the responsibility to choose the best overall coverage for the money, and thus they do not bear the requisite "connection with" ERISA plans to trigger pre-emption. Pp. 656-662. (c) This conclusion is confirmed by the decision in Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 , that ERISA preemption falls short of barring application of general state garnishment statutes to participants' benefits in the hands of an ERISA plan. And New York's surcharges do not impose the kind of substantive coverage requirement binding plan administrators that was at issue in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , since they do not require plans to deal with only one insurer or to insure against an entire category of illnesses the plans might otherwise choose not to cover. Pp. 662-664. 647 (d) Any conclusion other than the one drawn here would have the unsettling result of barring any state regulation of hospital costs on the theory that all laws with indirect economic effects on ERISA plans are pre-empted. However, there is no hint in ERISA's legislative history or elsewhere that Congress intended to squelch the efforts of several States that were regulating hospital charges to some degree at the time ERISA was passed. Moreover, such a broad interpretation of § 514 would have rendered nugatory an entire federal statute-enacted after ERISA by the same Congress-that gave comprehensive aid to state health care rate regulation. Pp. 664-667. (e) In reaching this decision, the Court does not hold that ERISA pre-empts only direct regulation of ERISA plans. It is possible that a state law might produce such acute, albeit indirect, economic effects as to force an ERISA plan to adopt a certain scheme of coverage or effectively restrict its choice of insurers, but such is not the case here. P.668. 14 F.3d 708 , reversed and remanded. SOUTER, J., delivered the opinion for a unanimous Court. M. Patricia Smith, Assistant Attorney General of New York, argued the cause for petitioners in all cases. With her on the briefs for petitioners in No. 93-1414 were G. Oliver Koppell, Attorney General, Jerry Boone, Solicitor General, Peter H. Schiff and Andrea Green, Deputy Solicitors General, and Jane Lauer Barker, Assistant Attorney General. Robert A. Bicks, Patricia Anne Kuhn, Alan C. Drewsen, Jeffrey D. Chansler, Bartley J. Costello III, Eileen M. Considine, and Beverly Cohen filed briefs for petitioners in No. 93-1408. Jeffrey J. Sherrin, Philip Rosenberg, and H. Bartow Farr III filed briefs for petitioner in No. 93-1415. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, James A. Feldman, Allen H. Feldman, Nathaniel 1. Spiller, and Judith D. Heimlich. Craig P. Murphy argued the cause for respondents Travelers Insurance Co. et al. in all cases. With him on the brief were Darrell M. Joseph, Stephen M. Shapiro, Kenneth S. 648 648 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. Counsel Geller, Andrew J. Pincus, Charles Rothfeld, Donald M. Falk, Zoe Baird, Theresa L. Sorota, Philip E. Stano, and Raymond A. d'Amico. Harold N. Iselin argued the cause for respondents New York State Health Maintenance Organization Conference et al. in all cases. With him on the brief were Wendy L. Ravitz and Glen D. Nager. t t Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, and Richard S. Slowes, Assistant Attorney General, Richard Blumenthal, Attorney General of Connecticut, and Phyllis E. Hyman, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, and Stanley Lustman and Elizabeth M. Kameen, Assistant Attorneys General, Roland W Burris, Attorney General of Illinois, Pamela Carter, Attorney General of Indiana, Scott Harshbarger, Attorney General of Massachusetts, Jeremiah W (Jay) Nixon, Attorney General of Missouri, Joseph P. Mazurek, Attorney General of Montana, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Dan Morales, Attorney General of Texas, Darrell V. McGraw, Jr., Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for the American Federation of State County and Municipal Employees, AFL-CIO, by Larry P. Weinberg, John C. Dempsey, Robert M. Weinberg, Ian D. Lanoff, and Andrew D. Roth; for the American Hospital Association et al. by Peter F. Nadel, Margaret J. Hardy, William T. McGrail, and Dorothy Grandolfi Wagg; and for the National Governors' Association et al. by Richard Ruda and Lee Fennell. Briefs of amici curiae urging affirmance were filed for the Association of Private Pension and Welfare Plans et al. by Edward R. Mackiewicz; for Group Health Association of America, Inc., by Alan J. Davis and Brian D. Pedrow; for the Federation of American Health Systems by Carl Weissburg and Robert E. Goldstein; for the National Carriers' Conference Committee by Benjamin W Boley, David P. Lee, and William H. Dempsey; for the National Coordinating Committee for Multiemployer Plans by Gerald M. Feder and Diana L. S. Peters; for the NYSA-ILA Welfare Fund et al. by C. Peter Lambos, Donato Caruso, Thomas W Gleason, Ernest L. Mathews, Jr., and Kevin Marrinan; and for the Trustees of and the Pension Hospitalization Benefit Plan of the Electrical Industry et al. by Edward J. Groarke. Briefs of amici curiae were filed for the International Foundation of Employee Benefit Plans by Paul J. Ondrasik, Jr., and Sara E. Hauptfuehrer; and for the Self-Insurance Institute of America, Inc., by George J. Pantos. 649 JUSTICE SOUTER delivered the opinion of the Court. A New York statute requires hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan, and it subjects certain health maintenance organizations (HMO's) to surcharges that vary with the number of Medicaid recipients each enrolls. N. Y. Pub. Health Law § 2807-c (McKinney 1993). These cases call for us to decide whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. (1988 ed. and Supp. V), pre-empts the state provisions for surcharges on bills of patients whose commercial insurance coverage is purchased by employee health-care plans governed by ERISA, and for surcharges on HMO's insofar as their membership fees are paid by an ERISA plan. We hold that the provisions for surcharges do not "relate to" employee benefit plans within the meaning of ERISA's preemption provision, § 514(a), 29 U. S. C. § 1144(a), and accordingly suffer no pre-emption. I A New York's Prospective Hospital Reimbursement Methodology (NYPHRM) regulates hospital rates for all in-patient care, except for services provided to Medicare beneficiaries.1 N. Y. Pub. Health Law § 2807-c (McKinney 1993).2 The scheme calls for patients to be charged not for the cost of their individual treatment, but for the average cost of treating the patient's medical problem, as classified under one or another of 794 Diagnostic Related Groups (DRG's). The 1 Medicare rates are set by the Federal Government unless States obtain an express authorization from the United States Department of Health and Human Services. See 42 U. S. C. § 1395 et seq.; see also Part II-D, infra. 2 References are made to the laws of New York as they stood at the times relevant to this litigation. 650 650 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. charges allowable in accordance with DRG classifications are adjusted for a specific hospital to reflect its particular operating costs, capital investments, bad debts, costs of charity care, and the like. Patients with Blue Cross/Blue Shield coverage, Medicaid patients, and HMO participants are billed at a hospital's DRG rate. N. Y. Pub. Health Law § 2807-c(1)(a); see also Brief for Petitioners Pataki et al. 4.3 Others, however, are not. Patients served by commercial insurers providing inpatient hospital coverage on an expense-incurred basis, by self-insured funds directly reimbursing hospitals, and by certain workers' compensation, volunteer firefighters' benefit, ambulance workers' benefit, and no-fault motor vehicle insurance funds, must be billed at the DRG rate plus a 13% surcharge to be retained by the hospital. N. Y. Pub. Health Law § 2807-c(1)(b). For the year ending March 31, 1993, moreover, hospitals were required to bill commercially insured patients for a further 11% surcharge to be turned over to the State, with the result that these patients were charged 24% more than the DRG rate. § 2807-c(11)(i). New York law also imposes a surcharge on HMO's, which varies depending on the number of eligible Medicaid recipients an HMO has enrolled, but which may run as high as 9% of the aggregate monthly charges paid by an HMO for its members' in-patient hospital care. §§ 2807-c(2-a)(a) to (2-a)(e). This assessment is not an increase in the rates to be paid by an HMO to hospitals, but a direct payment by the HMO to the State's general fund. B ERISA's comprehensive regulation of employee welfare and pension benefit plans extends to those that provide "medical, surgical, or hospital care or benefits" for plan par- 3 Under certain circumstances, New York law permits HMO's to negotiate their own hospital payment schedules subject to state approval. § 2807-c(2)(b)(i). 651 ticipants or their beneficiaries "through the purchase of insurance or otherwise." § 3(1), 29 U. S. C. § 1002(1). The federal statute does not go about protecting plan participants and their beneficiaries by requiring employers to provide any given set of minimum benefits, but instead controls the administration of benefit plans, see § 2, 29 U. S. C. § 1001(b), as by imposing reporting and disclosure mandates, §§ 101-111, 29 U. S. C. §§ 1021-1031, participation and vesting requirements, §§201-211, 29 U. S. C. §§ 1051-1061, funding standards, §§ 301-308, 29 U. S. C. §§ 1081-1086, and fiduciary responsibilities for plan administrators, §§ 401-414, 29 U. S. C. §§ 1101-1114. It envisions administrative oversight, imposes criminal sanctions, and establishes a comprehensive civil enforcement scheme. §§ 501-515, 29 U. S. C. §§ 11311145. It also pre-empts some state law. § 514, 29 U. S. C. § 1144. Section 514(a) provides that ERISA "shall supersede any and all State laws insofar as they ... relate to any employee benefit plan" covered by the statute, 29 U. S. C. § 1144(a), although pre-emption stops short of "any law of any State which regulates insurance." § 514(b)(2)(A), 29 U. S. C. § 1144(b)(2)(A). (This exception for insurance regulation is itself limited, however, by the provision that an employee welfare benefit plan may not "be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance .... " § 514(b)(2)(B), 29 U. S. C. § 1144(b)(2)(B).) Finally, ERISA saves from pre-emption "any generally applicable criminal law of a State." § 514(b)(4), 29 U. S. C. § 1144(b)(4). C On the claimed authority of ERISA's general pre-emption provision, several commercial insurers, acting as fiduciaries of ERISA plans they administer, joined with their trade associations to bring actions against state officials in United States District Court seeking to invalidate the 13%, 11%, and 652 652 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. 9% surcharge statutes. The New York State Conference of Blue Cross and Blue Shield plans, Empire Blue Cross and Blue Shield (collectively the Blues), and the Hospital Association of New York State intervened as defendants, and the New York State Health Maintenance Organization Conference and several HMO's intervened as plaintiffs. The District Court consolidated the actions and granted summary judgment to the plaintiffs. Travelers Ins. Co. v. Cuomo, 813 F. Supp. 996 (SDNY 1993). The court found that although the surcharges "do not directly increase a plan's costs or [a]ffect the level of benefits to be offered" there could be "little doubt that the [s]urcharges at issue will have a significant effect on the commercial insurers and HMOs which do or could provide coverage for ERISA plans and thus lead, at least indirectly, to an increase in plan costs." Id., at 1003 (footnote omitted). It found that the "entire justification for the [s]urcharges is premised on that exact result-that the [s]urcharges will increase the cost of obtaining medical insurance through any source other than the Blues to a sufficient extent that customers will switch their coverage to and ensure the economic viability of the Blues." Ibid. (footnote omitted). The District Court concluded that this effect on choices by ERISA plans was enough to trigger pre-emption under § 514(a) and that the surcharges were not saved by § 514(b) as regulating insurance. Id., at 1003-1008. The District Court accordingly enjoined enforcement of "those surcharges against any commercial insurers or HMOs in connection with their coverage of ... ERISA plans." Id., at 1012.4 4 The District Court and the Court of Appeals both held that the injunctive remedy was not prohibited by the Tax Injunction Act, 28 U. S. C. § 1341, which provides that federal district courts "shall not enjoin, suspend or restrain the assessment ... of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." Although these courts considered the surcharges to be taxes, they found no "plain, speedy and efficient remedy" to exist in state court, since ERISA § 502(e), 29 U. S. C. § 1132(e)(1) (1988 ed., Supp. V), divests state courts of jurisdiction over such claims. See 813 F. Supp., at 1000-1001; 653 The Court of Appeals for the Second Circuit affirmed, relying on our decisions in Shaw v. Delta Air Lines, Inc., 463 U. S. 85 (1983), and District of Columbia v. Greater Washington Bd. of Trade, 506 U. S. 125 (1992), holding that ERISA's pre-emption clause must be read broadly to reach any state law having a connection with, or reference to, covered employee benefit plans. Travelers Ins. Co. v. Cuomo, 14 F.3d 708 , 718 (1994). In the light of our decision in Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 141 (1990), the Court of Appeals abandoned its own prior decision in Rebaldo v. Cuomo, 749 F.2d 133 , 137 (1984), cert. denied, 472 U. S. 1008 (1985), which had drawn upon the definition of the term "State" in ERISA § 514(c)(2), 29 U. S. C. § 1144(c)(2), to conclude that "a state law must 'purpor[t] to regulate ... the terms and conditions of employee benefit plans' to fall within the preemption provision" of ERISA. 14 F. 3d, at 719 (internal quotation marks omitted). Rejecting that narrower approach to ERISA pre-emption, it relied on our statement in Ingersoll-Rand that under the applicable "'broad common-sense meaning,' a state law may 'relate to' a benefit plan, and thereby be pre-empted, even if the law is not specifically designed to affect such plans, or the effect is only indirect." 498 U. S., at 139; see 14 F. 3d, at 718. Travelers Ins. Co. v. Cuomo, 14 F.3d 708 , 713-714 (CA2 1994). Neither party challenges this conclusion and we have no occasion to examine it. Nor do we address the surcharge statute insofar as it applies to selfinsured funds. The trial court's ERISA analysis originally led it to enjoin defendants "from enforcing those surcharges against any commercial insurers or HMOs in connection with their coverage of ... ERISA plans," without any further mention of self-insured funds. 813 F. Supp., at 1012. After staying its decision as to the 13% surcharge pending appeal, see id., at 1012-1015, it ordered all named parties, including the Travelers Insurance Company (which served as fiduciary to a self-insured plan), to pay that surcharge whenever required by state law, see Travelers Ins. Co. v. New York State Health Maintenance Conference, No. 92 Civ. 3999 (SDNY Apr. 27, 1993), reprinted in Brief for National Carriers' Conference Committee as Amicus Curiae 29a-31a. The Court of Appeals, in turn, did not expressly address this application of the surcharge and, accordingly, we leave it for consideration on remand. 654 654 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. The Court of Appeals agreed with the trial court that the surcharges were meant to increase the costs of certain insurance and health care by HMO's, and held that this "purpose[ful] interfer[ence] with the choices that ERISA plans make for health care coverage ... is sufficient to constitute [a] 'connection with' ERISA plans" triggering pre-emption. Id., at 719. The court's conclusion, in sum, was that "the three surcharges 'relate to' ERISA because they impose a significant economic burden on commercial insurers and HMOs" and therefore "have an impermissible impact on ERISA plan structure and administration." Id., at 721. In the light of its conclusion that the surcharge statutes were not otherwise saved by any applicable exception, the court held them pre-empted. Id., at 723. It recognized the apparent conflict between its conclusion and the decision of the Third Circuit in United Wire, Metal and Machine Health and Welfare Fund v. Morristown Memorial Hosp., 995 F.2d 1179 , 1191, cert. denied, 510 U. S. 944 (1993), which held that New Jersey's similar rate setting statute "does not relate to the plans in a way that triggers ERISA's preemption clause." See 14 F. 3d, at 721, n. 3. We granted certiorari to resolve this conflict, 513 U. S. 920 (1994), and now reverse and remand. II Our past cases have recognized that the Supremacy Clause, U. S. Const., Art. VI, may entail pre-emption of state law either by express provision, by implication, or by a conflict between federal and state law. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190 , 203-204 (1983); Rice v. Santa Fe Elevator Corp., 331 U. S. 218 , 230 (1947). And yet, despite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law. See Maryland v. 655 Louisiana, 451 U. S. 725 , 746 (1981). Indeed, in cases like this one, where federal law is said to bar state action in fields of traditional state regulation, see Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707 , 719 (1985), we have worked on the "assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Rice, supra, at 230. See, e. g., Cipollone v. Liggett Group, Inc., 505 U. S. 504 , 516 (1992); id., at 532-533 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 740 (1985); Jones v. Rath Packing Co., 430 U. S. 519 (1977); Napier v. Atlantic Coast Line R. Co., 272 U. S. 605 , 611 (1926). Since pre-emption claims turn on Congress's intent, Cipollone, supra, at 516; Shaw, supra, at 95, we begin as we do in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs. See, e. g., Ingersoll-Rand, supra, at 138. The governing text of ERISA is clearly expansive. Section 514(a) marks for preemption "all state laws insofar as they ... relate to any employee benefit plan" covered by ERISA, and one might be excused for wondering, at first blush, whether the words of limitation ("insofar as they ... relate") do much limiting. If "relate to" were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for "[r]eally, universally, relations stop nowhere," H. James, Roderick Hudson xli (New York ed., World's Classics 1980). But that, of course, would be to read Congress's words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality. That said, we have to recognize that our prior attempt to construe the phrase "relate to" does not give us much help drawing the line here. 656 656 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. In Shaw, we explained that "[a] law 'relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." 463 U. S., at 96-97. The latter alternative, at least, can be ruled out. The surcharges are imposed upon patients and HMO's, regardless of whether the commercial coverage or membership, respectively, is ultimately secured by an ERISA plan, private purchase, or otherwise, with the consequence that the surcharge statutes cannot be said to make "reference to" ERISA plans in any manner. Cf. Greater Washington Bd. of Trade, 506 U. S., at 130 (striking down District of Columbia law that "specifically refers to welfare benefit plans regulated by ERISA and on that basis alone is pre-empted"). But this still leaves us to question whether the surcharge laws have a "connection with" the ERISA plans, and here an uncritical literalism is no more help than in trying to construe "relate to." For the same reasons that infinite relations cannot be the measure of pre-emption, neither can infinite connections. We simply must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive. A As we have said before, § 514 indicates Congress's intent to establish the regulation of employee welfare benefit plans "as exclusively a federal concern." Alessi v. RaybestosManhattan, Inc., 451 U. S. 504 , 523 (1981). We have found that in passing § 514(a), Congress intended "to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government ... , [and to prevent] the potential for conflict in substantive law ... requiring 657 the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction." IngersollRand, 498 U. S., at 142. This objective was described in the House of Representatives by a sponsor of the Act, Representative Dent, as being to "eliminat[e] the threat of conflicting and inconsistent State and local regulation." 120 Congo Rec. 29197 (1974). Senator Williams made the same point, that "with the narrow exceptions specified in the bill, the substantive and enforcement provisions ... are intended to preempt the field for Federal regulations, thus eliminating the threat of conflicting or inconsistent State and local regulation of employee benefit plans." Id., at 29933. The basic thrust of the pre-emption clause, then, was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans. Accordingly in Shaw, for example, we had no trouble finding that New York's "Human Rights Law, which prohibit[ed] employers from structuring their employee benefit plans in a manner that discriminate[d] on the basis of pregnancy, and [New York's] Disability Benefits Law, which require[d] employers to pay employees specific benefits, clearly 'relate[d] to' benefit plans." 463 U. S., at 97. These mandates affecting coverage could have been honored only by varying the subjects of a plan's benefits whenever New York law might have applied, or by requiring every plan to provide all beneficiaries with a benefit demanded by New York law if New York law could have been said to require it for anyone beneficiary. Similarly, Pennsylvania's law that prohibited "plans from ... requiring reimbursement [from the beneficiary] in the event of recovery from a third party" related to employee benefit plans within the meaning of § 514(a). FMC Corp. v. Holliday, 498 U. S. 52 , 60 (1990). The law "prohibit[ed] plans from being structured in a manner requiring reimbursement in the event of recovery from a third party" and "require[d] plan providers to calculate benefit levels in 658 658 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. Pennsylvania based on expected liability conditions that differ from those in States that have not enacted similar antisubrogation legislation," thereby "frustrat[ing] plan administrators' continuing obligation to calculate uniform benefit levels nationwide." Ibid. Pennsylvania employees who recovered in negligence actions against tortfeasors would, by virtue of the state law, in effect have been entitled to benefits in excess of what plan administrators intended to provide, and in excess of what the plan provided to employees in other States. Along the same lines, New Jersey could not prohibit plans from setting workers' compensation payments off against employees' retirement benefits or pensions, because doing so would prevent plans from using a method of calculating benefits permitted by federal law. Alessi, supra, at 524. In each of these cases, ERISA pre-empted state laws that mandated employee benefit structures or their administration. Elsewhere, we have held that state laws providing alternative enforcement mechanisms also relate to ERISA plans, triggering pre-emption. See IngersollRand, supra. B Both the purpose and the effects of the N ew York surcharge statute distinguish it from the examples just given. The charge differentials have been justified on the ground that the Blues pay the hospitals promptly and efficiently and, more importantly, provide coverage for many subscribers whom the commercial insurers would reject as unacceptable risks. The Blues' practice, called open enrollment, has consistently been cited as the principal reason for charge differentials, whether the differentials resulted from voluntary negotiation between hospitals and payers as was the case prior to the NYPHRM system, or were created by the surcharges as is the case now. See, e. g., Charge Differential Analysis Committee, New York State Hospital Review and Planning Council, Report (1989), reprinted in Joint Appendix in No. 93-7132 (CA2), pp. 702, 705, 706 (J. A. CA2); J. Corcoran, 659 Superintendent of Insurance, Update of 1984 Position Paper of The New York State Insurance Department on Inpatient Reimbursement Rate Differential Provided Non-Profit Insurers 6-7 (1988) (J. A. CA2, at 699-700); R. Trussell, Prepayment for Hospital Care In New York State 170 (1958) (J. A. CA2, at 664) (Trussell); Thorpe, Does All-Payer Rate Setting Work? The Case of the New York Prospective Hospital Reimbursement Methodology, 12 J. Health Politics, Policy, & Law 391, 402 (1987).5 Since the surcharges are presumably passed on at least in part to those who purchase commercial insurance or HMO membership, their effects follow from their purpose. Although there is no evidence that the surcharges will drive every health insurance consumer to the Blues, they do make the Blues more attractive (or less unattractive) as insurance alternatives and thus have an indirect economic effect on choices made by insurance buyers, including ERISA plans. An indirect economic influence, however, does not bind plan administrators to any particular choice and thus function as a regulation of an ERISA plan itself; commercial insurers and HMO's may still offer more attractive packages 5 Although respondents argue that the surcharges have become superfluous now that all insurers have become subject to certain open enrollment requirements, see Brief for Respondents Travelers Insurance Co. et al. 6-7, n. 5; 1992 N. Y. Laws, ch. 501, §4 (effective Apr. 1, 1993), N. Y. Ins. Law § 3231 (McKinney Supp. 1995), it is not our responsibility to review the continuing substantive rationale for the surcharges. Even so, the surcharges may well find support in an effort to compensate the Blues for the current makeup of their insurance pool, which presumably continues to reflect their longer history of open enrollment policies. See J. Corcoran, Superintendent of Insurance, Position Paper of New York State Insurance Department on Inpatient Reimbursement Rate Differential Provided Non-Profit Insurers 8 (1984) (J. A. CA2, at 679) ("If there is any possibility of an abrupt abandonment of the current hospital discount, consideration should be given to the past history of health insurance enrollment in New York which has left the Blue Cross/Blue Shield Plans with a core of uninsurables obtained over the years and the ongoing liability resulting from that enrollment"). 660 660 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. than the Blues. Nor does the indirect influence of the surcharges preclude uniform administrative practice or the provision of a uniform interstate benefit package if a plan wishes to provide one. It simply bears on the costs of benefits and the relative costs of competing insurance to provide them. It is an influence that can affect a plan's shopping decisions, but it does not affect the fact that any plan will shop for the best deal it can get, surcharges or no surcharges. There is, indeed, nothing remarkable about surcharges on hospital bills, or their effects on overall cost to the plans and the relative attractiveness of certain insurers. Rate variations among hospital providers are accepted examples of cost variation, since hospitals have traditionally "attempted to compensate for their financial shortfalls by adjusting their price ... schedules for patients with commercial health insurance." Thorpe, 12 J. Health Politics, Policy, & Law, at 394. Charge differentials for commercial insurers, even prior to state regulation, "varied dramatically across regions, ranging from 13 to 36 percent," presumably reflecting the geographically disparate burdens of providing for the uninsured. Id., at 400; see id., at 398-399; see also, e. g., Trussell 170 (J. A. CA2, at 664); Bobinski, Unhealthy Federalism: Barriers to Increasing Health Care Access for the Uninsured, 24 U. C. D. L. Rev. 255, 267, and n. 44 (1990). If the common character of rate differentials even in the absence of state action renders it unlikely that ERISA preemption was meant to bar such indirect economic influences under state law, the existence of other common state action with indirect economic effects on a plan's costs leaves the intent to pre-empt even less likely. Quality standards, for example, set by the State in one subject area of hospital services but not another would affect the relative cost of providing those services over others and, so, of providing different packages of health insurance benefits. Even basic regulation of employment conditions will invariably affect the cost and price of services. 661 Quality control and workplace regulation, to be sure, are presumably less likely to affect premium differentials among competing insurers, but that does not change the fact that such state regulation will indirectly affect what an ERISA or other plan can afford or get for its money. Thus, in the absence of a more exact guide to intended pre-emption than § 514, it is fair to conclude that mandates for rate differentials would not be pre-empted unless other regulation with indirect effects on plan costs would be superseded as well. The bigger the package of regulation with indirect effects that would fall on the respondents' reading of § 514, the less likely it is that federal regulation of benefit plans was intended to eliminate state regulation of health care costs. Indeed, to read the pre-emption provision as displacing all state laws affecting costs and charges on the theory that they indirectly relate to ERISA plans that purchase insurance policies or HMO memberships that would cover such services would effectively read the limiting language in § 514(a) out of the statute, a conclusion that would violate basic principles of statutory interpretation and could not be squared with our prior pronouncement that "[p]re-emption does not occur ... if the state law has only a tenuous, remote, or peripheral connection with covered plans, as is the case with many laws of general applicability." District of Columbia v. Greater Washington Bd. of Trade, 506 U. S., at 130, n. 1 (internal quotation marks and citations omitted). While Congress's extension of pre-emption to all "state laws relating to benefit plans" was meant to sweep more broadly than "state laws dealing with the subject matters covered by ERISA[,] reporting, disclosure, fiduciary responsibility, and the like," Shaw, 463 U. S., at 98, and n. 19, nothing in the language of the Act or the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern, see Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S., at 719; 1 B. Furrow, T. Greaney, 662 662 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. S. Johnson, T. Jost, & R. Schwartz, Health Law §§ 1-6, 1-23 (1995). In sum, cost uniformity was almost certainly not an object of pre-emption, just as laws with only an indirect economic effect on the relative costs of various health insurance packages in a given State are a far cry from those "conflicting directives" from which Congress meant to insulate ERISA plans. See 498 U. S., at 142. Such state laws leave plan administrators right where they would be in any case, with the responsibility to choose the best overall coverage for the money. We therefore conclude that such state laws do not bear the requisite "connection with" ERISA plans to trigger pre-emption. C This conclusion is confirmed by our decision in Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825 (1988), which held that ERISA pre-emption falls short of barring application of a general state garnishment statute to participants' benefits in the hands of an ERISA welfare benefit plan. We took no issue with the argument of the Mackey plan's trustees that garnishment would impose administrative costs and burdens upon benefit plans, id., at 831, but concluded from the text and structure of ERISA's preemption and enforcement provisions that "Congress did not intend to forbid the use of state-law mechanisms of executing judgments against ERISA welfare benefit plans, even when those mechanisms prevent plan participants from receiving their benefits." Id., at 831-832. If a law authorizing an indirect source of administrative cost is not pre-empted, it should follow that a law operating as an indirect source of merely economic influence on administrative decisions, as here, should not suffice to trigger pre-emption either. The commercial challengers counter by invoking the earlier case of Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), which considered whether a State could mandate coverage of specified minimum mental-health-care 663 benefits by policies insuring against hospital and surgical expenses. Because the regulated policies included those bought by employee welfare benefit plans, we recognized that the law "directly affected" such plans. Id., at 732. Although we went on to hold that the law was ultimately saved from pre-emption by the insurance saving clause, § 514(b)(2)(A), 29 U. S. C. § 1144(b)(2)(A), respondents proffer the first steps in our decision as support for their argument that all laws affecting ERISA plans through their impact on insurance policies "relate to" such plans and are pre-empted unless expressly saved by the statute. The challengers take Metropolitan Life too far, however. The Massachusetts statute applied not only to "'[a]ny blanket or general policy of insurance ... or any policy of accident and sickness insurance' " but also to " 'any employees' health and welfare fund which provide[d] hospital expense and surgical expense benefits.'" 471 U. S., at 730, n. 11. In fact, the State did not even try to defend its law as unrelated to employee benefit plans for the purpose of § 514(a). Id., at 739. As a result, there was no reason to distinguish with any precision between the effects on insurers that are sufficiently connected with employee benefit plans to "relate to" the plans and those effects that are not. It was enough to address the distinction bluntly, saying on the one hand that laws like the one in Metropolitan Life relate to plans since they "bea[r] indirectly but substantially on all insured benefit plans, ... requir[ing] them to purchase the mental-health benefits specified in the statute when they purchase a certain kind of common insurance policy," ibid., but saying on the other that "laws that regulate only the insurer, or the way in which it may sell insurance, do not 'relate to' benefit plans," id., at 741. Even this basic distinction recognizes that not all regulations that would influence the cost of insurance would relate to employee benefit plans within the meaning of § 514(a). If, for example, a State were to regulate sales of insurance by commercial insurers more stringently 664 664 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. than sales by insurers not for profit, the relative cost of commercial insurance would rise; we would nonetheless say, following Metropolitan Life, that such laws "do not 'relate to' benefit plans in the first instance." Ibid. And on the same authority we would say the same about the basic tax exemption enjoyed by nonprofit insurers like the Blues since the days long before ERISA, see Marmor, New York's Blue Cross and Blue Shield, 1934-1990: The Complicated Politics of Nonprofit Regulation, 16 J. Health Politics, Policy, & Law 761, 769 (1991) (tracing New York Blue Cross's special tax treatment as a prepayment organization back to 1934); 1934 N. Y. Laws, ch. 595; and yet on respondents' theory the exemption would necessarily be pre-empted as affecting insurance prices and plan costs. In any event, Metropolitan Life cannot carry the weight the commercial insurers would place on it. The New York surcharges do not impose the kind of substantive coverage requirement binding plan administrators that was at issue in Metropolitan Life. Although even in the absence of mandated coverage there might be a point at which an exorbitant tax leaving consumers with a Hobson's choice would be treated as imposing a substantive mandate, no showing has been made here that the surcharges are so prohibitive as to force all health insurance consumers to contract with the Blues. As they currently stand, the surcharges do not require plans to deal with only one insurer, or to insure against an entire category of illnesses they might otherwise choose to leave without coverage. D It remains only to speak further on a point already raised, that any conclusion other than the one we draw would bar any state regulation of hospital costs. The basic DRG system (even without any surcharge), like any other interference with the hospital services market, would fall on a theory that all laws with indirect economic effects on ERISA 665 plans are pre-empted under § 514(a). This would be an unsettling result and all the more startling because several States, including New York, regulated hospital charges to one degree or another at the time ERISA was passed, see, e. g., Cal. Ins. Code Ann. § 11505 (West 1972) (nonprofit hospitals); Colo. Rev. Stat. §§ 10-16-130, 10-17-108(2) to 108(3), 10-17-119(b) (1973); Conn. Gen. Stat. §§33-166, 33-172 (medical service corporations), § 33-179k (health care centers) (1975); Md. Ann. Code, Art. 43, §§ 568H, 568U, 568W (Michie Supp. 1976); Mass. Gen. Laws Ann., ch. 176A, §§ 5, 6 (West 1958), as amended by 1968 Mass. Acts, ch. 432, § 2, and 1969 Mass. Acts, ch. 874, § 1 (hospital service corporations), Mass. Gen. Laws Ann., ch. 176B, § 4 (West 1958 and Supp. 1987) (medical service corporations); Health Maintenance Organization Act, 1973 N. J. Laws, ch. 337, § 8, N. J. Stat. Ann. § 26:2J-8(b) (West Supp. 1986); N. Y. Pub. Health Law § 2807 (McKinney 1971); 1973 Wash. Laws, ch. 5, § 15, Rev. Code Wash. Ann. § 70.39.140 (West 1975). And yet there is not so much as a hint in ERISA's legislative history or anywhere else that Congress intended to squelch these state efforts. Even more revealing is the National Health Planning and Resources Development Act of 1974 (NHPRDA), Pub. L. 93641, 88 Stat. 2225, §§ 1-3, repealed by Pub. L. 99-660, title VII, § 701(a), 100 Stat. 3799, which was adopted by the same Congress that passed ERISA, and only months later. The NHPRDA sought to encourage and help fund state responses to growing health care costs and the widely diverging availability of health services. § 2, 88 Stat. 2226-2227; see generally National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City, 452 U. S. 378 , 383-388 (1981). It provided for the organization and partial funding of regional "health systems agencies" responsible for gathering data as well as for planning and developing health resources in designated health service areas. 88 Stat. 2229-2242. The scheme called for designating state health planning and 666 666 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. development agencies in qualifying States to coordinate development of health services policy. Id., at 2242-2244. These state agencies, too, would be eligible for federal funding, id., at 2249, including grants "[f]or the purpose of demonstrating the effectiveness of State Agencies regulating rates for the provision of health care ... within the State." Ibid. Exemption from ERISA pre-emption is nowhere mentioned as a prerequisite to the receipt of such funding; indeed, the only legal prerequisite to be eligible for rate regulation grants was "satisfactory evidence that the State Agency has under State law the authority to carry out rate regulation functions in accordance with this section .... " Ibid. The Secretary was required to provide technical assistance to the designated agencies by promulgating "[a] uniform system for calculating rates to be charged to health insurers and other health institutions payors by health service institutions." Id., at 2254. Although the NHPRDA placed substantive restrictions on the system the Secretary could establish, the subject matter (and therefore the scope of envisioned state regulation) covers the same ground that N ew York's surcharges tread. The Secretary's system was supposed to: "(A) [b]e based on an all-inclusive rate for various categories of patients ... [,] "(B) [p]rovide that such rates reflect the true cost of providing services to each such category of patients ... [,] "(C) [p]rovide for an appropriate application of such system in the different types of institutions ... [, and] "(D) [p]rovide that differences in rates to various classes of purchasers (including health insurers, direct service payors, and other health institution payors) be based on justified and documented differences in the costs of operation of health service institutions made 667 possible by the actions of such purchasers." Id., at 2254-2255. The last-quoted subsection seems to envision a system very much like the one New York put in place, but the significant point in any event is that the statute's provision for comprehensive aid to state health care rate regulation is simply incompatible with pre-emption of the same by ERISA. To interpret ERISA's pre-emption provision as broadly as respondents suggest would have rendered the entire NHPRDA utterly nugatory, since it would have left States without the authority to do just what Congress was expressly trying to induce them to do by enacting the NHPRDA. Given that the NHPRDA was enacted after ERISA and by the same Congress, it just makes good sense to reject such an interpretation.6 6 The history of Medicare regulation makes the same point, confirming that Congress never envisioned ERISA pre-emption as blocking state health care cost control, but rather meant to encourage and rely on state experimentation like New York's. See generally K. Davis, G. Anderson, D. Rowland, & E. Steinberg, Health Care Cost Containment 23-25, 81, 99 (1990). Since the time DRG systems were tried out in the 1960's and 1970's, Congress has consistently shown its awareness and encouragement of controlled payment alternatives to the federal regulatory scheme. The Social Security Amendments of 1967, Pub. L. 90-248, §402(a), 81 Stat. 930-931, as amended 42 U. S. C. § 1395b-1, for example, granted the Secretary of Health, Education, and Welfare (now Health and Human Services) the authority to waive Medicare rules to allow for physician and hospital reimbursement according to approved state payment schedules. In the Social Security Amendments of 1972, Pub. L. 92-603, § 222(a)(5), 86 Stat. 1391, Congress specifically called upon the Secretary to report on prospective reimbursement schemes that had been thus favored already or could be in the future. Later on, after the development of all-payor rate setting schemes like the NYPHRM and New Jersey's Health Care Cost Reduction Act of 1978, 1978 N. J. Laws, ch. 83, Congress's Medicare waiver provisions evolved to the point of explicit reference to a State's commitment to apply its hospital reimbursement control system to a substantial portion of hospitals and inpatient services statewide. See 42 U. S. C. §§ 1395ww(c)(1), (c)(5)(A). Indeed, in its Report on the Social Security Amendments of 668 668 NEW YORK STATE CONFERENCE OF BLUE CROSS & BLUE SHIELD PLANS v. TRAVELERS INS. CO. III That said, we do not hold today that ERISA pre-empts only direct regulation of ERISA plans, nor could we do that with fidelity to the views expressed in our prior opinions on the matter. See, e. g., Ingersoll-Rand, 498 U. S., at 139; Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 47-48 (1987); Shaw, 463 U. S., at 98. We acknowledge that a state law might produce such acute, albeit indirect, economic effects, by intent or otherwise, as to force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers, and that such a state law might indeed be pre-empted under § 514. But as we have shown, New York's surcharges do not fall into either category; they affect only indirectly the relative prices of insurance policies, a result no different from myriad state laws in areas traditionally subject to local regulation, which Congress could not possibly have intended to eliminate. The judgment of the Court of Appeals is therefore reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. 1983, the House Committee on Ways and Means recommended that States should not be held to traditional DRG-based reimbursement systems. "State systems provide a laboratory for innovative methods of controlling health care costs, and should, therefore, not be limited to one methodology." H. R. Rep. No. 98-25, pt. 1, pp. 146-147 (1983). The Committee concluded that "State systems covering all payors have proven effective in reducing health costs and should be encouraged. Such State programs may be useful models for our national system." Id., at 147-148. While the history of Medicare waivers and implementing legislation enacted after ERISA itself is, of course, not conclusive proof of the congressional intent behind ERISA, the fact that Congress envisioned state experiments with comprehensive hospital reimbursement regulation supports our conclusion that ERISA was not meant to pre-empt basic rate regulation.

New York's surcharge provisions, which require hospitals to collect surcharges from patients with commercial insurance but not from those with Blue Cross/Blue Shield plans, do not "relate to" employee benefit plans and are therefore not pre-empted by ERISA. The surcharges only indirectly affect the relative prices of insurance policies, similar to many state laws in areas under local regulation, and do not force ERISA plans to adopt a specific scheme of coverage or restrict their choice of insurers.

Labor & Employment

Gilmer v. Interstate/Johnson Lane Corp.

https://supreme.justia.com/cases/federal/us/500/20/

U.S. Supreme Court Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) Gilmer v. Interstate/Johnson Lane Corporation No. 90-18 Argued Jan. 14, 1991 Decided May 13, 1991 500 U.S. 20 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus Petitioner Gilmer was required by respondent, his employer, to register as a securities representative with, among others, the New York Stock Exchange (NYSE). His registration application contained, inter alia, an agreement to arbitrate when required to by NYSE rules. NYSE Rule 347 provides for arbitration of any controversy arising out of a registered representative's employment or termination of employment. Respondent terminated Gilmer's employment at age 62. Thereafter, he filed a charge with the Equal Employment Opportunity Commission (EEOC) and brought suit in the District Court, alleging that he had been discharged in violation of the Age Discrimination in Employment Act of 1967 (ADEA). Respondent moved to compel arbitration, relying on the agreement in Gilmer's registration application and the Federal Arbitration Act (FAA). The court denied the motion, based on Alexander v. Gardner-Denver Co., 415 U. S. 36 -- which held that an employee's suit under Title VII of the Civil Rights Act of 1964 is not foreclosed by the prior submission of his claim to arbitration under the terms of a collective bargaining agreement -- and because it concluded that Congress intended to protect ADEA claimants from a waiver of the judicial forum. The Court of Appeals reversed. Held: An ADEA claim can be subjected to compulsory arbitration. Pp. 500 U. S. 24 -35. (a) Statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 . Since the FAA manifests a liberal federal policy favoring arbitration, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1 , 460 U. S. 24 , and since neither the text nor the legislative history of the ADEA explicitly precludes arbitration, Gilmer is bound by his agreement to arbitrate unless he can show an inherent conflict between arbitration and the ADEA's underlying purposes. Pp. 500 U. S. 24 -26. (b) There is no inconsistency between the important social policies furthered by the ADEA and enforcing agreements to arbitrate age discrimination claims. While arbitration focuses on specific disputes between the parties involved, so does judicial resolution of claims, yet both can further broader social purposes. Various other laws, Page 500 U. S. 21 including antitrust and securities laws and the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), are designed to advance important public policies, but claims under them are appropriate for arbitration. Nor will arbitration undermine the EEOC's role in ADEA enforcement, since an ADEA claimant is free to file an EEOC charge even if he is precluded from instituting suit; since the EEOC has independent authority to investigate age discrimination; since the ADEA does not indicate that Congress intended that the EEOC be involved in all disputes; and since an administrative agency's mere involvement in a statute's enforcement is insufficient to preclude arbitration, see, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 . Moreover, compulsory arbitration does not improperly deprive claimants of the judicial forum provided for by the ADEA: Congress did not explicitly preclude arbitration or other nonjudicial claims resolutions; the ADEA's flexible approach to claims resolution, which permits the EEOC to pursue informal resolution methods, suggests that out-of-court dispute resolution is consistent with the statutory scheme; and arbitration is consistent with Congress' grant of concurrent jurisdiction over ADEA claims to state and federal courts, since arbitration also advances the objective of allowing claimants a broader right to select the dispute resolution forum. Pp. 500 U. S. 27 -29. (c) Gilmer's challenges to the adequacy of arbitration procedures are insufficient to preclude arbitration. This Court declines to indulge his speculation that the parties and the arbitral body will not retain competent, conscientious, and impartial arbitrators, especially when both the NYSE rules and the FAA protect against biased panels. Nor is there merit to his argument that the limited discovery permitted in arbitration will make it difficult to prove age discrimination, since it is unlikely that such claims require more extensive discovery than RICO and antitrust claims, and since there has been no showing that the NYSE discovery provisions will prove insufficient to allow him a fair opportunity to prove his claim. His argument that arbitrators will not issue written opinions resulting in a lack of public knowledge of employers' discriminatory policies, an inability to obtain effective appellate review, and a stifling of the law's development, is also rejected, since the NYSE rules require that arbitration awards be in writing and be made available to the public; since judicial decisions will continue to be issued for ADEA claimants without arbitration agreements; and since Gilmer's argument applies equally to settlements of ADEA claims. His argument that arbitration procedures are inadequate because they do not provide for broad equitable relief is unpersuasive as well, since arbitrators have the power to fashion equitable relief; since the NYSE rules do not restrict the type of relief an arbitrator may award and provide for collective relief; since the Page 500 U. S. 22 ADEA's provision for the possibility of collective action does not mean that individual attempts at conciliation are barred; and since arbitration agreements do not preclude the EEOC itself from seeking class-wide and equitable relief. Pp. 500 U. S. 30 -32. (d) The unequal bargaining power between employers and employees is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context. Cf. e.g., Rodriguez de Quijas, supra, at 490 U. S. 484 . Such a claim is best left for resolution in specific cases. Here, there is no indication that Gilmer, an experienced businessman, was coerced or defrauded into agreeing to the arbitration clause. P. 500 U. S. 32 -33. (e) Gilmer's reliance on Alexander v. Gardner-Denver Co., 415 U. S. 36 , and its progeny, is also misplaced. Those cases involved the issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims, not the enforceability of an agreement to arbitrate statutory claims. The arbitration in those cases occurred in the context of a collective bargaining agreement, and thus there was concern about the tension between collective representation and individual statutory rights that is not applicable in this case. And those cases were not decided under the FAA. Pp. 500 U. S. 33 -35. 895 F.2d 195, (CA4 1990) affirmed. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 500 U. S. 36 . Page 500 U. S. 23 JUSTICE WHITE delivered the opinion of the Court. The question presented in this case is whether a claim under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. § 621 et seq., can be subjected to compulsory arbitration pursuant to an arbitration agreement in a securities registration application. The Court of Appeals held that it could, 895 F.2d 195 (CA4 1990), and we affirm. I Respondent Interstate/Johnson Lane Corporation (Interstate) hired petitioner Robert Gilmer as a Manager of Financial Services in May, 1981. As required by his employment, Gilmer registered as a securities representative with several stock exchanges, including the New York Stock Exchange (NYSE). See App. 15-18. His registration application, entitled "Uniform Application for Securities Industry Registration or Transfer," provided, among other things, that Gilmer "agree[d] to arbitrate any dispute, claim or controversy" arising between him and Interstate "that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register." Id. at 18. Of relevance to this case, NYSE Rule 347 provides for arbitration of "[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative." App. to Brief for Respondent 1. Interstate terminated Gilmer's employment in 1987, at which time Gilmer was 62 years of age. After first filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC), Gilmer subsequently brought suit in the United States District Court for the Western District of North Carolina, alleging that Interstate had discharged him because of his age, in violation of the Page 500 U. S. 24 ADEA. In response to Gilmer's complaint, Interstate filed in the District Court a motion to compel arbitration of the ADEA claim. In its motion, Interstate relied upon the arbitration agreement in Gilmer's registration application, as well as the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. The District Court denied Interstate's motion, based on this Court's decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and because it concluded that "Congress intended to protect ADEA claimants from the waiver of a judicial forum." App. 87. The United States Court of Appeals for the Fourth Circuit reversed, finding "nothing in the text, legislative history, or underlying purposes of the ADEA indicating a congressional intent to preclude enforcement of arbitration agreements." 895 F.2d at 197. We granted certiorari, 498 U.S. 809 (1990), to resolve a conflict among the Courts of Appeals regarding the arbitrability of ADEA claims. [ Footnote 1 ] II The FAA was originally enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. Its purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213 , 470 U. S. 219 -220, and n. 6 (1985); Scherk v. Alberto-Culver Co., 417 U. S. 506 , 417 U. S. 610 , n. 4 (1974). Its primary substantive provision states that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of Page 500 U. S. 25 any contract." 9 U.S.C. § 2. The FAA also provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, § 3, and for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement, § 4. These provisions manifest a "liberal federal policy favoring arbitration agreements." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U. S. 1 , 460 U. S. 24 (1983). [ Footnote 2 ] Page 500 U. S. 26 It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA. Indeed, in recent years, we have held enforceable arbitration agreements relating to claims arising under the Sherman Act, 15 U.S.C. §§ 1-7; § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b); the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.; and § 12(2) of the Securities Act of 1933, 15 U.S.C. § 771(2). See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989). In these cases, we recognized that, "[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum." Mitsubishi, supra, 473 U.S. at 473 U. S. 628 . Although all statutory claims may not be appropriate for arbitration, "[h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Ibid. In this regard, we note that the burden is on Gilmer to show that Congress intended to preclude a waiver of a judicial forum for ADEA claims. See McMahon, 482 U.S. at 482 U. S. 227 . If such an intention exists, it will be discoverable in the text of the ADEA, its legislative history, or an "inherent conflict" between arbitration and the ADEA's underlying purposes. See ibid. Throughout such an inquiry, it should be kept in mind that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration." Moses H. Cone, 460 U.S. at 460 U. S. 24 . III Gilmer concedes that nothing in the text of the ADEA or its legislative history explicitly precludes arbitration. Page 500 U. S. 27 He argues, however, that compulsory arbitration of ADEA claims pursuant to arbitration agreements would be inconsistent with the statutory framework and purposes of the ADEA. Like the Court of Appeals, we disagree. A Congress enacted the ADEA in 1967 "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U.S.C. § 621(b). To achieve those goals, the ADEA, among other things, makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." § 623(a)(1). This proscription is enforced both by private suits and by the EEOC. In order for an aggrieved individual to bring suit under the ADEA, he or she must first file a charge with the EEOC, and then wait at least 60 days. § 626(d). An individual's right to sue is extinguished, however, if the EEOC institutes an action against the employer. § 626(c)(1). Before the EEOC can bring such an action, though, it must "attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion." § 626(b); see also 29 CFR § 1626.15 (1990). As Gilmer contends, the ADEA is designed not only to address individual grievances, but also to further important social policies. See, e.g., EEOC v. Wyoming, 460 U. S. 226 , 460 U. S. 231 (1983). We do not perceive any inherent inconsistency between those policies, however, and enforcing agreements to arbitrate age discrimination claims. It is true that arbitration focuses on specific disputes between the parties involved. Page 500 U. S. 28 The same can be said, however, of judicial resolution of claims. Both of these dispute resolution mechanisms nevertheless also can further broader social purposes. The Sherman Act, the Securities Exchange Act of 1934, RICO, and the Securities Act of 1933 all are designed to advance important public policies, but, as noted above, claims under those statutes are appropriate for arbitration. "[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function." Mitsubishi, supra, 473 U.S. at 473 U. S. 637 . We also are unpersuaded by the argument that arbitration will undermine the role of the EEOC in enforcing the ADEA. An individual ADEA claimant subject to an arbitration agreement will still be free to file a charge with the EEOC, even though the claimant is not able to institute a private judicial action. Indeed, Gilmer filed a charge with the EEOC in this case. In any event, the EEOC's role in combating age discrimination is not dependent on the filing of a charge; the agency may receive information concerning alleged violations of the ADEA "from any source," and it has independent authority to investigate age discrimination. See 29 CFR §§ 1626.4, 1626.13 (1990). Moreover, nothing in the ADEA indicates that Congress intended that the EEOC be involved in all employment disputes. Such disputes can be settled, for example, without any EEOC involvement. See, e.g., Coventry v. United States Steel Corp., 856 F.2d 514, 522 (CA3 1988); Moore v. McGraw Edison Co., 804 F.2d 1026, 1033 (CA8 1986); Runyan v. National Cash Register Corp., 787 F.2d 1039, 1045 (CA6), cert. denied, 479 U.S. 850 (1986). [ Footnote 3 ] Finally, the mere involvement of an administrative Page 500 U. S. 29 agency in the enforcement of a statute is not sufficient to preclude arbitration. For example, the Securities Exchange Commission is heavily involved in the enforcement of the Securities Exchange Act of 1934 and the Securities Act of 1933, but we have held that claims under both of those statutes may be subject to compulsory arbitration. See McMahon; Rodriguez de Quijas. Gilmer also argues that compulsory arbitration is improper because it deprives claimants of the judicial forum provided for by the ADEA. Congress, however, did not explicitly preclude arbitration or other nonjudicial resolution of claims, even in its recent amendments to the ADEA. "[I]f Congress intended the substantive protection afforded [by the ADEA] to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history." Mitsubishi, 473 U.S. at 473 U. S. 628 . Moreover, Gilmer's argument ignores the ADEA's flexible approach to resolution of claims. The EEOC, for example, is directed to pursue "informal methods of conciliation, conference, and persuasion," 29 U.S.C. § 626(b), which suggests that out-of-court dispute resolution, such as arbitration, is consistent with the statutory scheme established by Congress. In addition, arbitration is consistent with Congress' grant of concurrent jurisdiction over ADEA claims to state and federal courts, see 29 U.S.C. § 626(c)(1) (allowing suits to be brought "in any court of competent jurisdiction"), because arbitration agreements, "like the provision for concurrent jurisdiction, serve to advance the objective of allowing [claimants] a broader right to select the forum for resolving disputes, whether it be judicial or otherwise." Rodriguez de Quijas, 490 U.S. at 490 U. S. 483 . Page 500 U. S. 30 B In arguing that arbitration is inconsistent with the ADEA, Gilmer also raises a host of challenges to the adequacy of arbitration procedures. Initially, we note that, in our recent arbitration cases, we have already rejected most of these arguments as insufficient to preclude arbitration of statutory claims. Such generalized attacks on arbitration "res[t] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants," and, as such, they are "far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes." Rodriguez de Quijas, supra, at 490 U.S. 481 . Consequently, we address these arguments only briefly. Gilmer first speculates that arbitration panels will be biased. However, "[w]e decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious and impartial arbitrators." Mitsubishi, supra, 473 U.S. at 473 U. S. 634 . In any event, we note that the NYSE arbitration rules, which are applicable to the dispute in this case, provide protections against biased panels. The rules require, for example, that the parties be informed of the employment histories of the arbitrators, and that they be allowed to make further inquiries into the arbitrators' backgrounds. See 2 CCH New York Stock Exchange Guide � 2608, p. 4314 (Rule 608) (1991) (hereinafter 2 N.Y.S.E. Guide). In addition, each party is allowed one peremptory challenge and unlimited challenges for cause. Id. at � 2609 (Rule 609). Moreover, the arbitrators are required to disclose "any circumstances which might preclude [them] from rendering an objective and impartial determination." Id. at � 2610, p. 4315 (Rule 610). The FAA also protects against bias by providing that courts may overturn arbitration decisions "[w]here there was evident partiality or corruption in the arbitrators." 9 U.S.C. Page 500 U. S. 31 § 10(b). There has been no showing in this case that those provisions are inadequate to guard against potential bias. Gilmer also complains that the discovery allowed in arbitration is more limited than in the federal courts, which he contends will make it difficult to prove discrimination. It is unlikely, however, that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims. Moreover, there has been no showing in this case that the NYSE discovery provisions, which allow for document production, information requests, depositions, and subpoenas, see 2 N.Y.S.E. Guide � 2619, pp. 4318-4320 (Rule 619); Securities and Exchange Commission Order Approving Proposed Rule Changes By New York Stock Exchange, Inc., Nat. Assn. of Security Dealers, Inc., and the American Stock Exchange, Inc., Relating to the Arbitration Process and the Use of Predispute Arbitration Clauses, 54 Fed.Reg. 21144, 21149-21151 (1989), will prove insufficient to allow ADEA claimants such as Gilmer a fair opportunity to present their claims. Although those procedures might not be as extensive as in the federal courts, by agreeing to arbitrate, a party "trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration." Mitsubishi, supra, at 473 U. S. 628 . Indeed, an important counterweight to the reduced discovery in NYSE arbitration is that arbitrators are not bound by the rules of evidence. See 2 N.Y.S.E. Guide � 2620, p. 4320 (Rule 620). A further alleged deficiency of arbitration is that arbitrators often will not issue written opinions, resulting, Gilmer contends, in a lack of public knowledge of employers' discriminatory policies, an inability to obtain effective appellate review, and a Page 500 U. S. 32 stifling of the development of the law. The NYSE rules, however, do require that all arbitration awards be in writing, and that the awards contain the names of the parties, a summary of the issues in controversy, and a description of the award issued. See 2 N.Y.S.E. Guide � 2627(a), (e), p. 4321 (Rule 627(a), (e)). In addition, the award decisions are made available to the public. See id. at � 2627(f), p. 4322 (Rule 627(f)). Furthermore, judicial decisions addressing ADEA claims will continue to be issued, because it is unlikely that all, or even most, ADEA claimants will be subject to arbitration agreements. Finally, Gilmer's concerns apply equally to settlements of ADEA claims, which, as noted above, are clearly allowed. [ Footnote 4 ] It is also argued that arbitration procedures cannot adequately further the purposes of the ADEA, because they do not provide for broad equitable relief and class actions. As the court below noted, however, arbitrators do have the power to fashion equitable relief. 895 F.2d at 199-200. Indeed, the NYSE rules applicable here do not restrict the types of relief an arbitrator may award, but merely refer to "damages and/or other relief." 2 N.Y.S.E. Guide � 2627(e), p. 4321 (Rule 627(e)). The NYSE rules also provide for collective proceedings. Id. at 2612(d) (Rule 612(d)). But "even if the arbitration could not go forward as a class action or class relief could not be granted by the arbitrator, the fact that the [ADEA] provides for the possibility of bringing a collective action does not mean that individual attempts at conciliation were intended to be barred." Nicholson v. CPC Int'l Inc., 877 F.2d 221, 241 (CA3 1989) (Becker, J., dissenting). Finally, it should be remembered that arbitration agreements will not preclude the EEOC from bringing actions seeking classwide and equitable relief. C An additional reason advanced by Gilmer for refusing to enforce arbitration agreements relating to ADEA claims is Page 500 U. S. 33 his contention that there often will be unequal bargaining power between employers and employees. Mere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context. Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we nevertheless held in Rodriguez de Quijas and McMahon that agreements to arbitrate in that context are enforceable. See 490 U.S. at 490 U. S. 484 ; 482 U.S. at 482 U. S. 230 . As discussed above, the FAA's purpose was to place arbitration agreements on the same footing as other contracts. Thus, arbitration agreements are enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds 'for the revocation of any contract.'" Mitsubishi, 473 U.S. at 473 U. S. 627 . There is no indication in this case, however, that Gilmer, an experienced businessman, was coerced or defrauded into agreeing to the arbitration clause in his registration application. As with the claimed procedural inadequacies discussed above, this claim of unequal bargaining power is best left for resolution in specific cases. IV In addition to the arguments discussed above, Gilmer vigorously asserts that our decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), and its progeny -- Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981), and McDonald v. City of West Branch, 466 U. S. 284 (1984) -- preclude arbitration of employment discrimination claims. Gilmer's reliance on these cases, however, is misplaced. In Gardner-Denver, the issue was whether a discharged employee whose grievance had been arbitrated pursuant to Page 500 U. S. 34 an arbitration clause in a collective bargaining agreement was precluded from subsequently bringing a Title VII action based upon the conduct that was the subject of the grievance. In holding that the employee was not foreclosed from bringing the Title VII claim, we stressed that an employee's contractual rights under a collective bargaining agreement are distinct from the employee's statutory Title VII rights: "In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence." 415 U.S. at 415 U. S. 49 -50. We also noted that a labor arbitrator has authority only to resolve questions of contractual rights. Id. at 415 U. S. 53 -54. The arbitrator's "task is to effectuate the intent of the parties," and he or she does not have the "general authority to invoke public laws that conflict with the bargain between the parties." Id. at 415 U. S. 53 . By contrast, "in instituting an action under Title VII, the employee is not seeking review of the arbitrator's decision. Rather, he is asserting a statutory right independent of the arbitration process." Id. at 415 U. S. 54 . We further expressed concern that, in collective bargaining arbitration, "the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit." Id. at 415 U. S. 58 , n.19. [ Footnote 5 ] Page 500 U. S. 35 Barrentine and McDonald similarly involved the issue whether arbitration under a collective bargaining agreement precluded a subsequent statutory claim. In holding that the statutory claims there were not precluded, we noted, as in Gardner-Denver, the difference between contractual rights under a collective bargaining agreement and individual statutory rights, the potential disparity in interests between a union and an employee, and the limited authority and power of labor arbitrators. There are several important distinctions between the Gardner-Denver line of cases and the case before us. First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA, which, as discussed above, reflects a "liberal federal policy favoring arbitration agreements." Mitsubishi, 473 U.S. at 473 U. S. 625 . Therefore, those cases provide no basis for refusing to enforce Gilmer's agreement to arbitrate his ADEA claim. V We conclude that Gilmer has not met his burden of showing that Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act. Accordingly, the judgment of the Court of Appeals is Affirmed. Page 500 U. S. 36 [ Footnote 1 ] 1. Compare the decision below with Nicholson v. CPC Int'l Inc., 877 F.2d 221 (CA3 1989). [ Footnote 2 ] Section 1 of the FAA provides that "nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. Several amici curiae in support of Gilmer argue that that section excludes from the coverage of the FAA all "contracts of employment." Gilmer, however, did not raise the issue in the courts below, it was not addressed there, and it was not among the questions presented in the petition for certiorari. In any event, it would be inappropriate to address the scope of the § 1 exclusion, because the arbitration clause being enforced here is not contained in a contract of employment. The FAA requires that the arbitration clause being enforced be in writing. See 9 U.S.C. §§ 2, 3. The record before us does not show, and the parties do not contend, that Gilmer's employment agreement with Interstate contained a written arbitration clause. Rather, the arbitration clause at issue is in Gilmer's securities registration application, which is a contract with the securities exchanges, not with Interstate. The lower courts addressing the issue uniformly have concluded that the exclusionary clause in § 1 of the FAA is inapplicable to arbitration clauses contained in such registration applications. See, e.g., Dickstein v. DuPont, 443 F.2d 783 (CA1 1971); Malison v. Prudential Bache Securities, Inc., 654 F. Supp. 101 , 104 (WDNC 1987); Legg, Mason & Co. v. Mackall & Coe, Inc., 351 F. Supp. 1367 (DC 1972); Tonetti v. Shirley, 219 Cal. Rptr. 616 , 618, 173 Cal. App. 3d 1144 (1985); see also Stokes v. Merrill Lynch, Pierce, Fenner & Smith, 523 F.2d 433, 436 (CA6 1975). We implicitly assumed as much in Perry v. Thomas, 482 U. S. 483 (1987), where we held that the FAA required a former employee of a securities firm to arbitrate his statutory wage claim against his former employer, pursuant to an arbitration clause in his registration application. Unlike the dissent, see post at 500 U. S. 38 -41, we choose to follow the plain language of the FAA and the weight of authority, and we therefore hold that § 1's exclusionary clause does not apply to Gilmer's arbitration agreement. Consequently, we leave for another day the issue raised by amici curiae. [ Footnote 3 ] In the recently enacted Older Workers Benefit Protection Act, Pub.L. 101-433, 104 Stat. 978, Congress amended the ADEA to provide that "[a]n individual may not waive any right or claim under this Act unless the waiver is knowing and voluntary." See § 201. Congress also specified certain conditions that must be met in order for a waiver to be knowing and voluntary. Ibid. [ Footnote 4 ] Gilmer also contends that judicial review of arbitration decisions is too limited. We have stated, however, that, "although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute" at issue. Shearson/American Express Inc. v. McMahon, 482 U. S. 220 , 482 U. S. 232 (1987). [ Footnote 5 ] The Court in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), also expressed the view that arbitration was inferior to the judicial process for resolving statutory claims. Id. at 415 U. S. 57 -58. That "mistrust of the arbitral process," however, has been undermined by our recent arbitration decisions. McMahon, 482 U.S. at 482 U. S. 231 -232. "[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 , 473 U. S. 626 -627 (1985). JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting. Section 1 of the Federal Arbitration Act (FAA) states: "[N]othing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1. The Court today, in holding that the FAA compels enforcement of arbitration clauses even when claims of age discrimination are at issue, skirts the antecedent question of whether the coverage of the Act even extends to arbitration clauses contained in employment contracts, regardless of the subject matter of the claim at issue. In my opinion, arbitration clauses contained in employment agreements are specifically exempt from coverage of the FAA, and, for that reason, respondent Interstate/Johnson Lane Corporation cannot, pursuant to the FAA, compel petitioner to submit his claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., to binding arbitration. I Petitioner did not, as the majority correctly notes, ante at 500 U. S. 25 , n. 2, raise the issue of the applicability of the FAA to employment contracts at any stage of the proceedings below. Nor did petitioner raise the coverage issue in his petition for writ of certiorari before this Court. It was amici who first raised the argument in their briefs in support of petitioner prior to oral argument of the case. See Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae; Brief for American Association of Retired Persons as Amicus Curiae; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 17-18. Notwithstanding the apparent waiver of the issue below, I believe that the Court should reach the issue of the coverage of the FAA to employment disputes because resolution of the Page 500 U. S. 37 question is so clearly antecedent to disposition of this case. On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered "fairly subsumed" by the actual questions presented. See, e.g., Teague v. Lane, 489 U. S. 288 , 489 U. S. 300 (1989) ("The question of retroactivity with regard to petitioner's fair cross-section claim has been raised only in an amicus brief. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. Moreover, our sua sponte consideration of retroactivity is far from novel" (citations omitted)); Batson v. Kentucky, 476 U. S. 79 , 476 U. S. 84 -85, n. 4 (1986) (notwithstanding petitioner's seemingly deliberate failure to raise the equal protection issue, "[w]e agree with the State that resolution of petitioner's claim properly turns on application of equal protection principles, and express no view on the merits of any of petitioner's Sixth Amendment arguments"); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 646 , n. 3 (1961) ("Although appellant chose to urge what may have appeared to be the surer ground for favorable disposition, and did not insist that Wolf [v. Colorado, 338 U. S. 25 (1949)] be overruled, the amicus curiae, who was also permitted to participate in the oral argument, did urge the Court to overrule Wolf. "). See also R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice § 6.26 (6th ed.1986) (describing rule concerning need for presenting questions below and in petition for certiorari, and deviations from rule). Only this Term, the Court has, on at least two occasions, decided cases on grounds not argued in any of the courts below or in the petitions for certiorari. In Arcadia v. Ohio Power Co., 498 U. S. 73 (1990), we decided the case on an issue that not only was not raised below or in any of the papers in this Court, but that also was not raised at any point during oral argument before the Court. "In our view, however," the decided question was "antecedent to these [issues presented,] and ultimately dispositive of the present dispute." Id. at Page 500 U. S. 38 498 U. S. 77 . Similarly, in McCleskey v. Zant, 499 U. S. 467 (1991), the Court issued a decision on a question which the parties had not argued below and evidently had not anticipated would be at issue in this Court, "since respondent did not even mention [ Wainwright v.] Sykes, [ 433 U.S. 72 ], or cause-and-prejudice in its brief or at oral argument, much less request the Court to adopt this standard." Id. at 499 U. S. 522 -523 (MARSHALL, J., dissenting). In my opinion, the considerations in favor of reaching an issue not presented below or in the petition for certiorari are more compelling in this case than in the cited cases. Here the issue of the applicability of the FAA to employment contracts was adequately briefed and raised by the amici in support of petitioner. More important, however, is that respondent and its amici had full opportunity to brief and argue the same issue in opposition. See Brief for Respondent 42-50; Brief for Securities Industry Association, Inc. as Amicus Curiae 18-20; Brief for Equal Employment Advisory Council et al. as Amici Curiae 14-16. Moreover, the Court amply raised the issue with the parties at oral argument, at which both sides were on notice and fully prepared to argue the merits of the question. Finally, as in Arcadia, the issue whether the FAA even covers employment disputes is clearly "antecedent . . . and ultimately dispositive" of the question whether courts and respondent may rely on the FAA to compel petitioner to submit his ADEA claims to arbitration. II The Court, declining to reach the issue for the reason that petitioner never raised it below, nevertheless concludes that "it would be inappropriate to address the scope of the § 1 exclusion, because the arbitration clause being enforced here is not contained in a contract of employment. . . . Rather, the arbitration clause at issue is in Gilmer's securities registration application, which is a contract with the securities exchanges, not with Interstate." Ante at 500 U. S. 25 , n. 2. In my Page 500 U. S. 39 opinion, the Court too narrowly construes the scope of the exclusion contained in § 1 of the FAA. There is little dispute that the primary concern animating the FAA was the perceived need by the business community to overturn the common law rule that denied specific enforcement of agreements to arbitrate in contracts between business entities. The Act was drafted by a committee of the American Bar Association (ABA), acting upon instructions from the ABA to consider and report upon "the further extension of the principle of commercial arbitration." Report of the Forty-third Annual Meeting of the ABA, 45 A.B.A.Rep. 75 (1920). At the Senate Judiciary Subcommittee hearings on the proposed bill, the chairman of the ABA committee responsible for drafting the bill assured the Senators that the bill "is not intended [to] be an act referring to labor disputes, at all. It is purely an act to give the merchants the right or the privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it. Now that is all there is in this." Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9 (1923). At the same hearing, Senator Walsh stated: "The trouble about the matter is that a great many of these contracts that are entered into are really not [voluntary] things at all. Take an insurance policy; there is a blank in it. You can take that or you can leave it. The agent has no power at all to decide it. Either you can make that contract or you can not make any contract. It is the same with a good many contracts of employment. A man says, 'These are our terms. All right, take it or leave it.' Well, there is nothing for the man to do except to sign it; and then be surrenders his right to have his case tried by the court, and has to have it tried before a tribunal in which he has no confidence at all." Ibid. Page 500 U. S. 40 Given that the FAA specifically was intended to exclude arbitration agreements between employees and employers, I see no reason to limit this exclusion from coverage to arbitration clauses contained in agreements entitled "Contract of Employment." In this case, the parties conceded at oral argument that Gilmer had no "contract of employment" as such with respondent. Gilmer was, however, required as a condition of his employment to become a registered representative of several stock exchanges, including the New York Stock Exchange (NYSE). Just because his agreement to arbitrate any "dispute, claim or controversy" with his employer that arose out of the employment relationship was contained in his application for registration before the NYSE, rather than in a specific contract of employment with his employer, I do not think that Gilmer can be compelled pursuant to the FAA to arbitrate his employment-related dispute. Rather, in my opinion the exclusion in § 1 should be interpreted to cover any agreements by the employee to arbitrate disputes with the employer arising out of the employment relationship, particularly where such agreements to arbitrate are conditions of employment. My reading of the scope of the exclusion contained in § 1 is supported by early judicial interpretations of the FAA. As of 1956, three Courts of Appeals had held that the FAA's exclusion of "contracts of employment" referred not only to individual contracts of employment, but also to collective bargaining agreements. See Lincoln Mills of Ala. v. Textile Workers Union of America, 230 F.2d 81 (CA5 1956), rev'd, 353 U. S. 353 U.S. 448 (1957); United Electrical, Radio & Machine Workers of America v. Miller Metal Products, Inc., 215 F.2d 221 (CA4 1954); Amalgamated Assn. of Street, Electric R. and Motor Coach Employees of America v. Pennsylvania Greyhound Lines, Inc., 192 F.2d 310 (CA3 1951). Indeed, the application of the FAA's exclusionary clause to arbitration provisions in collective bargaining agreements was one of the issues raised in the petition for certiorari and Page 500 U. S. 41 briefed at great length in Lincoln Mills and its companion cases, Goodall-Sanford, Inc. v. Textile Workers, 353 U. S. 550 (1957), and General Electric Co. v. Electrical Workers, 353 U. S. 547 (1957). Although the Court decided the enforceability of the arbitration provisions in the collective bargaining agreements by reference to § 301 of the Labor Management Relations Act, 1947, 29 U.S.C. § 185, it did not reject the Courts of Appeals' holdings that the arbitration provisions would not otherwise be enforceable pursuant to the FAA, since they were specifically excluded under § 1. In dissent, Justice Frankfurter perceived a "rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collective bargaining agreements in the silent treatment given that Act by the Court's opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for 'contracts of employment,' were available, the Court would hardly spin such power out of the empty darkness of § 301. I would make this rejection explicit, recognizing that, when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts." Textile Workers v. Lincoln Mills, 353 U.S. at 353 U. S. 466 (Frankfurter, J., dissenting). III Not only would I find that the FAA does not apply to employment-related disputes between employers and employees in general, but also I would hold that compulsory arbitration conflicts with the congressional purpose animating the ADEA, in particular. As this Court previously has noted, authorizing the courts to issue broad injunctive relief is the cornerstone to eliminating discrimination in society. Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 415 (1975). The ADEA, like Title VII of the Civil Rights Act of 1964, authorizes Page 500 U. S. 42 courts to award broad, class-based injunctive relief to achieve the purposes of the Act. 29 U.S.C. § 626(b). Because commercial arbitration is typically limited to a specific dispute between the particular parties, and because the available remedies in arbitral forums generally do not provide for class-wide injunctive relief, see Shell, ERISA and Other Federal Employment Statutes: When is Commercial Arbitration an "Adequate Substitute" for the Courts?, 68 Texas L.Rev. 509, 568 (1990), I would conclude that an essential purpose of the ADEA is frustrated by compulsory arbitration of employment discrimination claims. Moreover, as Chief Justice Burger explained: "Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts. For federal courts to defer to arbitral decisions reached by the same combination of forces that had long perpetuated invidious discrimination would have made the foxes guardians of the chickens." Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 , 450 U. S. 750 (1981) (Burger, C.J., dissenting). In my opinion, the same concerns expressed by Chief Justice Burger with regard to compulsory arbitration of Title VII claims may be said of claims arising under the ADEA. The Court's holding today clearly eviscerates the important role played by an independent judiciary in eradicating employment discrimination. IV When the FAA was passed in 1925, I doubt that any legislator who voted for it expected it to apply to statutory claims, to form contracts between parties of unequal bargaining power, or to the arbitration of disputes arising out of the employment relationship. In recent years, however, the Court Page 500 U. S. 43 "has effectively rewritten the statute", [ Footnote 2/1 ] and abandoned its earlier view that statutory claims were not appropriate subjects for arbitration. See Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 , 473 U. S. 646 -651 (1985) (STEVENS, J., dissenting). Although I remain persuaded that it erred in doing so, [ Footnote 2/2 ] the Court has also put to one side any concern about the inequality of bargaining power between an entire industry, on the one hand, and an individual customer or employee, on the other. See ante at 500 U. S. 32 -33. Until today, however, the Court has not read § 2 of the FAA as broadly encompassing disputes arising out of the employment relationship. I believe this additional extension of the FAA is erroneous. Accordingly, I respectfully dissent. [ Footnote 2/1 ] See Perry v. Thomas, 482 U. S. 483 , 482 U. S. 493 (1987) (STEVENS, J., dissenting); id. at 482 U. S. 494 (O'CONNOR, J., dissenting); Southland Corp. v. Keating, 465 U. S. 1 , 465 U. S. 36 (1984) (O'CONNOR, J., dissenting) ("[T]oday's exercise in judicial revisionism goes too far"). [ Footnote 2/2 ] See Shearson/American Express Inc. v. McMahon, 482 U. S. 220 , 482 U. S. 252 -253 (1987) (BLACKMUN, J., concurring in part and dissenting in part); id. at 482 U. S. 268 (STEVENS, J., concurring in part and dissenting in part); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 , 490 U. S. 486 (1989) (STEVENS, J., dissenting).

Here is a summary of the Supreme Court case Gilmer v. Interstate/Johnson Lane Corp: Issue: Whether an Age Discrimination in Employment Act (ADEA) claim can be subjected to compulsory arbitration. Holding: Yes, an ADEA claim can be subjected to compulsory arbitration. Reasoning: The Federal Arbitration Act (FAA) allows for statutory claims to be arbitrated as long as there is no inherent conflict between arbitration and the statute's underlying purposes. The Court found no such conflict between arbitration and the ADEA, noting that arbitration can further broader social purposes and is appropriate for claims under other laws designed to advance important public policies. Additionally, arbitration would not undermine the Equal Employment Opportunity Commission's (EEOC) role in ADEA enforcement. Justice Stevens' dissent emphasizes the inequality of bargaining power between an employer and an employee and expresses concern that compulsory arbitration of employment discrimination claims undermines the role of the judiciary in eradicating discrimination.

Labor & Employment

Auer v. Robbins

https://supreme.justia.com/cases/federal/us/519/452/

OCTOBER TERM, 1996 Syllabus AUER ET AL. v. ROBBINS ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 95-897. Argued December 10, 1996-Decided February 19, 1997 Petitioners, St. Louis police sergeants and a lieutenant, sued respondent police commissioners for overtime pay under the Fair Labor Standards Act of 1938 (FLSA). Respondents argued that petitioners were "bona fide executive, administrative, or professional" employees exempted from overtime pay requirements by 29 U. S. C. § 213(a)(1). Under the Secretary of Labor's regulations, that exemption applies to employees paid a specified minimum amount on a "salary basis," which requires that the "compensation ... not [be] subject to reduction because of variations in the quality or quantity of the work performed." Petitioners claimed that they did not meet this test because, under the terms of the Police Department Manual, their compensation could theoretically be reduced (though this was not the department's general practice) for a variety of disciplinary infractions related to the "quality or quantity" of their work. Both the District Court and the Eighth Circuit disagreed with that assertion, holding that the salary-basis test was satisfied as to all petitioners. Held: 1. The "no disciplinary deductions" element of the salary-basis test reflects a permissible reading of the FLSA as it applies to public-sector employees. It is not apparent that the Secretary's interpretation of § 213(a)(1) is rendered unreasonable, as applied to public-sector employees, by the absence of other (non-salary-reduction) means of discipline, or by the peculiar needs of "quasi military" law enforcement organizations. The Secretary's approach must therefore be sustained, given § 213(a)(1)'s grant of broad authority to the Secretary to "defin[e] and delimi[t]" the statutory exemption's scope. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842-843. Respondents' procedural objection to the Secretary's failure to amend the disciplinary-deduction rule in the wake of Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 , cannot be raised in the first instance in this lawsuit, but must be presented initially in a petition to the Secretary for amendatory rulemaking under the Administrative Procedure Act, 5 U. S. C. § 553(e). pp. 456-459. 2. The Secretary has reasonably interpreted the salary-basis test to be met when an employee's compensation may not "as a practical mat- 453 ter" be adjusted in ways inconsistent with the test. The standard is violated, the Secretary says, if there is either an actual practice of making deductions or an employment policy that creates a "significant likelihood" of them. Because the regulation's critical phrase "subject to" comfortably bears the meaning the Secretary assigns, his interpretation of his own test is not "plainly erroneous," and thus is controlling. Robertson v. Methow Valley Citizens Council, 490 U. S. 332 , 359. The Secretary's interpretation is not rendered unworthy of deference by the fact that it is set forth in an amicus brief; it is not a position adopted in response to litigation, and there is no reason to suspect that it does not reflect the Secretary's fair and considered judgment. Nor does the rule requiring that FLSA exemptions be narrowly construed against employers apply here; that rule governs judicial interpretation of statutes and regulations, and does not limit the Secretary's power to resolve ambiguities in his own regulations. Pp. 459-463. 3. The regulations entitle employers to preserve the exempt status of employees who have been subjected to pay deductions inconsistent with the salary-basis test by reimbursing those employees and promising to comply with the test in the future, so long as the deductions in question were either inadvertent or made for reasons other than lack of work. pp. 463-464. 65 F.3d 702 , affirmed. SCALIA, J., delivered the opinion for a unanimous Court. Michael T. Leibig argued the cause and filed briefs for petitioners. Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel 1. Spiller, and Mark S. Flynn. John B. Renick argued the cause for respondents. With him on the brief were James N. Foster, Jr., and Judith Anne Ronzio.* *Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt; for the International Union of Police Associations AFLcra et al. by Richard Cobb; for the National Association of Police Organizations, Inc., by William J. Johnson; for the National Employment Law 454 JUSTICE SCALIA delivered the opinion of the Court. The Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §§ 201 et seq., exempts "bona fide executive, administrative, or professional" employees from overtime pay requirements. This case presents the question whether the Secretary of Labor's "salary-basis" test for determining an employee's exempt status reflects a permissible reading of the statute as it applies to publicsector employees. We also consider whether the Secretary has reasonably interpreted the salary-basis test to deny an Project, Inc., by Kenneth E. Labowitz; and for Non-Union Employees in the Private and Public Sectors by Brenda J. Carter. Briefs of amici curiae urging affirmance were filed for the State of Wisconsin et al. by James E. Doyle, Attorney General of Wisconsin, Richard Briles Moriarty, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Alan G. Lance of Idaho, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Thomas W Corbett, Jr., of Pennsylvania, James S. Gilmore III of Virginia, and Christine Q Gregoire of Washington; for the Chamber of Commerce of the United States of America et al. by William J. Kilberg, Mark Snyderman, Stephan A. Bokat, and Mona C. Zeiberg; for the New York City Transit Authority by Richard Schoolman; for the Department of Water and Power of the City of Los Angeles by James K. Hahn, Thomas C. Hokinson, and Olga Hernandez Garau; for the Labor Policy Association by Sandra J. Boyd and Daniel V. Yager; and for the National League of Cities et al. by Richard Ruda, James I. Crowley, and Ronald S. Cooper. Briefs of amici curiae were filed for Broward County, Florida, by John J. Copelan, Jr., and Anthony C. Musto; for the City of New York by Paul A. Crotty, Leonard J. Koerner, and Timothy J. O'Shaughnessy; for the League of California Cities et al. by Arthur A. Hartinger, Louise H. Renne, and Jonathan V. Holtzman; and for the International Association of Chiefs of Police, Inc., by Jody M. Litchford, Wayne W Schmidt, James P. Manak, and Roy Caldwell Kime. 455 employee salaried status (and thus grant him overtime pay) when his compensation may "as a practical matter" be adjusted in ways inconsistent with the test. I Petitioners are sergeants and a lieutenant employed by the St. Louis Police Department. They brought suit in 1988 against respondents, members of the St. Louis Board of Police Commissioners, seeking payment of overtime pay that they claimed was owed under § 7(a)(1) of the FLSA, 29 U. S. C. § 207(a)(1). Respondents argued that petitioners were not entitled to such pay because they came within the exemption provided by § 213(a)(1) for "bona fide executive, administrative, or professional" employees. Under regulations promulgated by the Secretary, one requirement for exempt status under § 213(a)(1) is that the employee earn a specified minimum amount on a "salary basis." 29 CFR §§ 541.1(f), 541.2(e), 541.3(e) (1996). According to the regulations, "[a]n employee will be considered to be paid 'on a salary basis' ... if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed." § 541. 118(a). Petitioners contended that the salary-basis test was not met in their case because, under the terms of the St. Louis Metropolitan Police Department Manual, their compensation could be reduced for a variety of disciplinary infractions related to the "quality or quantity" of work performed. Petitioners also claimed that they did not meet the other requirement for exempt status under § 213(a)(1): that their duties be of an executive, administrative, or professional nature. See §§ 541.1(a)-(e), 541.2(a)(d), 541.3(a)-(d). The District Court found that petitioners were paid on a salary basis and that most, though not all, also satisfied the 456 duties criterion. The Court of Appeals affirmed in part and reversed in part, holding that both the salary-basis test and the duties test were satisfied as to all petitioners. 65 F.3d 702 (CA8 1995). We granted certiorari. 518 U. S. 1016 (1996).1 II The FLSA grants the Secretary broad authority to "defin[e] and delimi[t]" the scope of the exemption for executive, administrative, and professional employees. § 213(a)(1). Under the Secretary's chosen approach, exempt status requires that the employee be paid on a salary basis, which in turn requires that his compensation not be subject to reduction because of variations in the "quality or quantity of the work performed," 29 CFR § 541.118(a) (1996). Because the regulation goes on to carve out an exception from this rule for "[p]enalties imposed ... for infractions of safety rules of major significance," § 541.118(a)(5), it is clear that the rule embraces reductions in pay for disciplinary violations. The Secretary is of the view that employees whose pay is adjusted for disciplinary reasons do not deserve exempt status because as a general matter true "executive, administrative, or professional" employees are not "disciplined" by piecemeal deductions from their pay, but are terminated, demoted, or given restricted assignments. 1 Respondents contend that the District Court lacked jurisdiction over petitioners' suit by virtue of the Eleventh Amendment. The Board of Police Commissioners, however, does not share the immunity of the State of Missouri. While the Governor appoints four of the board's five members, Mo. Rev. Stat. § 84.030 (1994), the city of St. Louis is responsible for the board's financial liabilities, § 84.210, and the board is not subject to the State's direction or control in any other respect. It is therefore not an "arm of the State" for Eleventh Amendment purposes. Hess v. Port Authority Trans-Hudson Corporation, 513 U. S. 30 , 47-51 (1994); Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391 , 401402 (1979). 457 A The FLSA did not apply to state and local employees when the salary-basis test was adopted in 1940. See 29 U. S. C. § 203(d) (1940 ed.); 5 Fed. Reg. 4077 (1940) (salary-basis test). In 1974 Congress extended FLSA coverage to virtually all public-sector employees, Pub. L. 93-259, § 6, 88 Stat. 58-62, and in 1985 we held that this exercise of power was consistent with the Tenth Amendment, Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985) (overruling National League of Cities v. Usery, 426 U. S. 833 (1976)). The salary-basis test has existed largely in its present form since 1954, see 19 Fed. Reg. 4405 (1954), and is expressly applicable to public-sector employees, see 29 CFR §§ 553.2(b), 553.32(c) (1996). Respondents concede that the FLSA may validly be applied to the public sector, and they also do not raise any general challenge to the Secretary's reliance on the salarybasis test. They contend, however, that the "no disciplinary deductions" element of the salary-basis test is invalid for public-sector employees because as applied to them it reflects an unreasonable interpretation of the statutory exemption. That is so, they say, because the ability to adjust public-sector employees' pay-even executive, administrative or professional employees' pay-as a means of enforcing compliance with work rules is a necessary component of effective government. In the public-sector context, they contend, fewer disciplinary alternatives to deductions in pay are available. Because Congress has not "directly spoken to the precise question at issue," we must sustain the Secretary's approach so long as it is "based on a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 , 842-843 (1984). While respondents' objections would perhaps support a different application of the salary-basis test for public employees, we 458 cannot conclude that they compel it. The Secretary's view that public employers are not so differently situated with regard to disciplining their employees as to require wholesale revision of his time-tested rule simply cannot be said to be unreasonable. We agree with the Seventh Circuit that no "principle of public administration that has been drawn to our attention ... makes it imperative" that public-sector employers have the ability to impose disciplinary pay deductions on individuals employed in genuine executive, administrative, or professional capacities. Mueller v. Reich, 54 Respondents appeal to the "quasi military" nature of law enforcement agencies such as the St. Louis Police Department. The ability to use the full range of disciplinary tools against even relatively senior law enforcement personnel is essential, they say, to maintaining control and discipline in organizations in which human lives are on the line daily. It is far from clear, however, that only a pay deduction, and not some other form of discipline-for example, placing the offending officer on restricted duties-will have the necessary effect. Because the FLSA entrusts matters of judgment such as this to the Secretary, not the federal courts, we cannot say that the disciplinary-deduction rule is invalid as applied to law enforcement personnel. B The more fundamental objection respondents have to the disciplinary-deduction rule is a procedural one: The Secretary has failed to give adequate consideration to whether it really makes sense to apply the rule to the public sector. Respondents' amici make the claim more specific: The Secretary's failure to revisit the rule in the wake of our Garcia decision was "arbitrary" and "capricious" in violation of the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). It is certainly true that application of the disciplinarydeduction rule to public-sector employees raises distinct is- 459 sues that may warrant the Secretary's formal consideration; this much is suggested by the veritable flood of post-Garcia litigation against public employers in this area, see, e. g., Car penter v. Denver, 82 F.3d 353 (CAlO 1996), cert. pending, No. 95-2088; Bankston v. Illinois, 60 F.3d 1249 (CA7 1995); Shockley v. Newport News, 997 F.2d 18 (CA4 1993); Atlanta Professional Firefighters Union, Local13J" v. Atlanta, 920 F. 2d 800 (CAll 1991). But respondents' complaints about the failure to amend the disciplinary-deduction rule cannot be raised in the first instance in the present suit. A court may certainly be asked by parties in respondents' position to disregard an agency regulation that is contrary to the substantive requirements of the law, or one that appears on the public record to have been issued in violation of procedural prerequisites, such as the "notice and comment" requirements of the AP A, 5 U. S. C. § 553. But where, as here, the claim is not that the regulation is substantively unlawful, or even that it violates a clear procedural prerequisite, but rather that it was "arbitrary" and "capricious" not to conduct amendatory rulemaking (which might well have resulted in no change), there is no basis for the court to set aside the agency's action prior to any application for relief addressed to the agency itself. The proper procedure for pursuit of respondents' grievance is set forth explicitly in the AP A: a petition to the agency for rulemaking, § 553(e), denial of which must be justified by a statement of reasons, § 555(e), and can be appealed to the courts, §§ 702, 706. III A primary issue in the litigation unleashed by application of the salary-basis test to public-sector employees has been whether, under that test, an employee's pay is "subject to" disciplinary or other deductions whenever there exists a theoretical possibility of such deductions, or rather only when there is something more to suggest that the employee is actually vulnerable to having his pay reduced. Petitioners in 460 effect argue for something close to the former view; they contend that because the police manual nominally subjects all department employees to a range of disciplinary sanctions that includes disciplinary deductions in pay, and because a single sergeant was actually subjected to a disciplinary deduction, they are "subject to" such deductions and hence nonexempt under the FLSA.2 The Court of Appeals rejected petitioners' approach, saying that "[t]he mere possibility of an improper deduction in pay does not defeat an employee's salaried status" if no practice of making deductions exists. 65 F. 3d, at 710-711. In the Court of Appeals' view, a "one-time incident" in which a disciplinary deduction is taken under "unique circumstances" does not defeat the salaried status of employees. Id., at 711. (In this case the sergeant in question, who had violated a residency rule, agreed to a reduction in pay as an alternative to termination of his employment.) The requirement of actual deductions was also imposed in an earlier ruling by the Eighth Circuit, McDonnell v. Omaha, 999 F.2d 293 , 296-297 (1993), cert. denied, 510 U. S. 1163 (1994), and in an Eleventh Circuit case, Atlanta Professional Firefighters Union, Local 134 v. Atlanta, supra, at 805. Other Circuits have rejected the requirement, Yourman v. Dinkins, 84 F.3d 655 , 656 (CA2 1996), cert. pending, No. 96-152; Carpenter v. Denver, supra, at 359-360; Bankston v. Illinois, supra, at 1253; Kinney v. District of Columbia, 994 F.2d 6 , 10-11 (CADC 1993); Abshire v. County of Kern, 908 F.2d 483 , 486-488 (CA9 1990), cert. denied, 498 U. S. 1068 (1991); or else have imposed a requirement of actual deductions only in the face of vagueness or ambiguity in the governing policy, Michigan Assn. of Governmental Employees v. Michigan Dept. of Corrections, 992 F.2d 82 , 86 (CA6 1993). 2 Petitioners also contend that additional sergeants were actually subjected to disciplinary deductions, but that fact is not established by the portions of the record petitioners cite. 461 The Secretary of Labor, in an amicus brief filed at the request of the Court, interprets the salary-basis test to deny exempt status when employees are covered by a policy that permits disciplinary or other deductions in pay "as a practical matter." That standard is met, the Secretary says, if there is either an actual practice of making such deductions or an employment policy that creates a "significant likelihood" of such deductions. The Secretary's approach rejects a wooden requirement of actual deductions, but in their absence it requires a clear and particularized policy-one which "effectively communicates" that deductions will be made in specified circumstances. This avoids the imposition of massive and unanticipated overtime liability (including the possibility of substantial liquidated damages, see, e. g., Kinney v. District of Columbia, supra, at 12) in situations in which a vague or broadly worded policy is nominally applicable to a whole range of personnel but is not "significantly likely" to be invoked against salaried employees. Because the salary-basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless "'plainly erroneous or inconsistent with the regulation.'" Robertson v. Methow Valley Citizens Council, 490 U. S. 332 , 359 (1989) (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 , 414 (1945)). That deferential standard is easily met here. The critical phrase "subject to" comfortably bears the meaning the Secretary assigns. See American Heritage Dictionary 1788 (3d ed. 1992) (def. 2: defining "subject to" to mean "prone; disposed"; giving as an example "a child who is subject to colds"); Webster's New International Dictionary 2509 (2d ed. 1950) (def. 3: defining "subject to" to mean "[e]xposed; liable; prone; disposed"; giving as an example "a country subject to extreme heat"). The Secretary's approach is usefully illustrated by reference to this case. The policy on which petitioners rely is contained in a section of the police manual that lists a total of 462 58 possible rule violations and specifies the range of penalties associated with each. All department employees are nominally covered by the manual, and some of the specified penalties involve disciplinary deductions in pay. Under the Secretary's view, that is not enough to render petitioners' pay "subject to" disciplinary deductions within the meaning of the salary-basis test. This is so because the manual does not "effectively communicate" that pay deductions are an anticipated form of punishment for employees in petitioners' category, since it is perfectly possible to give full effect to every aspect of the manual without drawing any inference of that sort. If the statement of available penalties applied solely to petitioners, matters would be different; but since it applies both to petitioners and to employees who are unquestionably not paid on a salary basis, the expressed availability of disciplinary deductions may have reference only to the latter. No clear inference can be drawn as to the likelihood of a sanction's being applied to employees such as petitioners. Nor, under the Secretary's approach, is such a likelihood established by the one-time deduction in a sergeant's pay, under unusual circumstances. Petitioners complain that the Secretary's interpretation comes to us in the form of a legal brief; but that does not, in the circumstances of this case, make it unworthy of deference. The Secretary's position is in no sense a "post hoc rationalizatio[n]" advanced by an agency seeking to defend past agency action against attack, Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 , 212 (1988). There is simply no reason to suspect that the interpretation does not reflect the agency's fair and considered judgment on the matter in question. Petitioners also suggest that the Secretary's approach contravenes the rule that FLSA exemptions are to be "narrowly construed against ... employers" and are to be withheld except as to persons "plainly and unmistakably within their terms and spirit." Arnold v. Ben Kanowsky, Inc., 361 U. S. 388 , 392 (1960). But that is a rule governing 463 judicial interpretation of statutes and regulations, not a limitation on the Secretary's power to resolve ambiguities in his own regulations. A rule requiring the Secretary to construe his own regulations narrowly would make little sense, since he is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute. IV One small issue remains unresolved: the effect upon the exempt status of Sergeant Guzy, the officer who violated the residency requirement, of the one-time reduction in his pay. The Secretary's regulations provide that if deductions which are inconsistent with the salary-basis test-such as the deduction from Guzy's pay-are made in circumstances indicating that "there was no intention to pay the employee on a salary basis," the exemption from the FLSA is "[not] applicable to him during the entire period when such deductions were being made." 29 CFR § 541. 118(a)(6) (1996). Conversely, "where a deduction not permitted by [the salarybasis test] is inadvertent, or is made for reasons other than lack of work, the exemption will not be considered to have been lost if the employer reimburses the employee for such deductions and promises to comply in the future." Ibid. Petitioners contend that the initial condition in the latter provision (which enables the employer to take corrective action) is not satisfied here because the deduction from Guzy's pay was not inadvertent. That it was not inadvertent is true enough, but the plain language of the regulation sets out "inadverten[ce]" and "made for reasons other than lack of work" as alternative grounds permitting corrective action. Petitioners also contend that the corrective provision is unavailable to respondents because Guzy has yet to be reimbursed for the residency-based deduction; in petitioners' view, reimbursement must be made immediately upon the discovery that an improper deduction was made. The language of the regulation, however, does not address the tim- 464 ing of reimbursement, and the Secretary's amicus brief informs us that he does not interpret it to require immediate payment. Respondents are entitled to preserve Guzy's exempt status by complying with the corrective provision in § 541. 118(a)(6). *** Petitioners have argued, finally, that respondents failed to carry their affirmative burden of establishing petitioners' exempt status even under the Secretary's interpretation of the salary-basis test. Since, however, that argument was inadequately preserved in the prior proceedings, we will not consider it here. See Adickes v. S. H. Kress & Co., 398 U. S. 144 , 147, n. 2 (1970). The judgment of the Court of Appeals is affirmed. It is so ordered.

The Supreme Court ruled that police sergeants and a lieutenant were not exempt from overtime pay requirements under the Fair Labor Standards Act (FLSA) due to the "no disciplinary deductions" element of the salary-basis test. The Court held that the Secretary of Labor's interpretation of the FLSA exemption for "bona fide executive, administrative, or professional" employees was reasonable and that the salary-basis test was satisfied when an employee's compensation could not "as a practical matter" be adjusted inconsistently with the test. The Court also clarified that the exemption is lost if deductions are made in circumstances indicating an intention to pay employees on an hourly basis, but can be preserved if the employer reimburses the employee and promises to comply in the future.

Labor & Employment

Lockheed Corp. v. Spink

https://supreme.justia.com/cases/federal/us/517/882/

OCTOBER TERM, 1995 Syllabus LOCKHEED CORP. ET AL. v. SPINK CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 95-809. Argued April 22, 1996-Decided June 10, 1996 Because respondent Spink was 61 when petitioner Lockheed Corporation reemployed him in 1979, he was excluded from participation in Lockheed's retirement plan (Plan), as was then permitted by the Employee Retirement Income Security Act of 1974 (ERISA). Section 9203(a)(1) of the Omnibus Budget Reconciliation Act of 1986 (OBRA) repealed ERISA's age-based exclusion provision, and §§ 9201 and 9202 amended ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), respectively, to prohibit age-based benefit accrual rules. To comply with OBRA, Lockheed made Spink and other previously excluded employees Plan members, but made clear that they would not receive credit for their pre-1988 service years. Lockheed subsequently added to the Plan two programs offering increased pension benefits to employees who would retire early in exchange for their waiver of any employment claims against Lockheed. Not wishing to waive any ADEA or ERISA claims, Spink declined to participate and retired without earning the extra benefits. He then filed suit, alleging among other things that Lockheed and petitioner board of directors members violated ERISA by amending the Plan to create the retirement programs, that petitioner Retirement Committee members violated ERISA by implementing the amended Plan, and that the OBRA amendments to ERISA and the ADEA required that Spink's pre-1988 service years be counted toward his benefits. The District Court dismissed the complaint for failure to state a claim, but the Court of Appeals reversed in relevant part. In finding the Plan amendments unlawful under ERISA § 406(a)(1)(D)-which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to, or involves the use of plan assets for the benefit of, a party in interest-the court decided that there was no need to address Lockheed's status as a fiduciary. It also found that Lockheed's refusal to credit Spink with his pre-1988 service years violated the OBRA amendments, which the court decided applied retroactively. Held: 1. ERISA § 406 does not prevent an employer from conditioning the receipt of early retirement benefits upon plan participants' waiver of employment claims. Pp. 887-895. 883 (a) Unless a plaintiff shows that a fiduciary caused the plan to engage in the allegedly unlawful transaction, there can be no § 406(a)(1) violation warranting relief. Cf. Peacock v. Thomas, 516 U. S. 349 , 353. Thus, the Court of Appeals erred by not asking whether fiduciary status existed in this case before finding a § 406(a)(1)(D) violation. Pp.888-889. (b) Lockheed and the board of directors, as plan sponsors, were not acting as fiduciaries when they amended the Plan. Given ERISA's definition of fiduciary and the applicability of the duties attending that status, the rule that this Court announced with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73 , applies equally to the amendment of pension plans. Thus, when employers or other plan sponsors adopt, modify, or terminate pension plans, they do not act as fiduciaries, id., at 78, but are analogous to settlors of a trust. Pp. 889-891. (c) It is not necessary to decide whether the Retirement Committee members acted as fiduciaries, because their payment of benefits pursuant to the terms of an otherwise lawful plan was not a "transaction" prohibited by § 406(a)(1)(D). That section does not in direct terms include an employer's payment of benefits. And the "transactions" prohibited by other provisions of § 406(a) generally involve uses of plan assets that are potentially harmful to the plan. The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic. Pp. 892-895. 2. OBRA §§ 9201 and 9202(a) do not apply retroactively to require Lockheed to use pre-1988 service years in calculating Spink's benefits. Congress expressly provided, in OBRA § 9204(a)(1), that the amendments to ERISA and the ADEA would be effective with respect to plan years beginning on or after January 1, 1988. Since the amendments' temporal effect is manifest on the statute's face, "there is no need to resort to judicial default rules," Landgraf v. USI Film Products, 511 U. S. 244, 280, and inquiry is at an end. Pp. 896-897. 60 F.3d 616 , reversed and remanded. THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which SOUTER and BREYER, JJ., joined as to all but Part III-B. BREYER, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, J., joined, post, p. 898. Gordon E. Kirscher argued the cause for petitioners. With him on the briefs were David E. Gordon, Kenneth E. Johnson, Kenneth S. Geller, and Ralph A. Hurvitz. 884 Richard P. Bress argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Argrett, Edwin S. Kneedler, Kenneth L. Greene, J. Davitt McAteer, Allen H. Feldman, and Edward D. Sieger. Theresa M. Traber argued the cause for respondent. With her on the brief was Bert Voorhees. * JUSTICE THOMAS delivered the opinion of the Court. In this case, we decide whether the payment of benefits pursuant to an early retirement program conditioned on the participants' release of employment-related claims constitutes a prohibited transaction under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. § 1001 et seq. We also determine whether the 1986 amendments to ERISA and the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., forbidding agebased discrimination in pension plans apply retroactively. I Respondent Paul Spink was employed by petitioner Lockheed Corporation from 1939 until 1950, when he left to work *Briefs of amici curiae urging reversal were filed for the ERISA Industry Committee by Michael E. Horne and John M. Vine; for the Equal Employment Advisory Council by Douglas S. McDowell and Ellen Duffy McKay; and for the New England Legal Foundation by William J. Kilberg, Peter H. Turza, Paul Blankenstein, Mark Snyderman, and Stephen S.Ostrach. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Cathy Ventrell-Monsees and Mary Ellen Signorille; for the Engineers and Scientists Guild, Lockheed Section, by Stuart Libicki; and for the National Employment Lawyers Association by Stephen R. Bruce, Ronald Dean, and Jeffrey Lewis. Briefs of amici curiae were filed for the American Academy of Actuaries et al. by Lauren M. Bloom; and for the Chamber of Commerce of the United States by Hollis T. Hurd, Stephen A. Bokat, and Robin S. Conrad. 885 for one of Lockheed's competitors. In 1979, Lockheed persuaded Spink to return. Spink was 61 years old when he resumed employment with Lockheed. At that time, the terms of the Lockheed Retirement Plan for Certain Salaried Individuals (Plan), a defined benefit plan, excluded from participation employees who were over the age of 60 when hired. This was expressly permitted by ERISA. See 29 U. S. C. § 1052(a)(2)(B) (1982 ed.). Congress subsequently passed the Omnibus Budget Reconciliation Act of 1986 (OBRA), Pub. L. 99-509, 100 Stat. 1874. Section 9203(a)(1) of OBRA, 100 Stat. 1979, repealed the age-based exclusion provision of ERISA, and the statute now flatly mandates that "[n]o pension plan may exclude from participation (on the basis of age) employees who have attained a specified age." 29 U. S. C. § 1052(a)(2). Sections 9201 and 9202 of OBRA, 100 Stat. 1973-1978, amended ERISA and the ADEA to prohibit age-based cessations of benefit accruals and age-based reductions in benefit accrual rates. See 29 U. S. C. §§ 1054(b)(1)(H)(i), 623(i)(1). In an effort to comply with these new laws, Lockheed ceased its prior practice of age-based exclusion from the Plan, effective December 25, 1988. As of that date, all employees, including Spink, who had previously been ineligible to participate in the Plan due to their age at the time of hiring became members of the Plan. Lockheed made clear, however, that it would not credit those employees for years of service rendered before they became members. When later faced with the need to streamline its operations, Lockheed amended the Plan to provide financial incentives for certain employees to retire early. Lockheed established two programs, both of which offered increased pension benefits to employees who would retire early, payable out of the Plan's surplus assets. Both programs required as a condition of the receipt of benefits that participants release any employment-related claims they might have against Lockheed. Though Spink was eligible for one of the pro- 886 grams, he declined to participate because he did not wish to waive any ADEA or ERISA claims. He then retired, without earning any extra benefits for doing so. Spink brought this suit, in his individual capacity and on behalf of others similarly situated, against Lockheed and several of its directors and officers. Among other things, the complaint alleged that Lockheed and the members of the board of directors violated ERISA's duty of care and prohibited transaction provisions, 29 U. S. C. §§ 1l04(a), 1l06(a), by amending the Plan to create the retirement programs. Relatedly, the complaint alleged that the members of Lockheed's Retirement Committee, who implemented the Plan as amended by the board, violated those same parts of ERISA. The complaint also asserted that the OBRA amendments to ERISA and the ADEA required Lockheed to count Spink's pre-1988 service years toward his accrued pension benefits. For these alleged ERISA violations, Spink sought monetary, declaratory, and injunctive relief pursuant to §§ 502(a)(2) and (3) of ERISA's civil enforcement provisions, 29 U. S. C. §§ 1132(a)(2), (3). Lockheed moved to dismiss the complaint for failure to state a claim, and the District Court granted the motion. The Court of Appeals for the Ninth Circuit reversed in relevant part. 60 F.3d 616 (1995). The Court of Appeals held that the amendments to the Plan were unlawful under ERISA §406(a)(1)(D), 29 U. S. C. § 1l06(a)(1)(D), which prohibits a fiduciary from causing a plan to engage in a transaction that transfers plan assets to a party in interest or involves the use of plan assets for the benefit of a party in interest. The court reasoned that because the amendments offered increased benefits in exchange for a release of employment claims, they constituted a use of Plan assets to "purchase" a significant benefit for Lockheed. 60 F. 3d, at 624. Though the court found a violation of § 406(a)(1)(D), it decided that there was no need to address Lockheed's status as a fiduciary. Id., at 623, n. 5. In addition, the Court of 887 Appeals agreed with Spink that Lockheed had violated the OBRA amendments by refusing to include Spink's service years prior to 1988 in determining his benefits. In so holding, the court found that the OBRA amendments apply retroactively. See id., at 620, n. 1. We issued a writ of certiorari, 516 U. S. 1087 (1996), and now reverse. II Nothing in ERISA requires employers to establish employee benefits plans. Nor does ERISA mandate what kind of benefits employers must provide if they choose to have such a plan. Shaw v. Delta Air Lines, Inc., 463 U. S. 85 , 91 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 , 511 (1981). ERISA does, however, seek to ensure that employees will not be left emptyhanded once employers have guaranteed them certain benefits. As we said in Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 (1980), when Congress enacted ERISA it "wanted to ... mak[e] sure that if a worker has been promised a defined pension benefit upon retirement-and if he has fulfilled whatever conditions are required to obtain a vested benefithe actually will receive it." Id., at 375. Accordingly, ERISA tries to "make as certain as possible that pension fund assets [will] be adequate" to meet expected benefits payments. Ibid. To increase the chances that employers will be able to honor their benefits commitments-that is, to guard against the possibility of bankrupt pension funds-Congress incorporated several key measures into ERISA. Section 302 of ERISA sets minimum annual funding levels for all covered plans, see 29 U. S. C. §§ 1082(a), 1082(b), and creates tax liens in favor of such plans when those funding levels are not met, see § 1082(f). Sections 404 and 409 of ERISA impose respectively a duty of care with respect to the management of existing trust funds, along with liability for breach of that duty, upon plan fiduciaries. See §§ 1104(a), 1109(a). Fi- 888 nally, § 406 of ERISA prohibits fiduciaries from involving the plan and its assets in certain kinds of business deals. See § 1106. It is this last feature of ERISA that is at issue today. Congress enacted § 406 "to bar categorically a transaction that [is] likely to injure the pension plan." Commissioner v. Keystone Consolo Industries, Inc., 508 U. S. 152 , 160 (1993). That section mandates, in relevant part, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect ... transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. § 1106(a)(1)(D).1 The question here is whether this provision of ERISA prevents an employer from conditioning the receipt of early retirement benefits upon the participants' waiver of employment claims. For the following reasons, we hold that it does not. III Section 406(a)(1) regulates the conduct of plan fiduciaries, placing certain transactions outside the scope of their lawful authority. When a fiduciary violates the rules set forth in § 406(a)(1), § 409 of ERISA renders him personally liable for any losses incurred by the plan, any ill-gotten profits, and other equitable and remedial relief deemed appropriate by the court. See 29 U. S. C. § 1109(a). But in order to sustain an alleged transgression of § 406(a), a plaintiff must show that a fiduciary caused the plan to engage in the allegedly unlawful transaction.2 Unless a plaintiff can make that 1 Section 408 enumerates specific exceptions to the prohibitions in § 406. See 29 U. S. C. § 1l08(b). Lockheed does not argue that any of these exceptions pertain to this case. 2 ERISA § 3(21)(A) provides: "[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or 889 showing, there can be no violation of § 406(a)(1) to warrant relief under the enforcement provisions. Cf. Peacock v. Thomas, 516 U. S. 349 , 353 (1996) ("Section 502(a)(3) 'does not, after all, authorize "appropriate equitable relief" at large, but only "appropriate equitable relief" for the purpose of "redress[ing any] violations or ... enforc[ing] any provisions" of ERISA''') (quoting Mertens v. Hewitt Associates, 508 U. S. 248 , 253 (1993)). The Court of Appeals erred by not asking whether fiduciary status existed in this case before it found a violation of §406(a)(1)(D).3 A We first address the allegation in Spink's complaint that Lockheed and the board of directors breached their fiduciary indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U. S. C. § 1002(21)(A). 3 Instead of pursuing this inquiry, the Court of Appeals found that Lockheed was a "party in interest" under § 3(14)(C), and asserted that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA." 60 F.3d 616 , 623 (CA9 1995). For that same proposition, several Courts of Appeals have relied on statements in Mertens v. Hewitt Associates, 508 U. S. 248 (1993), that "ERISA contains various provisions that can be read as imposing obligations upon nonfiduciaries," id., at 253-254; see also id., at 254, n. 4 (citing § 406(a)), and that "[p]rofessional service providers ... must disgorge assets and profits obtained through participation as parties-in-interest in transactions prohibited by §406," id., at 262. See, e. g., Reich v. Stangl, 73 F.3d 1027 , 1031-1032 (CA1O 1996), cert. pending, No. 95-1631; Landwehr v. DuPree, 72 F. 3d 726,733-734 (CA9 1995); Reich v. Compton, 57 F.3d 270 , 285 (CA3 1995). Insofar as they apply to § 406(a), these statements in Mertens (which were in any event dicta, since § 406(a) was not at issue) suggest liability for parties in interest only when a violation of § 406(a) has been establishedwhich, as we have discussed, requires a showing that a fiduciary caused the plan to engage in the transaction in question. The Court of Appeals thus was not necessarily wrong in saying that "a party in interest who benefitted from an impermissible transaction can be held liable under ERISA" (emphasis added); but the only transactions rendered impermissible by § 406(a) are transactions caused by fiduciaries. 890 duties when they adopted the amendments establishing the early retirement programs. Plan sponsors who alter the terms of a plan do not fall into the category of fiduciaries. As we said with respect to the amendment of welfare benefit plans in Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73 (1995), "[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans." Id., at 78 (citing Adams v. Avondale Industries, Inc., 905 F.2d 943 , 947 (CA6 1990)). When employers undertake those actions, they do not act as fiduciaries, 514 U. S., at 78, but are analogous to the settlors of a trust, see Johnson v. Georgia-Pacific Corp., 19 F.3d 1184 , 1188 (CA7 1994). This rule is rooted in the text of ERISA's definition of fiduciary. See 29 U. S. C. § 1002(21)(A) (quoted n. 2, supra). As the Second Circuit has observed, "only when fulfilling certain defined functions, including the exercise of discretionary authority or control over plan management or administration," does a person become a fiduciary under § 3(21)(A). Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498 , 505 (1995). "[B]ecause [the] defined functions [in the definition of fiduciary] do not include plan design, an employer may decide to amend an employee benefit plan without being subject to fiduciary review." Ibid. We recently recognized this very point, noting that "it may be true that amending or terminating a plan ... cannot be an act of plan 'management' or 'administration.''' Varity Corp. v. Howe, 516 U. S. 489 , 505 (1996). As noted above, we in fact said as much in Curtiss- Wright, see 514 U. S., at 78, at least with respect to welfare benefit plans. We see no reason why the rule of Curtiss-Wright should not be extended to pension benefit plans. Indeed, there are compelling reasons to apply the same rule to cases involving both kinds of plans, as most Courts of Appeals have 891 done.4 The definition of fiduciary makes no distinction between persons exercising authority over welfare benefit plans and those exercising authority over pension plans. It speaks simply of a "fiduciary with respect to a plan," 29 U. S. C. § 1002(21)(A), and of "management" and "administration" of "such plan," ibid. And ERISA defines a "plan" as being either a welfare or pension plan, or both. See § 1002(3). Likewise, the fiduciary duty provisions of ERISA are phrased in general terms and apply with equal force to welfare and pension plans. See, e. g., § 1l04(a) (specifying duties of a "fiduciary ... with respect to a plan"). See also Shaw v. Delta Air Lines, Inc., 463 U. S., at 91 (ERISA "sets various uniform standards, including rules concerning ... fiduciary responsibility, for both pension and welfare plans"). Given ERISA's definition of fiduciary and the applicability of the duties that attend that status, we think that the rules regarding fiduciary capacity-including the settlor-fiduciary distinction-should apply to pension and welfare plans alike. Lockheed acted not as a fiduciary but as a settlor when it amended the terms of the Plan to include the retirement programs. Thus, § 406(a)'s requirement of fiduciary status is not met. While other portions of ERISA govern plan amendments, see, e. g., 29 U. S. C. § 1054(g) (amendment generally may not decrease accrued benefits); § 1085b (if adoption of an amendment results in underfunding of a defined benefit plan, the sponsor must post security for the amount of the deficiency), the act of amending a pension plan does not trigger ERISA's fiduciary provisions. 4 See, e. g., Siskind v. Sperry Retirement Program, Unisys, 47 F.3d 498 , 505 (CA2 1995); Averhart v. US WEST Management Pension Plan, 46 F.3d 1480 , 1488 (CAlO 1994); Fletcher v. Kroger Co., 942 F.2d 1137 , 11391140 (CA7 1991); Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155 , 11601162 (CA3 1990) (listing cases); Sutton v. Weirton Steel Div. of Nat. Steel Corp., 724 F.2d 406 , 411 (CA4 1983), cert. denied, 467 U. S. 1205 (1984). 892 B Spink also alleged that the members of Lockheed's Retirement Committee who implemented the amended Plan violated §406(a)(1)(D). As with the question whether Lockheed and the board members can be held liable under ERISA's fiduciary rules, the Court of Appeals erred in holding that the Retirement Committee members violated the prohibited transaction section of ERISA without making the requisite finding of fiduciary status. It is not necessary for us to decide the question whether the Retirement Committee members acted as fiduciaries when they paid out benefits according to the terms of the amended Plan, however, because we do not think that they engaged in any conduct prohibited by § 406(a)(1)(D). The "transaction" in which fiduciaries may not cause a plan to engage is one that "constitutes a direct or indirect ... transfer to, or use by or for the benefit of a party in interest, of any assets of the plan." 29 U. S. C. § 1l06(a)(1)(D). Spink reads § 406(a)(1)(D) to apply in cases where the benefit received by the party in interest-in this case, the employer-is not merely a "natural inciden[t] of the administration of pension plans." Brief for Respondent 10. Lockheed, on the other hand, maintains that a plan administrator's payment of benefits to plan participants and beneficiaries pursuant to the terms of an otherwise lawful plan 5 is wholly outside the scope of § 406(a)(1)(D). See Reply Brief for Petitioners 10. We agree with Lockheed. Section 406(a)(1)(D) does not in direct terms include the payment of benefits by a plan administrator. And the surrounding provisions suggest that the payment of benefits is 5 As Lockheed notes, see Brief for Petitioners 13; Reply Brief for Petitioners 7, n. 4, there is no claim in this case that the amendments resulted in any violation of the participation, funding, or vesting requirements of ERISA. See 29 U. S. C. §§ 1051-1061 (participation and vesting); §§ 10811086 (funding). 893 in fact not a "transaction" in the sense that Congress used that term in § 406(a). Section 406(a) prohibits fiduciaries from engaging the plan in the "sale," "exchange," or "leasing" of property, 29 U. S. C. § 1l06(a)(1)(A); the "lending of money" or "extension of credit," § 1l06(a)(1)(B); the "furnishing of goods, services, or facilities," § 1l06(a)(1)(C); and the "acquisition ... of any employer security or employer real property," § 1l06(a)(1)(E), with a party in interest. See also § 1l08(b) (listing similar types of "transactions"). These are commercial bargains that present a special risk of plan underfunding because they are struck with plan insiders, presumably not at arm's length. See Commissioner v. Keystone Consolo Industries, Inc., 508 U. S., at 160. What the "transactions" identified in § 406(a) thus have in common is that they generally involve uses of plan assets that are potentially harmful to the plan. Cf. id., at 160-161 (reasoning that a transfer of unencumbered property to the plan by the employer for the purpose of applying it toward the employer's funding obligation fell within § 406(a)(1)'s companion tax provision, 26 U. S. C. § 4975, because it could "jeopardize the ability of the plan to pay promised benefits"). The payment of benefits conditioned on performance by plan participants cannot reasonably be said to share that characteristic. According to Spink and the Court of Appeals, however, Lockheed's early retirement programs were prohibited transactions within the meaning of § 406(a)(1)(D) because the required release of employment-related claims by participants created a "significant benefit" for Lockheed. 60 F. 3d, at 624. Spink concedes, however, that among the "incidental" and thus legitimate benefits that a plan sponsor may receive from the operation of a pension plan are attracting and retaining employees, paying deferred compensation, settling or avoiding strikes, providing increased compensation without increasing wages, increasing employee turnover, and reducing the likelihood of lawsuits by encouraging employees 894 who would otherwise have been laid off to depart voluntarily. Brief for Respondent 11. We do not see how obtaining waivers of employmentrelated claims can meaningfully be distinguished from these admittedly permissible objectives. Each involves, at bottom, a quid pro quo between the plan sponsor and the participant: that is, the employer promises to pay increased benefits in exchange for the performance of some condition by the employee. By Spink's admission, the employer can ask the employee to continue to work for the employer, to cross a picket line, or to retire early. The execution of a release of claims against the employer is functionally no different; like these other conditions, it is an act that the employee performs for the employer in return for benefits. Certainly, there is no basis in § 406(a)(1)(D) for distinguishing a valid from an invalid quid pro quo. Section 406(a)(1)(D) simply does not address what an employer can and cannot ask an employee to do in return for benefits. See generally Alessi v. Raybestos-Manhattan, Inc., 451 U. S., at 511 (ERISA "leaves thee] question" of the content of benefits "to the private parties creating the plan .... [T]he private parties, not the Government, control the level of benefits").6 Furthermore, if an employer can avoid litigation that might result from laying off an employee by enticing him to retire early, as Spink concedes, it stands to reason that the employer can also protect itself from suits arising out of 6 Indeed, federal law expressly approves the use of early retirement incentives conditioned upon the release of claims. The Older Workers Benefit Protection Act, Pub. L. 101-433, 104 Stat. 983 (1990), establishes requirements for the enforceability of employee waivers of ADEA claims made in exchange for early retirement benefits. See 29 U. S. C. § 626(f). Of course, the enforceability of a particular waiver under this and other applicable laws, including state law, is a separate issue from the question whether such an arrangement violates ERISA's prohibited transaction rules. But absent clearer indication than what we have in § 406(a)(1)(D), we would be reluctant to infer that ERISA bars conduct affirmatively sanctioned by other federal statutes. 895 that retirement by asking the employee to release any employment-related claims he may have.7 In short, whatever the precise boundaries of the prohibition in § 406(a)(1)(D), there is one use of plan assets that it cannot logically encompass: a quid pro quo between the employer and plan participants in which the plan pays out benefits to the participants pursuant to its terms. When § 406(a)(1)(D) is read in the context of the other prohibited transaction provisions, it becomes clear that the payment of benefits in exchange for the performance of some condition by the employee is not a "transaction" within the meaning of § 406(a)(1). A standard that allows some benefits agreements but not others, as Spink suggests, lacks a basis in § 406(a)(1)(D); it also would provide little guidance to lower courts and those who must comply with ERISA. We thus hold that the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction.8 7 Spink's amicus the United States suggests that § 406(a)(1)(D) is not violated so long as the employer provides benefits as compensation for the employee's labor, not for other things such as a release of claims. See Brief for United States as Amicus Curiae 15-16. But the Government contradicts its own rule with the examples it gives of lawful plans. For instance, the Government recognizes that "[a]n employer may provide increased pension benefits as an incentive for early retirement." Id., at 20. While retirement benefits themselves may be defined as deferred wages, an increase in retirement benefits as part of an early retirement plan does not compensate the employee so much for services rendered as for the distinct act of leaving the company sooner than planned. The standard offered by the Government is thus of little help in identifying transactions prohibited by § 406(a)(1)(D). 8 If the benefits payment were merely a sham transaction, meant to disguise an otherwise unlawful transfer of assets to a party in interest, or involved a kickback scheme, that might present a different question from the one before us. Spink does not suggest that Lockheed's payment was a cover for an illegal scheme, only that payment of the benefits conditioned on the release was itself violative of § 406(a)(1)(D). 896 IV Finally, we address whether §§ 9201 and 9202(a) of OBRA, which amended respectively the ADEA and ERISA to prohibit age-based benefit accrual rules, apply retroactively.9 Two Terms ago, we set forth the proper approach for determining the retroactive effect of a statute in Landgraf v. USI Film Products, 511 U. S. 244 (1994). We stated that "[w]hen a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach." Id., at 280. Thus, we must determine whether Congress has plainly delineated the temporal scope of the OBRA amendments to ERISA and the ADEA. Section 9204(a)(1) of OBRA, 100 Stat. 1979, expressly provides that "[t]he amendments made by sections 9201 and 9202 shall apply only with respect to plan years beginning on or after January 1, 1988, and only to employees who have 1 hour of service in any plan year to which such amendments apply." 29 U. S. C. § 623 note. This language compels the conclusion that the amendments are prospective. For plan years that began on or after January 1, 1988, age-based accrual rules are unlawful under the amendments; further, only employees who have one hour of service in such a plan year are entitled to the protection of the amendments. But for plan years prior to the effective date, employers cannot be held liable for using age-based accrual rules. Where, as here, the temporal effect of a statute is manifest on its face, "there is no need to resort to judicial default rules," Land- 9 Section 9203(a)(1) of OBRA, amending ERISA to prevent the exclusion of employees of a certain age from plan participation, applies "only with respect to plan years beginning on or after January 1, 1988, and only with respect to service performed on or after such date." OBRA § 9204(b), 100 Stat. 1980. The Court of Appeals acknowledged that Lockheed fully complied with that amendment by admitting Spink as a member of the Plan as of December 25, 1988, the first day of Lockheed's 1988 plan year. 897 graf v. USI Film Products, supra, at 280, and inquiry is at an end. Notwithstanding the clarity of § 9204(a)(1), the Court of Appeals believed that the text of §§ 9201 and 9202(a) require retroactive application of the benefit accrual rules. To deny an employee credit for service years during which he was excluded from the plan based on age, even though that exclusion was lawful at the time, the Court of Appeals reasoned, is to reduce the rate of benefits accrual for that employee.1o 60 F. 3d, at 620. When Congress includes a provision that specifically addresses the temporal effect of a statute, that provision trumps any general inferences that might be drawn from the substantive provisions of the statute. See generally Morales v. Trans World Airlines, Inc., 504 U. S. 374 , 384 (1992); Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222 , 228-229 (1957). Even if it were proper to disregard the express time limitations in § 9204(a)(1) in favor of more general language, §§ 9201 and 9202(a) cannot bear the weight of the Court of Appeals' construction. A reduction in total benefits due is not the same thing as a reduction in the rate of benefit accrual; the former is the final outcome of the calculation, whereas the latter is one of the factors in the equation. *** The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 10 See 29 U. S. C. § 1054(b)(1)(H)(i) (OBRA § 9202(a)) (defined benefit plan violates ERISA's benefit accrual requirements "if, under the plan, an employee's benefit accrual is ceased, or the rate of an employee's benefit accrual is reduced, because of the attainment of any age"); § 623(i)(1)(A) (OBRA § 9201) (prohibiting employers from establishing or maintaining a defined benefit plan that "requires or permits ... the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual"). 898 Opinion of BREYER, J. JUSTICE BREYER, with whom JUSTICE SOUTER joins, concurring in part and dissenting in part. I join the Court's opinion except for its conclusion in Part III-B that "the payment of benefits pursuant to an amended plan, regardless of what the plan requires of the employee in return for those benefits, does not constitute a prohibited transaction." Ante, at 895. The legal question addressed in Part III-B is a difficult one, which we need not here answer and which would benefit from further development in the lower courts, where interested parties who are experienced in these highly technical, important matters could present their views. Accordingly, I would follow the suggestion of the Solicitor General that the Court not reach the issue in this case.

Lockheed Corp. et al. v. Spink: - Lockheed Corp. excluded employee Spink from their retirement plan due to his age (61) when he was re-hired in 1979, which was permitted by ERISA at the time. - In 1986, the Omnibus Budget Reconciliation Act (OBRA) repealed ERISA's age-based exclusion and prohibited age-based benefit accrual rules. - Lockheed complied by adding Spink to the plan but refused to credit his pre-1988 service years. - Lockheed added early retirement programs offering increased pension benefits in exchange for employees waiving employment claims. Spink declined and filed a lawsuit alleging violations of ERISA and ADEA. - The Supreme Court ruled that ERISA does not prevent employers from conditioning early retirement benefits on the waiver of employment claims. - The Court also found that Lockheed's refusal to credit Spink's pre-1988 service years did not violate OBRA amendments, which applied prospectively and did not require retroactive crediting of service years during lawful age-based exclusion.

Labor & Employment

Burlington Industries, Inc. v. Ellerth

https://supreme.justia.com/cases/federal/us/524/742/

OCTOBER TERM, 1997 Syllabus BURLINGTON INDUSTRIES, INC. v. ELLERTH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 97-569. Argued April 22, 1998-Decided June 26,1998 Respondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries' many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a midlevel manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policymaker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. Ellerth refused all of Slowik's advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. The District Court granted Burlington summary judgment. The Seventh Circuit en bane reversed in a decision that produced eight separate opinions and no consensus for a controlling rationale. Among other things, those opinions focused on whether Ellerth's claim could be categorized as one of quid pro quo harassment, and on whether the standard for an employer's liability on such a claim should be vicarious liability or negligence. Held: Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative defense. Pp. 751-766. (a) The Court assumes an important premise yet to be established: A trier offact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out. Cases based on carried-out threats are referred to often as "quid pro quo" cases, as distinct from bothersome attentions or sexual remarks sufficient to create a "hostile work environment." Those two terms do not appear in Title VII, which forbids only 743 "discriminat[ion] against any individual with respect to his ... terms [or] conditions ... of employment, because of ... sex." § 2000e-2(a)(1). In Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 65, this Court distinguished between the two concepts, saying both are cognizable under Title VII, though a hostile environment claim requires harassment that is severe or pervasive. Meritor did not discuss the distinction for its bearing upon an employer's liability for discrimination, but held, with no further specifics, that agency principles controlled on this point. Id., at 72. Nevertheless, in Meritor's wake, Courts of Appeals held that, if the plaintiff established a quid pro quo claim, the employer was subject to vicarious liability. This rule encouraged Title VII plaintiffs to state their claims in quid pro quo terms, which in turn put expansive pressure on the definition. For example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of real concern to the parties is whether Burlington has vicarious liability, rather than liability limited to its own negligence. This Court nonetheless believes the two terms are of limited utility. To the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when there is a threshold question whether a plaintiff can prove discrimination. Hence, Ellerth's claim involves only unfulfilled threats, so it is a hostile work environment claim requiring a showing of severe or pervasive conduct. This Court accepts the District Court's finding that Ellerth made such a showing. When discrimination is thus proved, the factors discussed below, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability. Pp. 751-754. (b) In deciding whether an employer has vicarious liability in a case such as this, the Court turns to agency law principles, for Title VII defines the term "employer" to include "agents." §2000e(b). Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. The Court relies on the general common law of agency, rather than on the law of any particular State. Community for Creative Non-Violence v. Reid, 490 U. S. 730 , 740. The Restatement (Second) of Agency (hereinafter Restatement) is a useful beginning point, although common-law principles may not be wholly transferable to Title VII. See Meritor, supra, at 72. Pp. 754-755. (c) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Restatement § 219(1). Although such torts generally may be either negligent or intentional, sexual harassment under Title VII presupposes intentional conduct. An intentional tort is within the scope of employment when 744 actuated, at least in part, by a purpose to serve the employer. Id., §§ 228(1)(c), 230. Courts of Appeals have held, however, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may be actuated by personal motives unrelated and even antithetical to the employer's objectives. Thus, the general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. pp. 755-757. (d) However, scope of employment is not the only basis for employer liability under agency principles. An employer is subject to liability for the torts of its employees acting outside the scope of their employment when, inter alia, the employer itself was negligent or reckless, Restatement § 219(2)(b), or the employee purported to act or to speak on behalf of the employer and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation, id., § 219(2)(d). An employer is negligent, and therefore subject to liability under § 219(2)(b), if it knew or should have known about sexual harassment and failed to stop it. Negligence sets a minimum standard for Title VII liability; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) makes an employer vicariously liable for sexual harassment by an employee who uses apparent authority (the apparent authority standard), or who was "aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Pp.758-759. (e) As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from threatening to misuse actual power. Compare Restatement § 6 with § 8. Because supervisory harassment cases involve misuse of actual power, not the false impression of its existence, apparent authority analysis is inappropriate. When a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule provides the appropriate analysis. Pp. 759-760. (f) That rule requires the existence of something more than the employment relation itself because, in a sense, most workplace tortfeasors, whether supervisors or co-workers, are aided in accomplishing their tortious objective by the employment relation: Proximity and regular contact afford a captive pool of potential victims. Such an additional aid exists when a supervisor subjects a subordinate to a significant, tangible employment action, i. e., a significant change in employment status, such as discharge, demotion, or undesirable reassignment. Every Federal Court of Appeals to have considered the question has correctly found vicarious liability in that circumstance. This Court imports the significant, tangible employment action concept for resolution of the vicarious 745 liability issue considered here. An employer is therefore subject to vicarious liability for such actions. However, where, as here, there is no tangible employment action, it is not obvious the agency relationship aids in commission of the tort. Moreover, Meritor holds that agency principles constrain the imposition of employer liability for supervisor harassment. Limiting employer liability is also consistent with Title VII's purpose to the extent it would encourage the creation and use of antiharassment policies and grievance procedures. Thus, in order to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, the Court adopts, in this case and in Faragher v. Boca Raton, post, p. 775, the following holding: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action. Pp.760-765. (g) Given the Court's explanation that the labels quid pro quo and hostile work environment are not controlling for employer-liability purposes, Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability. Although she has not alleged she suffered a tangible employment action at Slowik's hands, which would deprive Burlington of the affirmative defense, this is not dispositive. In light of the Court's decision, Burlington is still 746 subject to vicarious liability for Slowik's activity, but should have an opportunity to assert and prove the affirmative defense. Pp. 765-766. 123 F.3d 490 , affirmed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, and BREYER, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment, post, p. 766. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p.766. James J. Casey argued the cause for petitioner. With him on the briefs were Mary Margaret Moore and Robert A. Wicker. Ernest T. Rossiello argued the cause for respondent. With him on the brief were Margaret A. Zuleger and Eric Schnapper. Deputy Solicitor General Underwood argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Irving L. Gornstein, C. Gregory Stewart, Philip B. Sklover, Carolyn L. Wheeler, and Susan L. P. Starr. * JUSTICE KENNEDY delivered the opinion of the Court. We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et *Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Carol Connor Flowe, Stephen A. Bokat, Robin S. Conrad, and Sussan L. Mahallati; and for the Equal Employment Advisory Council by Ann Elizabeth Reesman. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Marsha S. Berzon, and Laurence Gold; for Equal Rights Advocates et al. by Samuel A. Marcosson, Beth H. Parker, and Rose Fua; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. David Benjamin Oppenheimer, H. Candace Gorman, and Paula A. Brantner filed a brief for the National Employment Lawyers Association as amicus curiae. 747 seq., an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. I Summary judgment was granted for the employer, so we must take the facts alleged by the employee to be true. United States v. Diebold, Inc., 369 U. S. 654 , 655 (1962) (per curiam). The employer is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik. In the hierarchy of Burlington's management structure, Slowik was a midlevel manager. Burlington has eight divisions, employing more than 22,000 people in some 50 plants around the United States. Slowik was a vice president in one of five business units within one of the divisions. He had authority to make hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. See 912 F. Supp. 1101, 1119, n. 14 (ND Ill. 1996). According to Slowik's supervisor, his position was "not considered an upper-level management position," and he was "not amongst the decision-making or policy-making hierarchy." Ibid. Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered to Slowik in New York. Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her 748 tangible job benefits. In the summer of 1993, while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "you know, Kim, I could make your life very hard or very easy at Burlington." Id., at 156. In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." Id., at 159. The comment was followed by his reaching over and rubbing her knee. Ibid. Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." Id., at 159-160. In May 1994, Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Kim ... unless you want to tell me what you're wearing." Id., at 78. Ellerth told Slowik she had to go and ended the call. Ibid. A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." Id., at 79. A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. 912 F. Supp., at 1109. In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. Ibid. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior. Ibid. During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. Ibid. 749 In fact, she chose not to inform her immediate supervisor (not Slowik) because" 'it would be his duty as my supervisor to report any incidents of sexual harassment.'" Ibid. On one occasion, she told Slowik a comment he made was inappropriate. Ibid. In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. The District Court granted summary judgment to Burlington. The court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. There was no triable issue of fact on the latter point, and the court noted Ellerth had not used Burlington's internal complaint procedures. Id., at 1118. Although Ellerth's claim was framed as a hostile work environment complaint, the District Court observed there was a quid pro quo "component" to the hostile environment. Id., at 1121. Proceeding from the premise that an employer faces vicarious liability for quid pro quo harassment, the District Court thought it necessary to apply a negligence standard because the quid pro quo merely contributed to the hostile work environment. See id., at 1123. The District Court also dismissed Ellerth's constructive discharge claim. The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious liability, not failure to comply with a duty of care, was the essence of Ellerth's case against Burlington on appeal. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. Jansen v. Packing Corp. 750 of America, 123 F.3d 490 , 494 (CA7 1997) (per curiam). With the exception of Judges Coffey and Easterbrook, the judges also agreed Ellerth's claim could be categorized as one of quid pro quo harassment, even though she had received the promotion and had suffered no other tangible retaliation. Ibid. The consensus disintegrated on the standard for an employer's liability for such a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious liability, and so Ellerth could recover even though Burlington was not negligent. Ibid. They had different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a claim involves a quid pro quo determines whether vicarious liability applies; and they in turn defined quid pro quo to include a supervisor's threat to inflict a tangible job injury whether or not it was completed. Id., at 499. Judges Wood and Rovner interpreted agency principles to impose vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid pro quo. Id., at 565. Although Judge Easterbrook did not think Ellerth had stated a quid pro quo claim, he would have followed the law of the controlling State to determine the employer's liability, and by this standard, the employer would be liable here. Id., at 552. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. Id., at 505. Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth could not recover against Burlington despite having stated a quid pro quo claim. According to Chief Judge Posner, an employer is subject to vicarious liability for "act[s] that significantly alte[r] the terms or conditions of employment," or "company act[s]." Id., at 515. In the emergent terminology, an unfulfilled quid pro quo is a 751 mere threat to do a company act rather than the act itself, and in these circumstances, an employer can be found liable for its negligence only. Ibid. Chief Judge Posner also found Ellerth failed to create a triable issue of fact as to Burlington's negligence. Id., at 517. Judge Coffey rejected all of the above approaches because he favored a uniform standard of negligence in almost all sexual harassment cases. Id., at 518. The disagreement revealed in the careful opinions of the judges of the Court of Appeals reflects the fact that Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law. We granted certiorari to assist in defining the relevant standards of employer liability. 522 U. S. 1086 (1998). II At the outset, we assume an important proposition yet to be established before a trier of fact. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. The premise is: A trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled. Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility. Section 703(a) of Title VII forbids "an employer- "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or 752 privileges of employment, because of such individual's ... sex." 42 U. S. C. § 2000e-2(a)(1). "Quid pro quo" and "hostile work environment" do not appear in the statutory text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e. g., Henson v. Dundee, 682 F.2d 897 , 909 (CAll 1982); and were mentioned in this Court's decision in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986). See generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307 (1998). In Meritor, the terms served a specific and limited purpose. There we considered whether the conduct in question constituted discrimination in the terms or conditions of employment in violation of Title VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer's sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims, see 477 U. S., at 65, and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. Ibid. The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. The distinction was not discussed for its bearing upon an employer's liability for an employee's discrimination. On this question Meritor held, with no further specifics, that agency principles controlled. Id., at 72. Nevertheless, as use of the terms grew in the wake of Meritor, they acquired their own significance. The standard of employer responsibility turned on which type of harass- 753 ment occurred. If the plaintiff established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious liability. See Davis v. Sioux City, 115 F.3d 1365 , 1367 (CA8 1997); Nichols v. Frank, 42 F.3d 503 , 513 514 (CA9 1994); Bouton v. BMW of North America, Inc., 29 F. 3d 103, 106-107 (CA3 1994); Sauers v. Salt Lake County, 1 F.3d 1122 , 1127 (CAlO 1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178 , 185-186 (CA6), cert. denied, 506 U. S. 1041 (1992); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 , 1316 (CAll 1989). The rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated by this case. The question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. The question presented for certiorari asks: "Whether a claim of quid pro quo sexual harassment may be stated under Title VII ... where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?" Pet. for Cert. i. We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the 754 employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 ,81 (1998); Harris v. Forklift Systems, Inc., 510 U. S. 17 , 21 (1993). For purposes of this case, we accept the District Court's finding that the alleged conduct was severe or pervasive. See supra, at 749. The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment. When we assume discrimination can be proved, however, the factors we discuss below, and not the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability. That is the question we must resolve. III We must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VII to include "agents." 42 U. S. C. § 2000e(b); see Meritor, supra, at 72. In express terms, Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these 755 terms." Community for Creative Non-Violence v. Reid, 490 U. S. 730 , 740 (1989). The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction. This is not federal common law in "the strictest sense, i. e., a rule of decision that amounts, not simply to an interpretation of a federal statute ... , but, rather, to the judicial 'creation' of a special federal rule of decision." Atherton v. FDIC, 519 U. S. 213, 218 (1997). State-court decisions, applying state employment discrimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state law rely in large part on federal-court decisions under Title VII. E. g., Arizona v. Schallock, 189 Ariz. 250, 259, 941 P. 2d 1275, 1284 (1997); Lehmann v. Toys 'R' Us, Inc., 132 N. J. 587, 622, 626 A. 2d 445, 463 (1993); Thompson v. Berta Enterprises, Inc., 72 Wash. App. 531, 537-539, 864 As Meritor acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement) is a useful beginning point for a discussion of general agency principles. 477 U. S., at 72. Since our decision in Meritor, federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." Ibid. The EEOC has issued Guidelines governing sexual harassment claims under Title VII, but they provide little guidance on the issue of employer liability for supervisor harassment. See 29 CFR § 1604.11(c) (1997) (vicarious liability for supervisor harassment turns on "the particular employment relationship and the job functions performed by the individual"). A Section 219(1) of the Restatement sets out a central principle of agency law: 756 "A master is subject to liability for the torts of his servants committed while acting in the scope of their employment." An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. While early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's "purpose, however misguided, is wholly or in part to further the master's business." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 70, p. 505 (5th ed. 1984) (hereinafter Prosser and Keeton on Torts). In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." F. Mechem, Outlines of the Law of Agency § 394, p. 266 (P. Mechem 4th ed. 1952). The Restatement defines conduct, including an intentional tort, to be within the scope of employment when "actuated, at least in part, by a purpose to serve the [employer]," even if it is forbidden by the employer. Restatement §§ 228(1)(c), 230. For example, when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies. See Prosser and Keeton on Torts § 70, at 505-506. As Courts of Appeals have recognized, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer. See, e. g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437 , 1444 (CAlO 1997), vacated on other grounds, post, p. 947; Torres v. Pisano, 116 F.3d 625 , 634, n. 10 (CA2 1997). But see Kauffman v. Allied Signal, Inc., 970 F. 2d, at 184-185 (holding harassing supervisor acted within scope of employment, 757 but employer was not liable because of its quick and effective remediation). The harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer. Cf. Mechem, supra, § 368 ("[F]or the time being [the supervisor] is conspicuously and unmistakably seeking a personal end"); see also Restatement § 235, Illustration 2 (tort committed while "[a]cting purely from personal ill will" not within the scope of employment); id., Illustration 3 (tort committed in retaliation for failing to pay the employee a bribe not within the scope of employment). There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer. E. g., Sims v. Montgomery County Comm'n, 766 F. Supp. 1052, 1075 (MD Ala. 1990) (supervisor acting in scope of employment where employer has a policy of discouraging women from seeking advancement and "sexual harassment was simply a way of furthering that policy"). The concept of scope of employment has not always been construed to require a motive to serve the employer. E. g., Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 , 172 (CA2 1968). Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. 28 U. S. C. § 1346(b); see, e. g., Jamison v. Wiley, 14 F.3d 222 , 237 (CA4 1994) (supervisor's unfair criticism of subordinate's work in retaliation for rejecting his sexual advances not within scope of employment); Wood v. United States, 995 F. 2d 1122, 1123 (CA1 1993) (Breyer, C. J.) (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims § 9.07[4], p. 9-211 (1998). The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. 758 B Scope of employment does not define the only basis for employer liability under agency principles. In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited § 219(2) of the Restatement: "(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: "(a) the master intended the conduct or the consequences, or "(b) the master was negligent or reckless, or "(c) the conduct violated a non-delegable duty of the master, or "(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." See also § 219, Comment e (Section 219(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment"). Subsection (a) addresses direct liability, where the employer acts with tortious intent, and indirect liability, where the agent's high rank in the company makes him or her the employer's alter ego. None of the parties contend Slowik's rank imputes liability under this principle. There is no contention, furthermore, that a nondelegable duty is involved. See § 219(2)(c). So, for our purposes here, subsections (a) and (c) can be put aside. Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. Under subsection (b), an employer is liable when the tort is attributable to the employer's own negli- 759 gence. § 219(2)(b). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority (the apparent authority standard), or when the employee "was aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Ibid. As other federal decisions have done in discussing vicarious liability for supervisor harassment, e. g., Henson v. Dundee, 682 F.2d 897 , 909 (CAll 1982), we begin with § 219(2)(d). C As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power. Compare Restatement § 6 (defining "power") with § 8 (defining "apparent authority"). In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. Restatement § 8, Comment c ("Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). When a party seeks to impose vicarious liabil- 760 ity based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. D We turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Gary v. Long, 59 F.3d 1391 , 1397 (CADC 1995). Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e. g., Blankenship v. Parke Care Centers, Inc., 123 F.3d 868 , 872 (CA6 1997), cert. denied, 522 U. S. 1110 (1998) (sex discrimination); McKenzie v. Illinois Dept. of Transp., 92 F. 3d 473, 480 (CA7 1996) (sex discrimination); Daniels v. Essex Group, Inc., 937 F.2d 1264 , 1273 (CA7 1991) (race discrimination); see also 29 CFR § 1604.11(d) (1997) ("knows or should have known" standard of liability for cases of harassment between "fellow employees"). The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself. At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e. g., Sauers v. Salt Lake County, 1 F.3d 1122 , 1127 (CAlO 1993) (" 'If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing ... ' "). 761 In Meritor, we acknowledged this consensus. See 477 U. S., at 70-71 ("[T]he courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor's actions"). Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard. In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132 , 136 (CA7 1993) ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation"), with Flaherty v. Gas Research Institute, 31 F.3d 451 , 456 (CA7 1994) (a "bruised ego" is not enough), Kocsis v. Multi-Care Management, Inc., 97 F.3d 876 , 887 (CA6 1996) (demotion without change in pay, benefits, duties, or prestige insufficient), and Harlston v. McDonnell Douglas Corp., 37 F.3d 379 , 382 (CA8 1994) (reassignment to more inconvenient job insufficient). When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted 762 absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. See Gary, supra, at 1397; Henson, 682 F. 2d, at 910; Barnes v. Costle, 561 F.2d 983 , 996 (CADC 1977) (MacKinnon, J., concurring). But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E. g., Shager v. Upjohn Co., 913 F.2d 398 , 405 (CA7 1990) (noting that the supervisor did not fire plaintiff; rather, the Career Path Committee did, but the employer was still liable because the committee functioned as the supervisor's "cat'spaw"). The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. See Kotcher v. Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59 , 62 (CA2 1992) ("From the perspective of the employee, the supervisor and the employer merge into a single entity"). For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action 763 against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as Meritor itself appeared to acknowledge. See supra, at 760-761. Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor harassment. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. See Meritor, 477 U. S., at 77 (Marshall, J., concurring in judgment) ("[I]t is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates"). On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor's status makes little difference. It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VII cases. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. In particular, we are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. See id., at 72 ("Congress' decision to define 'employer' to include any 'agent' of an employer, 42 U. S. C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible"). Congress has not altered Mer- 764 itor's rule even though it has made significant amendments to Title VII in the interim. See Illinois Brick Co. v. Illinois, 431 U. S. 720 , 736 (1977) ("[W]e must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation"). Although Meritor suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. See 477 U. S., at 72 ("common-law principles may not be transferable in all their particulars to Title VII"). For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see EEOC v. Shell Oil Co., 466 U. S. 54 , 77 (1984), and the EEOC's policy of encouraging the development of grievance procedures. See 29 CFR § 1604.11(f) (1997); EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. 19, 1990). To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII's deterrent purpose. See McKennon v. Nashville Banner Publishing Co., 513 U. S. 352 , 358 (1995). As we have observed, Title VII borrows from tort law the avoidable consequences doctrine, see Ford Motor Co. v. EEOC, 458 U. S. 219 , 231, n. 15 (1982), and the considerations which animate that doctrine would also support the limitation of employer liability in certain circumstances. In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post, p. 775, also decided today. 765 An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. S(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. IV Relying on existing case law which held out the promise of vicarious liability for all quid pro quo claims, see supra, at 752-753, Ellerth focused all her attention in the Court of Appeals on proving her claim fit within that category. Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, see supra, at 754, Ellerth 766 should have an adequate opportunity to prove she has a claim for which Burlington is liable. Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See supra, at 765. For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery. The judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE GINSBURG, concurring in the judgment. I agree with the Court's ruling that "the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability." Ante, at 765. I also subscribe to the Court's statement of the rule governing employer liability, ibid., which is substantively identical to the rule the Court adopts in Faragher v. Boca Raton, post, p.775. JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never 767 informs anyone in a position of authority about the supervisor's conduct. As a result, employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged. The standard of employer liability should be the same in both instances: An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor's conduct to occur. I Years before sexual harassment was recognized as "discriminat[ion] ... because of ... sex," 42 U. s. C. § 2000e2(a)(1), the Courts of Appeals considered whether, and when, a racially hostile work environment could violate Title VII.1 In the landmark case Rogers v. EEOC, 454 F.2d 234 (1971), cert. denied, 406 U. S. 957 (1972), the Court of Appeals for the Fifth Circuit held that the practice of racially segregating patients in a doctor's office could amount to discrimination in "'the terms, conditions, or privileges'" of employment, thereby violating Title VII. 454 F. 2d, at 238 (quoting 42 U. S. C. § 2000e-2(a)(1)). The principal opinion in the case concluded that employment discrimination was not limited to the "isolated and distinguishable events" of "hiring, firing, and promoting." 454 F. 2d, at 238 (opinion of Goldberg, J.). Rather, Title VII could also be violated by a work environment "heavily polluted with discrimination," because of the deleterious effects of such an atmosphere on an employee's well-being. Ibid. Accordingly, after Rogers, a plaintiff claiming employment discrimination based upon race could assert a claim for a racially hostile work environment, in addition to the classic 1 This sequence of events is not surprising, given that the primary goal of the Civil Rights Act of 1964 was to eradicate race discrimination and that the statute's ban on sex discrimination was added as an eleventh-hour amendment in an effort to kill the bill. See Barnes v. Costle, 561 F.2d 983 , 987 (CADC 1977). 768 claim of so-called "disparate treatment." A disparate treatment claim required a plaintiff to prove an adverse employment consequence and discriminatory intent by his employer. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 10-11 (3d ed. 1996). A hostile environment claim required the plaintiff to show that his work environment was so pervaded by racial harassment as to alter the terms and conditions of his employment. See, e. g., Snell v. Suffolk Cty., 782 F.2d 1094 , 1103 (CA2 1986) ("To establish a hostile atmosphere, ... plaintiffs must prove more than a few isolated incidents of racial enmity"); Johnson v. Bunny Bread Co., 646 F.2d 1250 , 1257 (CA8 1981) (no violation of Title VII from infrequent use of racial slurs). This is the same standard now used when determining whether sexual harassment renders a work environment hostile. See Har ris v. Forklift Systems, Inc., 510 U. S. 17 , 21 (1993) (actionable sexual harassment occurs when the workplace is "permeated with discriminatory intimidation, ridicule, and insult" (emphasis added; internal quotation marks and citation omitted)). In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment. If a supervisor takes an adverse employment action because of race, causing the employee a tangible job detriment, the employer is vicariously liable for resulting damages. See ante, at 760-761. This is because such actions are company acts that can be performed only by the exercise of specific authority granted by the employer, and thus the supervisor acts as the employer. If, on the other hand, the employee alleges a racially hostile work environment, the employer is liable only for negligence: that is, only if the employer knew, or in the exercise of reasonable care should have known, about the harassment and failed to take remedial action. See, e. g., Dennis v. Cty. of Fairfax, 55 F.3d 151 , 153 (CA4 1995); Davis v. Monsanto Chemical Co., 769 858 F.2d 345 , 349 (CA6 1988), cert. denied, 490 U. S. 1110 (1989). Liability has thus been imposed only if the employer is blameworthy in some way. See, e. g., Davis v. Monsanto Chemical Co., supra, at 349; Snell v. Suffolk Cty., supra, at 1104; DeGrace v. Rumsfeld, 614 F.2d 796 , 805 (CA1 1980). This distinction applies with equal force in cases of sexual harassment.2 When a supervisor inflicts an adverse employment consequence upon an employee who has rebuffed his advances, the supervisor exercises the specific authority granted to him by his company. His acts, therefore, are the company's acts and are properly chargeable to it. See 123 F.3d 490 , 514 (CA7 1997) (Posner, C. J., dissenting); ante, at 762 ("Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control"). If a supervisor creates a hostile work environment, however, he does not act for the employer. As the Court concedes, a supervisor's creation of a hostile work environment is neither within the scope of his employment, nor part of his apparent authority. See ante, at 755-760. Indeed, a hostile work environment is antithetical to the interest of the employer. In such circumstances, an employer should be liable only if it has been negligent. That is, liability should attach only if the employer either knew, or in the exercise of 2 The Courts of Appeals relied on racial harassment cases when analyzing early claims of discrimination based upon a supervisor's sexual harassment. For example, when the Court of Appeals for the District of Columbia Circuit held that a work environment poisoned by a supervisor's "sexually stereotyped insults and demeaning propositions" could itself violate Title VII, its principal authority was Judge Goldberg's opinion in Rogers v. EEOC, 454 F.2d 234 (CA5 1971). See Bundy v. Jackson, 641 F.2d 934 ,944 (CADC 1981); see also Henson v. Dundee, 682 F.2d 897 , 901 (CAll 1982). So, too, this Court relied on Rogers when in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), it recognized a cause of action under Title VII for sexual harassment. See id., at 65-66. 770 reasonable care should have known, about the hostile work environment and failed to take remedial action.3 Sexual harassment is simply not something that employers can wholly prevent without taking extraordinary measures-constant video and audio surveillance, for examplethat would revolutionize the workplace in a manner incompatible with a free society. See 123 F. 3d, at 513 (Posner, C. J., dissenting). Indeed, such measures could not even detect incidents of harassment such as the comments Slowik allegedly made to respondent in a hotel bar. The most that employers can be charged with, therefore, is a duty to act reasonably under the circumstances. As one court recognized in addressing an early racial harassment claim: "It may not always be within an employer's power to guarantee an environment free from all bigotry .... [H]e can let it be known, however, that racial harassment will not be tolerated, and he can take all reasonable measures to enforce this policy .... But once an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think he can be charged with discriminating on the basis of race." DeGrace v. Rumsfeld, 614 F.2d 796 , 805 (1980). 3 I agree with the Court that the doctrine of quid pro quo sexual harassment is irrelevant to the issue of an employer's vicarious liability. I do not, however, agree that the distinction between hostile work environment and quid pro quo sexual harassment is relevant "when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII." Ante, at 753. A supervisor's threat to take adverse action against an employee who refuses his sexual demands, if never carried out, may create a hostile work environment, but that is all. Cases involving such threats, without more, should therefore be analyzed as hostile work environment cases only. If, on the other hand, the supervisor carries out his threat and causes the plaintiff a job detriment, the plaintiff may have a disparate treatment claim under Title VII. See E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307, 309-314 (1998). 771 Under a negligence standard, Burlington cannot be held liable for Slowik's conduct. Although respondent alleged a hostile work environment, she never contended that Burlington had been negligent in permitting the harassment to occur, and there is no question that Burlington acted reasonably under the circumstances. The company had a policy against sexual harassment, and respondent admitted that she was aware of the policy but nonetheless failed to tell anyone with authority over Slowik about his behavior. See ante, at 748. Burlington therefore cannot be charged with knowledge of Slowik's alleged harassment or with a failure to exercise reasonable care in not knowing about it. II Rejecting a negligence standard, the Court instead imposes a rule of vicarious employer liability, subject to a vague affirmative defense, for the acts of supervisors who wield no delegated authority in creating a hostile work environment. This rule is a whole-cloth creation that draws no support from the legal principles on which the Court claims it is based. Compounding its error, the Court fails to explain how employers can rely upon the affirmative defense, thus ensuring a continuing reign of confusion in this important area of the law. In justifying its holding, the Court refers to our comment in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), that the lower courts should look to "agency principles" for guidance in determining the scope of employer liability, id., at 72. The Court then interprets the term "agency principles" to mean the Restatement (Second) of Agency (1957). The Court finds two portions of the Restatement to be relevant: § 219(2)(b), which provides that a master is liable for his servant's torts if the master is reckless or negligent, and § 219(2)(d), which states that a master is liable for his servant's torts when the servant is "aided in accomplishing the tort by the existence of the agency relation." The Court 772 appears to reason that a supervisor is "aided ... by ... the agency relation" in creating a hostile work environment because the supervisor's "power and authority invests his or her harassing conduct with a particular threatening character." Ante, at 763. Section 219(2)(d) of the Restatement provides no basis whatsoever for imposing vicarious liability for a supervisor's creation of a hostile work environment. Contrary to the Court's suggestions, the principle embodied in § 219(2)(d) has nothing to do with a servant's "power and authority," nor with whether his actions appear "threatening." Rather, as demonstrated by the Restatement's illustrations, liability under § 219(2)(d) depends upon the plaintiff's belief that the agent acted in the ordinary course of business or within the scope of his apparent authority.4 In this day and age, no sexually harassed employee can reasonably believe that a harassing supervisor is conducting the official business of the company or acting on its behalf. Indeed, the Court admits as much in demonstrating why sexual harassment is not committed within the scope of a supervisor's employment and is not part of his apparent authority. See ante, at 755-760. Thus although the Court implies that it has found guidance in both precedent and statute-see ante, at 755 ("The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction")-its holding is a product of willful policymaking, pure and simple. The only agency principle that justifies imposing employer liability in this context is the principle 4 See Restatement § 219, Comment e; § 261, Comment a (principal liable for an agent's fraud if "the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of business confided to him"); § 247, Illustrations (newspaper liable for a defamatory editorial published by editor for his own purposes). 773 that a master will be liable for a servant's torts if the master was negligent or reckless in permitting them to occur; and as noted, under a negligence standard, Burlington cannot be held liable. See supra, at 771. The Court's decision is also in considerable tension with our holding in Meritor that employers are not strictly liable for a supervisor's sexual harassment. See Meritor Savings Bank, FSB v. Vinson, supra, at 72. Although the Court recognizes an affirmative defense-based solely on its divination of Title VII's gestalt, see ante, at 764-it provides shockingly little guidance about how employers can actually avoid vicarious liability. Instead, it issues only Delphic pronouncements and leaves the dirty work to the lower courts: "While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." Ante, at 765. What these statements mean for district courts ruling on motions for summary judgment-the critical question for employers now subject to the vicarious liability ruleremains a mystery. Moreover, employers will be liable notwithstanding the affirmative defense, even though they acted reasonably, so long as the plaintiff in question fulfilled her duty of reasonable care to avoid harm. See ibid. In practice, therefore, employer liability very well may be the rule. 774 But as the Court acknowledges, this is the one result that it is clear Congress did not intend. See ante, at 763; Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 72. The Court's holding does guarantee one result: There will be more and more litigation to clarify applicable legal rules in an area in which both practitioners and the courts have long been begging for guidance. It thus truly boggles the mind that the Court can claim that its holding will effect "Congress' intention to promote conciliation rather than litigation in the Title VII context." Ante, at 764. All in all, to day's decision is an ironic result for a case that generated eight separate opinions in the Court of Appeals on a fundamental question, and in which we granted certiorari "to assist in defining the relevant standards of employer liability." Ante, at 751. *** Popular misconceptions notwithstanding, sexual harassment is not a freestanding federal tort, but a form of employment discrimination. As such, it should be treated no differently (and certainly no better) than the other forms of harassment that are illegal under Title VII. I would restore parallel treatment of employer liability for racial and sexual harassment and hold an employer liable for a hostile work environment only if the employer is truly at fault. I therefore respectfully dissent.

In this case, the Supreme Court ruled that an employee who refuses a supervisor's sexual advances but suffers no job-related consequences may still sue the employer for sexual harassment under Title VII of the Civil Rights Act of 1964. The employer may raise an affirmative defense, but the Court provided limited guidance on how employers can avoid liability. The Court's decision may lead to more litigation to clarify the applicable legal rules.

Labor & Employment

Wright v. Universal Maritime Service Corp.

https://supreme.justia.com/cases/federal/us/525/70/

OCTOBER TERM, 1998 Syllabus WRIGHT v. UNIVERSAL MARITIME SERVICE CORP. ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-889. Argued October 7, 1998-Decided November 16, 1998 Petitioner Wright, a longshoreman, was subject to a collective-bargaining agreement (CBA) and a Longshore Seniority Plan, both of which contained an arbitration clause. When respondents refused to employ him following his settlement of a claim for permanent disability benefits for job-related injuries, Wright filed this suit, alleging discrimination in violation of the Americans with Disabilities Act of 1990 (ADA). The District Court dismissed the case without prejudice because Wright had failed to pursue the arbitration procedure provided by the CBA. The Fourth Circuit affirmed. Held: The CBA's general arbitration clause does not require Wright to use the arbitration procedure for alleged violation of the ADA. pp. 75-82. (a) The Fourth Circuit's conclusions that the CBA arbitration clause encompassed a statutory claim under the ADA and was enforceable bring into focus the tension between two lines of this Court's case law. Compare, e. g., Alexander v. Gardner-Denver Co., 415 U. S. 36 , 49-51, with, e. g., Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 , 26. However, it is unnecessary to resolve the question of the validity of a union-negotiated waiver of employees' statutory rights to a federal forum, since it is apparent, on the facts and arguments presented here, that no such waiver has occurred. Pp. 75-77. (b) Petitioner's ADA claim is not subject to the presumption of arbitrability this Court has found in § 301 of the Labor Management Relations Act, 1947. That presumption does not extend beyond the reach of the principal rationale that justifies it, i. e., that arbitrators are in a better position than courts to interpret the terms of a CBA. See, e. g., AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643 , 650. The dispute here ultimately concerns not the application or interpretation of any CBA, but the meaning of a federal statute, the ADA. Although ordinary textual analysis of a CBA may show that matters beyond the interpretation and application of contract terms are subject to arbitration, they will not be presumed to be so. pp. 77-79. (c) In order for a union to waive employees' rights to a federal judicial forum for statutory antidiscrimination claims, the agreement to arbitrate such claims must be clear and unmistakable. Cf., e. g., Metropoli- 71 tan Edison Co. v. NLRB, 460 U. S. 693 , 708. The CEA's arbitration clause is very general, providing only for arbitration of "[m]atters under dispute," and the remainder of the contract contains no explicit incorporation of statutory antidiscrimination requirements. For similar reasons, there is no clear and unmistakable waiver in the Longshore Seniority Plan. This Court does not reach the question whether such a waiver would be enforceable. Pp. 79-82. 121 F.3d 702 , vacated and remanded. SCALIA, J., delivered the opinion for a unanimous Court. Ray P. McClain argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and Charles Stephen Ralston. Deputy Solicitor General Underwood argued the cause for the United States et al. as amici curiae urging reversal. With her on the brief were Solicitor General Waxman, Acting Assistant Attorney General Hodgkiss, James A. Feldman, C. Gregory Stewart, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory. Charles A. Edwards argued the cause and filed a brief for respondents. * *Eriefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, Richard Wayne Cole and Catherine C. Ziehl, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Judy Drickey-Prohow, Assistant Attorney General, Darrell V. McGraw, Attorney General of West Virginia, Mary C. Buchmelter, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Richard Blumenthal of Connecticut, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Dennis C. Vacco of New York, Hardy Myers of Oregon, William Sorrell of Vermont, and Mark L. Early of Virginia; for the American Civil Liberties Union et al. by Louis M. Bograd, David S. Schwartz, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations et al. by Laurence Gold, Jonathan P. Hiatt, James B. Coppess, Marsha S. Berzon, Thomas W Gleason, Herzl S. Eisenstadt, James R. Watson, and Armand Derfner; for the Lawyers' Committee for Civil Rights under Law et al. by Paul W Mollica, Thomas R. Meites, Barbara R. Arnwine, Thomas 72 JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether a general arbitration clause in a collective-bargaining agreement (CBA) requires an employee to use the arbitration procedure for an alleged violation of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq. I In 1970, petitioner Ceasar Wright began working as a longshoreman in Charleston, South Carolina. He was a member of Local 1422 of the International Longshoremen's Association, AFL-CIO (Union), which uses a hiring hall to supply workers to several stevedore companies represented by the South Carolina Stevedores Association (SCSA). Clause 15(B) of the CBA between the Union and the SCSA provides in part as follows: "Matters under dispute which cannot be promptly settled between the Local and an individual Employer shall, no later than 48 hours after such discussion, be referred in writing covering the entire grievance to a Port Grievance Committee .... " App.43a. If the Port Grievance Committee, which is evenly divided between representatives of labor and management, cannot reach an J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Cathy VentrellMonsees, and Sally Dunaway; for the National Academy of Arbitrators by David E. Feller; and for the National Employment Lawyers Association et al. by Cliff Palefsky and Paula A. Brantner. Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council et al. by Robert E. Williams, Ann Elizabeth Reesman, and Daniel V. Yager; for the National Association of Manufacturers by Clifford M. Sloan, Samuel D. Walker, Jan S. Amundson, and Quentin Riegel; and for the National Association of Waterfront Employers by Charles T. Carroll, Jr., and F. Edwin Froelich. Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Steven B. Berlin, Mark A. de Bernardo, Garry G. Mathiason, Stephen A. Bokat, Robin S. Conrad, and Sussan Mahallati Kysela; and for the Securities Industry Association by Michael Delikat, Gary Siniscalco, Lisa K. McClelland, and Stuart J. Kaswell. 73 agreement within five days of receiving the complaint, then the dispute must be referred to a District Grievance Committee, which is also evenly divided between the two sides. The CBA provides that a majority decision of the District Grievance Committee "shall be final and binding." Id., at 44a. If the District Grievance Committee cannot reach a majority decision within 72 hours after meeting, then the committee must employ a professional arbitrator. Clause 15(F) of the CBA provides as follows: "The Union agrees that this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment and that during the term of this Agreement the Employers will not be required to negotiate on any further matters affecting these or other subjects not specifically set forth in this Agreement. Anything not contained in this Agreement shall not be construed as being part of this Agreement. All past port practices being observed may be reduced to writing in each port." Id., at 45a-46a. Finally, Clause 17 of the CBA states: "It is the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law." Id., at 47a. Wright was also subject to the Longshore Seniority Plan, which contained its own grievance provision, reading as follows: "Any dispute concerning or arising out of the terms and/or conditions of this Agreement, or dispute involving the interpretation or application of this Agreement, or dispute arising out of any rule adopted for its implementation, shall be referred to the Seniority Board." Id., at 48a. The Seniority Board is equally divided between labor and management representatives. If the board reaches agreement by majority vote, then that determination is final and binding. If the board cannot resolve the dispute, then the Union and 74 the SCSA each choose a person, and this "Committee of two" makes a final determination. On February 18, 1992, while Wright was working for respondent Stevens Shipping and Terminal Company (Stevens), he injured his right heel and his back. He sought compensation from Stevens for permanent disability under the Longshore and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., and ultimately settled the claim for $250,000 and $10,000 in attorney's fees. Wright was also awarded Social Security disability benefits. In January 1995, Wright returned to the Union hiring hall and asked to be referred for work. (At some point he obtained a written note from his doctor approving such activity.) Between January 2 and January 11, Wright worked for four stevedoring companies, none of which complained about his performance. When, however, the stevedoring companies realized that Wright had previously settled a claim for permanent disability, they informed the Union that they would not accept Wright for employment, because a person certified as permanently disabled (which they regarded Wright to be) is not qualified to perform longshore work under the CBA. The Union responded that the employers had misconstrued the CBA, suggested that the ADA entitled Wright to return to work if he could perform his duties, and asserted that refusing Wright employment would constitute a "lock-out" in violation of the CBA. When Wright found out that the stevedoring companies would no longer accept him for employment, he contacted the Union to ask how he could get back to work. Wright claims that instead of suggesting the filing of a grievance, the Union told him to obtain counsel and file a claim under the ADA. Wright hired an attorney and eventually filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC) and the South Carolina State Human Affairs Commission, alleging that the stevedoring 75 companies and the SCSA had violated the ADA by refusing him work. In October 1995, Wright received a right-to-sue letter from the EEOC. In January 1996, Wright filed a complaint against the SCSA and six individual stevedoring companies in the United States District Court for the District of South Carolina. Respondents' answer asserted various affirmative defenses, including Wright's failure to exhaust his remedies under the CBA and the Seniority Plan. After discovery, respondents moved for summary judgment and Wright moved for partial summary judgment with respect to some of respondents' defenses. A Magistrate Judge recommended that the District Court dismiss the case without prejudice because Wright had failed to pursue the grievance procedure provided by the CBA. The District Court adopted the report and recommendation and subsequently rejected Wright's motion for reconsideration. The United States Court of Appeals for the Fourth Circuit affirmed, see No. 96-2850 (July 29, 1997), judgt. order reported at 121 F.3d 702 , relying upon its earlier decision in Austin v. OwensBrockway Glass Container, Inc., 78 F.3d 875 , cert. denied, 519 U. S. 980 (1996), which in turn had relied upon our decision in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991). We granted certiorari, 522 U. S. 1146 (1998). II In this case, the Fourth Circuit concluded that the general arbitration provision in the CBA governing Wright's employment was sufficiently broad to encompass a statutory claim arising under the ADA, and that such a provision was enforceable. The latter conclusion brings into question two lines of our case law. The first is represented by Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974), which held that an employee does not forfeit his right to a judicial forum for claimed discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 76 u. S. C. § 2000e et seq., if "he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement." 415 U. S., at 49. In rejecting the argument that the doctrine of election of remedies barred the Title VII lawsuit, we reasoned that a grievance is designed to vindicate a "contractual right" under a CBA, while a lawsuit under Title VII asserts "independent statutory rights accorded by Congress." Id., at 49-50. The statutory cause of action was not waived by the union's agreement to the arbitration provision of the CBA, since "there can be no prospective waiver of an employee's rights under Title VII." Id., at 51. We have followed the holding of Gardner-Denver in deciding the effect of CBA arbitration upon employee claims under other statutes. See McDonald v. West Branch, 466 U. S. 284 (1984) (claim under Rev. Stat. § 1979, 42 U. S. C. § 1983); Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981) (claim under Fair Labor Standards Act of 1938, 29 U. S. C. § 201 et seq.). The second line of cases implicated here is represented by Gilmer v. Interstate/Johnson Lane Corp., supra, which held that a claim brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., could be subject to compulsory arbitration pursuant to an arbitration provision in a securities registration form. Relying upon the federal policy favoring arbitration embodied in the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq., we said that "statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA." 500 U. S., at 26 (citing Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614 (1985)). There is obviously some tension between these two lines of cases. Whereas Gardner-Denver stated that "an employee's 77 rights under Title VII are not susceptible of prospective waiver," 415 U. S., at 51-52, Gilmer held that the right to a federal judicial forum for an ADEA claim could be waived. Petitioner and the United States as amicus would have us reconcile the lines of authority by maintaining that federal forum rights cannot be waived in union-negotiated CBAs even if they can be waived in individually executed contracts-a distinction that assuredly finds support in the text of Gilmer, see 500 U. S., at 26, 35. Respondents and their amici, on the other hand, contend that the real difference between Gardner-Denver and Gilmer is the radical change, over two decades, in the Court's receptivity to arbitration, leading Gilmer to affirm that "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration," 500 U. S., at 26 (internal quotation marks and citation omitted); Gilmer, they argue, has sufficiently undermined Gardner-Denver that a union can waive employees' rights to a judicial forum. Although, as will appear, we find Gardner-Denver and Gilmer relevant for various purposes to the case before us, we find it unnecessary to resolve the question of the validity of a union-negotiated waiver, since it is apparent to us, on the facts and arguments presented here, that no such waiver has occurred. III In asserting the existence of an agreement to arbitrate the ADA claim, respondents rely upon the presumption of arbitrability this Court has found in § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185.1 See generally Steelworkers v. Enterprise 1 We have also discerned a presumption of arbitrability under the FAA, 9 U. S. C. § 1 et seq. See Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614 , 626 (1985). Petitioner argued that the FAA 78 Wheel & Car Corp., 363 U. S. 593 (1960); Steelworkers v. American Mfg. Co., 363 U. S. 564 (1960); Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574 (1960). In collectivebargaining agreements, we have said, "there is a presumption of arbitrability in the sense that '[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.''' AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643 , 650 (1986) (quoting Warrior & Gulf, supra, at 582-583). That presumption, however, does not extend beyond the reach of the principal rationale that justifies it, which is that arbitrators are in a better position than courts to interpret the terms of a CBA. See AT&T Technologies, supra, at 650; Warrior & Gulf, supra, at 581-582. This rationale finds support in the very text of the LMRA, which announces that "[f]inal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." 29 U. S. C. § 173(d) (emphasis added). The dispute in the present case, however, ultimately concerns not the application or does not apply to this case, see Brief for Petitioner 43-44, and asserted that respondents "have not argued at any stage of this case that the F. A. A. applies," id., at 43. Respondents did not dispute the latter assertion, nor did they argue the applicability of the FAA before us; rather, they contended that it makes no difference whether the FAA applies, since the FAA presumption and the LMRA presumption are the same, see Brief for Respondents 12; Tr. of Oral Arg. 42-43. Finally, the Fourth Circuit, while it cited an FAA case, Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1 , 24-25 (1983), did not explicitly rely upon the FAA-presumably because it has held elsewhere that the FAA does not apply to CBAs, see Austin v. Owens-Brockway Glass Container, Inc., 78 F. 3d 875, 879 (CA4), cert. denied, 519 U. S. 980 (1996). In these circumstances, we decline to consider the applicability of the FAA to the present case. 79 interpretation of any CBA, but the meaning of a federal statute. The cause of action Wright asserts arises not out of contract, but out of the ADA, and is distinct from any right conferred by the collective-bargaining agreement. See Gilmer, supra, at 34; Barrentine, 450 U. S., at 737; GardnerDenver, supra, at 49-50. To be sure, respondents argue that Wright is not qualified for his position as the CBA requires, but even if that were true he would still prevail if the refusal to hire violated the ADA. Nor is the statutory (as opposed to contractual) focus of the claim altered by the fact that Clause 17 of the CBA recites it to be "the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law." App. 47a. As we discuss below in Part IV; this does not incorporate the ADA by reference. Even if it did so, however-thereby creating a contractual right that is coextensive with the federal statutory right-the ultimate question for the arbitrator would be not what the parties have agreed to, but what federal law requires; and that is not a question which should be presumed to be included within the arbitration requirement. Application of that principle is unaffected by the fact that the CBA in this case, unlike the one in Gardner-Denver, does not expressly limit the arbitrator to interpreting and applying the contract. The presumption only extends that far, whether or not the text of the agreement is similarly limited. It may well be that ordinary textual analysis of a CBA will show that matters which go beyond the interpretation and application of contract terms are subject to arbitration; but they will not be presumed to be so. IV Not only is petitioner's statutory claim not subject to a presumption of arbitrability; we think any CBA requirement to arbitrate it must be particularly clear. In Metropolitan Edison Co. v. NLRB, 460 U. S. 693 (1983), we stated that a 80 union could waive its officers' statutory right under § 8(a)(3) of the National Labor Relations Act, 29 U. s. C. § 158(a)(3), to be free of antiunion discrimination, but we held that such a waiver must be clear and unmistakable. "[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is 'explicitly stated.' More succinctly, the waiver must be clear and unmistakable." 460 U. S., at 708; see also Livadas v. Bradshaw, 512 U. S. 107 , 125 (1994) (dictum); Lingle v. Norge Div. of Magic Chef, Inc., 486 U. S. 399 , 409, n. 9 (1988) (dictum); cf. Mastro Plastics Corp. v. NLRB, 350 U. S. 270 , 283 (1956). We think the same standard applicable to a unionnegotiated waiver of employees' statutory right to a judicial forum for claims of employment discrimination. Although that is not a substantive right, see Gilmer, 500 U. S., at 26, and whether or not Gardner-Denver's seemingly absolute prohibition of union waiver of employees' federal forum rights survives Gilmer, Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-thanexplicit union waiver in a CBA. The CBA in this case does not meet that standard. Its arbitration clause is very general, providing for arbitration of "[m]atters under dispute," App. 43a-which could be understood to mean matters in dispute under the contract. And the remainder of the contract contains no explicit incorporation of statutory antidiscrimination requirements. (Indeed, it does not even contain, as did the CBAs in Austin and Gardner-Denver, its own specific antidiscrimination provision.) The Fourth Circuit relied upon the fact that the equivalently broad arbitration clause in Gilmer-applying to "any dispute, claim or controversy" -was held to embrace federal statutory claims. But Gilmer involved an individual's waiver of his own rights, rather than a union's waiver of the rights of represented em- 81 ployees-and hence the "clear and unmistakable" standard was not applicable. Respondents rely upon Clause 15(F) of the CBA, which states that "this Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment." App. 45a-46a. But even if this could, in isolation, be considered a clear and unmistakable incorporation of employment-discrimination laws (which is doubtful), it is surely deprived of that effect by the provision, later in the same paragraph, that "[a]nything not contained in this Agreement shall not be construed as being part of this Agreement." Id., at 46a. Respondents also rely upon Clause 17 of the CBA, which states that "[i]t is the intention and purpose of all parties hereto that no provision or part of this Agreement shall be violative of any Federal or State Law." Id., at 47a. They argue that this requires the arbitrator to "apply legal definitions derived from the ADA" in determining whether Wright is "qualified" for employment within the meaning of the CBA. Brief for Respondents 39. Perhaps so, but that is not the same as making compliance with the ADA a contractual commitment that would be subject to the arbitration clause. This becomes crystal clear when one contrasts Clause 17 with the provision of the CBA which states that "[t]he requirements of the Occupations [sic] Safety and Health Administration shall be binding on both Parties." App. 46a. (Under respondents' interpretation of Clause 17, this OSHA provision would be superfluous.) Clause 17 seems to us nothing more than a recitation of the canon of construction which would in any event have been applied to the CBA-that an agreement should be interpreted in such fashion as to preserve, rather than destroy, its validity (ut res magis valeat quam pereat). Finally, we do not find a clear and unmistakable waiver in the Longshore Seniority Plan. Like the CBA itself, the plan contains no antidiscrimination provision; and it specifi- 82 cally limits its grievance procedure to disputes related to the agreement.2 *** We hold that the collective-bargaining agreement in this case does not contain a clear and unmistakable waiver of the covered employees' rights to a judicial forum for federal claims of employment discrimination. We do not reach the question whether such a waiver would be enforceable. The judgment of the Fourth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 2 Respondents and some of their amici rely upon the provision in the ADA which states that "[w]here appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including ... arbitration, is encouraged to resolve disputes arising under this chapter." 42 U. S. C. § 12212. They rely upon it principally in connection with the question whether, under Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), a pre dispute agreement in a CBA to arbitrate employment-discrimination claims is enforceable-a question we do not reach. Our conclusion that a union waiver of employee rights to a federal judicial forum for employment-discrimination claims must be clear and unmistakable means that, absent a clear waiver, it is not "appropriate," within the meaning of this provision of the ADA, to find an agreement to arbitrate. We take no position, however, on the effect of this provision in cases where a CBA clearly encompasses employment-discrimination claims, or in areas outside collective bargaining.

In Wright v. Universal Maritime Service Corp. et al., the Supreme Court considered whether a collective bargaining agreement's (CBA) general arbitration clause required an employee to use arbitration to resolve a claim of employment discrimination under the Americans with Disabilities Act (ADA). The Court held that the CBA's arbitration clause did not encompass the employee's ADA claim and that the union had not clearly waived the employee's right to a judicial forum for statutory antidiscrimination claims. The Court found that the presumption of arbitrability under the Labor Management Relations Act did not apply because the dispute concerned the interpretation of a federal statute, not the CBA. It also emphasized that a union waiver of employees' rights to a federal judicial forum for statutory antidiscrimination claims must be clear and unmistakable, which was not the case in the CBA's very general arbitration clause. The Court vacated the Fourth Circuit's judgment and remanded the case for further proceedings.

Labor & Employment

Inter-Modal Rail Employees Ass'n v. Atchison, Topeka & Santa Fe Railway Co.

https://supreme.justia.com/cases/federal/us/520/510/

OCTOBER TERM, 1996 Syllabus INTER-MODAL RAIL EMPLOYEES ASSOCIATION ET AL. v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No.96-491. Argued March 17, 1997-Decided May 12, 1997 As employees of respondent Santa Fe Terminal Services, Inc. (SFTS), a wholly owned subsidiary of respondent The Atchison, Topeka and Santa Fe Railway Co. (ATSF), the individual petitioners were entitled, among other things, to pension, health, and welfare benefits under SFTSTeamsters Union collective bargaining agreements. The resulting benefit plans were subject to the Employee Retirement Income Security Act of 1974 (ERISA). Ultimately ATSF bid the work being done by petitioners to respondent In-Terminal Services (ITS) and terminated SFTS employees who declined to continue employment with ITS. The ITS-Teamsters pension and welfare benefit plans were less generous than the SFTS- Teamsters plans. Petitioners filed suit, alleging that the terminations violated § 510 of ERISA, which makes it unlawful to "discharge ... a [plan] participant ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." (Emphasis added.) The District Court granted respondents' motion to dismiss. Concluding that § 510 only prohibits interference with the attainment of rights that are capable of "vesting," the Court of Appeals reinstated petitioners' claim for interference with pension benefits, but affirmed the dismissal of their claim for interference with welfare benefits, which do not vest. Held: The Court of Appeals' holding that § 510 bars interference only with vested rights is contradicted by § 51O's plain language, whose use of the word "plan" all but forecloses that position. ERISA defines "plan" to include an "employee welfare benefit plan," 29 U. S. C. § 1002(3), even though welfare plans are exempted from its stringent vesting requirements, see § 1051(1). Had Congress intended to confine § 510's protection to "vested" rights, it could have easily substituted "pension plan" for "plan" or "nonforfeitable right" for "any right." The flexibility an employer enjoys to unilaterally amend or eliminate its welfare benefit plan, see Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73 , 78, does not justify a departure from § 510's plain language. Such flexibility helps employers avoid the complicated administration and increased cost of vested plans, and encourages them to offer more generous benefits at the outset, since they can reduce benefits should economic conditions 511 sour. Section 510 counterbalances this flexibility by requiring employers to follow a plan's formal amendment process, thus ensuring that employers do not "circumvent the provision of promised benefits." Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 143. Any tension that might exist between an employer's amendment power and a participant's § 510 rights is the product of a careful balance of competing interests, not the type of "absurd or glaringly unjust" result, Ingalls Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs, 519 U. S. 248 , 261, that would warrant departure from § 510's plain language. On remand, the Court of Appeals should have the first opportunity to evaluate respondents' remaining arguments, including their argument that petitioners were eligible to receive welfare benefits under the SFTS- Teamsters plan at the time they were discharged and, thus, cannot state a § 510 claim. Pp. 514-517. 80 F.3d 348 , vacated and remanded. O'CONNOR, J., delivered the opinion for a unanimous Court. Richard E. Schwartz argued the cause for petitioners. With him on the briefs was James E. Parrot. Cornelia T. L. Pillard argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, and Mark S. Flynn. James D. Holzhauer argued the cause for respondents. With him on the brief for respondents Atchison, Topeka & Santa Fe Railway Co. et al. was Alan E. Untereiner. Patrick W Jordan and Robin M. Schachter filed a brief for respondent In-Terminal Services. * JUSTICE O'CONNOR delivered the opinion of the Court. Section 510 of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, makes it unlawful to *Mary Ellen Signorille, Melvin Radowitz, and Ronald Dean filed a brief for the American Association of Retired Persons et al. as amici curiae urging reversal. Robert N. Eccles, Karen M. Wahle, Jan S. Amundson, Quentin Riegel, Robert W Blanchette, and Kenneth P. Kolson filed a brief for the Employers Group et al. as amici curiae urging affirmance. 512 "discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary [of an employee benefit plan] for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U. S. C. § 1140. The Court of Appeals for the Ninth Circuit held that § 510 only prohibits interference with the attainment of rights that are capable of "vesting," as that term is defined in ERISA. We disagree. I The individual petitioners are former employees of respondent Santa Fe Terminal Services, Inc. (SFTS), a wholly owned subsidiary of respondent The Atchison, Topeka and Santa Fe Railway Co. (ATSF), which was responsible for transferring cargo between railcars and trucks at ATSF's Hobart Yard in Los Angeles, California. While petitioners were employed by SFTS, they were entitled to retirement benefits under the Railroad Retirement Act of 1974, 88 Stat. 1312, as amended, 45 U. S. C. § 231 et seq., and to pension, health, and welfare benefits under collective bargaining agreements involving SFTS and the Teamsters Union. SFTS provided its workers with pension, health, and welfare benefits through employee benefit plans subject to ERISA's comprehensive regulations. In January 1990, ATSF entered into a formal "Service Agreement" with SFTS to have SFTS do the same "intermodal" work it had done at the Hobart Yard for the previous 15 years without a contract. Seven weeks later, ATSF exercised its right to terminate the newly formed agreement and opened up the Hobart Yard work for competitive bidding. Respondent In-Terminal Services (ITS) was the successful bidder, and SFTS employees who declined to continue employment with ITS were terminated. ITS, unlike SFTS, was not obligated to make contributions to the Railroad Retirement Account under the Railroad Retirement Act. ITS also provided fewer pension and welfare benefits under its 513 collective bargaining agreement with the Teamsters Union than had SFTS. Workers who continued their employment with ITS "lost their Railroad Retirement Act benefits" and "suffered a substantial reduction in Teamsters benefits." 80 Petitioners sued respondents SFTS, ATSF, and ITS in the United States District Court for the Central District of California, alleging that respondents had violated § 510 of ERISA by "discharg[ing]" petitioners "for the purpose of interfering with the attainment of ... right[s] to which" they would have "become entitled" under the ERISA pension and welfare plans adopted pursuant to the SFTS-Teamsters collective bargaining agreement. See App. to Pet. for Cert. 29a, Complaint , 33. Had SFTS remained their employer, petitioners contended, they would have been entitled to assert claims for benefits under the SFTS- Teamsters benefit plans, at least until the collective bargaining agreement that gave rise to those plans expired. The substitution of ITS for SFTS, however, precluded them from asserting those claims and relegated them to asserting claims under the less generous ITS-Teamsters benefit plans. According to petitioners, the substitution "interfer[ed] with the attainment" of their "right" to assert those claims and violated § 510. Respondents moved to dismiss these § 510 claims, and the District Court granted the motion. The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. 80 F.3d 348 (1996). The court reinstated petitioners' claim under § 510 for interference with their pension benefits, concluding that § 510 "'protects plan participants from termination motivated by an employer's desire to prevent a pension from vesting.'" Id., at 350351 (quoting Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 143 (1990)). But the Court of Appeals affirmed the dismissal of petitioners' claim for interference with their wel fare benefits. "Unlike pension benefits," the Court of Appeals observed, "welfare benefits do not vest." 80 F. 3d, at 514 351. As a result, the Court of Appeals noted, "employers remain free to unilaterally amend or eliminate [welfare] plans," and "employees have no present 'right' to future, anticipated welfare benefits.'" Ibid. (emphasis deleted; internal quotation marks omitted). Because the "existence of a present 'right' is [a] prerequisite to section 510 relief," the Court of Appeals concluded that § 510 did not state a cause of action for interference with welfare benefits. Ibid. We granted certiorari to resolve a conflict among the Courts of Appeals on this issue, * 519 U. S. 1003 (1996), and now vacate the decision below and remand. II The Court of Appeals' holding that § 510 bars interference only with vested rights is contradicted by the plain language of § 510. As noted above, that section makes it unlawful to "discharge ... a [plan] participant or beneficiary ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan." 29 U. S. C. § 1140 (emphasis added). ERISA defines a "plan" to include both "an employee welfare benefit plan [and] an employee pension benefit plan," § 1002(3), and specifically exempts "employee welfare benefit plan[s]" from its stringent vesting requirements, see § 1051(1). Because a "plan" includes an "employee welfare benefit plan," and because welfare plans offer benefits that do not "vest" (at least insofar as ERISA is concerned), Congress' use of the word "plan" in § 510 all but forecloses the argument that § 510's interfer- *See Shahid v. Ford Motor Co., 76 F.3d 1404 , 1411 (CA6 1996) (holding that § 510 draws no distinction between benefits that vest and those that do not); Heath v. Varity Corp., 71 F.3d 256 , 258 (CA7 1995) (same); Seaman v. Arvida Realty Sales, 985 F.2d 543 , 546 (CAll) (same), cert. denied, 510 U. S. 916 (1993); see also McGann v. H & H Music Co., 946 F.2d 401 , 408 (CA5 1991) (implying the same), cert. denied sub nom. Greenburg v. H & H Music Co., 506 U. S. 981 (1992); Andes v. Ford Motor Co., 70 F.3d 1332 , 1336 (CADC 1995) (implying the same). 515 ence clause applies only to "vested" rights. Had Congress intended to confine § 510's protection to "vested" rights, it could have easily substituted the term "pension plan," see 29 U. S. C. § 1002(2), for "plan," or the term "nonforfeitable" right, see § 1002(19), for "any right." But § 510 draws no distinction between those rights that "vest" under ERISA and those that do not. The right that an employer or plan sponsor may enjoy in some circumstances to unilaterally amend or eliminate its welfare benefit plan does not, as the Court of Appeals apparently thought, justify a departure from § 510's plain language. It is true that ERISA itself "does not regulate the substantive content of welfare-benefit plans." Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 732 (1985). Thus, unless an employer contractually cedes its freedom, see, e. g., Adcox v. Teledyne, Inc., 21 F.3d 1381 , 1389 (CA6), cert. denied, 513 U. S. 871 (1994), it is "generally free under ERISA, for any reason at any time, to adopt, modify, or terminate [its] welfare pla[n]." Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73 , 78 (1995). The flexibility an employer enjoys to amend or eliminate its welfare plan is not an accident; Congress recognized that "requir[ing] the vesting of these ancillary benefits would seriously complicate the administration and increase the cost of plans." S. Rep. No. 93-383, p. 51 (1973). Giving employers this flexibility also encourages them to offer more generous benefits at the outset, since they are free to reduce benefits should economic conditions sour. If employers were locked into the plans they initially offered, "they would err initially on the side of omission." Heath v. Varity Corp., 71 F.3d 256 , 258 (CA7 1995). Section 510 counterbalances this flexibility by ensuring that employers do not "circumvent the provision of promised benefits." Ingersoll-Rand Co., supra, at 143 (citing S. Rep. No. 93-127, pp. 35-36 (1973); H. R. Rep. No. 93-533, p. 17 (1973)). In short, "§ 510 helps to make promises credible." Heath, supra, at 258. An employer 516 may, of course, retain the unfettered right to alter its promises, but to do so it must follow the formal procedures set forth in the plan. See 29 U. S. C. § 1l02(b)(3) (requiring plan to "provide a procedure for amending such plan"); Schoonejongen, supra, at 78 (observing that the "cognizable claim [under ERISA] is that the company did not [amend its welfare benefit plan] in a permissible manner"). Adherence to these formal procedures "increases the likelihood that proposed plan amendments, which are fairly serious events, are recognized as such and given the special consideration they deserve." Schoonejongen, supra, at 82. The formal amendment process would be undermined if § 510 did not apply because employers could "informally" amend their plans one participant at a time. Thus, the power to amend or abolish a welfare benefit plan does not include the power to "discharge, fine, suspend, expel, discipline, or discriminate against" the plan's participants and beneficiaries "for the purpose of interfering with [their] attainment of ... right[s] ... under the plan." To be sure, when an employer acts without this purpose, as could be the case when making fundamental business decisions, such actions are not barred by § 510. But in the case where an employer acts with a purpose that triggers the protection of § 510, any tension that might exist between an employer's power to amend the plan and a participant's rights under § 510 is the product of a careful balance of competing interests, and is most surely not the type of "absurd or glaringly unjust" result, Ingalls Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs, 519 U. S. 248 , 261 (1997), that would warrant departure from the plain language of § 510. Respondents argue that the Court of Appeals' decision must nevertheless be affirmed because § 510, when applied to benefits that do not "vest," only protects an employee's right to cross the "threshold of eligibility" for welfare benefits. See Brief for Respondent Atchison, Topeka & Santa Fe Railway Co. et al. 18. In other words, argue respondents, 517 an employee who is eligible to receive benefits under an ERISA welfare benefit plan has already "attain[ed]" her "right[s]" under the plan, so that any subsequent actions taken by an employer cannot, by definition, "interfer[e]" with the "attainment of ... right[s]" under the plan. According to respondents, petitioners were eligible to receive welfare benefits under the SFTS- Teamsters plan at the time they were discharged, so they cannot state a claim under § 510. The Court of Appeals' approach precluded it from evaluating this argument, and others presented to us, and we see no reason not to allow it the first opportunity to consider these matters on remand. We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered.

The Supreme Court ruled that the provision in the Employee Retirement Income Security Act of 1974 (ERISA) that makes it unlawful to discharge an employee for the purpose of interfering with their attainment of any right under a benefit plan applies to both pension and welfare benefit plans, even if the welfare benefits do not vest. The Court held that the plain language of ERISA, which defines "plan" to include welfare benefit plans, indicates that Congress intended to protect employees' rights to both types of benefits. The Court also noted that employers must follow formal procedures when amending or eliminating welfare benefit plans, and that employees have a right to cross the "threshold of eligibility" for these benefits. The case was remanded to the lower court for further consideration.

Labor & Employment

Faragher v. City of Boca Raton

https://supreme.justia.com/cases/federal/us/524/775/

OCTOBER TERM, 1997 Syllabus FARAGHER v. CITY OF BOCA RATON CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 97-282. Argued March 25, 1998-Decided June 26,1998 After resigning as a lifeguard with respondent City of Boca Raton (City), petitioner Beth Ann Faragher brought an action against the City and her immediate supervisors, Bill Terry and David Silverman, for nominal damages and other relief, alleging, among other things, that the supervisors had created a "sexually hostile atmosphere" at work by repeatedly subjecting Faragher and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms, and that this conduct constituted discrimination in the "terms, conditions, and privileges" of her employment in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a)(1). Following a bench trial, the District Court concluded that the supervisors' conduct was discriminatory harassment sufficiently serious to alter the conditions of Faragher's employment and constitute an abusive working environment. The District Court then held that the City could be held liable for the harassment of its supervisory employees because the harassment was pervasive enough to support an inference that the City had "knowledge, or constructive knowledge," of it; under traditional agency principles Terry and Silverman were acting as the City's agents when they committed the harassing acts; and a third supervisor had knowledge of the harassment and failed to report it to City officials. The Eleventh Circuit, sitting en banc, reversed. Relying on Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , and on the Restatement (Second) of Agency § 219 (1957) (Restatement), the Court of Appeals held that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassing conduct, that their agency relationship with the City did not facilitate the harassment, that constructive knowledge of it could not be imputed to the City because of its pervasiveness or the supervisor's knowledge, and that the City could not be held liable for negligence in failing to prevent it. Held: An employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. Pp. 786-810. (a) While the Court has delineated the substantive contours of the hostile environment Title VII forbids, see, e. g., Harris v. Forklift Sys- 776 Syllabus tems, Inc., 510 U. S. 17 ,21-22, its cases have established few definitive rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive. The Court's only discussion to date of the standards of employer liability came in Meritor, supra, where the Court held that traditional agency principles were relevant for determining employer liability. Although the Court cited the Restatement §§219-237 with general approval, the Court cautioned that common-law agency principles might not be transferable in all their particulars. Pp. 786-792. (b) Restatement § 219(1) provides that "a master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Although Title VII cases in the Courts of Appeals have typically held, or assumed, that supervisory sexual harassment falls outside the scope of employment because it is motivated solely by individual desires and serves no purpose of the employer, these cases appear to be in tension with others defining the scope of the employment broadly to hold employers vicariously liable for employees' intentional torts, including sexual assaults, that were not done to serve the employer, but were deemed to be characteristic of its activities or a foreseeable consequence of its business. This tension is the result of differing judgments about the desirability of holding an employer liable for his subordinates' wayward behavior. The proper analysis here, then, calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, but rather an enquiry into whether it is proper to conclude that sexual harassment is one of the normal risks of doing business the employer should bear. An employer can reasonably anticipate the possibility of sexual harassment occurring in the workplace, and this might justify the assignment of the costs of this behavior to the employer rather than to the victim. Two things counsel in favor of the contrary conclusion, however. First, there is no reason to suppose that Congress wished courts to ignore the traditional distinction between acts falling within the scope of employment and acts amounting to what the older law called frolics or detours from the course of employment. Second, the lower courts, by uniformly judging employer liability for co-worker harassment under a negligence standard, have implicitly treated such harassment outside the scope of employment. It is unlikely that such treatment would escape efforts to render them obsolete if the Court held that harassing supervisors necessarily act within the scope of their employment. The rationale for doing so would apply when the behavior was that of coemployees, because the employer generally benefits from the work of common employees as from the work of supervisors. The answer to this argument might be that the scope of supervisory employment may be treated separately because super- 777 visors have special authority enhancing their capacity to harass and the employer can guard against their misbehavior more easily. This answer, however, implicates an entirely separate category of agency law, considered in the next section. Given the virtue of categorical clarity, it is better to reject reliance on misuse of supervisory authority (without more) as irrelevant to the scope-of-employment analysis. Pp. 793-801. (c) The Court of Appeals erred in rejecting a theory of vicarious liability based on § 219(2)(d) of the Restatement, which provides that an employer "is not subject to liability for the torts of his servants acting outside the scope of their employment unless ... the servant purported to act or speak on behalf of the principal and there was reliance on apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." It makes sense to hold an employer vicariously liable under Title VII for some tortious conduct of a supervisor made possible by use of his supervisory authority, and the aided-byagency-relation principle of § 219(2)(d) provides an appropriate starting point for determining liability for the kind of harassment presented here. In a sense a supervisor is always assisted in his misconduct by the supervisory relationship; however, the imposition of liability based on the misuse of supervisory authority must be squared with Meritor's holding that an employer is not "automatically" liable for harassment by a supervisor who creates the requisite degree of discrimination. There are two basic alternatives to counter the risk of automatic liability. The first is to require proof of some affirmative invocation of that authority by the harassing supervisor; the second is to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment. The problem with the first alternative is that there is not a clear line between the affirmative and merely implicit uses of supervisory power; such a rule would often lead to close judgment calls and results that appear disparate if not contradictory, and the temptation to litigate would be hard to resist. The second alternative would avoid this particular temptation to litigate and implement Title VII sensibly by giving employers an incentive to prevent and eliminate harassment and by requiring employees to take advantage of the preventive or remedial apparatus of their employers. Thus, the Court adopts the following holding in this case and in Burlington Industries, Inc. v. Ellerth, ante, p. 742, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a prepon- 778 Syllabus derance of the evidence. See Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Pp. 801-808. (d) Under this standard, the Eleventh Circuit's judgment must be reversed. The District Court found that the degree of hostility in the work environment rose to the actionable level and was attributable to Silverman and Terry, and it is clear that these supervisors were granted virtually unchecked authority over their subordinates and that Faragher and her colleagues were completely isolated from the City's higher management. While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The District Court found that the City had entirely failed to disseminate its sexual harassment policy among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors, and the record makes clear that the City's policy did not include any harassing supervisors assurance that could be bypassed in registering complaints. Under such circumstances, the Court holds as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. Although the record discloses two possible grounds upon which the City might seek to excuse its failure to distribute its policy and to establish a complaint mechanism, both are contradicted by the record. The City points to nothing that might justify a conclusion by the District Court on remand that the City had exercised reasonable care. Nor is there any reason to remand for consideration of Faragher's efforts to mitigate her own damages, since the award to her was solely nominal. Pp. 808-809. 779 (e) There is no occasion to consider whether the supervisors' knowledge of the harassment could be imputed to the City. Liability on that theory could not be determined without further factfinding on remand, whereas the reversal necessary on the supervisory harassment theory renders any remand for consideration of imputed knowledge (or of negligence as an alternative to a theory of vicarious liability) entirely unjustifiable. P. 810. 111 F.3d 1530 , reversed and remanded. SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 810. William R. Amlong argued the cause for petitioner. With him on the briefs were Martha F. Davis, Yolanda S. Wu, and Eric Schnapper. Irving Gornstein argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Lee, Deputy Solicitor General Wallace, C. Gregory Stewart, Carolyn L. Wheeler, and Gail S. Coleman. Harry A. Rissetto argued the cause for respondent. With him on the briefs were Peter Buscemi, Mark S. Dichter, Mark A. Srere, and Victoria E. Houck. * *Briefs of amici curiae urging reversal were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, Marsha S. Berzon, and Laurence Gold; for the Lawyers' Committee for Civil Rights Under Law et al. by Marc L. Fleischaker, Jack W Londen, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, and Steven R. Shapiro; for the National Employment Lawyers Association by Margaret A. Harris and H. Candace Gorman; and for the National Women's Law Center, Equal Rights Advocates et al. by Lois G. Williams, Nancy C. Libin, Jane L. Dolkart, and Marcia D. Greenberger. Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Stephen A. Bokat, Robin S. Conrad, and Sussan L. Mahallati; for the Equal Employment Advisory Council by Ann Elizabeth Reesman; for the National Association of Manufacturers et al. by William J. Kilberg, Douglas R. Cox, Jan S. Amundson, and 780 JUSTICE SOUTER delivered the opinion of the Court. This case calls for identification of the circumstances under which an employer may be held liable under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., for the acts of a supervisory employee whose sexual harassment of subordinates has created a hostile work environment amounting to employment discrimination. We hold that an employer is vicariously liable for actionable discrimination caused by a supervisor, but subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of a plaintiff victim. I Between 1985 and 1990, while attending college, petitioner Beth Ann Faragher worked part time and during the summers as an ocean lifeguard for the Marine Safety Section of the Parks and Recreation Department of respondent, the City of Boca Raton, Florida (City). During this period, Faragher's immediate supervisors were Bill Terry, David Silverman, and Robert Gordon. In June 1990, Faragher resigned. In 1992, Faragher brought an action against Terry, Silverman, and the City, asserting claims under Title VII, Rev. Stat. § 1979, 42 U. S. C. § 1983, and Florida law. So far as it concerns the Title VII claim, the complaint alleged that Terry and Silverman created a "sexually hostile atmosphere" at the beach by repeatedly subjecting Faragher and other female lifeguards to "uninvited and offensive touching," by making lewd remarks, and by speaking of women in offensive terms. The complaint contained specific allegations that Terry once said that he would never promote a woman to the rank of lieutenant, and that Silverman had said to Faragher, "Date me or clean the toilets for a year." Asserting that Quentin Riegal; and for the Society for Human Resource Management by Allan H. Weitzman and Paul Salvatore. 781 Terry and Silverman were agents of the City, and that their conduct amounted to discrimination in the "terms, conditions, and privileges" of her employment, 42 U. S. C. § 2000e2(a)(1), Faragher sought a judgment against the City for nominal damages, costs, and attorney's fees. Following a bench trial, the United States District Court for the Southern District of Florida found that throughout Faragher's employment with the City, Terry served as Chief of the Marine Safety Division, with authority to hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards' work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline. 864 F. Supp. 1552, 1563-1564 (1994). Silverman was a Marine Safety lieutenant from 1985 until June 1989, when he became a captain. I d., at 1555. Gordon began the employment period as a lieutenant and at some point was promoted to the position of training captain. In these positions, Silverman and Gordon were responsible for making the lifeguards' daily assignments, and for supervising their work and fitness training. I d., at 1564. The lifeguards and supervisors were stationed at the city beach and worked out of the Marine Safety Headquarters, a small one-story building containing an office, a meeting room, and a single, unisex locker room with a shower. Id., at 1556. Their work routine was structured in a "paramilitary configuration," id., at 1564, with a clear chain of command. Lifeguards reported to lieutenants and captains, who reported to Terry. He was supervised by the Recreation Superintendent, who in turn reported to a Director of Parks and Recreation, answerable to the City Manager. Id., at 1555. The lifeguards had no significant contact with higher city officials like the Recreation Superintendent. I d., at 1564. In February 1986, the City adopted a sexual harassment policy, which it stated in a memorandum from the City Man- 782 ager addressed to all employees. Id., at 1560. In May 1990, the City revised the policy and reissued a statement of it. Ibid. Although the City may actually have circulated the memos and statements to some employees, it completely failed to disseminate its policy among employees of the Marine Safety Section, with the result that Terry, Silverman, Gordon, and many lifeguards were unaware of it. Ibid. From time to time over the course of Faragher's tenure at the Marine Safety Section, between 4 and 6 of the 40 to 50 lifeguards were women. Id., at 1556. During that 5-year period, Terry repeatedly touched the bodies of female employees without invitation, ibid., would put his arm around Faragher, with his hand on her buttocks, id., at 1557, and once made contact with another female lifeguard in a motion of sexual simulation, id., at 1556. He made crudely demeaning references to women generally, id., at 1557, and once commented disparagingly on Faragher's shape, ibid. During a job interview with a woman he hired as a lifeguard, Terry said that the female lifeguards had sex with their male counterparts and asked whether she would do the same. Ibid. Silverman behaved in similar ways. He once tackled Faragher and remarked that, but for a physical characteristic he found unattractive, he would readily have had sexual relations with her. Ibid. Another time, he pantomimed an act of oral sex. Ibid. Within earshot of the female lifeguards, Silverman made frequent, vulgar references to women and sexual matters, commented on the bodies of female lifeguards and beachgoers, and at least twice told female lifeguards that he would like to engage in sex with them. I d., at 1557-1558. Faragher did not complain to higher management about Terry or Silverman. Although she spoke of their behavior to Gordon, she did not regard these discussions as formal complaints to a supervisor but as conversations with a person she held in high esteem. Id., at 1559. Other female 783 lifeguards had similarly informal talks with Gordon, but because Gordon did not feel that it was his place to do so, he did not report these complaints to Terry, his own supervisor, or to any other city official. I d., at 1559-1560. Gordon responded to the complaints of one lifeguard by saying that "the City just [doesn't] care." Id., at 1561. In April 1990, however, two months before Faragher's resignation, Nancy Ewanchew, a former lifeguard, wrote to Richard Bender, the City's Personnel Director, complaining that Terry and Silverman had harassed her and other female lifeguards. Id., at 1559. Following investigation of this complaint, the City found that Terry and Silverman had behaved improperly, reprimanded them, and required them to choose between a suspension without payor the forfeiture of annual leave. Ibid. On the basis of these findings, the District Court concluded that the conduct of Terry and Silverman was discriminatory harassment sufficiently serious to alter the conditions of Faragher's employment and constitute an abusive working environment. I d., at 1562-1563. The District Court then ruled that there were three justifications for holding the City liable for the harassment of its supervisory employees. First, the court noted that the harassment was pervasive enough to support an inference that the City had "knowledge, or constructive knowledge," of it. Id., at 1563. Next, it ruled that the City was liable under traditional agency principles because Terry and Silverman were acting as its agents when they committed the harassing acts. Id., at 1563-1564. Finally, the court observed that Gordon's knowledge of the harassment, combined with his inaction, "provides a further basis for imputing liability on [sic] the City." Id., at 1564. The District Court then awarded Faragher $1 in nominal damages on her Title VII claim. I d., at 1564-1565. A panel of the Court of Appeals for the Eleventh Circuit reversed the judgment against the City. 76 F.3d 1155 784 (1996). Although the panel had "no trouble concluding that Terry's and Silverman's conduct ... was severe and pervasive enough to create an objectively abusive work environment," id., at 1162, it overturned the District Court's conclusion that the City was liable. The panel ruled that Terry and Silverman were not acting within the scope of their employment when they engaged in the harassment, id., at 1166, that they were not aided in their actions by the agency relationship, id., at 1166, n. 14, and that the City had no constructive knowledge of the harassment by virtue of its pervasiveness or Gordon's actual knowledge, id., at 1167, and n. 16. In a 7 -to-5 decision, the full Court of Appeals, sitting en banc, adopted the panel's conclusion. 111 F.3d 1530 (1997). Relying on our decision in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), and on the Restatement (Second) of Agency § 219 (1957) (hereinafter Restatement), the court held that "an employer may be indirectly liable for hostile environment sexual harassment by a superior: (1) if the harassment occurs within the scope of the superior's employment; (2) if the employer assigns performance of a nondelegable duty to a supervisor and an employee is injured because of the supervisor's failure to carry out that duty; or (3) if there is an agency relationship which aids the supervisor's ability or opportunity to harass his subordinate." 111 Applying these principles, the court rejected Faragher's Title VII claim against the City. First, invoking standard agency language to classify the harassment by each supervisor as a "frolic" unrelated to his authorized tasks, the court found that in harassing Faragher, Terry and Silverman were acting outside of the scope of their employment and solely to further their own personal ends. Id., at 1536-1537. Next, the court determined that the supervisors' agency relationship with the City did not assist them in perpetrating their harassment. Id., at 1537. Though noting that "a supervisor is always aided in accomplishing hostile environment sex- 785 ual harassment by the existence of the agency relationship with his employer because his responsibilities include close proximity to and regular contact with the victim," the court held that traditional agency law does not employ so broad a concept of aid as a predicate of employer liability, but requires something more than a mere combination of agency relationship and improper conduct by the agent. Ibid. Because neither Terry nor Silverman threatened to fire or demote Faragher, the court concluded that their agency relationship did not facilitate their harassment. Ibid. The en banc court also affirmed the panel's ruling that the City lacked constructive knowledge of the supervisors' harassment. The court read the District Court's opinion to rest on an erroneous legal conclusion that any harassment pervasive enough to create a hostile environment must a fortiori also suffice to charge the employer with constructive knowledge. Id., at 1538. Rejecting this approach, the court reviewed the record and found no adequate factual basis to conclude that the harassment was so pervasive that the City should have known of it, relying on the facts that the harassment occurred intermittently, over a long period of time, and at a remote location. Ibid. In footnotes, the court also rejected the arguments that the City should be deemed to have known of the harassment through Gordon, id., at 1538, n. 9, or charged with constructive knowledge because of its failure to disseminate its sexual harassment policy among the lifeguards, id., at 1539, n. 11. Since our decision in Meritor, Courts of Appeals have struggled to derive manageable standards to govern employer liability for hostile environment harassment perpetrated by supervisory employees. While following our admonition to find guidance in the common law of agency, as embodied in the Restatement, the Courts of Appeals have adopted different approaches. Compare, e. g., Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (CAlO 1997), vacated, post, p. 947; 111 F.3d 1530 (CAll 1997) (case below); Gary v. 786 Long, 59 F.3d 1391 (CAD C), cert. denied, 516 U. S. 1011 (1995); and Karibian v. Columbia University, 14 F.3d 773 (CA2), cert. denied, 512 U. S. 1213 (1994). We granted certiorari to address the divergence, 522 U. S. 978 (1997), and now reverse the judgment of the Eleventh Circuit and remand for entry of judgment in Faragher's favor. II A Under Title VII of the Civil Rights Act of 1964, "[i]t shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U. S. C. § 2000e-2(a)(1). We have repeatedly made clear that although the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition "'is not limited to "economic" or "tangible" discrimination,'" Harris v. Forklift Systems, Inc., 510 U. S. 17 , 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, supra, at 64), and that it covers more than "'terms' and 'conditions' in the narrow contractual sense." Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 78 (1998). Thus, in Meritor we held that sexual harassment so "severe or pervasive" as to "'alter the conditions of [the victim's] employment and create an abusive working environment'" violates Title VII. 477 U. S., at 67 (quoting Henson In thus holding that environmental claims are covered by the statute, we drew upon earlier cases recognizing liability for discriminatory harassment based on race and national origin, see, e. g., Rogers v. EEOC, 454 F.2d 234 (CA5 1971), cert. denied, 406 U. S. 957 (1972); Firefighters Institute for Racial Equality v. St. Louis, 549 F.2d 506 (CA8), cert. denied sub nom. Banta v. United States, 434 U. S. 819 (1977), 787 just as we have also followed the lead of such cases in attempting to define the severity of the offensive conditions necessary to constitute actionable sex discrimination under the statute. See, e. g., Rogers, supra, at 238 ("[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not sufficiently alter terms and conditions of employment to violate Title VII).l See also Daniels v. Essex Group, Inc., 937 F.2d 1264 , 1271-1272 (CA7 1991); Davis v. Monsanto Chemical Co., 858 F.2d 345 , 349 (CA6 1988), cert. denied, 490 U. S. 1110 (1989); Snell v. Suffolk County, 782 F.2d 1094 , 1103 (CA2 1986); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 349, and nn. 36-37 (3d ed. 1996) (hereinafter Lindemann & Grossman) (citing cases instructing that "[d]iscourtesy or rudeness should not be confused with racial harassment" and that "a lack of racial sensitivity does not, alone, amount to actionable harassment"). So, in Harris, we explained that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so. 510 U. S., at 21-22. We directed courts to determine whether an environment is sufficiently hostile or abusive by "looking at all the circumstances," including the "frequency of the discriminatory conduct; its severity; whether it is physically threat- 1 Similarly, Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment. See, e. g., Carrero v. New York City Housing Auth., 890 F.2d 569 , 577 (CA2 1989) (citing Lopez v. S. B. Thomas, Inc., 831 F.2d 1184 , 1189 (CA2 1987), a case of racial harassment, for the proposition that incidents of environmental sexual harassment "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive"). Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment. 788 ening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id., at 23. Most recently, we explained that Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale, 523 U. S., at 81. A recurring point in these opinions is that "simple teasing," id., at 82, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment. " These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code." Id., at 80. Properly applied, they will filter out complaints attacking "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992) (hereinafter Lindemann & Kadue) (footnotes omitted). We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment, and the Courts of Appeals have heeded this view. See, e. g., Carrero v. New York City Housing Auth., 890 F.2d 569 , 577-578 (CA2 1989); Moylan v. Maries County, 792 F. 2d 746, 749-750 (CA8 1986); See also 1 Lindemann & Grossman 805-807, n. 290 (collecting cases granting summary judgment for employers because the alleged harassment was not actionably severe or pervasive). While indicating the substantive contours of the hostile environments forbidden by Title VII, our cases have established few definite rules for determining when an employer will be liable for a discriminatory environment that is otherwise actionably abusive. Given the circumstances of many of the litigated cases, including some that have come to us, it is not surprising that in many of them, the issue has been joined over the sufficiency of the abusive conditions, not the 789 standards for determining an employer's liability for them. There have, for example, been myriad cases in which District Courts and Courts of Appeals have held employers liable on account of actual knowledge by the employer, or highechelon officials of an employer organization, of sufficiently harassing action by subordinates, which the employer or its informed officers have done nothing to stop. See, e. g., Katz v. Dole, 709 F.2d 251 , 256 (CA4 1983) (upholding employer liability because the "employer's supervisory personnel manifested unmistakable acquiescence in or approval of the harassment"); EEOC v. Hacienda Hotel, 881 F.2d 1504 , 1516 (CA9 1989) (employer liable where hotel manager did not respond to complaints about supervisors' harassment); Hall v. Gus Constr. Co., 842 F.2d 1010 , 1016 (CA8 1988) (holding employer liable for harassment by co-workers because supervisor knew of the harassment but did nothing). In such instances, the combined knowledge and inaction may be seen as demonstrable negligence, or as the employer's adoption of the offending conduct and its results, quite as if they had been authorized affirmatively as the employer's policy. Cf. Oncale, supra, at 77 (victim reported his grounds for fearing rape to company's safety supervisor, who turned him away with no action on complaint). Nor was it exceptional that standards for binding the employer were not in issue in Harris, supra. In that case of discrimination by hostile environment, the individual charged with creating the abusive atmosphere was the president of the corporate employer, 510 U. S., at 19, who was indisputably within that class of an employer organization's officials who may be treated as the organization's proxy. Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559 , 564 (CA8 1992) (employer-company liable where harassment was perpetrated by its owner); see Torres v. Pisano, 116 F.3d 625 , 634-635, and n. 11 (CA2) (noting that a supervisor may hold a sufficiently high position "in the management hierarchy of the company for his actions to be imputed 790 automatically to the employer"), cert. denied, 522 U. S. 997 (1997); cf. Katz, supra, at 255 ("Except in situations where a proprietor, partner or corporate officer participates personally in the harassing behavior," an employee must "demonstrat[e] the propriety of holding the employer liable"). Finally, there is nothing remarkable in the fact that claims against employers for discriminatory employment actions with tangible results, like hiring, firing, promotion, compensation, and work assignment, have resulted in employer liability once the discrimination was shown. See Meritor, 477 U. S., at 70-71 (noting that "courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, should have known, or approved of the supervisor's actions"); id., at 75 (Marshall, J., concurring in judgment) ("[W]hen a supervisor discriminatorily fires or refuses to promote a black employee, that act is, without more, considered the act of the employer"); see also Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723 , 725 (CA6 1972) (imposing liability on employer for racially motivated discharge by low-level supervisor, although the "record clearly shows that [its] record in race relations ... is exemplary"). A variety of reasons have been invoked for this apparently unanimous rule. Some courts explain, in a variation of the "proxy" theory discussed above, that when a supervisor makes such decisions, he "merges" with the employer, and his act becomes that of the employer. See, e. g., Kotcher v. Rosa and Sullivan Appliance Gtr., Inc., 957 F.2d 59 , 62 (CA2 1992) ("The supervisor is deemed to act on behalf of the employer when making decisions that affect the economic status of the employee. From the perspective of the employee, the supervisor and the employer merge into a single entity"); Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 , 1316 (CAll 1989) ("When a supervisor requires sexual favors as a quid pro quo for job benefits, the supervisor, by definition, acts as the company"); see also Lindemann & 791 Grossman 776 (noting that courts hold employers "automatically liable" in quid pro quo cases because the "supervisor's actions, in conferring or withholding employment benefits, are deemed as a matter of law to be those of the employer"). Other courts have suggested that vicarious liability is proper because the supervisor acts within the scope of his authority when he makes discriminatory decisions in hiring, firing, promotion, and the like. See, e. g., Shager v. Upjohn Co., 913 F. 2d 398, 405 (CA7 1990) ("[A] supervisory employee who fires a subordinate is doing the kind of thing that he is authorized to do, and the wrongful intent with which he does it does not carry his behavior so far beyond the orbit of his responsibilities as to excuse the employer" (citing Restatement § 228)). Others have suggested that vicarious liability is appropriate because the supervisor who discriminates in this manner is aided by the agency relation. See, e. g., Nich ols v. Frank, 42 F.3d 503 , 514 (CA9 1994). Finally, still other courts have endorsed both of the latter two theories. See, e. g., Harrison, 112 F. 3d, at 1443; Henson, 682 F. 2d, at 910. The soundness of the results in these cases (and their continuing vitality), in light of basic agency principles, was confirmed by this Court's only discussion to date of standards of employer liability, in Meritor, supra, which involved a claim of discrimination by a supervisor's sexual harassment of a subordinate over an extended period. In affirming the Court of Appeals's holding that a hostile atmosphere resulting from sex discrimination is actionable under Title VII, we also anticipated proceedings on remand by holding agency principles relevant in assigning employer liability and by rejecting three per se rules of liability or immunity. 477 U. S., at 70-72. We observed that the very definition of employer in Title VII, as including an "agent," id., at 72, expressed Congress's intent that courts look to traditional principles of the law of agency in devising standards of employer liability in those instances where liability for the actions of a super- 792 visory employee was not otherwise obvious, ibid., and although we cautioned that "common-law principles may not be transferable in all their particulars to Title VII," we cited the Restatement §§ 219-237 with general approval. Ibid. We then proceeded to reject two limitations on employer liability, while establishing the rule that some limitation was intended. We held that neither the existence of a company grievance procedure nor the absence of actual notice of the harassment on the part of upper management would be dispositive of such a claim; while either might be relevant to the liability, neither would result automatically in employer immunity. Ibid. Conversely, we held that Title VII placed some limit on employer responsibility for the creation of a discriminatory environment by a supervisor, and we held that Title VII does not make employers "always automatically liable for sexual harassment by their supervisors," ibid., contrary to the view of the Court of Appeals, which had held that "an employer is strictly liable for a hostile environment created by a supervisor's sexual advances, even though the employer neither knew nor reasonably could have known of the alleged misconduct," id., at 69-70. Meritor's statement of the law is the foundation on which we build today. Neither party before us has urged us to depart from our customary adherence to stare decisis in statutory interpretation, Patterson v. McLean Credit Union, 491 U. S. 164, 172-173 (1989) (stare decisis has "special force" in statutory interpretation). And the force of precedent here is enhanced by Congress's amendment to the liability provisions of Title VII since the Meritor decision, without providing any modification of our holding. Civil Rights Act of 1991, § 102, 105 Stat. 1072, 42 U. S. C. § 1981a; see Keene Corp. v. United States, 508 U. S. 200 , 212 (1993) (applying the "presumption that Congress was aware of [prior] judicial interpretations and, in effect, adopted them"). See also infra, at 804, n. 4. 793 B The Court of Appeals identified, and rejected, three possible grounds drawn from agency law for holding the City vicariously liable for the hostile environment created by the supervisors. It considered whether the two supervisors were acting within the scope of their employment when they engaged in the harassing conduct. The court then enquired whether they were significantly aided by the agency relationship in committing the harassment, and also considered the possibility of imputing Gordon's knowledge of the harassment to the City. Finally, the Court of Appeals ruled out liability for negligence in failing to prevent the harassment. Faragher relies principally on the latter three theories of liability. 1 A "master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Restatement § 219(1). This doctrine has traditionally defined the "scope of employment" as including conduct "of the kind [a servant] is employed to perform," occurring "substantially within the authorized time and space limits," and "actuated, at least in part, by a purpose to serve the master," but as excluding an intentional use of force "unexpectable by the master." Id., § 228(1). Courts of Appeals have typically held, or assumed, that conduct similar to the subject of this complaint falls outside the scope of employment. See, e. g., Harrison, 112 F. 3d, at 1444 (sexual harassment" 'simply is not within the job description of any supervisor or any other worker in any reputable business' "); 111 F. 3d, at 1535-1536 (case below); Andrade v. Mayfair Management, Inc., 88 F.3d 258 , 261 (CA4 1996) ("[I]llegal sexual harassment is ... beyond the scope of supervisors' employment"); Gary, 59 F. 3d, at 1397 (harassing supervisor acts outside the scope of his employ- 794 ment in creating hostile environment); Nichols v. Frank, 42 F.3d 503 , 508 (CA9 1994) ("The proper analysis for employer liability in hostile environment cases is ... not whether an employee was acting within his 'scope of employment' "); Bouton v. BMW of North Am., Inc., 29 F.3d 103 , 107 (CA3 1994) (sexual harassment is outside scope of employment); see also Ellerth v. Burlington Industries, Inc., decided with Jansen v. Packaging Corp. of America, 123 F.3d 490 , 561 (CA7 1997) (en banc) (Manion, J., concurring and dissenting) (supervisor's harassment would fall within scope of employment only in "the rare case indeed"), aff'd, ante, p. 742; Lindemann & Grossman 812 ("Hostile environment sexual harassment normally does not trigger respondeat superior liability because sexual harassment rarely, if ever, is among the official duties of a supervisor"). But cf. Martin v. Cavalier Hotel Corp., 48 F.3d 1343 , 1351-1352 (CA4 1995) (holding employer vicariously liable in part based on finding that the supervisor's rape of employee was within the scope of employment); Kauffman v. Allied Signal, Inc., 970 F.2d 178 , 184 (CA6) (holding that a supervisor's harassment was within the scope of his employment, but nevertheless requiring the victim to show that the employer failed to respond adequately when it learned of the harassment), cert. denied, 506 U. S. 1041 (1992). In so doing, the courts have emphasized that harassment consisting of unwelcome remarks and touching is motivated solely by individual desires and serves no purpose of the employer. For this reason, courts have likened hostile environment sexual harassment to the classic "frolic and detour" for which an employer has no vicarious liability. These cases ostensibly stand in some tension with others arising outside Title VII, where the scope of employment has been defined broadly enough to hold employers vicariously liable for intentional torts that were in no sense inspired by any purpose to serve the employer. In Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (1968), for example, 795 the Second Circuit charged the Government with vicarious liability for the depredation of a drunken sailor returning to his ship after a night's carouse, who inexplicably opened valves that flooded a dry dock, damaging both the dry dock and the ship. Judge Friendly acknowledged that the sailor's conduct was not remotely motivated by a purpose to serve his employer, but relied on the "deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities," and imposed vicarious liability on the ground that the sailor's conduct "was not so 'unforeseeable' as to make it unfair to charge the Government with responsibility." Id., at 171. Other examples of an expansive sense of scope of employment are readily found, see, e. g., Leonbruno v. Champlain Silk Mills, 229 N. Y. 470, 128 N. E. 711 (1920) (opinion of Cardozo, J.) (employer was liable under worker's compensation statute for eye injury sustained when employee threw an apple at another; the accident arose "in the course of employment" because such horseplay should be expected); Carr v. Wm. C. Crowell Co., 28 Cal. 2d 652, 171 P. 2d 5 (1946) (employer liable for actions of carpenter who attacked a coemployee with a hammer). Courts, in fact, have treated scope of employment generously enough to include sexual assaults. See, e. g., Primeaux v. United States, 102 F.3d 1458 , 1462-1463 (CA8 1996) (federal police officer on limited duty sexually assaulted stranded motorist); Mary M. v. Los Angeles, 54 Cal. 3d 202, 216-221, 814 P. 2d 1341, 1349-1352 (1991) (en banc) (police officer raped motorist after placing her under arrest); Doe v. Samaritan Counseling Ctr., 791 P. 2d 344, 348-349 (Alaska 1990) (therapist had sexual relations with patient); Turner v. State, 494 So. 2d 1291, 1296 (La. App. 1986) (National Guard recruiting officer committed sexual battery during sham physical examinations); Lyon v. Carey, 533 F.2d 649 , 655 (CADC 1976) (furniture deliveryman raped recipient of furniture); Samuels v. Southern Baptist Hospital, 594 So. 2d 571, 574 (La. App. 1992) (nursing 796 assistant raped patient).2 The rationales for these decisions have varied, with some courts echoing Bushey in explaining that the employee's acts were foreseeable and that the employer should in fairness bear the resulting costs of doing business, see, e. g., Mary M., supra, at 218, 814 P. 2d, at 1350, and others finding that the employee's sexual misconduct arose from or was in some way related to the employee's essential duties. See, e. g., Samuels, supra, at 574 (tortious conduct was "reasonably incidental" to the performance of the nursing assistant's duties in caring for a "helpless" patient in a "locked environment"). An assignment to reconcile the run of the Title VII cases with those just cited would be a taxing one. Here it is enough to recognize that their disparate results do not necessarily reflect wildly varying terms of the particular employment contracts involved, but represent differing judgments about the desirability of holding an employer liable for his subordinates' wayward behavior. In the instances in which there is a genuine question about the employer's responsibility for harmful conduct he did not in fact authorize, a holding that the conduct falls within the scope of employment ultimately expresses a conclusion not of fact but of law. As one eminent authority has observed, the "highly indefinite phrase" is "devoid of meaning in itself" and is "obviously no more than a bare formula to cover the unordered and unauthorized acts of the servant for which it is found to be expedient to charge the master with liability, as well as to exclude other acts for which it is not." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keaton on Law of Torts 502 (5th ed. 1984); see also Seavey, Speculations as to "Respondeat Superior," in Studies in Agency 129, 155 2 It bears noting that many courts in non-Title VII cases have held sexual assaults to fall outside the scope of employment. See Note, "Scope of Employment" Redefined: Holding Employers Vicariously Liable for Sexual Assaults Committed by their Employees, 76 Minn. L. Rev. 1513, 1521-1522, and nn. 33, 34 (1992) (collecting cases). 797 (1949) ("The liability of a master to a third person for the torts of a servant has been widely extended by aid of the elastic phrase 'scope of the employment' which may be used to include all which the court wishes to put into it"). Older cases, for example, treated smoking by an employee during working hours as an act outside the scope of employment, but more recently courts have generally held smoking on the job to fall within the scope. Prosser & Keeton, supra, at 504, and n. 23. It is not that employers formerly did not authorize smoking but have now begun to do so, or that employees previously smoked for their own purposes but now do so to serve the employer. We simply understand smoking differently now and have revised the old judgments about what ought to be done about it. The proper analysis here, then, calls not for a mechanical application of indefinite and malleable factors set forth in the Restatement, see, e. g., §§ 219,228,229, but rather an enquiry into the reasons that would support a conclusion that harassing behavior ought to be held within the scope of a supervisor's employment, and the reasons for the opposite view. The Restatement itself points to such an approach, as in the commentary that the "ultimate question" in determining the scope of employment is "whether or not it is just that the loss resulting from the servant's acts should be considered as one of the normal risks to be borne by the business in which the servant is employed." Id., § 229, Comment a. See generally Taber v. Maine, 67 F.3d 1029 , 1037 (CA2 1995) ("As the leading Torts treatise has put it, 'the integrating principle' of respondeat superior is 'that the employer should be liable for those faults that may be fairly regarded as risks of his business, whether they are committed in furthering it or not'" (quoting 5 F. Harper, F. James, & O. Gray, Law of Torts § 26.8, pp. 40-41 (2d ed. 1986))). In the case before us, a justification for holding the offensive behavior within the scope of Terry's and Silverman's employment was well put in Judge Barkett's dissent: "[A] 798 pervasively hostile work environment of sexual harassment is never (one would hope) authorized, but the supervisor is clearly charged with maintaining a productive, safe work environment. The supervisor directs and controls the conduct of the employees, and the manner of doing so may inure to the employer's benefit or detriment, including subjecting the employer to Title VII liability." 111 F. 3d, at 1542 (opinion dissenting in part and concurring in part). It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, coemployees) is a persistent problem in the workplace. See Lindemann & Kadue 4-5 (discussing studies showing prevalence of sexual harassment); Ellerth, 123 F. 3d, at 511 (Posner, C. J., concurring and dissenting) ("[E]veryone knows by now that sexual harassment is a common problem in the American workplace"). An employer can, in a general sense, reasonably anticipate the possibility of such conduct occurring in its workplace, and one might justify the assignment of the burden of the untoward behavior to the employer as one of the costs of doing business, to be charged to the enterprise rather than the victim. As noted, supra, at 796-797, developments like this occur from time to time in the law of agency. Two things counsel us to draw the contrary conclusion. First, there is no reason to suppose that Congress wished courts to ignore the traditional distinction between acts falling within the scope and acts amounting to what the older law called frolics or detours from the course of employment. Such a distinction can readily be applied to the spectrum of possible harassing conduct by supervisors, as the following examples show. First, a supervisor might discriminate racially in job assignments in order to placate the prejudice pervasive in the labor force. Instances of this variety of the heckler's veto would be consciously intended to further the employer's interests by preserving peace in the workplace. N ext, supervisors might reprimand male employees for workplace failings with banter, but respond to women's 799 shortcomings in harsh or vulgar terms. A third example might be the supervisor who, as here, expresses his sexual interests in ways having no apparent object whatever of serving an interest of the employer. If a line is to be drawn between scope and frolic, it would lie between the first two examples and the third, and it thus makes sense in terms of traditional agency law to analyze the scope issue, in cases like the third example, just as most federal courts addressing that issue have done, classifying the harassment as beyond the scope of employment. The second reason goes to an even broader unanimity of views among the holdings of District Courts and Courts of Appeals thus far. Those courts have held not only that the sort of harassment at issue here was outside the scope of supervisors' authority, but, by uniformly judging employer liability for co-worker harassment under a negligence standard, they have also implicitly treated such harassment as outside the scope of common employees' duties as well. See Blankenship v. Parke Care Centers, Inc., 123 F.3d 868 , 872 873 (CA6 1997), cert. denied, 522 U. S. 1110 (1998); Fleming v. Boeing Co., 120 F.3d 242 , 246 (CA111997); Perry v. Ethan Allen, Inc., 115 F.3d 143 , 149 (CA2 1997); Yamaguchi v. United States Dept. of Air Force, 109 F.3d 1475 , 1483 (CA9 1997); Varner v. National Super Markets, Inc., 94 F.3d 1209 , 1213 (CA8 1996), cert. denied, 519 U. S. 1110 (1997); McKenzie v. Illinois Dept. of Transp., 92 F.3d 473 , 480 (CA7 1996); Andrade, 88 F. 3d, at 261; Waymire v. Harris County, 86 F.3d 424 , 428-429 (CA5 1996); Hirase-Doi v. U. S. West Communications, Inc., 61 F.3d 777 , 783 (CAlO 1995); Andrews v. Philadelphia, 895 F.2d 1469 , 1486 (CA3 1990); cf. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429 , 438 (CA1 1997) (applying "knew or should have known" standard to claims of environmental harassment by a supervisor); see also 29 CFR § 1604.11(d) (1997) (employer is liable for coworker harassment if it "knows or should have known of the conduct, unless it can show that it took immediate and ap- 800 propriate corrective action"); 3 L. Larson & A. Larson, Employment Discrimination § 46.07[ 4] [a], p. 46-101 (2d ed. 1998) (courts "uniformly" apply Equal Employment Opportunity Commission (EEOC) rule; "[i]t is not a controversial area"). If, indeed, the cases did not rest, at least implicitly, on the notion that such harassment falls outside the scope of employment, their liability issues would have turned simply on the application of the scope-of-employment rule. Cf. Hunter v. Allis-Chalmers, Inc., 797 F.2d 1417 , 1422 (CA7 1986) (noting that employer will not usually be liable under respondeat superior for employee's racial harassment because it "would be the rare case where racial harassment ... could be thought by the author of the harassment to help the employer's business"). It is quite unlikely that these cases would escape efforts to render them obsolete if we were to hold that supervisors who engage in discriminatory harassment are necessarily acting within the scope of their employment. The rationale for placing harassment within the scope of supervisory authority would be the fairness of requiring the employer to bear the burden of foreseeable social behavior, and the same rationale would apply when the behavior was that of coemployees. The employer generally benefits just as obviously from the work of common employees as from the work of supervisors; they simply have different jobs to do, all aimed at the success of the enterprise. As between an innocent employer and an innocent employee, if we use scope-ofemployment reasoning to require the employer to bear the cost of an actionably hostile workplace created by one class of employees (i. e., supervisors), it could appear just as appropriate to do the same when the environment was created by another class (i. e., co-workers). The answer to this argument might well be to point out that the scope of supervisory employment may be treated separately by recognizing that supervisors have special authority enhancing their capacity to harass, and that the 801 employer can guard against their misbehavior more easily because their numbers are by definition fewer than the numbers of regular employees. But this answer happens to implicate an entirely separate category of agency law (to be considered in the next section), which imposes vicarious liability on employers for tortious acts committed by use of particular authority conferred as an element of an employee's agency relationship with the employer. Since the virtue of categorical clarity is obvious, it is better to reject reliance on misuse of supervisory authority (without more) as irrelevant to scope-of-employment analysis. 2 The Court of Appeals also rejected vicarious liability on the part of the City insofar as it might rest on the concluding principle set forth in § 219(2)(d) of the Restatement, that an employer "is not subject to liability for the torts of his servants acting outside the scope of their employment unless ... the servant purported to act or speak on behalf of the principal and there was reliance on apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation." Faragher points to several ways in which the agency relationship aided Terry and Silverman in carrying out their harassment. She argues that in general offending supervisors can abuse their authority to keep subordinates in their presence while they make offensive statements, and that they implicitly threaten to misuse their supervisory powers to deter any resistance or complaint. Thus, she maintains that power conferred on Terry and Silverman by the City enabled them to act for so long without provoking defiance or complaint. The City, however, contends that § 219(2)(d) has no application here. It argues that the second qualification of the subsection, referring to a servant "aided in accomplishing the tort by the existence of the agency relation," merely "refines" the one preceding it, which holds the employer vicari- 802 ously liable for its servant's abuse of apparent authority. Brief for Respondent 30-31, and n. 24. But this narrow reading is untenable; it would render the second qualification of § 219(2)(d) almost entirely superfluous (and would seem to ask us to shut our eyes to the potential effects of supervisory authority, even when not explicitly invoked). The illustrations accompanying this subsection make clear that it covers not only cases involving the abuse of apparent authority, but also cases in which tortious conduct is made possible or facilitated by the existence of the actual agency relationship. See Restatement § 219, Comment e (noting employer liability where "the servant may be able to cause harm because of his position as agent, as where a telegraph operator sends false messages purporting to come from third persons" and where the manager who operates a store "for an undisclosed principal is enabled to cheat the customers because of his position"); id., § 247, Illustration 1 (noting a newspaper's liability for a libelous editorial published by an editor acting for his own purposes). We therefore agree with Faragher that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority, and that the aided-byagency-relation principle embodied in § 219(2)(d) of the Restatement provides an appropriate starting point for determining liability for the kind of harassment presented here.3 Several courts, indeed, have noted what Faragher has argued, that there is a sense in which a harassing supervisor is always assisted in his misconduct by the supervisory relationship. See, e. g., Rodgers v. Western-Southern Life Ins. 3 We say "starting point" because our obligation here is not to make a pronouncement of agency law in general or to transplant § 219(2)(d) into Title VII. Rather, it is to adapt agency concepts to the practical objectives of Title VII. As we said in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 72 (1986), "common-law principles may not be transferable in all their particulars to Title VII." 803 Co., 12 F.3d 668 , 675 (CA7 1993); Taylor v. Metzger, 152 N. J. 490, 505, 706 A. 2d 685, 692 (1998) (emphasizing that a supervisor's conduct may have a greater impact than that of colleagues at the same level); cf. Torres, 116 F. 3d, at 631. See also White v. Monsanto Co., 585 So. 2d 1205, 1209-1210 (La. 1991) (a supervisor's harassment of a subordinate is more apt to rise to the level of intentional infliction of emotional distress than comparable harassment by a coemployee); Contreras v. Crown Zellerbach Corp., 88 Wash. 2d 735, 740, 565 P. 2d 1173, 1176 (1977) (same); Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 498-499, and n. 2, 468 P. 2d 216, 218-219, and n. 2 (1970) (same). The agency relationship affords contact with an employee subjected to a supervisor's sexual harassment, and the victim may well be reluctant to accept the risks of blowing the whistle on a superior. When a person with supervisory authority discriminates in the terms and conditions of subordinates' employment, his actions necessarily draw upon his superior position over the people who report to him, or those under them, whereas an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker. When a fellow employee harasses, the victim can walk away or tell the offender where to go, but it may be difficult to offer such responses to a supervisor, whose "power to supervise-[which may be] to hire and fire, and to set work schedules and pay rates-does not disappear ... when he chooses to harass through insults and offensive gestures rather than directly with threats of firing or promises of promotion." Estrich, Sex at Work, 43 Stan. L. Rev. 813, 854 (1991). Recognition of employer liability when discriminatory misuse of supervisory authority alters the terms and conditions of a victim's employment is underscored by the fact that the employer has a greater opportunity to guard against misconduct by supervisors than by common workers; employers have greater opportunity and incentive to screen them, train them, and monitor their performance. 804 In sum, there are good reasons for vicarious liability for misuse of supervisory authority. That rationale must, however, satisfy one more condition. We are not entitled to recognize this theory under Title VII unless we can square it with Meritor's holding that an employer is not "automatically" liable for harassment by a supervisor who creates the requisite degree of discrimination,4 and there is obviously some tension between that holding and the position that a supervisor's misconduct aided by supervisory authority subjects the employer to liability vicariously; if the "aid" may be the unspoken suggestion of retaliation by misuse of supervisory authority, the risk of automatic liability is high. To counter it, we think there are two basic alternatives, one being to require proof of some affirmative invocation of that authority by the harassing supervisor, the other to recognize an affirmative defense to liability in some circumstances, even when a supervisor has created the actionable environment. There is certainly some authority for requiring active or affirmative, as distinct from passive or implicit, misuse of supervisory authority before liability may be imputed. That is the way some courts have viewed the familiar cases holding the employer liable for discriminatory employment 4 We are bound to honor Meritor on this point not merely because of the high value placed on stare decisis in statutory interpretation, supra, at 792, but for a further reason as well. With the amendments enacted by the Civil Rights Act of 1991, Congress both expanded the monetary relief available under Title VII to include compensatory and punitive damages, see § 102, 105 Stat. 1072, 42 U. S. C. § 1981a, and modified the statutory grounds of several of our decisions, see § 101 et seq. The decision of Congress to leave Meritor intact is conspicuous. We thus have to assume that in expanding employers' potential liability under Title VII, Congress relied on our statements in Meritor about the limits of employer liability. To disregard those statements now (even if we were convinced of reasons for doing so) would be not only to disregard stare decisis in statutory interpretation, but to substitute our revised judgment about the proper allocation of the costs of harassment for Congress's considered decision on the subject. 805 action with tangible consequences, like firing and demotion. See supra, at 790. And we have already noted some examples of liability provided by the Restatement itself, which suggest that an affirmative misuse of power might be required. See supra, at 802 (telegraph operator sends false messages, a store manager cheats customers, editor publishes libelous editorial). But neat examples illustrating the line between the affirmative and merely implicit uses of power are not easy to come by in considering management behavior. Supervisors do not make speeches threatening sanctions whenever they make requests in the legitimate exercise of managerial authority, and yet every subordinate employee knows the sanctions exist; this is the reason that courts have consistently held that acts of supervisors have greater power to alter the environment than acts of coemployees generally, see supra, at 802-803. How far from the course of ostensible supervisory behavior would a company officer have to step before his orders would not reasonably be seen as actively using authority? Judgment calls would often be close, the results would often seem disparate even if not demonstrably contradictory, and the temptation to litigate would be hard to resist. We think plaintiffs and defendants alike would be poorly served by an active-use rule. The other basic alternative to automatic liability would avoid this particular temptation to litigate, but allow an employer to show as an affirmative defense to liability that the employer had exercised reasonable care to avoid harassment and to eliminate it when it might occur, and that the complaining employee had failed to act with like reasonable care to take advantage of the employer's safeguards and otherwise to prevent harm that could have been avoided. This composite defense would, we think, implement the statute sensibly, for reasons that are not hard to fathom. Although Title VII seeks "to make persons whole for injuries suffered on account of unlawful employment discrim- 806 ination," Albemarle Paper Co. v. Moody, 422 U. S. 405 , 418 (1975), its "primary objective," like that of any statute meant to influence primary conduct, is not to provide redress but to avoid harm. Id., at 417. As long ago as 1980, the EEOC, charged with the enforcement of Title VII, 42 U. S. C. § 2000e-4, adopted regulations advising employers to "take all steps necessary to prevent sexual harassment from occurring, such as ... informing employees of their right to raise and how to raise the issue of harassment." 29 CFR § 1604.11(f) (1997), and in 1990 the EEOC issued a policy statement enjoining employers to establish a complaint procedure "designed to encourage victims of harassment to come forward [without requiring] a victim to complain first to the offending supervisor." EEOC Policy Guidance on Sexual Harassment, 8 FEP Manual 405:6699 (Mar. 19, 1990) (internal quotation marks omitted). It would therefore implement clear statutory policy and complement the Government's Title VII enforcement efforts to recognize the employer's affirmative obligation to prevent violations and give credit here to employers who make reasonable efforts to discharge their duty. Indeed, a theory of vicarious liability for misuse of supervisory power would be at odds with the statutory policy if it failed to provide employers with some such incentive. The requirement to show that the employee has failed in a coordinate duty to avoid or mitigate harm reflects an equally obvious policy imported from the general theory of damages, that a victim has a duty "to use such means as are reasonable under the circumstances to avoid or minimize the damages" that result from violations of the statute. Ford Motor Co. v. EEOC, 458 U. S. 219 , 231, n. 15 (1982) (quoting C. McCormick, Law of Damages 127 (1935) (internal quotation marks omitted). An employer may, for example, have provided a proven, effective mechanism for reporting and resolving complaints of sexual harassment, available to the employee without undue risk or expense. If the plaintiff unreasonably 807 failed to avail herself of the employer's preventive or remedial apparatus, she should not recover damages that could have been avoided if she had done so. If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided. In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Burlington Industries, Inc. v. Ellerth, ante, p. 742, also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. S(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a 808 demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. See Burlington, ante, at 762-763. Applying these rules here, we believe that the judgment of the Court of Appeals must be reversed. The District Court found that the degree of hostility in the work environment rose to the actionable level and was attributable to Silverman and Terry. It is undisputed that these supervisors "were granted virtually unchecked authority" over their subordinates, "directly controll[ing] and supervis[ing] all aspects of [Faragher's] day-to-day activities." 111 F. 3d, at 1544 (Barkett, J., dissenting in part and concurring in part). It is also clear that Faragher and her colleagues were "completely isolated from the City's higher management." Ibid. The City did not seek review of these findings. While the City would have an opportunity to raise an affirmative defense if there were any serious prospect of its presenting one, it appears from the record that any such avenue is closed. The District Court found that the City had entirely failed to disseminate its policy against sexual harassment among the beach employees and that its officials made no attempt to keep track of the conduct of supervisors like Terry and Silverman. The record also makes clear that the City's policy did not include any assurance that the harassing supervisors could be bypassed in registering complaints. App. 274. Under such circumstances, we hold as a matter of law that the City could not be found to have exercised reasonable care to prevent the supervisors' harassing conduct. Unlike the employer of a small work force, who might expect that sufficient care to prevent tortious behavior could be exercised informally, those responsible for city operations could not reasonably have thought that precautions against hostile environments in anyone of many departments in far- 809 flung locations could be effective without communicating some formal policy against harassment, with a sensible complaint procedure. We have drawn this conclusion without overlooking two possible grounds upon which the City might argue for the opportunity to litigate further. There is, first, the Court of Appeals's indulgent gloss on the relevant evidence: "There is some evidence that the City did not effectively disseminate among Marine Safety employees its sexual harassment policy." 111 F. 3d, at 1539, n. 11. But, in contrast to the Court of Appeals's characterization, the District Court made an explicit finding of a "complete failure on the part of the City to disseminate said policy among Marine Safety Section employees." 864 F. Supp., at 1560. The evidence supports the District Court's finding and there is no contrary claim before us. The second possible ground for pursuing a defense was asserted by the City in its argument addressing the possibility of negligence liability in this case. It said that it should not be held liable for failing to promulgate an antiharassment policy, because there was no apparent duty to do so in the 1985-1990 period. The City purports to rest this argument on the position of the EEOC during the period mentioned, but it turns out that the record on this point is quite against the City's position. Although the EEOC issued regulations dealing with promulgating a statement of policy and providing a complaint mechanism in 1990, see supra, at 806, ever since 1980 its regulations have called for steps to prevent violations, such as informing employees of their rights and the means to assert them, ibid. The City, after all, adopted an antiharassment policy in 1986. The City points to nothing that might justify a conclusion by the District Court on remand that the City had exercised reasonable care. Nor is there any reason to remand for consideration of Faragher's efforts to mitigate her own damages, since the award to her was solely nominal. 810 3 The Court of Appeals also rejected the possibility that it could hold the City liable for the reason that it knew of the harassment vicariously through the knowledge of its supervisors. We have no occasion to consider whether this was error, however. We are satisfied that liability on the ground of vicarious knowledge could not be determined without further factfinding on remand, whereas the reversal necessary on the theory of supervisory harassment renders any remand for consideration of imputed knowledge entirely unjustifiable (as would be any consideration of negligence as an alternative to a theory of vicarious liability here). III The judgment of the Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for reinstatement of the judgment of the District Court. It is so ordered. JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. For the reasons given in my dissenting opinion in Burlington Industries, Inc. v. Ellerth, ante, p. 742, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no adverse employment consequence; thus the Court of Appeals was correct to hold that the city of Boca Raton (City) is not vicariously liable for the conduct of Chief Terry and Lieutenant Silverman. Because the Court reverses this judgment, I dissent. As for petitioner's negligence claim, the District Court made no finding as to the City's negligence, and the Court of Appeals did not directly consider the issue. I would therefore remand the case to the District Court for further proceedings on this question alone. I disagree with the Court's 811 conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law. See ante, at 808-809.1 The City should be allowed to show either that: (1) there was a reasonably available avenue through which petitioner could have complained to a City official who supervised both Chief Terry and Lieutenant Silverman, see Brief for United States and EEOC as Amici Curiae in Meritor Savings Bank, FSB v. Vinson, O. T. 1985, No. 84-1979, p. 26,2 or (2) it would not have learned of the harassment even if the policy had been distributed.3 Petitioner, as the plaintiff, would of course bear the burden of proving the City's negligence. 1 The harassment alleged in this case occurred intermittently over a 5year period between 1985 and 1990; the District Court's factual findings do not indicate when in 1990 it ceased. It was only in March 1990 that the Equal Employment Opportunity Commission (EEOC) issued a "policy statement" "enjoining" employers to establish complaint procedures for sexual harassment. See ante, at 806. The 1980 Guideline on which the Court relies-because the EEOC has no substantive rulemaking authority under Title VII, the Court is inaccurate to refer to it as a "regulatio[n]," see ante, at 809-was wholly precatory and as such cannot establish negligence per se. See 29 CFR § 1604.11(f) (1997) ("An employer should take all steps necessary to prevent sexual harassment from occurring ... "). 2 The City's Employment Handbook stated that employees with "complaints or grievances" could speak to the City's Personnel and Labor Relations Director about problems at work. See App. 280. The District Court found that the City's Personnel Director, Richard Bender, moved quickly to investigate the harassment charges against Terry and Silverman once they were brought to his attention. See App. to Pet. for Cert. 80a. 3 Even after petitioner read the City's sexual harassment policy in 1990, see App. 188, she did not file a charge with City officials. Instead, she filed suit against the City in 1992. 812 The next page is purposely numbered 901. The numbers between 811 and 901 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. 813 JUNE 1, 1998 Certiorari Granted-Vacated and Remanded No. 96-1721. CITIZEN POTAWATOMI NATION V. C&L ENTERPRISES, INC. Ct. Civ. App. Okla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 (1998). No. 97-216. KIOWA TRIBE OF OKLAHOMA V. AIRCRAFT EQUIPMENT CO. ET AL. Sup. Ct. Okla. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U. S. 751 (1998). Reported below: 939 P. 2d 1143. Miscellaneous Orders No. D-1922. IN RE DISBARMENT OF GOLDFLAM. Disbarment entered. [For earlier order herein, see 523 U. S. 1017.] No. D-1924. IN RE DISBARMENT OF MONTAGUE. Disbarment entered. [For earlier order herein, see 523 U. S. 1017.] No. D-1925. IN RE DISBARMENT OF HINDIN. Disbarment entered. [For earlier order herein, see 523 U. S. 1017.] No. D-1926. IN RE DISBARMENT OF WELLONS. Disbarment entered. [For earlier order herein, see 523 U. S. 1043.] No. D-1927. IN RE DISBARMENT OF MAYS. Disbarment entered. [For earlier order herein, see 523 U. S. 1044.] No. D-1928. IN RE DISBARMENT OF GOTTLIEB. Disbarment entered. [For earlier order herein, see 523 U. S. 1044.] No. D-1934. IN RE DISBARMENT OF SADLER. Further consideration of response to rule to show cause deferred. [For earlier order herein, see 523 U. S. 1069.]

In the case of *Faragher v. City of Boca Raton*, the Supreme Court ruled that an employer can be held vicariously liable for discrimination caused by a supervisor, but with an affirmative defense considering the reasonableness of the employer's conduct and that of the victim. The case involved a female lifeguard, Beth Ann Faragher, who resigned from her position and later sued the City of Boca Raton and her immediate supervisors, alleging a sexually hostile work environment and discriminatory treatment based on her gender. The lower courts disagreed on whether the City could be held liable for the supervisors' actions. The Supreme Court, relying on *Meritor Savings Bank, FSB v. Vinson* and agency principles, held that an employer's liability for a supervisor's actions depends on the reasonableness of both the employer's and the victim's conduct. This decision set a precedent for employer liability in cases of supervisory discrimination.

Labor & Employment

Kolstad v. American Dental Ass'n

https://supreme.justia.com/cases/federal/us/527/526/

OCTOBER TERM, 1998 Syllabus KOLSTAD v. AMERICAN DENTAL ASSOCIATION CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 98-208. Argued March 1, 1999-Decided June 22,1999 Petitioner sued respondent under Title VII of the Civil Rights Act of 1964 (Title VII), asserting that respondent's decision to promote Tom Spangler over her was a proscribed act of gender discrimination. Petitioner alleged, and introduced testimony to prove, that, among other things, the entire selection process was a sham, the stated reasons of respondent's executive director for selecting Spangler were pretext, and Spangler had been chosen before the formal selection process began. The District Court denied petitioner's request for a jury instruction on punitive damages, which are authorized by the Civil Rights Act of 1991 (1991 Act) for Title VII cases in which the employee "demonstrates" that the employer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to [the employee's] federally protected rights." 42 U. S. C. § 1981a(b)(1). In affirming that denial, the en banc Court of Appeals concluded that, before the jury can be instructed on punitive damages, the evidence must demonstrate that the defendant has engaged in some "egregious" misconduct, and that petitioner had failed to make the requisite showing in this case. Held: 1. An employer's conduct need not be independently "egregious" to satisfy § 1981a's requirements for a punitive damages award, although evidence of egregious behavior may provide a valuable means by which an employee can show the "malice" or "reckless indifference" needed to qualify for such an award. The 1991 Act provided for compensatory and punitive damages in addition to the backpay and other equitable relief to which prevailing Title VII plaintiffs had previously been limited. Section 1981a's two-tiered structure-it limits compensatory and punitive awards to cases of "intentional discrimination," § 1981a(a)(1), and further qualifies the availability of punitive awards to instances of "malice" or "reckless indifference" -suggests a congressional intent to impose two standards of liability, one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award. The terms "malice" and "reckless indifference" ultimately focus on the actor's state of mind, however, and § 1981a does not require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Nor does the stat- 527 ute's structure imply an independent role for "egregiousness" in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer's state of mind is consistent with the 1991 Act's distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well. This focus on the employer's state of mind does give effect to the statute's two-tiered structure. The terms "malice" and "reckless indifference" pertain not to the employer's awareness that it is engaging in discrimination, but to its knowledge that it may be acting in violation of federal law, see, e. g., Smith v. Wade, 461 U. S. 30 , 37, n. 6,41,50. There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard, as where the employer is unaware of the relevant federal prohibition or discriminates with the distinct belief that its discrimination is lawful, where the underlying theory of discrimination is novel or otherwise poorly recognized, or where the employer reasonably believes that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See Hazen Paper Co. v. Biggins, 507 U. S. 604 , 616, 617. Although there is some support for respondent's assertion that the common law punitive awards tradition includes an "egregious misconduct" requirement, eligibility for such awards most often is characterized in terms of a defendant's evil motive or intent. Egregious or outrageous acts may serve as evidence supporting an inference of such evil motive, but § 1981a does not limit plaintiffs to this form of evidence or require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Pp. 533-539. 2. The inquiry does not end with a showing of the requisite mental state by certain employees, however. Petitioner must impute liability for punitive damages to respondent. Common law limitations on a principal's vicarious liability for its agents' acts apply in the Title VII context. See, e. g., Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , 754. The Court's discussion of this question is informed by the general common law of agency, as codified in the Restatement (Second) of Agency, see, e. g., id., at 755, which, among other things, authorizes punitive damages "against a ... principal because of an [agent's] act ... if ... the agent was employed in a managerial capacity and was acting in the scope of employment," § 217 C(c), and declares that even intentional, specifically forbidden torts are within such scope if the conduct is "the kind [the employee] is employed to perform," "occurs substantially within the authorized time and space limits," and "is actuated, at least in part, by a purpose to serve the" employer, §§ 228(1), 230, Comment b. Under these rules, even an employer who made every good faith 528 effort to comply with Title VII would be held liable for the discriminatory acts of agents acting in a "managerial capacity." Holding such an employer liable, however, is in some tension with the principle that it is "improper ... to award punitive damages against one who himself is personally innocent and therefore liable only vicariously," Restatement (Second) of Torts § 909, Comment b. Applying the Restatement of Agency's "scope of employment" rule in this context, moreover, would reduce the incentive for employers to implement antidiscrimination programs and would, in fact, likely exacerbate employers' concerns that 42 U. S. C. § 1981a's "malice" and "reckless indifference" standard penalizes those employers who educate themselves and their employees on Title VII's prohibitions. Dissuading employers from implementing programs or policies to prevent workplace discrimination is directly contrary to Title VII's prophylactic purposes. See, e. g., Burlington Industries, Inc., 524 U. S., at 764. Thus, the Court is compelled to modify the Restatement rules to avoid undermining Title VII's objectives. See, e. g., ibid. The Court therefore agrees that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's good faith efforts to comply with Title VII. Pp. 539-546. 3. The question whether petitioner can identify facts sufficient to support an inference that the requisite mental state can be imputed to respondent is left for remand. The parties have not yet had an opportunity to marshal the record evidence in support of their views on the application of agency principles in this case, and the en banc Court of Appeals had no reason to resolve the issue because it concluded that petitioner had failed to demonstrate the requisite "egregious" misconduct. P. 546. 139 F.3d 958 , vacated and remanded. O'CONNOR, J., delivered the opinion of the Court, Part I of which was unanimous, Part II-A of which was joined by STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., and Part II-B of which was joined by REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p. 547. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 547. Eric Schnapper argued the cause for petitioner. With him on the briefs was Joseph A. Yablonski. 529 Solicitor General Waxman argued the cause for the United States et al. as amici curiae in support of petitioner. With him on the brief were Acting Assistant Attorney General Lee, Deputy Solicitor General Underwood, Patricia A. Millett, Dennis J. Dimsey, Gregory B. Friel, C. Gregory Stewart, Philip B. Sklover, and Robert J. Gregory. Raymond C. Fay argued the cause for respondent. With him on the brief were Stephen D. Shawe, Bruce S. Harrison, and Peter M. Sfikas. * JUSTICE O'CONNOR delivered the opinion of the Court. Under the terms of the Civil Rights Act of 1991 (1991 Act), 105 Stat. 1071, punitive damages are available in claims under Title VII of the Civil Rights Act of 1964 (Title VII), 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1994 ed. and Supp. III), and the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101 et seq. Punitive damages are limited, however, to cases in which the em- *Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Jeffrey L. Needle and Mark S. Mandell; for the National Employment Lawyers Association et al. by Janice Goodman, Paula A. Brantner, and Peter S. Rukin; and for the Rutherford Institute by John W Whitehead and Steven H. Aden. Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; for the National Retail Federation by Robert P. Joy; for the Society for Human Resource Management by D. Gregory Valenza and Roger S. Kaplan; and for the Washington Legal Foundation by Michael J. Connolly, David A. Lawrence, Clifford J. Scharman, Daniel J. Popeo, and Paul D. Kamenar. Briefs of amici curiae were filed for the Chamber of Commerce of the United States by Timothy B. Dyk, Daniel H. Bromberg, John B. Kennedy, Stephen A. Bokat, and Robin S. Conrad; and for the Lawyers' Committee for Civil Rights Under Law et al. by James M. Finberg, Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Dennis C. Hayes, Willie Abrams, Antonia Hernandez, Patricia Mendoza, Judith L. Lichtman, Donna R. Lenhoff, Judith C. Appelbaum, Martha F. Davis, Yolanda S. Wu, and Steven R. Shapiro. 530 ployer has engaged in intentional discrimination and has done so "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981a(b)(1). We here consider the circumstances under which punitive damages may be awarded in an action under Title VII. I A In September 1992, Jack O'Donnell announced that he would be retiring as the Director of Legislation and Legislative Policy and Director of the Council on Government Affairs and Federal Dental Services for respondent, American Dental Association (respondent or Association). Petitioner, Carole Kolstad, was employed with O'Donnell in respondent's Washington, D. C., office, where she was serving as respondent's Director of Federal Agency Relations. When she learned of O'Donnell's retirement, she expressed an interest in filling his position. Also interested in replacing O'Donnell was Tom Spangler, another employee in respondent's Washington office. At this time, Spangler was serving as the Association's Legislative Counsel, a position that involved him in respondent's legislative lobbying efforts. Both petitioner and Spangler had worked directly with O'Donnell, and both had received "distinguished" performance ratings by the acting head of the Washington office, Leonard Wheat. Both petitioner and Spangler formally applied for O'Donnell's position, and Wheat requested that Dr. William Allen, then serving as respondent's Executive Director in the Association's Chicago office, make the ultimate promotion decision. After interviewing both petitioner and Spangler, Wheat recommended that Allen select Spangler for O'Donnell's post. Allen notified petitioner in December 1992 that he had, in fact, selected Spangler to serve as O'Donnell's re- 531 placement. Petitioner's challenge to this employment decision forms the basis of the instant action. B After first exhausting her avenues for relief before the Equal Employment Opportunity Commission, petitioner filed suit against the Association in Federal District Court, alleging that respondent's decision to promote Spangler was an act of employment discrimination proscribed under Title VII. In petitioner's view, the entire selection process was a sham. Tr. 8 (Oct. 26, 1995) (closing argument for plaintiff's counsel). Counsel for petitioner urged the jury to conclude that Allen's stated reasons for selecting Spangler were pretext for gender discrimination, id., at 19, 24, and that Spangler had been chosen for the position before the formal selection process began, id., at 19. Among the evidence offered in support of this view, there was testimony to the effect that Allen modified the description of O'Donnell's post to track aspects of the job description used to hire Spangler. See id., at 132136 (Oct. 19, 1995) (testimony of Cindy Simms); id., at 48-51 (Oct. 20, 1995) (testimony of Leonard Wheat). In petitioner's view, this "preselection" procedure suggested an intent by the Association to discriminate on the basis of sex. I d., at 24. Petitioner also introduced testimony at trial that Wheat told sexually offensive jokes and that he had referred to certain prominent professional women in derogatory terms. See id., at 120-124 (Oct. 18, 1995) (testimony of Carole Kolstad). Moreover, Wheat allegedly refused to meet with petitioner for several weeks regarding her interest in O'Donnell's position. See id., at 112-113. Petitioner testified, in fact, that she had historically experienced difficulty gaining access to meet with Wheat. See id., at 114-115. Allen, for his part, testified that he conducted informal meetings regarding O'Donnell's position with both petitioner and Spangler, see id., at 148 (Oct. 23, 1995), although petitioner 532 stated that Allen did not discuss the position with her, see id., at 127-128 (Oct. 18, 1995). The District Court denied petitioner's request for a jury instruction on punitive damages. The jury concluded that respondent had discriminated against petitioner on the basis of sex and awarded her backpay totaling $52,718. App.109110. Although the District Court subsequently denied respondent's motion for judgment as a matter of law on the issue of liability, the court made clear that it had not been persuaded that respondent had selected Spangler over petitioner on the basis of sex, and the court denied petitioner's requests for reinstatement and for attorney's fees. 912 Petitioner appealed from the District Court's decisions denying her requested jury instruction on punitive damages and her request for reinstatement and attorney's fees. Respondent cross-appealed from the denial of its motion for judgment as a matter of law. In a split decision, a panel of the Court of Appeals for the District of Columbia reversed the District Court's decision denying petitioner's request for an instruction on punitive damages. 108 F.3d 1431 , 1435 (1997). In so doing, the court rejected respondent's claim that punitive damages are available under Title VII only in "'extraordinarily egregious cases.'" Id., at 1437. The panel reasoned that, "because 'the state of mind necessary to trigger liability for the wrong is at least as culpable as that required to make punitive damages applicable,'" id., at 1438 (quoting Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194 , 205 (CAl1987)), the fact that the jury could reasonably have found intentional discrimination meant that the jury should have been permitted to consider punitive damages. The court noted, however, that not all cases involving intentional discrimination would support a punitive damages award. 108 F. 3d, at 1438. Such an award might be improper, the panel reasoned, in instances where the employer justifiably believes that intentional discrimination is permitted or 533 where an employee engages in discrimination outside the scope of that employee's authority. Id., at 1438-1439. Here, the court concluded, respondent "neither attempted to justify the use of sex in its promotion decision nor disavowed the actions of its agents." Id., at 1439. The Court of Appeals subsequently agreed to rehear the case en banc, limited to the punitive damages question. In a divided opinion, the court affirmed the decision of the District Court. 139 F.3d 958 (1998). The en banc majority concluded that, "before the question of punitive damages can go to the jury, the evidence of the defendant's culpability must exceed what is needed to show intentional discrimination." Id., at 961. Based on the 1991 Act's structure and legislative history, the court determined, specifically, that a defendant must be shown to have engaged in some "egregious" misconduct before the jury is permitted to consider a request for punitive damages. Id., at 965. Although the court declined to set out the "egregiousness" requirement in any detail, it concluded that petitioner failed to make the requisite showing in the instant case. Judge Randolph concurred, relying chiefly on § 1981a's structure as evidence of a congressional intent to "limi[t] punitive damages to exceptional cases." Id., at 970. Judge Tatel wrote in dissent for five judges, who agreed generally with the panel majority. We granted certiorari, 525 U. S. 960 (1998), to resolve a conflict among the Federal Courts of Appeals concerning the circumstances under which a jury may consider a request for punitive damages under § 1981a(b)(1). Compare 139 F. 3d 958 (CADC 1998) (case below), with Luciano v. Olsten Corp., 110 F.3d 210 , 219-220 (CA2 1997) (rejecting contention that punitive damages require showing of "extraordinarily egregious" conduct). II A Prior to 1991, only equitable relief, primarily backpay, was available to prevailing Title VII plaintiffs; the statute pro- 534 vided no authority for an award of punitive or compensatory damages. See Landgraf v. USI Film Products, 511 U. S. 244 , 252-253 (1994). With the passage of the 1991 Act, Congress provided for additional remedies, including punitive damages, for certain classes of Title VII and ADA violations. The 1991 Act limits compensatory and punitive damages awards, however, to cases of "intentional discrimination"that is, cases that do not rely on the "disparate impact" theory of discrimination. 42 U. S. C. § 1981a(a)(1). Section 1981a(b)(1) further qualifies the availability of punitive awards: "A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." (Emphasis added.) The very structure of § 1981a suggests a congressional intent to authorize punitive awards in only a subset of cases involving intentional discrimination. Section 1981a(a)(1) limits compensatory and punitive awards to instances of intentional discrimination, while § 1981a(b)(1) requires plaintiffs to make an additional "demonstrat[ion]" of their eligibility for punitive damages. Congress plainly sought to impose two standards of liability-one for establishing a right to compensatory damages and another, higher standard that a plaintiff must satisfy to qualify for a punitive award. The Court of Appeals sought to give life to this two-tiered structure by limiting punitive awards to cases involving intentional discrimination of an "egregious" nature. We credit the en bane majority's effort to effectuate congressional intent, but, in the end, we reject its conclusion that eligibility for punitive damages can only be described in 535 terms of an employer's "egregious" misconduct. The terms "malice" and "reckless" ultimately focus on the actor's state of mind. See, e. g., Black's Law Dictionary 956-957, 1270 (6th ed. 1990); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton, Law of Torts 212-214 (5th ed. 1984) (defining "willful," "wanton," and "reckless"). While egregious misconduct is evidence of the requisite mental state, see infra, at 538-539; Keeton, supra, at 213-214, § 1981a does not limit plaintiffs to this form of evidence, and the section does not require a showing of egregious or outrageous discrimination independent of the employer's state of mind. Nor does the statute's structure imply an independent role for "egregiousness" in the face of congressional silence. On the contrary, the view that § 1981a provides for punitive awards based solely on an employer's state of mind is consistent with the 1991 Act's distinction between equitable and compensatory relief. Intent determines which remedies are open to a plaintiff here as well; compensatory awards are available only where the employer has engaged in "intentional discrimination." § 1981a(a)(1) (emphasis added). Moreover, § 1981a's focus on the employer's state of mind gives some effect to Congress' apparent intent to narrow the class of cases for which punitive awards are available to a subset of those involving intentional discrimination. The employer must act with "malice or with reckless indifference to the [plaintiff's] federally protected rights." § 1981a(b)(1) (emphasis added). The terms "malice" or "reckless indifference" pertain to the employer's knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination. We gain an understanding of the meaning of the terms "malice" and "reckless indifference," as used in § 1981a, from this Court's decision in Smith v. Wade, 461 U. S. 30 (1983). The parties, as well as both the en banc majority and dissent, recognize that Congress looked to the Court's decision in Smith in adopting this language in § 1981a. See Tr. of Oral 536 Arg. 28-29; Brief for Petitioner 24; 139 F. 3d, at 964-965; id., at 971 (Tatel, J., dissenting). Employing language similar to what later appeared in § 1981a, the Court concluded in Smith that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." 461 U. S., at 56. While the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award, id., at 45-48, its intent standard, at a minimum, required recklessness in its subjective form. The Court referred to a "subjective consciousness" of a risk of injury or illegality and a "'criminal indifference to civil obligations.'" Id., at 37, n. 6, 41 (quoting Philadelphia, W & B. R. Co. v. Quigley, 21 How. 202, 214 (1859)); see also Farmer v. Brennan, 511 U. S. 825 , 837 (1994) (explaining that criminal law employs a subjective form of recklessness, requiring a finding that the defendant "disregards a risk of harm of which he is aware"); see generally 1 T. Sedgwick, Measure of Damages §§ 366, 368, pp. 528, 529 (8th ed. 1891) (describing "wantonness" in punitive damages context in terms of "criminal indifference" and "gross negligence" in terms of a "conscious indifference to consequences"). The Court thus compared the recklessness standard to the requirement that defendants act with "'knowledge of falsity or reckless disregard for the truth'" before punitive awards are available in defamation actions, Smith, supra, at 50 (quoting Gertz v. Robert Welch, Inc., 418 U. S. 323 , 349 (1974)), a subjective standard, Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657 , 688 (1989). Applying this standard in the context of § 1981a, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages. There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply 537 be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability. See, e. g., 42 U. S. C. § 2000e-2(e)(1) (setting out Title VII defense "where religion, sex, or national origin is a bona fide occupational qualification"); see also § 12113 (setting out defenses under ADA). In Hazen Paper Co. v. Biggins, 507 U. S. 604, 616 (1993), we thus observed that, in light of statutory defenses and other exceptions permitting age-based decisionmaking, an employer may knowingly rely on age to make employment decisions without recklessly violating the Age Discrimination in Employment Act of 1967 (ADEA). Accordingly, we determined that limiting liquidated damages under the ADEA to cases where the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute," without an additional showing of outrageous conduct, was sufficient to give effect to the ADEA's two-tiered liability scheme. Id., at 616, 617. At oral argument, respondent urged that the common law tradition surrounding punitive awards includes an "egregious misconduct" requirement. See, e. g., Tr. of Oral Arg. 26-28; see also Brief for Chamber of Commerce of the United States as Amicus Curiae 8-22 (advancing this argument). We assume that Congress, in legislating on punitive awards, imported common law principles governing this form of relief. See, e. g., Molzof v. United States, 502 U. S. 301 , 307 (1992). Moreover, some courts and commentators have described punitive awards as requiring both a specified state of mind and egregious or aggravated misconduct. See, e. g., 1 D. Dobbs, Law of Remedies 468 (2d ed. 1993) ("Punitive damages are awarded when the defendant is guilty of both a bad state of mind and highly serious misconduct"). 538 Most often, however, eligibility for punitive awards is characterized in terms of a defendant's motive or intent. See, e. g., 1 Sedgwick, supra, at 526, 528; C. McCormick, Law of Damages 280 (1935). Indeed, "[t]he justification of exemplary damages lies in the evil intent of the defendant." 1 Sedgwick, supra, at 526; see also 2 J. Sutherland, Law of Damages § 390, p. 1079 (3d ed. 1903) (discussing punitive damages under rubric of "[c]ompensation for wrongs done with bad motive"). Accordingly, "a positive element of conscious wrongdoing is always required." McCormick, supra, at 280. Egregious misconduct is often associated with the award of punitive damages, but the reprehensible character of the conduct is not generally considered apart from the requisite state of mind. Conduct warranting punitive awards has been characterized as "egregious," for example, because of the defendant's mental state. See Restatement (Second) of Torts § 908(2) (1979) ("Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others"). Respondent, in fact, appears to endorse this characterization. See, e. g., Brief for Respondent 19 ("Malicious and reckless conduct [is] by definition egregious"); see also id., at 28-29. That conduct committed with the specified mental state may be characterized as egregious, however, is not to say that employers must engage in conduct with some independent, "egregious" quality before being subject to a punitive award. To be sure, egregious or outrageous acts may serve as evidence supporting an inference of the requisite "evil motive." "The allowance of exemplary damages depends upon the bad motive of the wrong-doer as exhibited by his acts." 1 Sedgwick, supra, at 529 (emphasis added); see also 2 Sutherland, supra, § 394, at 1101 ("The spirit which actuated the wrong-doer may doubtless be inferred from the circumstances surrounding the parties and the transaction"); see, e. g., Chizmar v. Mackie, 896 P. 2d 196, 210 (Alaska 1995) 539 ("[W]here there is no evidence that gives rise to an inference of actual malice or conduct sufficiently outrageous to be deemed equivalent to actual malice, the trial court need not, and indeed should not, submit the issue of punitive damages to the jury" (internal quotation marks omitted)); Horton v. Union Light, Heat & Power Co., 690 S. W. 2d 382, 389 (Ky. 1985) (observing that "malice ... may be implied from outrageous conduct"). Likewise, under § 1981a(b)(1), pointing to evidence of an employer's egregious behavior would provide one means of satisfying the plaintiff's burden to "demonstrat[e]" that the employer acted with the requisite "malice or ... reckless indifference." See 42 U. S. C. § 1981a(b)(1); see, e. g., 3 BNA EEOC Compliance Manual N:6085-N6084 (1992) (Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991) (listing "[t]he degree of egregiousness and nature of the respondent's conduct" among evidence tending to show malice or reckless disregard). Again, however, respondent has not shown that the terms "reckless indifference" and "malice," in the punitive damages context, have taken on a consistent definition including an independent, "egregiousness" requirement. Cf. Morissette v. United States, 342 U. S. 246 , 263 (1952) ("[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed"). B The inquiry does not end with a showing of the requisite "malice or ... reckless indifference" on the part of certain individuals, however. 42 U. S. C. § 1981a(b)(1). The plaintiff must impute liability for punitive damages to respondent. The en banc dissent recognized that agency principles place limits on vicarious liability for punitive damages. 139 F. 3d, 540 at 974 (Tatel, J., dissenting). Likewise, the Solicitor General as amicus acknowledged during argument that common law limitations on a principal's liability in punitive awards for the acts of its agents apply in the Title VII context. Tr. of Oral Arg.23. JUSTICE STEVENS urges that we should not consider these limitations here. See post, at 552-553 (opinion concurring in part and dissenting in part). While we decline to engage in any definitive application of the agency standards to the facts of this case, see infra, at 546, it is important that we address the proper legal standards for imputing liability to an employer in the punitive damages context. This issue is intimately bound up with the preceding discussion on the evidentiary showing necessary to qualify for a punitive award, and it is easily subsumed within the question on which we granted certiorari-namely, "[i]n what circumstances may punitive damages be awarded under Title VII of the 1964 Civil Rights Act, as amended, for unlawful intentional discrimination?" Pet. for Cert. i; see also this Court's Rule 14.1(a). "On a number of occasions, this Court has considered issues waived by the parties below and in the petition for certiorari because the issues were so integral to decision of the case that they could be considered 'fairly subsumed' by the actual questions presented." Gilmer v. Interstate/ Johnson Lane Corp., 500 U. S. 20 , 37 (1991) (STEVENS, J., dissenting) (citing cases). The Court has not always confined itself to the set of issues addressed by the parties. See, e. g., Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 93-102, and n. 1 (1998); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229 , 243-249 (1989); Continental Ill. Nat. Bank & Trust Co. v. Chicago R. 1. & P. R. Co., 294 U. S. 648 , 667-675 (1935). Here, moreover, limitations on the extent to which principals may be liable in punitive damages for the torts of their agents was the subject of discussion by both the en bane majority and dissent, see 139 F. 3d, at 968; id., at 974 (Tatel, J., dissenting), amicus 541 briefing, see Brief for Chamber of Commerce of the United States as Amicus Curiae 22-27, and substantial questioning at oral argument, see Tr. of Oral Arg. 11-17, 19-24, 49-50, 54-55. Nor did respondent discount the notion that agency principles may place limits on an employer's vicarious liability for punitive damages. See post, at 552. In fact, respondent advanced the general position "that the higher agency principles, under common law, would apply to punitive damages." Tr. of Oral Arg. 49. Accordingly, we conclude that these potential limitations on the extent of respondent's liability are properly considered in the instant case. The common law has long recognized that agency principles limit vicarious liability for punitive awards. See, e. g., G. Field, Law of Damages §§ 85-87 (1876); 1 Sedgwick, Damages § 378; McCormick, Damages § 80; 2 F. Mechem, Law of Agency §§ 2014-2015 (2d ed. 1914). This is a principle, moreover, that this Court historically has endorsed. See, e. g., Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101 , 114-115 (1893); The Amiable Nancy, 3 Wheat. 546, 558-559 (1818). Courts of Appeals, too, have relied on these liability limits in interpreting 42 U. S. C. § 1981a. See, e. g., Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317 , 13221323 (CAll 1999); Harris v. L & L Wings, Inc., 132 F.3d 978 , 983-985 (CA4 1997). See also Fitzgerald v. Mountain States Telephone & Telegraph Co., 68 F.3d 1257 , 1263-1264 (CAlO 1995) (same in suit under 42 U. S. C. § 1981). But see Deffenbaugh- Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 , 592-594 (CA5 1998), rehearing en banc ordered, 169 We have observed that, "[i]n express terms, Congress has directed federal courts to interpret Title VII based on agency principles." Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , 754 (1998); see also Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 72 (1986) (noting that, in interpreting Title VII, "Congress wanted courts to look to agency principles for guidance"). Observing the limits on liability 542 that these principles impose is especially important when interpreting the 1991 Act. In promulgating the Act, Congress conspicuously left intact the "limits of employer liability" established in Meritor. Faragher v. Boca Raton, 524 U. S. 775 , 804, n. 4 (1998); see also Burlington Industries, Inc., supra, at 763-764 ("[WJe are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment"). Although jurisdictions disagree over whether and how to limit vicarious liability for punitive damages, see, e. g., 2 J. Ghiardi & J. Kircher, Punitive Damages: Law and Practice § 24.01 (1998) (discussing disagreement); 22 Am. Jur. 2d, Damages § 788 (1988) (same), our interpretation of Title VII is informed by "the general common law of agency, rather than ... the law of any particular State." Burlington Industries, Inc., supra, at 754 (internal quotation marks omitted). The common law as codified in the Restatement (Second) of Agency (1957), provides a useful starting point for defining this general common law. See Burlington Industries, Inc., supra, at 755 ("[T]he Restatement ... is a useful beginning point for a discussion of general agency principles"); see also Meritor, supra, at 72. The Restatement of Agency places strict limits on the extent to which an agent's misconduct may be imputed to the principal for purposes of awarding punitive damages: "Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if: "(a) the principal authorized the doing and the manner of the act, or "(b) the agent was unfit and the principal was reckless in employing him, or "(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or 543 "(d) the principal or a managerial agent of the principal ratified or approved the act." Restatement (Second) of Agency, supra, § 217 C. See also Restatement (Second) of Torts § 909 (same). The Restatement, for example, provides that the principal may be liable for punitive damages if it authorizes or ratifies the agent's tortious act, or if it acts recklessly in employing the malfeasing agent. The Restatement also contemplates liability for punitive awards where an employee serving in a "managerial capacity" committed the wrong while "acting in the scope of employment." Restatement (Second) of Agency, supra, § 217 C; see also Restatement (Second) of Torts, supra, § 909 (same). "Unfortunately, no good definition of what constitutes a 'managerial capacity' has been found," 2 Ghiardi, Punitive Damages, § 24.05, at 14, and determining whether an employee meets this description requires a fact-intensive inquiry, id., § 24.05; 1 L. Schlueter & K. Redden, Punitive Damages, § 4.4(B)(2)(a), p. 181 (3d ed. 1995). "In making this determination, the court should review the type of authority that the employer has given to the employee, the amount of discretion that the employee has in what is done and how it is accomplished." Id., § 4.4(B)(2)(a), at 181. Suffice it to say here that the examples provided in the Restatement of Torts suggest that an employee must be "important," but perhaps need not be the employer's "top management, officers, or directors," to be acting "in a managerial capacity." Ibid.; see also 2 Ghiardi, supra, § 24.05, at 14; Restatement (Second) of Torts, supra, § 909, at 468, Comment band Illus. 3. Additional questions arise from the meaning of the "scope of employment" requirement. The Restatement of Agency provides that even intentional torts are within the scope of an agent's employment if the conduct is "the kind [the employee] is employed to perform," "occurs substantially within the authorized time and space limits," and "is actuated, at least in part, by a purpose to serve the" employer. Restate- 544 ment (Second) of Agency, § 228(1), at 504. According to the Restatement, so long as these rules are satisfied, an employee may be said to act within the scope of employment even if the employee engages in acts "specifically forbidden" by the employer and uses "forbidden means of accomplishing results." Id., § 230, at 511, Comment b; see also Burlington Industries, Inc., 524 U. S., at 756; Keeton, Torts § 70. On this view, even an employer who makes every effort to comply with Title VII would be held liable for the discriminatory acts of agents acting in a "managerial capacity." Holding employers liable for punitive damages when they engage in good faith efforts to comply with Title VII, however, is in some tension with the very principles underlying common law limitations on vicarious liability for punitive damages-that it is "improper ordinarily to award punitive damages against one who himself is personally innocent and therefore liable only vicariously." Restatement (Second) of Torts, supra, § 909, at 468, Comment b. Where an employer has undertaken such good faith efforts at Title VII compliance, it "demonstrat[es] that it never acted in reckless disregard of federally protected rights." 139 F. 3d, at 974 (Tatel, J., dissenting); see also Harris, 132 F. 3d, at 983, 984 (observing that, "[i]n some cases, the existence of a written policy instituted in good faith has operated as a total bar to employer liability for punitive damages" and concluding that "the institution of a written sexual harassment policy goes a long way towards dispelling any claim about the employer's 'reckless' or 'malicious' state of mind"). Applying the Restatement of Agency's "scope of employment" rule in the Title VII punitive damages context, moreover, would reduce the incentive for employers to implement antidiscrimination programs. In fact, such a rule would likely exacerbate concerns among employers that § 1981a's "malice" and "reckless indifference" standard penalizes those employers who educate themselves and their employees on Title VII's prohibitions. See Brief for Equal Employment 545 Advisory Council as Amicus Curiae 12 ("[I]f an employer has made efforts to familiarize itself with Title VII's requirements, then any violation of those requirements by the employer can be inferred to have been committed 'with malice or with reckless indifference' "). Dissuading employers from implementing programs or policies to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII. The statute's "primary objective" is "a prophylactic one," Albemarle Paper Co. v. Moody, 422 U. S. 405 , 417 (1975); it aims, chiefly, "not to provide redress but to avoid harm," Faragher, 524 U. S., at 806. With regard to sexual harassment, "[f]or example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms." Burlington Industries, Inc., 524 U. S., at 764. The purposes underlying Title VII are similarly advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII's prohibitions. In light of the perverse incentives that the Restatement's "scope of employment" rules create, we are compelled to modify these principles to avoid undermining the objectives underlying Title VII. See generally ibid. See also Faragher, supra, at 802, n. 3 (noting that Court must "adapt agency concepts to the practical objectives of Title VII"); Meritor Savings Bank, FSB, 477 U. S., at 72 ("[C]ommonlaw principles may not be transferable in all their particulars to Title VII"). Recognizing Title VII as an effort to promote prevention as well as remediation, and observing the very principles underlying the Restatements' strict limits on vicarious liability for punitive damages, we agree that, in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's "good-faith efforts to comply with Title VII." 139 F. 3d, at 974 (Tatel, J., dissenting). As the dissent recognized, "[g]iving punitive damages protection to employers 546 who make good-faith efforts to prevent discrimination in the workplace accomplishes" Title VII's objective of "motivat[ing] employers to detect and deter Title VII violations." Ibid. We have concluded that an employer's conduct need not be independently "egregious" to satisfy § 1981a's requirements for a punitive damages award, although evidence of egregious misconduct may be used to meet the plaintiff's burden of proof. We leave for remand the question whether petitioner can identify facts sufficient to support an inference that the requisite mental state can be imputed to respondent. The parties have not yet had an opportunity to marshal the record evidence in support of their views on the application of agency principles in the instant case, and the en banc majority had no reason to resolve the issue because it concluded that petitioner had failed to demonstrate the requisite "egregious" misconduct. 139 F. 3d, at 968. Although trial testimony established that Allen made the ultimate decision to promote Spangler while serving as petitioner's interim executive director, respondent's highest position, Tr. 159 (Oct. 19, 1995), it remains to be seen whether petitioner can make a sufficient showing that Allen acted with malice or reckless indifference to petitioner's Title VII rights. Even if it could be established that Wheat effectively selected O'Donnell's replacement, moreover, several questions would remain, e. g., whether Wheat was serving in a "managerial capacity" and whether he behaved with malice or reckless indifference to petitioner's rights. It may also be necessary to determine whether the Association had been making good faith efforts to enforce an antidiscrimination policy. We leave these issues for resolution on remand. For the foregoing reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion. It is so ordered. 547 CHIEF JUSTICE REHNQUIST, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part. For the reasons stated by Judge Randolph in his concurring opinion in the Court of Appeals, I would hold that Congress' two-tiered scheme of Title VII monetary liability implies that there is an egregiousness requirement that reserves punitive damages only for the worst cases of intentional discrimination. See 139 F.3d 958 , 970 (CADC 1998). Since the Court has determined otherwise, however, I join Part I and that portion of Part II-B of the Court's opinion holding that principles of agency law place a significant limitation, and in many foreseeable cases a complete bar, on employer liability for punitive damages. JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, concurring in part and dissenting in part. The Court properly rejects the Court of Appeals' holding that defendants in Title VII actions must engage in "egregious" misconduct before a jury may be permitted to consider a request for punitive damages. Accordingly, I join Parts I and II-A of its opinion. I write separately, however, because I strongly disagree with the Court's decision to volunteer commentary on an issue that the parties have not briefed and that the facts of this case do not present. I would simply remand for a trial on punitive damages. I In enacting the Civil Rights Act of 1991 (1991 Act), Congress established a three-tiered system of remedies for a broad range of discriminatory conduct, including violations of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., as well as some violations of the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. III). Equitable remedies are available 548 for disparate impact violations; compensatory damages for intentional disparate treatment; and punitive damages for intentional discrimination "with malice or with reckless indifference to the federally protected rights of an aggrieved individua1." § 1981a(b)(1). The 1991 Act's punitive damages standard, as the Court recognizes, ante, at 535-536, is quite obviously drawn from our holding in Smith v. Wade, 461 U. S. 30 (1983). There, we held that punitive damages may be awarded under 42 U. S. C. § 1983 (1976 ed., Supp. V) "when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." 461 U. S., at 56.* The 1991 Act's standard is also the same intent-based standard used in the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq. (1994 ed. and Supp. III). The ADEA provides for an award of liquidated damagesdamages that are "punitive in nature," Trans World Airlines, Inc. v. Thurston, 469 U. S. 111 , 125 (1985)-when the employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute." Hazen Paper Co. v. Biggins, 507 U. S. 604 , 617 (1993); accord, Thurston, 469 U. S., at 126. *Lest there be any doubt that Congress looked to Smith in crafting the statute, the Report of the House Judiciary Committee explains that the "standard for punitive damages is taken directly from civil rights case law," H. R. Rep. No. 102-40, pt. 2, p. 29 (1991), and proceeds to quote and cite with approval the very page in Smith that announced the punitive damages standard requiring "evil motive or intent, or ... reckless or callous indifference to the federally protected rights of others," 461 U. S., at 56, quoted in H. R. Rep. No. 102-40, at 29. The Report of the House Education and Labor Committee echoed this sentiment. See H. R. Rep. No. 102-40, p. 74 (1991) (citing Smith with approval). Congress'substitution in the 1991 Act of the word "malice" for Smith's phrase "evil motive or intent" is inconsequential; in Smith, we noted that "malice ... may be an appropriate" term to denote ill will or an intent to injure. See 461 U. S., at 37, n. 6. 549 In Smith, we carefully noted that our punitive damages standard separated the "quite distinct concepts of intent to cause injury, on one hand, and subjective consciousness of risk of injury (or of unlawfulness) on the other," 461 U. S., at 38, n. 6, and held that punitive damages are permissible only when the latter component is satisfied by a deliberate or recklessly indifferent violation of federal law. In Thurston, we interpreted the ADEA's standard the same way and explained that the relevant mental distinction between intentional discrimination and "reckless disregard" for federally protected rights is essentially the same as the well-known difference between a "knowing" and a "willful" violation of a criminal law. See 469 U. S., at 126-127. While a criminal defendant, like an employer, need not have knowledge of the law to act "knowingly" or intentionally, he must know that his acts violate the law or must "careless[ly] disregard whether or not one has the right so to act" in order to act "willfully." United States v. Murdock, 290 U. S. 389 , 395 (1933), quoted in Thurston, 469 U. S., at 127. We have interpreted the word "willfully" the same way in the civil context. See McLaughlin v. Richland Shoe Co., 486 U. S. 128 , 133 (1988) (holding that the "plain language" of the Fair Labor Standards Act's "willful" liquidated damages standard requires that "the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute," without regard to the outrageousness of the conduct at issue). Construing § 1981a(b)(1) to impose a purely mental standard is perfectly consistent with the structure and purpose of the 1991 Act. As with the ADEA, the 1991 Act's "willful" or "reckless disregard" standard respects the Act's "two-tiered" damages scheme while deterring future intentionally unlawful discrimination. See Hazen Paper, 507 U. S., at 614-615. There are, for reasons the Court explains, see ante, at 536537, numerous instances in which an employer might intentionally treat an individual differently because of her race, 550 gender, religion, or disability without knowing that it is violating Title VII or the ADA. In order to recover compensatory damages under the 1991 Act, victims of unlawful disparate treatment must prove that the defendants' conduct was intentional, but they need not prove that the defendants either knew or should have known that they were violating the law. It is the additional element of willful or reckless disregard of the law that justifies a penalty of double damages in age discrimination cases and punitive damages in the broad range of cases covered by the 1991 Act. It is of course true that as our society moves closer to the goal of eliminating intentional, invidious discrimination, the core mandates of Title VII and the ADA are becoming increasingly ingrained in employers' minds. As more employers come to appreciate the importance and the proportions of those statutes' mandates, the number of federal violations will continue to decrease accordingly. But at the same time, one could reasonably believe, as Congress did, that as our national resolve against employment discrimination hardens, deliberate violations of Title VII and the ADA become increasingly blameworthy and more properly the subject of "societal condemnation," McKennon v. Nashville Banner Publishing Co., 513 U. S. 352 , 357 (1995), in the form of punitive damages. Indeed, it would have been rather perverse for Congress to conclude that the increasing acceptance of antidiscrimination laws in the workplace somehow mitigates willful violations of those laws such that only those violations that are accompanied by particularly outlandish acts warrant special deterrence. Given the clarity of our cases and the precision of Congress' words, the common-law tradition of punitive damages and any relationship it has to "egregious conduct" is quite irrelevant. It is enough to say that Congress provided in the 1991 Act its own punitive damages standard that focuses solely on willful mental state, and it did not suggest that there is any class of willful violations that are exempt from 551 exposure to punitive damages. Nor did it indicate that there is a point on the spectrum of deliberate or recklessly indifferent conduct that qualifies as "egregious." Thus, while behavior that merits that opprobrious label may provide probative evidence of wrongful motive, it is not a necessary prerequisite to proving such a motive under the 1991 Act. To the extent that any treatise or federal, state, or "common-law" case might suggest otherwise, it is wrong. There are other means of proving that an employer willfully violated the law. An employer, may, for example, express hostility toward employment discrimination laws or conceal evidence regarding its "true" selection procedures because it knows they violate federal law. Whatever the case, so long as a Title VII plaintiff proffers sufficient evidence from which a jury could conclude that an employer acted willfully, judges have no place making their own value judgments regarding whether the conduct was "egregious" or otherwise presents an inappropriate candidate for punitive damages; the issue must go to the jury. If we accept the jury's appraisal of the evidence in this case and draw, as we must when reviewing the denial of a jury instruction, all reasonable inferences in petitioner's favor, there is ample evidence from which the jury could have concluded that respondent willfully violated Title VII. Petitioner emphasized, at trial and in her briefs to this Court, that respondent took "a tangible employment action" against her in the form of denying a promotion. Brief for Petitioner 47. Evidence indicated that petitioner was the more qualified of the two candidates for the job. Respondent's decisionmakers, who were senior executives of the Association, were known occasionally to tell sexually offensive jokes and referred to professional women in derogatory terms. The record further supports an inference that these executives not only deliberately refused to consider petitioner fairly and to promote her because she is a woman, but manipulated the job requirements and conducted a 552 "sham" selection procedure in an attempt to conceal their misconduct. There is no claim that respondent's decisionmakers violated any company policy; that they were not acting within the scope of their employment; or that respondent has ever disavowed their conduct. Neither respondent nor its two decisionmakers claimed at trial any ignorance of Title VII's requirements, nor did either offer any "good-faith" reason for believing that being a man was a legitimate requirement for the job. Rather, at trial respondent resorted to false, pretextual explanations for its refusal to promote petitioner. The record, in sum, contains evidence from which a jury might find that respondent acted with reckless indifference to petitioner's federally protected rights. It follows, in my judgment, that the three-judge panel of the Court of Appeals correctly decided to remand the case to the District Court for a trial on punitive damages. See 108 F.3d 1431 , 1440 (CADC 1997). To the extent that the Court's opinion fails to direct that disposition, I respectfully dissent. II In Part II-B of its opinion, the Court discusses the question whether "[t]he plaintiff must impute liability for punitive damages to respondent" under "agency principles." Ante, at 539. That is a question that neither of the parties has ever addressed in this litigation and that respondent, at least, has expressly disavowed. When prodded at oral argument, counsel for respondent twice stood firm on this point. "[W]e all agree," he twice repeated, "that that precise issue is not before the Court" Tr. of Oral Arg. 49. Nor did any of the 11 judges in the Court of Appeals believe that it was applicable to the dispute at hand-presumably because promotion decisions are quintessential "company acts," see 139 F.3d 958 , 968 (CADC 1998), and because the two executives who made this promotion decision were the executive direc- 553 tor of the Association and the acting head of its Washington office. Id., at 974, 979 (Tatel, J., dissenting). See also 108 F. 3d, at 1434, 1439. Judge Tatel, who the Court implies raised the agency issue, in fact explicitly (and correctly) concluded that "[t]his case does not present these or analogous circumstances." 108 F. 3d, at 1439. The absence of briefing or meaningful argument by the parties makes this Court's gratuitous decision to volunteer an opinion on this nonissue particularly ill advised. It is not this Court's practice to consider arguments-specifically, alternative defenses of the judgment under review-that were not presented in the brief in opposition to the petition for certiorari. See this Court's Rule 15.2. Indeed, on two occasions in this very Term, we refused to do so despite the fact that the issues were briefed and argued by the parties. See South Central Bell Telephone Co. v. Alabama, 526 U. S. 160 , 171 (1999); Roberts v. Galen of Va., Inc., 525 U. S. 249 , 253-254 (1999) (per curiam). If we declined to reach alternative defenses under those circumstances, surely we should do so here. Nor is it accurate for the Court to imply that the Solicitor General, representing Government amici, advocates a course similar to that which the Court takes regarding the agency question. Cf. ante, at 540. The Solicitor General, like the parties, did not brief any agency issue. At oral argument, he correspondingly stated that the issue "is not really presented here." Tr. of Oral Arg. 19. He then responded to the Court's questions by stating that the Federal Government believes that whenever a tangible employment consequence is involved § 1981a incorporates the "managerial capacity" principles espoused by § 217 C of the Restatement (Second) of Agency. See Tr. of Oral Arg. 23. But to the extent that the Court tinkers with the Restatement's standard, it is rejecting the Government's view of its own statute without giving it an opportunity to be heard on the issue. 554 Accordingly, while I agree with the Court's rejection of the en banc majority's holding on the only issue that it confronted, I respectfully dissent from the Court's failure to order a remand for trial on the punitive damages issue.

In *Kolstad v. American Dental Association*, the Supreme Court ruled that an employer's conduct does not need to be independently "egregious" to warrant punitive damages in cases of intentional gender discrimination under Title VII of the Civil Rights Act. The Court clarified that while egregious behavior can indicate the required "malice" or "reckless indifference," it is not a necessary condition for punitive damages. The Court also addressed agency principles, emphasizing that promotion decisions are typically considered "company acts," and suggested that the relevant standard for punitive damages involves an employer's state of mind, not just the outcome of their actions.

Labor & Employment

Reeves v. Sanderson Plumbing Products, Inc.

https://supreme.justia.com/cases/federal/us/530/133/

OCTOBER TERM, 1999 Syllabus REEVES v. SANDERSON PLUMBING PRODUCTS, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-536. Argued March 21, 2000-Decided June 12,2000 Petitioner Reeves, 57, and Joe Oswalt, in his mid-thirties, were the supervisors in one of respondent's departments known as the "Hinge Room," which was managed by Russell Caldwell, 45. Reeves' responsibilities included recording the attendance and hours worked by employees under his supervision. In 1995, Caldwell informed Powe Chesnut, the company's director of manufacturing, that Hinge Room production was down because employees were often absent, coming in late, and leaving early. Because the monthly attendance reports did not indicate a problem, Chesnut ordered an audit, which, according to his testimony, revealed numerous timekeeping errors and misrepresentations by Caldwell, Reeves, and Oswalt. Chesnut and other company officials recommended to the company president, Sandra Sanderson, that Reeves and Caldwell be fired, and she complied. Reeves filed this suit, contending that he had been terminated because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA). At trial, respondent contended Reeves had been fired due to his failure to maintain accurate attendance records. Reeves attempted to demonstrate that this explanation was pretext for age discrimination, introducing evidence that he had accurately recorded the attendance and hours of the employees he supervised, and that Chesnut, whom Oswalt described as wielding "absolute power" within the company, had demonstrated agebased animus in his dealings with him. The District Court denied respondent's motions for judgment as a matter of law under Federal Rule of Civil Procedure 50, and the case went to the jury, which returned a verdict for Reeves. The Fifth Circuit reversed. Although recognizing that Reeves may well have offered sufficient evidence for the jury to have found that respondent's explanation was pretextual, the court explained that this did not mean that Reeves had presented sufficient evidence to show that he had been fired because of his age. In finding the evidence insufficient, the court weighed the additional evidence of discrimination introduced by Reeves against other circumstances surrounding his discharge, including that Chesnut's age-based comments were not made in the direct context of Reeves' termination; there was no allegation that the other individuals who recommended his firing 134 134 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. Syllabus were motivated by age; two of those officials were over 50; all three Hinge Room supervisors were accused of inaccurate recordkeeping; and several of respondent's managers were over 50 when Reeves was fired. Held: 1. A plaintiff's prima facie case of discrimination (as defined in M c Donnell Douglas Corp. v. Green, 411 U. S. 792 , 802, and subsequent decisions), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, may be adequate to sustain a finding of liability for intentional discrimination under the ADEA. In this case, Reeves established a prima facie case and made a substantial showing that respondent's legitimate, nondiscriminatory explanation, i. e., his shoddy recordkeeping, was false. He offered evidence showing that he had properly maintained the attendance records in question and that cast doubt on whether he was responsible for any failure to discipline late and absent employees. In holding that the evidence was insufficient to sustain the jury's verdict, the Fifth Circuit ignored this evidence, as well as the evidence supporting Reeves' prima facie case, and instead confined its review of the evidence favoring Reeves to that showing that Chesnut had directed derogatory, age-based comments at Reeves, and that Chesnut had singled him out for harsher treatment than younger employees. It is therefore apparent that the court believed that only this additional evidence of discrimination was relevant to whether the jury's verdict should stand. In so reasoning, the court misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence. In St. Mary's Honor Center v. Hicks, 509 U. S. 502 , 511, the Court stated that, because the factfinder's disbelief of the reasons put forward by the defendant, together with the elements of the prima facie case, may suffice to show intentional discrimination, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination. Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it can be quite persuasive. See id., at 517. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. See, e. g., Wright v. West, 505 U. S. 277 , 296. Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. Waters, 438 U. S. 567 ,577. Such a showing by the plaintiff will not always be adequate to sustain a jury's liability finding. Certainly there will be instances where, although the plaintiff has established a prima facie case and 135 introduced sufficient evidence to reject the employer's explanation, no rational factfinder could conclude that discrimination had occurred. This Court need not-and could not-resolve all such circumstances here. In this case, it suffices to say that a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Pp. 141-149. 2. Respondent was not entitled to judgment as a matter of law under the particular circumstances presented here. Pp. 149-154. (a) Rule 50 requires a court to render judgment as a matter of law when a party has been fully heard on an issue, and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. The standard for judgment as a matter of law under Rule 50 mirrors the standard for summary judgment under Rule 56. Thus, the court must review all of the evidence in the record, cf., e. g., Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574 , 587, drawing all reasonable inferences in favor of the nonmoving party, but making no credibility determinations or weighing any evidence, e. g., Lytle v. Household Mfg., Inc., 494 U. S. 545 , 554-555. The latter nmctions, along with the drawing of legitimate inferences from the facts, are for the jury, not the court. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. Pp. 149-151. (b) In holding that the record contained insufficient evidence to sustain the jury's verdict, the Fifth Circuit misapplied the standard of review dictated by Rule 50. The court disregarded evidence favorable to Reeves-the evidence supporting his prima facie case and undermining respondent's nondiscriminatory explanation-and failed to draw all reasonable inferences in his favor. For instance, while acknowledging the potentially damning nature of Chesnut's age-related comments, the court discounted them on the ground that they were not made in the direct context of Reeves' termination. And the court discredited Reeves' evidence that Chesnut was the actual decisionmaker by giving weight to the fact that there was no evidence suggesting the other decisionmakers were motivated by age. Moreover, the other evidence on which the court relied-that Caldwell and Oswalt were also cited for poor recordkeeping, and that respondent employed many managers over age 50-although relevant, is certainly not dispositive. See Furnco, supra, at 580. The ultimate question in every disparate treatment case is whether the plaintiff was the victim of intentional discrimination. Here, the District Court informed the jury that Reeves was required to show by a preponderance of the evidence that his age was a determining and motivating factor in the decision to terminate 136 136 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. Syllabus him. It instructed the jury that, to show respondent's explanation was pretextual, Reeves had to demonstrate that age discrimination, not respondent's explanation, was the real reason for his discharge. Given that Reeves established a prima facie case, introduced enough evidence for the jury to reject respondent's explanation, and produced additional evidence that Chesnut was motivated by age-based animus and was principally responsible for Reeves' firing, there was sufficient evidence for the jury to conclude that respondent had intentionally discriminated. pp. 151-154. 197 F.3d 688 , reversed. O'CONNOR, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, post, p. 154. Jim Waide argued the cause for petitioner. With him on the briefs were David A. Chandler, Victor 1. Fleitas, Eric Schnapper, and Alan B. Morrison. Patricia A. Millett argued the cause for the United States et al. as amici curiae urging reversal. On the brief were Solicitor General Waxman, Deputy Solicitor General Underwood, Matthew D. Roberts, C. Gregory Stewart, and Philip B. Sklover. Taylor B. Smith argued the cause for respondent. With him on the brief was Berkley N. Huskison.* *Briefs of amici curiae urging reversal were filed for the AARP by Thomas W Osborne, Laurie A. McCann, Sally Dunaway, and Melvin Radowitz; for the Association of Trial Lawyers of America by Jeffrey Robert White; for the Hispanic National Bar Association by Seth J. Benezra, Luis Perez, and Gilbert M. Roman; for the Lawyers' Committee for Civil Rights Under Law et al. by Daniel F. Kolb, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Elainy R. Jones, Theodore M. Shaw, Norman J. Chachkin, Charles Stephen Ralston, Dennis C. Hayes, Antonia Hernandez, Judith L. Lichtman, Donna R. Lenhoff, Marcia D. Greenberger, Judith C. Appelbaum, Martha F. Davis, Sara L. Mandelbaum, and Steven R. Shapiro; and for the National Employment Lawyers Association by Paul W Mollica and Paula A. Brantner. Briefs of amici curiae urging affirmance were filed for the Alabama Retail Association by John J. Coleman III and Marcel L. Debruge; for the Chamber of Commerce of the United States by Marshall B. Babson, Stan- 137 JUSTICE O'CONNOR delivered the opinion of the Court. This case concerns the kind and amount of evidence necessary to sustain a jury's verdict that an employer unlawfully discriminated on the basis of age. Specifically, we must resolve whether a defendant is entitled to judgment as a matter of law when the plaintiff's case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory explanation for its action. We must also decide whether the employer was entitled to judgment as a matter of law under the particular circumstances presented here. I In October 1995, petitioner Roger Reeves was 57 years old and had spent 40 years in the employ of respondent, Sanderson Plumbing Products, Inc., a manufacturer of toilet seats and covers. 197 F.3d 688 , 690 (CA5 1999). Petitioner worked in a department known as the "Hinge Room," where he supervised the "regular line." Ibid. Joe Oswalt, in his mid-thirties, supervised the Hinge Room's "special line," and Russell Caldwell, the manager of the Hinge Room and age 45, supervised both petitioner and Oswalt. Ibid. Petitioner's responsibilities included recording the attendance and hours of those under his supervision, and reviewing a weekly report that listed the hours worked by each employee. 3 Record 38-40. In the summer of 1995, Caldwell informed Powe Chesnut, the director of manufacturing and the husband of company president Sandra Sanderson, that "production was down" in ley Strauss, Stephen A. Bokat, and Robin S. Conrad; for the Equal Employment Advisory Council by Ann Elizabeth Reesman; for the Product Liability Advisory Council, Inc., by Andrew L. Frey, Charles Rothfeld, and Stephen M. Shapiro; for the Society for Human Resource Management by Peter J. Petesch, Thomas J. Walsh, Jr., Timothy S. Bland, and John E. Duvall; and for the Texas Association of Business and Chamber of Commerce by Dean J. Schaner and Scott M. Nelson. 138 138 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. the Hinge Room because employees were often absent and were "coming in late and leaving early." 4 id., at 203-204. Because the monthly attendance reports did not indicate a problem, Chesnut ordered an audit of the Hinge Room's timesheets for July, August, and September of that year. 197 F. 3d, at 690. According to Chesnut's testimony, that investigation revealed "numerous timekeeping errors and misrepresentations on the part of Caldwell, Reeves, and Oswalt." Ibid. Following the audit, Chesnut, along with Dana Jester, vice president of human resources, and Tom Whitaker, vice president of operations, recommended to company president Sanderson that petitioner and Caldwell be fired. Id., at 690-691. In October 1995, Sanderson followed the recommendation and discharged both petitioner and Caldwell. Id., at 691. In June 1996, petitioner filed suit in the United States District Court for the Northern District of Mississippi, contending that he had been fired because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq. At trial, respondent contended that it had fired petitioner due to his failure to maintain accurate attendance records, while petitioner attempted to demonstrate that respondent's explanation was pretext for age discrimination. 197 F. 3d, at 692-693. Petitioner introduced evidence that he had accurately recorded the attendance and hours of the employees under his supervision, and that Chesnut, whom Oswalt described as wielding "absolute power" within the company, 3 Record 80, had demonstrated age-based animus in his dealings with petitioner. 197 F. 3d, at 693. During the trial, the District Court twice denied oral motions by respondent for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, and the case went to the jury. 3 Record 183; 4 id., at 354. The court instructed the jury that "[i]f the plaintiff fails to prove age was a determinative or motivating factor in the decision to 139 terminate him, then your verdict shall be for the defendant." Tr. 7 (Jury Charge) (Sept. 12, 1997). So charged, the jury returned a verdict in favor of petitioner, awarding him $35,000 in compensatory damages, and found that respondent's age discrimination had been "willfu[l]." 197 F. 3d, at 691. The District Court accordingly entered judgment for petitioner in the amount of $70,000, which included $35,000 in liquidated damages based on the jury's finding of willfulness. Ibid. Respondent then renewed its motion for judgment as a matter of law and alternatively moved for a new trial, while petitioner moved for front pay. 2 Record, Doc. Nos. 36, 38. The District Court denied respondent's motions and granted petitioner's, awarding him $28,490.80 in front pay for two years' lost income. 2 id., Doc. Nos. 40, 41. The Court of Appeals for the Fifth Circuit reversed, holding that petitioner had not introduced sufficient evidence to sustain the jury's finding of unlawful discrimination. 197 F. 3d, at 694. After noting respondent's proffered justification for petitioner's discharge, the court acknowledged that petitioner "very well may" have offered sufficient evidence for "a reasonable jury [to] have found that [respondent's] explanation for its employment decision was pretextual." Id., at 693. The court explained, however, that this was "not dispositive" of the ultimate issue-namely, "whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision." Ibid. Addressing this question, the court weighed petitioner's additional evidence of discrimination against other circumstances surrounding his discharge. See id., at 693-694. Specifically, the court noted that Chesnut's age-based comments "were not made in the direct context of Reeves's termination"; there was no allegation that the two other individuals who had recommended that petitioner be fired (Jester and Whitaker) were motivated by age; two of the decisionmakers involved in petitioner's discharge (Jester and Sanderson) were over the age of 50; all three of the Hinge Room supervisors were 140 140 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. accused of inaccurate recordkeeping; and several of respondent's management positions were filled by persons over age 50 when petitioner was fired. Ibid. On this basis, the court concluded that petitioner had not introduced sufficient evidence for a rational jury to conclude that he had been discharged because of his age. Id., at 694. We granted certiorari, 528 U. S. 985 (1999), to resolve a conflict among the Courts of Appeals as to whether a plaintiff's prima facie case of discrimination (as defined in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 802 (1973)), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination. Compare Kline v. TVA, 128 F.3d 337 (CA6 1997) (prima facie case combined with sufficient evidence to disbelieve employer's explanation always creates jury issue of whether employer intentionally discriminated); Combs v. Plantation Patterns, 106 F.3d 1519 (CAll 1997) (same), cert. denied, 522 U. S. 1045 (1998); Sheridan v. E. 1. DuPont de Nemours & Co., 100 F.3d 1061 (CA3 1996) (same) (en banc), cert. denied, 521 U. S. 1129 (1997); Gaworski v. ITT Commercial Finance Corp., 17 F.3d 1104 (CA8) (same), cert. denied, 513 U. S. 946 (1994); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120 (CA7 1994) (same); Washington v. Garrett, 10 F.3d 1421 (CA9 1993) (same), with Aka v. Washington Hospital Center, 156 F.3d 1284 (CADC 1998) (en banc) (plaintiff's discrediting of employer's explanation is entitled to considerable weight, such that plaintiff should not be routinely required to submit evidence over and above proof of pretext), and with Fisher v. Vassar College, 114 F.3d 1332 (CA2 1997) (en banc) (plaintiff must introduce sufficient evidence for jury to find both that employer's reason was false and that real reason was discrimination), cert. denied, 522 U. S. 1075 (1998); Rhodes v. Guiberson Oil Tools, 75 F. 3d 989 (CA5 1996) (same); Theard v. Glaxo, Inc., 47 F. 3d 141 676 (CA4 1995) (same); Woods v. Friction Materials, Inc., 30 F.3d 255 (CA1 1994) (same). II Under the ADEA, it is "unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. § 623(a)(1). When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision." Hazen Paper Co. v. Biggins, 507 U. S. 604 , 610 (1993). That is, the plaintiff's age must have "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." Ibid. Recognizing that "the question facing triers of fact in discrimination cases is both sensitive and difficult," and that "[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes," Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 716 (1983), the Courts of Appeals, including the Fifth Circuit in this case, have employed some variant of the framework articulated in McDonnell Douglas to analyze ADEA claims that are based principally on circumstantial evidence. See, e. g., Stokes v. Westinghouse Savannah River Co., 206 F.3d 420 , 429 (CA4 2000); Galabya v. New York City Bd. of Ed., 202 F. 3d 636, 639 (CA2 2000); Hall v. Giant Food, Inc., 175 F.3d 1074 , 1077-1078 (CADC 1999); Beaird v. Seagate Technology Inc., 145 F.3d 1159 , 1165 (CAlO), cert. denied, 525 U. S. 1054 (1998); Hindman v. Transkrit Corp., 145 F.3d 986 , 990-991 (CA8 1998); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428 , 1432 (CAll), cert. denied, 525 U. S. 962 (1998); Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101 , 1108 (CA3 1997) (en bane); Kaniffv. Allstate Ins. Co., 121 F.3d 258 , 263 (CA7 1997); Ritter v. Hughes Aircraft Co., 58 F.3d 454 , 456-457 (CA9 1995); Bodenheimer v. PPG Industries, Inc., 5 F. 3d 142 142 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. 955, 957 (CA5 1993); Mesnick v. General Elec. Co., 950 F.2d 816 , 823 (CAl1991), cert. denied, 504 U. S. 985 (1992); Ackerman v. Diamond Shamrock Corp., 670 F.2d 66 , 69 (CA6 1982). This Court has not squarely addressed whether the McDonnell Douglas framework, developed to assess claims brought under § 703(a)(1) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U. S. C. § 2000e-2(a)(1), also applies to ADEA actions. Because the parties do not dispute the issue, we shall assume, arguendo, that the McDonnell Douglas framework is fully applicable here. Cf. O'Connor v. Consolidated Coin Caterers Corp., 517 U. S. 308 , 311 (1996). McDonnell Douglas and subsequent decisions have "established an allocation of the burden of production and an order for the presentation of proof in ... discriminatorytreatment cases." St. Mary's Honor Center v. Hicks, 509 U. S. 502, 506 (1993). First, the plaintiff must establish a prima facie case of discrimination. Ibid.; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 252-253 (1981). It is undisputed that petitioner satisfied this burden here: (i) at the time he was fired, he was a member of the class protected by the ADEA ("individuals who are at least 40 years of age," 29 U. S. C. § 631(a)), (ii) he was otherwise qualified for the position of Hinge Room supervisor, (iii) he was discharged by respondent, and (iv) respondent successively hired three persons in their thirties to fill petitioner's position. See 197 F. 3d, at 691-692. The burden therefore shifted to respondent to "produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, supra, at 254. This burden is one of production, not persuasion; it "can involve no credibility assessment." St. Mary's Honor Center, supra, at 509. Respondent met this burden by offering admissible evidence sufficient for the trier of fact to conclude that petitioner was fired because of his failure to maintain accurate attendance records. See 197 F. 3d, at 692. Accordingly, "the McDonnell Douglas framework-with 143 its presumptions and burdens"-disappeared, St. Mary's Honor Center, supra, at 510, and the sole remaining issue was "discrimination vel non," Aikens, supra, at 714. Although intermediate evidentiary burdens shift back and forth under this framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U. S., at 253. And in attempting to satisfy this burden, the plaintiff-once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision-must be afforded the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Ibid.; see also St. Mary's Honor Center, supra, at 507-508. That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." Burdine, supra, at 256. Moreover, although the presumption of discrimination "drops out of the picture" once the defendant meets its burden of production, St. Mary's Honor Center, supra, at 511, the trier of fact may still consider the evidence establishing the plaintiff's prima facie case "and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual," Burdine, supra, at 255, n. 10. In this case, the evidence supporting respondent's explanation for petitioner's discharge consisted primarily of testimony by Chesnut and Sanderson and documentation of petitioner's alleged "shoddy record keeping." 197 F. 3d, at 692. Chesnut testified that a 1993 audit of Hinge Room operations revealed "a very lax assembly line" where employees were not adhering to general work rules. 4 Record 197-199. As a result of that audit, petitioner was placed on 90 days' probation for unsatisfactory performance. 197 F. 3d, at 690. In 1995, Chesnut ordered another investi- 144 144 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. gation of the Hinge Room, which, according to his testimony, revealed that petitioner was not correctly recording the absences and hours of employees. 4 Record 204-205. Respondent introduced summaries of that investigation documenting several attendance violations by 12 employees under petitioner's supervision, and noting that each should have been disciplined in some manner. See App. 21-24, 30-37; 4 Record 206-208. Chesnut testified that this failure to discipline absent and late employees is "extremely important when you are dealing with a union" because uneven enforcement across departments would keep the company "in grievance and arbitration cases, which are costly, all the time." 4 id., at 206. He and Sanderson also stated that petitioner's errors, by failing to adjust for hours not worked, cost the company overpaid wages. 3 id., at 100, 142, 154; 4 id., at 191-192, 213. Sanderson testified that she accepted the recommendation to discharge petitioner because he had "intentionally falsif[ied] company pay records." 3 id., at 100. Petitioner, however, made a substantial showing that respondent's explanation was false. First, petitioner offered evidence that he had properly maintained the attendance records. Most of the timekeeping errors cited by respondent involved employees who were not marked late but who were recorded as having arrived at the plant at 7 a.m. for the 7 a.m. shift. 3 id., at 118-123; 4 id., at 240-247, 283-285, 291, 293-294. Respondent contended that employees arriving at 7 a.m. could not have been at their workstations by 7 a.m., and therefore must have been late. 3 id., at 119-120; 4 id., at 241, 245. But both petitioner and Oswalt testified that the company's automated timeclock often failed to scan employees' timecards, so that the time sheets would not record any time of arrival. 3 id., at 6, 85; 4 id., at 334-335. On these occasions, petitioner and Oswalt would visually check the workstations and record whether the employees were present at the start of the shift. 3 id., at 6, 85-87; 145 4 id., at 335. They stated that if an employee arrived promptly but the timesheet contained no time of arrival, they would reconcile the two by marking "7 a.m." as the employee's arrival time, even if the employee actually arrived at the plant earlier. Ibid. On cross-examination, Chesnut acknowledged that the timeclock sometimes malfunctioned, and that if "people were there at their work station[sJ" at the start of the shift, the supervisor "would write in seven o'clock." 4 id., at 244. Petitioner also testified that when employees arrived before or stayed after their shifts, he would assign them additional work so they would not be overpaid. See 197 F. 3d, at 693. Petitioner similarly cast doubt on whether he was responsible for any failure to discipline late and absent employees. Petitioner testified that his job only included reviewing the daily and weekly attendance reports, and that disciplinary writeups were based on the monthly reports, which were reviewed by Caldwell. 3 Record 20-22; 4 id., at 335. Sanderson admitted that Caldwell, and not petitioner, was responsible for citing employees for violations of the company's attendance policy. 3 id., at 20-21,137-138. Further, Chesnut conceded that there had never been a union grievance or employee complaint arising from petitioner's recordkeeping, and that the company had never calculated the amount of overpayments allegedly attributable to petitioner's errors. 4 id., at 267, 301. Petitioner also testified that, on the day he was fired, Chesnut said that his discharge was due to his failure to report as absent one employee, Gina Mae Coley, on two days in September 1995. 3 id., at 23, 70; 4 id., at 335336. But petitioner explained that he had spent those days in the hospital, and that Caldwell was therefore responsible for any overpayment of Coley. 3 id., at 17, 22. Finally, petitioner stated that on previous occasions that employees were paid for hours they had not worked, the company had simply adjusted those employees' next paychecks to correct the errors. 3 id., at 72-73. 146 146 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. Based on this evidence, the Court of Appeals concluded that petitioner "very well may be correct" that "a reasonable jury could have found that [respondent's] explanation for its employment decision was pretextual." 197 F. 3d, at 693. Nonetheless, the court held that this showing, standing alone, was insufficient to sustain the jury's finding of liability: "We must, as an essential final step, determine whether Reeves presented sufficient evidence that his age motivated [respondent's] employment decision." Ibid. And in making this determination, the Court of Appeals ignored the evidence supporting petitioner's prima facie case and challenging respondent's explanation for its decision. See id., at 693-694. The court confined its review of evidence favoring petitioner to that evidence showing that Chesnut had directed derogatory, age-based comments at petitioner, and that Chesnut had singled out petitioner for harsher treatment than younger employees. See ibid. It is therefore apparent that the court believed that only this additional evidence of discrimination was relevant to whether the jury's verdict should stand. That is, the Court of Appeals proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory reason for its decision, is insufficient as a matter of law to sustain a jury's finding of intentional discrimination. In so reasoning, the Court of Appeals misconceived the evidentiary burden borne by plaintiffs who attempt to prove intentional discrimination through indirect evidence. This much is evident from our decision in St. Mary's Honor Cen ter. There we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. 509 U. S., at 511. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's prof- 147 fered reason ... is correct." Id., at 524. In other words, "[i]t is not enough ... to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id., at 519. In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. Specifically, we stated: "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Id., at 51lo Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. See id., at 517 ("[P]roving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination"). In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Wright v. West, 505 U. S. 277, 296 (1992); see also Wilson v. United States, 162 U. S. 613, 620-621 (1896); 2 J. Wigmore, Evidence § 278(2), p. 133 (J. Chadbourn rev. 1979). Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. 148 148 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. Waters, 438 U. S. 567 , 577 (1978) ("[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration"). Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. See Aka v. Washington Hospital Center, 156 F. 3d, at 1291-1292; see also Fisher v. Vassar College, 114 F. 3d, at 1338 ("[I]f the circumstances show that the defendant gave the false explanation to conceal something other than discrimination, the inference of discrimination will be weak or nonexistent"). To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50, and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.''' St. Mary's Honor Center, supra, at 524 (quoting Aikens, 460 U. S., at 716). Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie 149 case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law. See infra, at 151-152. For purposes of this case, we need not-and could not-resolve all of the circumstances in which such factors would entitle an employer to judgment as a matter of law. It suffices to say that, because a prima facie case and sufficient evidence to reject the employer's explanation may permit a finding of liability, the Court of Appeals erred in proceeding from the premise that a plaintiff must always introduce additional, independent evidence of discrimination. III A The remaining question is whether, despite the Court of Appeals' misconception of petitioner's evidentiary burden, respondent was nonetheless entitled to judgment as a matter of law. Under Rule 50, a court should render judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed. Rule Civ. Proc. 50(a); see also Weisgram v. Marley Co., 528 U. S. 440, 447-448 (2000). The Courts of Appeals have articulated differing formulations as to what evidence a court is to consider in ruling on a Rule 50 motion. See Venture Technology, Inc. v. National Fuel Gas Distribution Corp., decided with Schwimmer v. Sony Corp. of America, 459 U. S. 1007 , 1009 (1982) (White, J., dissenting from denial of certiorari). Some decisions have stated that review is limited to that evidence favorable to the nonmoving party, see, e. g., Aparicio v. Norfolk & Western R. Co., 84 F.3d 803 , 807 (CA6 1996); Simpson v. Skelly Oil Co., 371 F.2d 563 , 566 (CA8 1967), while most have held that review extends to the entire record, drawing all reasonable inferences in favor of the nonmovant, see, e. g., Tate v. Government Employees Ins. Co., 150 150 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. 997 F.2d 1433 , 1436 (CA111993); Boeing Co. v. Shipman, 411 On closer examination, this conflict seems more semantic than real. Those decisions holding that review under Rule 50 should be limited to evidence favorable to the nonmovant appear to have their genesis in Wilkerson v. McCarthy, 336 U. S. 53 (1949). See 9A C. Wright & A. Miller, Federal Practice and Procedure § 2529, pp. 297-301 (2d ed. 1995) (hereinafter Wright & Miller). In Wilkerson, we stated that "in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of" the nonmoving party. 336 U. S., at 57. But subsequent decisions have clarified that this passage was referring to the evidence to which the trial court should give credence, not the evidence that the court should review. In the analogous context of summary judgment under Rule 56, we have stated that the court must review the record "taken as a whole." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986). And the standard for granting summary judgment "mirrors" the standard for judgment as a matter of law, such that "the inquiry under each is the same." Anderson v. Liberty Lobby, Inc., 477 U. S. 242 , 250-251 (1986); see also Celotex Corp. v. Catrett, 477 U. S. 317 , 323 (1986). It therefore follows that, in entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record. In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. Lytle v. Household Mfg., Inc., 494 U. S. 545 , 554-555 (1990); Liberty Lobby, Inc., supra, at 254; Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U. S. 690 , 696, n. 6 (1962). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Liberty 151 Lobby, supra, at 255. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See Wright & Miller 299. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id., at 300. B Applying this standard here, it is apparent that respondent was not entitled to judgment as a matter of law. In this case, in addition to establishing a prima facie case of discrimination and creating a jury issue as to the falsity of the employer's explanation, petitioner introduced additional evidence that Chesnut was motivated by age-based animus and was principally responsible for petitioner's firing. Petitioner testified that Chesnut had told him that he "was so old [he] must have come over on the Mayflower" and, on one occasion when petitioner was having difficulty starting a machine, that he "was too damn old to do [his] job." 3 Record 26. According to petitioner, Chesnut would regularly "cuss at me and shake his finger in my face." 3 id., at 26-27. Oswalt, roughly 24 years younger than petitioner, corroborated that there was an "obvious difference" in how Chesnut treated them. 3 id., at 82. He stated that, although he and Chesnut "had [their] differences," "it was nothing compared to the way [Chesnut] treated Roger." Ibid. Oswalt explained that Chesnut "tolerated quite a bit" from him even though he "defied" Chesnut "quite often," but that Chesnut treated petitioner "[i]n a manner, as you would ... treat ... a child when ... you're angry with [him]." 3 id., at 82-83. Petitioner also demonstrated that, according to company records, he and Oswalt had nearly identical rates of productivity in 1993. 3 id., at 163-167; 4 id., at 225-226. Yet respondent conducted an efficiency study of only the 152 152 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. regular line, supervised by petitioner, and placed only petitioner on probation. 3 id., at 166-167; 4 id., at 229. Chesnut conducted that efficiency study and, after having testified to the contrary on direct examination, acknowledged on cross-examination that he had recommended that petitioner be placed on probation following the study. 4 id., at 197199,237. Further, petitioner introduced evidence that Chesnut was the actual decisionmaker behind his firing. Chesnut was married to Sanderson, who made the formal decision to discharge petitioner. 3 id., at 90, 152. Although Sanderson testified that she fired petitioner because he had "intentionally falsif[ied] company pay records," 3 id., at 100, respondent only introduced evidence concerning the inaccuracy of the records, not their falsification. A 1994 letter authored by Chesnut indicated that he berated other company directors, who were supposedly his coequals, about how to do their jobs. PI. Exh. 7, 3 Record 108-112. Moreover, Oswalt testified that all of respondent's employees feared Chesnut, and that Chesnut had exercised "absolute power" within the company for "[a]s long as [he] can remember." 3 id., at 80. In holding that the record contained insufficient evidence to sustain the jury's verdict, the Court of Appeals misapplied the standard of review dictated by Rule 50. Again, the court disregarded critical evidence favorable to petitionernamely, the evidence supporting petitioner's prima facie case and undermining respondent's nondiscriminatory explanation. See 197 F. 3d, at 693-694. The court also failed to draw all reasonable inferences in favor of petitioner. For instance, while acknowledging "the potentially damning nature" of Chesnut's age-related comments, the court discounted them on the ground that they "were not made in the direct context of Reeves's termination." Id., at 693. And the court discredited petitioner's evidence that Chesnut was the actual decisionmaker by giving weight to the fact that 153 there was "no evidence to suggest that any of the other decision makers were motivated by age." Id., at 694. Moreover, the other evidence on which the court relied-that Caldwell and Oswalt were also cited for poor recordkeeping, and that respondent employed many managers over age 50although relevant, is certainly not dispositive. See Furnco, 438 U. S., at 580 (evidence that employer's work force was racially balanced, while "not wholly irrelevant," was not "sufficient to conclusively demonstrate that [the employer's] actions were not discriminatorily motivated"). In concluding that these circumstances so overwhelmed the evidence favoring petitioner that no rational trier of fact could have found that petitioner was fired because of his age, the Court of Appeals impermissibly substituted its judgment concerning the weight of the evidence for the jury's. The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination. Given the evidence in the record supporting petitioner, we see no reason to subject the parties to an additional round of litigation before the Court of Appeals rather than to resolve the matter here. The District Court plainly informed the jury that petitioner was required to show "by a preponderance of the evidence that his age was a determining and motivating factor in the decision of [respondent] to terminate him." Tr. 7 (Jury Charge) (Sept. 12, 1997). The court instructed the jury that, to show that respondent's explanation was a pretext for discrimination, petitioner had to demonstrate "1, that the stated reasons were not the real reasons for [petitioner's] discharge; and 2, that age discrimination was the real reason for [petitioner's] discharge." Ibid. (emphasis added). Given that petitioner established a prima facie case of discrimination, introduced enough evidence for the jury to reject respondent's explanation, and produced additional evidence of age-based animus, there was sufficient evidence for the jury to find that respondent had 154 154 REEVES v. SANDERSON PLUMBING PRODUCTS, INC. intentionally discriminated. The District Court was therefore correct to submit the case to the jury, and the Court of Appeals erred in overturning its verdict. For these reasons, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE GINSBURG, concurring. The Court today holds that an employment discrimination plaintiff may survive judgment as a matter of law by submitting two categories of evidence: first, evidence establishing a "prima facie case," as that term is used in McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 802 (1973); and second, evidence from which a rational factfinder could conclude that the employer's proffered explanation for its actions was false. Because the Court of Appeals in this case plainly, and erroneously, required the plaintiff to offer some evidence beyond those two categories, no broader holding is necessary to support reversal. I write separately to note that it may be incumbent on the Court, in an appropriate case, to define more precisely the circumstances in which plaintiffs will be required to submit evidence beyond these two categories in order to survive a motion for judgment as a matter of law. I anticipate that such circumstances will be uncommon. As the Court notes, it is a principle of evidence law that the jury is entitled to treat a party's dishonesty about a material fact as evidence of culpability. Ante, at 147. Under this commonsense principle, evidence suggesting that a defendant accused of illegal discrimination has chosen to give a false explanation for its actions gives rise to a rational inference that the defendant could be masking its actual, illegal motivation. Ibid. Whether the defendant was in fact motivated by discrimination is of course for the finder of fact to decide; that is the lesson of St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993). But the inference remains-unless it is conclusively 155 demonstrated, by evidence the district court is required to credit on a motion for judgment as a matter of law, see ante, at 151, that discrimination could not have been the defendant's true motivation. If such conclusive demonstrations are (as I suspect) atypical, it follows that the ultimate question of liability ordinarily should not be taken from the jury once the plaintiff has introduced the two categories of evidence described above. Because the Court's opinion leaves room for such further elaboration in an appropriate case, I join it in full.

Here is a summary of the case verdict: The Supreme Court ruled in favor of the petitioner, Reeves, finding that there was sufficient evidence for the jury to conclude that the respondent had intentionally discriminated against him based on his age. The Court held that a plaintiff in an employment discrimination case may survive a motion for judgment as a matter of law by presenting a prima facie case of discrimination and evidence that the employer's proffered explanation for its actions was false. In this case, Reeves established a prima facie case, introduced evidence that the respondent's explanation for his firing was pretextual, and provided additional evidence of age-based animus. The Court reversed the Court of Appeals' decision and upheld the jury's verdict in favor of Reeves. Justice Ginsburg concurred, noting that while the Court's holding was sufficient to support reversal, further elaboration may be needed in future cases to define the circumstances under which plaintiffs must provide additional evidence beyond a prima facie case and evidence of pretext to survive a motion for judgment as a matter of law.

Labor & Employment

Pegram v. Herdrich

https://supreme.justia.com/cases/federal/us/530/211/

OCTOBER TERM, 1999 Syllabus PEGRAM ET AL. v. HERDRICH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 98-1949. Argued February 23, 2000-Decided June 12,2000 Petitioners (collectively Carle) function as a health maintenance organization (HMO) owned by physicians providing prepaid medical services to participants whose employers contract with Carle for coverage. Respondent Herdrich was covered by Carle through her husband's employer, State Farm Insurance Company. After petitioner Pegram, a Carle physician, required Herdrich to wait eight days for an ultrasound of her inflamed abdomen, her appendix ruptured, causing peritonitis. She sued Carle in state court for, inter alia, fraud. Carle responded that the Employee Retirement Income Security Act of 1974 (ERISA) preempted the fraud counts and removed the case to federal court. The District Court granted Carle summary judgment on one fraud count, but granted Herdrich leave to amend the other. Her amended count alleged that the provision of medical services under terms rewarding physician owners for limiting medical care entailed an inherent or anticipatory breach of an ERISA fiduciary duty, since the terms created an incentive to make decisions in the physicians' self-interest, rather than the plan participants' exclusive interests. The District Court granted Carle's motion to dismiss on the ground that Carle was not acting as an ERISA fiduciary. The Seventh Circuit reversed the dismissal. Held: Because mixed treatment and eligibility decisions by HMO physicians are not fiduciary decisions under ERISA, Herdrich does not state an ERISA claim. Pp.218-237. (a) Whether Carle is a fiduciary when acting through its physician owners depends on some background of fact and law about HMO organizations, medical benefit plans, fiduciary obligation, and the meaning of Herdrich's allegations. The defining feature of an HMO is receipt of a fixed fee for each patient enrolled under the terms of a contract to provide specified health care if needed. Like other risk bearing organizations, HMOs take steps to control costs. These measures are commonly complemented by specific financial incentives to physicians, rewarding them for decreasing utilization of health-care services, and penalizing them for excessive treatment. Hence, an HMO physician's financial interest lies in providing less care, not more. Herdrich argues that Carle's incentive scheme of annually paying physician owners the profit resulting from their own decisions rationing care distinguishes its plan 212 Syllabus from HMOs generally, so that reviewing Carle's decision under a fiduciary standard would not open the door to claims against other HMOs. However, inducement to ration care is the very point of any HMO scheme, and rationing necessarily raises some risks while reducing others. Thus, any legal principle purporting to draw a line between good and bad HMOs would embody a judgment about socially acceptable medical risk that would turn on facts not readily accessible to courts and on social judgments not wisely required of courts unless resort cannot be had to the legislature. Because courts are not in a position to derive a sound legal principle to differentiate an HMO like Carle from other HMOs, this Court assumes that the decisions listed in Herdrich's count cannot be subject to a claim under fiduciary standards unless all such decisions by all HMOs acting through their physicians are judged by the same standards and subject to the same claims. Pp. 218-222. (b) Under ERISA, a fiduciary is someone acting in the capacity of manager, administrator, or financial adviser to a "plan," and Herdrich's count accordingly charged Carle with a breach of fiduciary duty in discharging its obligations under State Farm's medical plan. The common understanding of "plan" is a scheme decided upon in advance. Here the scheme comprises a set of rules defining a beneficiary's rights and providing for their enforcement. When employers contract with an HMO to provide benefits to employees subject to ERISA, their agreement may, as here, provide elements of a plan by setting out the rules under which beneficiaries will be entitled to care. ERISA's provision that fiduciaries shall discharge their duties with respect to a plan "solely in the interest of the participants and beneficiaries," 29 U. S. C. § 1l04(a)(1), is rooted in the common law of trusts, but an ERISA fiduciary may also have financial interests adverse to beneficiaries. Thus, in every case charging breach of ERISA fiduciary duty, the threshold question is not whether the actions of some person providing services under the plan adversely affected a beneficiary's interest, but whether that person was performing a fiduciary function when taking the action subject to complaint. Pp. 222-226. (c) Herdrich claims that Carle became a fiduciary, acting through its physicians, when it contracted with State Farm. It then breached its duty to act solely in the beneficiaries' interest, making decisions affecting medical treatment while influenced by a scheme under which the physician owners ultimately profited from their own choices to minimize the medical services provided. Herdrich's count lists mixed eligibility and treatment decisions: decisions relying on medical judgments in order to make plan coverage determinations. Pp. 226-230. (d) Congress did not intend an HMO to be treated as a fiduciary to the extent that it makes mixed eligibility decisions acting through its 213 physicians. Congress is unlikely to have thought of such decisions as fiduciary. The common law trustee's most defining concern is the payment of money in the beneficiary's interest, and mixed eligibility decisions have only a limited resemblance to that concern. Consideration of the consequences of Herdrich's contrary view leave no doubt as to Congress's intent. Recovery against for-profit HMOs for their mixed decisions would be warranted simply upon a showing that the profit incentive to ration care would generally affect such decisions, in derogation of the fiduciary standard to act in the patient's interest without possibility of conflict. And since the provision for profits is what makes a for-profit HMO a proprietary organization, Herdrich's remedy-return of profit to the plan for the participants' benefit-would be nothing less than elimination of the for-profit HMO. The Judiciary has no warrant to precipitate the upheaval that would follow a refusal to dismiss Herdrich's claim. Congress, which has promoted the formation of HMOs for 27 years, may choose to restrict its approval to certain preferred forms, but the Judiciary would be acting contrary to congressional policy if it were to entertain an ERISA fiduciary claim portending wholesale attacks on existing HMOs solely because of their structure. The Seventh Circuit's attempt to confine the fiduciary breach to cases where the sole purpose of delaying or withholding treatment is to increase the physician's financial reward would also lead to fatal difficulties. The HMO's defense would be that its physician acted for good medical reasons. For all practical purposes, every claim would boil down to a malpractice claim, and the fiduciary standard would be nothing but the traditional medical malpractice standard. The only value to plan participants of such an ERISA fiduciary action would be eligibility for attorney's fees if they won. A physician would also be subject to suit in federal court applying an ERISA standard of reasonable medical skill. This would, in turn, seem to preempt a state malpractice claim, even though ERISA does not preempt such claims absent a clear manifestation of congressional purpose, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 . Pp. 231-237. 154 F.3d 362 , reversed. SOUTER, J., delivered the opinion for a unanimous Court. Carter G. Phillips argued the cause for petitioners. With him on the briefs were Virginia A. Seitz and Richard D. Raskin. James A. Feldman argued the cause for the United States as amicus curiae urging reversal. With him on the brief 214 were Solicitor General Waxman, Deputy Solicitor General Kneedler, Allen H. Feldman, and Mark S. Flynn. James P. Ginzkey argued the cause and filed a brief for respondent. * JUSTICE SOUTER delivered the opinion of the Court. The question in this case is whether treatment decisions made by a health maintenance organization, acting through its physician employees, are fiduciary acts within the meaning of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. (1994 ed. and Supp. III). We hold that they are not. *Briefs of amici curiae urging reversal were filed for the American Association of Health Plans et al. by Stephanie W Kanwit, Daly D. E. Temchine, Kirsten M. Pullin, Jeffrey Gabardi, Louis Saccoccio, Stephen A. Bokat, Robin S. Conrad, and Sussan Mahallati Kysela; and for the Washington Legal Foundation by Lonie A. Hassel, William F. Hanrahan, Daniel J. Popeo, and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of Illinois et al. by James E. Ryan, Attorney General of Illinois, Joel D. Bertocchi, Solicitor General, Jacqueline Zydeck, Assistant Attorney General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thomas J. Miller of Iowa, Tom Reilly of Massachusetts, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Mike Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Paul G. Summers of Tennessee, and John Cornyn of Texas; for the American College of Legal Medicine et al. by Miles J. Zaremski; for Health Care for All et al. by Wendy E. Parmet, S. Stephen Rosenfeld, and Clare D. McGorrian; for Health Law, Policy, and Ethics Scholars by Louis R. Cohen, Ruth E. Kent, and Carol J. Banta; and for the Ehlmann Plaintiffs by George Parker Young. Briefs of amici curiae were filed for the American Medical Association by Gary W Howell, Thomas Campbell, Michael L. Ile, Anne M. Murphy, and Leonard A. Nelson; and for the AARP et al. by Mary Ellen Signorille, Sarah Lenz Lock, Melvin Radowitz, Paula Brantner, Jeffrey Lewis, and Vicki Gottlich. 215 I Petitioners, Carle Clinic Association, P. C., Health Alliance Medical Plans, Inc., and Carle Health Insurance Management Co., Inc. (collectively Carle), function as a health maintenance organization (HMO) organized for profit. Its owners are physicians providing prepaid medical services to participants whose employers contract with Carle to provide such coverage. Respondent, Cynthia Herdrich, was covered by Carle through her husband's employer, State Farm Insurance Company. The events in question began when a Carle physician, petitioner Lori Pegram,l examined Herdrich, who was experiencing pain in the midline area of her groin. Six days later, Dr. Pegram discovered a six by eight centimeter inflamed mass in Herdrich's abdomen. Despite the noticeable inflammation, Dr. Pegram did not order an ultrasound diagnostic procedure at a local hospital, but decided that Herdrich would have to wait eight more days for an ultrasound, to be performed at a facility staffed by Carle more than 50 miles away. Before the eight days were over, Herdrich's appendix ruptured, causing peritonitis. See 154 F.3d 362 , 365, n. 1 (CA71998). Herdrich sued Pegram and Carle in state court for medical malpractice, and she later added two counts charging statelaw fraud. Carle and Pegram responded that ERISA preempted the new counts, and removed the case to federal court,2 where they then sought summary judgment on the 1 Although Lori Pegram, a physician owner of Carle, is listed as a petitioner, it is unclear to us that she retains a direct interest in the outcome of this case. 2 Herdrich does not contest the propriety of removal before us, and we take no position on whether or not the case was properly removed. As we will explain, Herdrich's amended complaint alleged ERISA violations, over which the federal courts have jurisdiction, and we therefore have jurisdiction regardless of the correctness of the removal. See Grubbs v. General Elec. Credit Corp., 405 U. S. 699 (1972); Mackay v. Uinta Development Co., 229 U. S. 173 (1913). 216 state-law fraud counts. The District Court granted their motion as to the second fraud count but granted Herdrich leave to amend the one remaining. This she did by alleging that provision of medical services under the terms of the Carle HMO organization, rewarding its physician owners for limiting medical care, entailed an inherent or anticipatory breach of an ERISA fiduciary duty, since these terms created an incentive to make decisions in the physicians' self-interest, rather than the exclusive interests of plan participants.3 3 The specific allegations were these: "11. Defendants are fiduciaries with respect to the Plan and under 29 [D. S. C. § ] 1109(a) are obligated to discharge their duties with respect to the Plan solely in the interest of the participants and beneficiaries and "a. for the exclusive purpose of: "i. providing benefits to participants and their beneficiaries; and "ii. defraying reasonable expenses of administering the Plan; "b. with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and like aims. "12. In breach of that duty: "a. CARLE owner/physicians are the officers and directors of RAMP and CRIMCO and receive a year-end distribution, based in large part upon, supplemental medical expense payments made to CARLE by RAMP and CRIMCO; "b. Both RAMP and CRIMCO are directed and controlled by CARLE owner/physicians and seek to fund their supplemental medical expense payments to CARLE: "i. by contracting with CARLE owner/physicians to provide the medical services contemplated in the Plan and then having those contracted owner/physicians: "(1) minimize the use of diagnostic tests; "(2) minimize the use of facilities not owned by CARLE; and "(3) minimize the use of emergency and non-emergency consultation and/or referrals to non-contracted physicians. "ii. by administering disputed and non-routine health insurance claims and determining: "(1) which claims are covered under the Plan and to what extent; "(2) what the applicable standard of care is; "(3) whether a course of treatment is experimental; 217 Herdrich sought relief under 29 U. S. C. § 1l09(a), which provides that "[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary." When Carle moved to dismiss the ERISA count for failure to state a claim upon which relief could be granted, the District Court granted the motion, accepting the Magistrate Judge's determination that Carle was not "involved [in these events] as" an ERISA fiduciary. App. to Pet. for Cert. 63a. The original malpractice counts were then tried to a jury, and Herdrich prevailed on both, receiving $35,000 in compensation for her injury. 154 F. 3d, at 367. She then appealed the dismissal of the ERISA claim to the Court of Appeals for the Seventh Circuit, which reversed. The court held that Carle was acting as a fiduciary when its physicians made the challenged decisions and that Herdrich's allegations were sufficient to state a claim: "Our decision does not stand for the proposition that the existence of incentives automatically gives rise to a breach of fiduciary duty. Rather, we hold that incentives can rise to the level of a breach where, as pleaded here, the fiduciary trust between plan participants and plan fiduciaries no longer exists (i. e., where physicians delay providing necessary treatment to, or withhold ad- "(4) whether a course of treatment is reasonable and customary; and "(5) whether a medical condition is an emergency." App. to Pet. for Cert. 85a-86a. 218 ministering proper care to, plan beneficiaries for the sole purpose of increasing their bonuses)." Id., at 373. We granted certiorari, 527 U. S. 1068 (1999), and now reverse the Court of Appeals. II Whether Carle is a fiduciary when it acts through its physician owners as pleaded in the ERISA count depends on some background of fact and law about HMOs, medical benefit plans, fiduciary obligation, and the meaning of Herdrich's allegations. A Traditionally, medical care in the United States has been provided on a "fee-for-service" basis. A physician charges so much for a general physical exam, a vaccination, a tonsillectomy, and so on. The physician bills the patient for services provided or, if there is insurance and the doctor is willing, submits the bill for the patient's care to the insurer, for payment subject to the terms of the insurance agreement. Cf. R. Rosenblatt, S. Law, & S. Rosenbaum, Law and the American Health Care System 543-544 (1997) (hereinafter Rosenblatt) (citing Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. Health Politics, Policy & Law 75, 76-78 (Summer 1993)). In a fee-for-service system, a physician's financial incentive is to provide more care, not less, so long as payment is forthcoming. The check on this incentive is a physician's obligation to exercise reasonable medical skill and judgment in the patient's interest. Beginning in the late 1960's, insurers and others developed new models for health-care delivery, including HMOs. Cf. Rosenblatt 546. The defining feature of an HMO is receipt of a fixed fee for each patient enrolled under the terms of a contract to provide specified health care if needed. The HMO thus assumes the financial risk of providing the bene- 219 fits promised: if a participant never gets sick, the HMO keeps the money regardless, and if a participant becomes expensively ill, the HMO is responsible for the treatment agreed upon even if its cost exceeds the participant's premiums. Like other risk-bearing organizations, HMOs take steps to control costs. At the least, HMOs, like traditional insurers, will in some fashion make coverage determinations, scrutinizing requested services against the contractual provisions to make sure that a request for care falls within the scope of covered circumstances (pregnancy, for example), or that a given treatment falls within the scope of the care promised (surgery, for instance). They customarily issue general guidelines for their physicians about appropriate levels of care. See id., at 568-570. And they commonly require utilization review (in which specific treatment decisions are reviewed by a decisionmaker other than the treating physician) and approval in advance (precertification) for many types of care, keyed to standards of medical necessity or the reasonableness of the proposed treatment. See Andresen, Is Utilization Review the Practice of Medicine?, Implications for Managed Care Administrators, 19 J. Legal Med. 431, 432 (Sept. 1998). These cost-controlling measures are commonly complemented by specific financial incentives to physicians, rewarding them for decreasing utilization of health-care services, and penalizing them for what may be found to be excessive treatment, see Rosenblatt 563-565; Iglehart, Health Policy Report: The American Health Care SystemManaged Care, 327 New England J. Med. 742, 742-747 (1992). Hence, in an HMO system, a physician's financial interest lies in providing less care, not more. The check on this influence (like that on the converse, fee-for-service incentive) is the professional obligation to provide covered services with a reasonable degree of skill and judgment in the patient's interest. See Brief for American Medical Association as Amicus Curiae 17-21. 220 The adequacy of professional obligation to counter financial self-interest has been challenged no matter what the form of medical organization. HMOs became popular because fee-for-service physicians were thought to be providing unnecessary or useless services; today, many doctors and other observers argue that HMOs often ignore the individual needs of a patient in order to improve the HMOs' bottom lines. See, e. g., 154 F. 3d, at 375-378 (citing various critics of HMOs).4 In this case, for instance, one could argue that Pegram's decision to wait before getting an ultrasound for Herdrich, and her insistence that the ultrasound be done at a distant facility owned by Carle, reflected an interest in limiting the HMO's expenses, which blinded her to the need for immediate diagnosis and treatment. B Herdrich focuses on the Carle scheme's provision for a "year-end distribution," n. 3, supra, to the HMO's physician owners. She argues that this particular incentive device of annually paying physician owners the profit resulting from their own decisions rationing care can distinguish Carle's organization from HMOs generally, so that reviewing Carle's decisions under a fiduciary standard as pleaded in Herdrich's complaint would not open the door to like claims about other HMO structures. While the Court of Appeals agreed, we think otherwise, under the law as now written. Although it is true that the relationship between sparing medical treatment and physician reward is not a subtle one under the Carle scheme, no HMO organization could survive without some incentive connecting physician reward with treatment rationing. The essence of an HMO is that salaries and profits are limited by the HMO's fixed membership fees. See Orentlicher, Paying Physicians More To Do Less: Financial Incentives to Limit Care, 30 U. Rich. L. Rev. 155, 4 There are, of course, contrary perspectives, and we endorse neither side of the debate today. 221 174 (1996). This is not to suggest that the Carle provisions are as socially desirable as some other HMO organizational schemes; they may not be. See, e. g., Grumbach, Osmond, Vranigan, Jaffe, & Bindman, Primary Care Physicians' Experience of Financial Incentives in Managed-Care Systems, 339 New England J. Med. 1516 (1998) (arguing that HMOs that reward quality of care and patient satisfaction would be preferable to HMOs that reward only physician productivity). But whatever the HMO, there must be rationing and inducement to ration. Since inducement to ration care goes to the very point of any HMO scheme, and rationing necessarily raises some risks while reducing others (ruptured appendixes are more likely; unnecessary appendectomies are less so), any legal principle purporting to draw a line between good and bad HMOs would embody, in effect, a judgment about socially acceptable medical risk. A valid conclusion of this sort would, however, necessarily turn on facts to which courts would probably not have ready access: correlations between malpractice rates and various HMO models, similar correlations involving fee-for-service models, and so on. And, of course, assuming such material could be obtained by courts in litigation like this, any standard defining the unacceptably risky HMO structure (and consequent vulnerability to claims like Herdrich's) would depend on a judgment about the appropriate level of expenditure for health care in light of the associated malpractice risk. But such complicated factfinding and such a debatable social judgment are not wisely required of courts unless for some reason resort cannot be had to the legislative process, with its preferable forum for comprehensive investigations and judgments of social value, such as optimum treatment levels and health-care expenditure. Cf. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 665-666 (1994) (plurality opinion) ("Congress is far better equipped than the judiciary to 'amass and evaluate the vast amounts of data' bearing upon an issue as complex 222 and dynamic as that presented here" (quoting Walters v. National Assn. of Radiation Survivors, 473 U. S. 305 , 331, n. 12 (1985))); Patsy v. Board of Regents of Fla., 457 U. S. 496 ,513 (1982) ("[T]he relevant policy considerations do not invariably point in one direction, and there is vehement disagreement over the validity of the assumptions underlying many of them. The very difficulty of these policy considerations, and Congress' superior institutional competence to pursue this debate, suggest that legislative not judicial solutions are preferable" (footnote omitted)). We think, then, that courts are not in a position to derive a sound legal principle to differentiate an HMO like Carle from other HMOs.5 For that reason, we proceed on the assumption that the decisions listed in Herdrich's complaint cannot be subject to a claim that they violate fiduciary standards unless all such decisions by all HMOs acting through their owner or employee physicians are to be judged by the same standards and subject to the same claims. C We turn now from the structure of HMOs to the requirements of ERISA. A fiduciary within the meaning of ERISA must be someone acting in the capacity of manager, administrator, or financial adviser to a "plan," see 29 U. S. C. §§ 1002(21)(A)(i)-(iii), and Herdrich's ERISA count accordingly charged Carle with a breach of fiduciary duty in discharging its obligations under State Farm's medical plan. App. to Pet. for Cert. 85a-86a. ERISA's definition of an employee welfare benefit plan is ultimately circular: "any plan, fund, or program ... to the extent that such plan, fund, or program was established ... for the purpose of providing ... through the purchase of insurance or otherwise ... medical, 5 They are certainly not capable of making that distinction on a motion to dismiss; if we accepted the Court of Appeals's reasoning, complaints against any flavor of HMO would have to proceed at least to the summary judgment stage. 223 surgical, or hospital care or benefits." § 1002(1)(A). One is thus left to the common understanding of the word "plan" as referring to a scheme decided upon in advance, see Webster's New International Dictionary 1879 (2d ed. 1957); Jacobson & Pomfret, Form, Function, and Managed Care Torts: Achieving Fairness and Equity in ERISA Jurisprudence, 35 Houston L. Rev. 985, 1050 (1998). Here the scheme comprises a set of rules that define the rights of a beneficiary and provide for their enforcement. Rules governing collection of premiums, definition of benefits, submission of claims, and resolution of disagreements over entitlement to services are the sorts of provisions that constitute a plan. See Hansen v. Continental Ins. Co., 940 F.2d 971 , 977 (CA5 1991). Thus, when employers contract with an HMO to provide benefits to employees subject to ERISA, the provisions of documents that set up the HMO are not, as such, an ERISA plan; but the agreement between an HMO and an employer who pays the premiums may, as here, provide elements of a plan by setting out rules under which beneficiaries will be entitled to care. D As just noted, fiduciary obligations can apply to managing, advising, and administering an ERISA plan, the fiduciary function addressed by Herdrich's ERISA count being the exercise of "discretionary authority or discretionary responsibility in the administration of [an ERISA] plan," 29 U. S. C. § 1002(21)(A)(iii). And as we have already suggested, although Carle is not an ERISA fiduciary merely because it administers or exercises discretionary authority over its own HMO business, it may still be a fiduciary if it administers the plan. In general terms, fiduciary responsibility under ERISA is simply stated. The statute provides that fiduciaries shall discharge their duties with respect to a plan "solely in the interest of the participants and beneficiaries," § 1l04(a)(1), that is, "for the exclusive purpose of (i) providing benefits to 224 participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan," § 1104(a)(1)(A).6 These responsibilities imposed by ERISA have the familiar ring of their source in the common law of trusts. See Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc., 472 U. S. 559 , 570 (1985) ("[R]ather than explicitly enumerating all of the powers and duties of trustees and other fiduciaries, Congress invoked the common law of trusts to define the general scope of their authority and responsibility"). Thus, the common law (understood as including what were once the distinct rules of equity) charges fiduciaries with a duty of loyalty to guarantee beneficiaries' interests: "The most fundamental duty owed by the trustee to the beneficiaries of the trust is the duty of loyalty .... It is the duty of a trustee to administer the trust solely in the interest of the beneficiaries." 2A A. Scott & w. Fratcher, Trusts § 170, p. 311 (4th ed. 1987) (hereinafter Scott); see also G. Bogert & G. Bogert, Law of Trusts and Trustees § 543 (rev. 2d ed. 1980) ("Perhaps the most fundamental duty of a trustee is that he must display throughout the administration of the trust complete loyalty to the interests of the beneficiary and must exclude all selfish interest and all consideration of the interests of third persons"); Central States, supra, at 570-571; Meinhard v. Salmon, 249 N. Y. 458, 464, 164 N. E. 545, 546 (1928) (Cardozo, J.) ("Many 6 In addition, fiduciaries must discharge their duties "(E) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; "(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and "(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter." 29 U. S. C. § l104(a)(1). 225 forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior"). Beyond the threshold statement of responsibility, however, the analogy between ERISA fiduciary and common law trustee becomes problematic. This is so because the trustee at common law characteristically wears only his fiduciary hat when he takes action to affect a beneficiary, whereas the trustee under ERISA may wear different hats. Speaking of the traditional trustee, Professor Scott's treatise admonishes that the trustee "is not permitted to place himself in a position where it would be for his own benefit to violate his duty to the beneficiaries." 2A Scott § 170, at 311. Under ERISA, however, a fiduciary may have financial interests adverse to beneficiaries. Employers, for example, can be ERISA fiduciaries and still take actions to the disadvantage of employee beneficiaries, when they act as employers (e. g., firing a beneficiary for reasons unrelated to the ERISA plan), or even as plan sponsors (e. g., modifying the terms of a plan as allowed by ERISA to provide less generous benefits). Nor is there any apparent reason in the ERISA provisions to conclude, as Herdrich argues, that this tension is permissible only for the employer or plan sponsor, to the exclusion of persons who provide services to an ERISA plan. ERISA does require, however, that the fiduciary with two hats wear only one at a time, and wear the fiduciary hat when making fiduciary decisions. See Hughes Aircraft Co. v. Jacobson, 525 U. S. 432 , 443-444 (1999); Varity Corp. v. Howe, 516 U. S. 489 , 497 (1996). Thus, the statute does not describe fiduciaries simply as administrators of the plan, or managers or advisers. Instead it defines an administrator, for example, as a fiduciary only "to the extent" that he 226 acts in such a capacity in relation to a plan. 29 U. S. C. § 1002(21)(A). In every case charging breach of ERISA fiduciary duty, then, the threshold question is not whether the actions of some person employed to provide services under a plan adversely affected a plan beneficiary's interest, but whether that person was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint. E The allegations of Herdrich's ERISA count that identify the claimed fiduciary breach are difficult to understand. In this count, Herdrich does not point to a particular act by any Carle physician owner as a breach. She does not complain about Pegram's actions, and at oral argument her counsel confirmed that the ERISA count could have been brought, and would have been no different, if Herdrich had never had a sick day in her life. Tr. of Oral Arg. 53-54. What she does claim is that Carle, acting through its physician owners, breached its duty to act solely in the interest of beneficiaries by making decisions affecting medical treatment while influenced by the terms of the Carle HMO scheme, under which the physician owners ultimately profit from their own choices to minimize the medical services provided. She emphasizes the threat to fiduciary responsibility in the Carle scheme's feature of a year-end distribution to the physicians of profit derived from the spread between subscription income and expenses of care and administration. App. to Pet. for Cert. 86a. The specific payout detail of the plan was, of course, a feature that the employer as plan sponsor was free to adopt without breach of any fiduciary duty under ERISA, since an employer's decisions about the content of a plan are not themselves fiduciary acts. Lockheed Corp. v. Spink, 517 U. S. 882, 887 (1996) ("Nothing in ERISA requires employers to establish employee benefit plans. Nor does ERISA mandate what kind of benefits employers must provide if they 227 choose to have such a plan").7 Likewise it is clear that there was no violation of ERISA when the incorporators of the Carle HMO provided for the year-end payout. The HMO is not the ERISA plan, and the incorporation of the HMO preceded its contract with the State Farm plan. See 29 U. S. C. § l109(b) (no fiduciary liability for acts preceding fiduciary status). The nub of the claim, then, is that when State Farm contracted with Carle, Carle became a fiduciary under the plan, acting through its physicians. At once, Carle as fiduciary administrator was subject to such influence from the yearend payout provision that its fiduciary capacity was necessarily compromised, and its readiness to act amounted to anticipatory breach of fiduciary obligation. F The pleadings must also be parsed very carefully to understand what acts by physician owners acting on Carle's behalf are alleged to be fiduciary in nature.8 It will help to keep 7 It does not follow that those who administer a particular plan design may not have difficulty in following fiduciary standards if the design is awkward enough. A plan might lawfully provide for a bonus for administrators who denied benefits to every 10th beneficiary, but it would be difficult for an administrator who received the bonus to defend against the claim that he had not been solely attentive to the beneficiaries' interests in carrying out his administrative duties. The important point is that Herdrich is not suing the employer, State Farm, and her claim cannot be analyzed as if she were. 8 Herdrich argues that Carle is judicially estopped from denying its fiduciary status as to the relevant decisions, because it sought and sucessfully defended removal of Herdrich's state action to the Federal District Court on the ground that it was a fiduciary with respect to Herdrich's fraud claims. Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase. See Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597 , 605 (CA9 1996). The fraud claims in Herdrich's initial complaint, however, could be read to allege breach of a fiduciary obligation to disclose physician incentives to limit care, whereas 228 two sorts of arguably administrative acts in mind. Cf. Dukes v. U. S. Healthcare, Inc., 57 F.3d 350 , 361 (CA3 1995) (discussing dual medical/administrative roles of HMOs). What we will call pure "eligibility decisions" turn on the plan's coverage of a particular condition or medical procedure for its treatment. "Treatment decisions," by contrast, are choices about how to go about diagnosing and treating a patient's condition: given a patient's constellation of symptoms, what is the appropriate medical response? These decisions are often practically inextricable from one another, as amici on both sides agree. See Brief for Washington Legal Foundation as Amicus Curiae 12; Brief for Health Law, Policy, and Ethics Scholars as Amici Curiae 10. This is so not merely because, under a scheme like Carle's, treatment and eligibility decisions are made by the same person, the treating physician. It is so because a great many and possibly most coverage questions are not simple yesor-no questions, like whether appendicitis is a covered condition (when there is no dispute that a patient has appendicitis), or whether acupuncture is a covered procedure for pain relief (when the claim of pain is unchallenged). The more common coverage question is a when-and-how question. AI- her amended complaint alleges an obligation to avoid such incentives. Although we are not presented with the issue here, it could be argued that Carle is a fiduciary insofar as it has discretionary authority to administer the plan, and so it is obligated to disclose characteristics of the plan and of those who provide services to the plan, if that information affects beneficiaries' material interests. See, e. g., Glaziers and Glassworkers Union Local No. 252 Annuity Fund v. Newbridge Securities, Inc., 93 F.3d 1171 , 1179-1181 (CA3 1996) (discussing the disclosure obligations of an ERISA fiduciary); cf. Varity Corp. v. Howe, 516 U. S. 489 , 505 (1996) (holding that ERISA fiduciaries may have duties to disclose information about plan prospects that they have no duty, or even power, to change). But failure to disclose is no longer the allegation of the amended complaint. Because fiduciary duty to disclose is not necessarily coextensive with fiduciary responsibility for the subject matter of the disclosure, Carle is not estopped from contesting its fiduciary status with respect to the allegations of the amended complaint. 229 though coverage for many conditions will be clear and various treatment options will be indisputably compensable, physicians still must decide what to do in particular cases. The issue may be, say, whether one treatment option is so superior to another under the circumstances, and needed so promptly, that a decision to proceed with it would meet the medical necessity requirement that conditions the HMO's obligation to provide or pay for that particular procedure at that time in that case. The Government in its brief alludes to a similar example when it discusses an HMO's refusal to pay for emergency care on the ground that the situation giving rise to the need for care was not an emergency, Brief for United States as Amicus Curiae 20-21.9 In practical terms, these eligibility decisions cannot be untangled from physicians' judgments about reasonable medical treatment, and in the case before us, Dr. Pegram's decision was one of that sort. She decided (wrongly, as it turned out) that Herdrich's condition did not warrant immediate action; the consequence of that medical determination was that Carle would not cover immediate care, whereas it would have done so if Dr. Pegram had made the proper diagnosis and judgment to treat. The eligibility decision and the treatment decision were inextricably mixed, as they are in countless medical administrative decisions every day. The kinds of decisions mentioned in Herdrich's ERISA count and claimed to be fiduciary in character are just such mixed eligibility and treatment decisions: physicians' conclusions about when to use diagnostic tests; about seeking consultations and making referrals to physicians and facilities other than Carle's; about proper standards of care, the ex- 9 ERISA makes separate provision for suits to receive particular benefits. See 29 U. S. C. § 1132(a)(1)(B). We have no occasion to discuss the standards governing such a claim by a patient who, as in the example in text, was denied reimbursement for emergency care. Nor have we reason to discuss the interaction of such a claim with state-law causes of action, see infra, at 235-237. 230 perimental character of a proposed course of treatment, the reasonableness of a certain treatment, and the emergency character of a medical condition. We do not read the ERISA count, however, as alleging fiduciary breach with reference to a different variety of administrative decisions, those we have called pure eligibility determinations, such as whether a plan covers an undisputed case of appendicitis. Nor do we read it as claiming breach by reference to discrete administrative decisions separate from medical judgments; say, rejecting a claim for no other reason than the HMO's financial condition. The closest Herdrich's ERISA count comes to stating a claim for a pure, unmixed eligibility decision is her general allegation that Carle determines "which claims are covered under the Plan and to what extent," App. to Pet. for Cert. 86a. But this vague statement, difficult to interpret in isolation, is given content by the other elements of the complaint, all of which refer to decisions thoroughly mixed with medical judgment. Cf. 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 320-321 (1990) (noting that, where specific allegations clarify the meaning of broader allegations, they may be used to interpret the complaint as a whole). Any lingering uncertainty about what Herdrich has in mind is dispelled by her brief, which explains that this allegation, like the others, targets medical necessity determinations. Brief for Respondent 19; see also id., at 3.10 10 Though this case involves a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and the complaint should therefore be construed generously, we may use Herdrich's brief to clarify allegations in her complaint whose meaning is unclear. See C. Wright & A. Miller, Federal Practice and Procedure § 1364, pp. 480-481 (1990); Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410 , 428, n. 8 (CA3 1999); Alicke v. MCI Communications Corp., 111 F.3d 909 , 911 (CADC 1997); Early v. Bankers Life & Cas. Co., 959 F.2d 75 , 79 (CA71992). 231 III A Based on our understanding of the matters just discussed, we think Congress did not intend Carle or any other HMO to be treated as a fiduciary to the extent that it makes mixed eligibility decisions acting through its physicians. We begin with doubt that Congress would ever have thought of a mixed eligibility decision as fiduciary in nature. At common law, fiduciary duties characteristically attach to decisions about managing assets and distributing property to beneficiaries. See Bogert & Bogert, Law of Trusts and Trustees §§ 551, 741-747, 751-775, 781-799; 2A Scott §§ 176, 181; 3 id., §§ 188-193; 3A id., § 232. Trustees buy, sell, and lease investment property, lend and borrow, and do other things to conserve and nurture assets. They payout income, choose beneficiaries, and distribute remainders at termination. Thus, the common law trustee's most defining concern historically has been the payment of money in the interest of the beneficiary. Mixed eligibility decisions by an HMO acting through its physicians have, however, only a limited resemblance to the usual business of traditional trustees. To be sure, the physicians (like regular trustees) draw on resources held for others and make decisions to distribute them in accordance with entitlements expressed in a written instrument (embodying the terms of an ERISA plan). It is also true that the objects of many traditional private and public trusts are ultimately the same as the ERISA plans that contract with HMOs. Private trusts provide medical care to the poor; thousands of independent hospitals are privately held and publicly accountable trusts, and charitable foundations make grants to stimulate the provision of health services. But beyond this point the resemblance rapidly wanes. Traditional trustees administer a medical trust by paying out 232 money to buy medical care, whereas physicians making mixed eligibility decisions consume the money as well. Private trustees do not make treatment judgments, whereas treatment judgments are what physicians reaching mixed decisions do make, by definition. Indeed, the physicians through whom HMOs act make just the sorts of decisions made by licensed medical practitioners millions of times every day, in every possible medical setting: HMOs, fee-forservice proprietorships, public and private hospitals, military field hospitals, and so on. The settings bear no more resemblance to trust departments than a decision to operate turns on the factors controlling the amount of a quarterly income distribution. Thus, it is at least questionable whether Congress would have had mixed eligibility decisions in mind when it provided that decisions administering a plan were fiduciary in nature. Indeed, when Congress took up the subject of fiduciary responsibility under ERISA, it concentrated on fiduciaries' financial decisions, focusing on pension plans, the difficulty many retirees faced in getting the payments they expected, and the financial mismanagement that had too often deprived employees of their benefits. See, e. g., S. Rep. No. 93-127, p. 5 (1973); S. Rep. No. 93-383, p. 17 (1973); id., at 95. Its focus was far from the subject of Herdrich's claim. Our doubt that Congress intended the category of fiduciary administrative functions to encompass the mixed determinations at issue here hardens into conviction when we consider the consequences that would follow from Herdrich's contrary view. B First, we need to ask how this fiduciary standard would affect HMOs if it applied as Herdrich claims it should be applied, not directed against any particular mixed decision that injured a patient, but against HMOs that make mixed decisions in the course of providing medical care for profit. Recovery would be warranted simply upon showing that the 233 profit incentive to ration care would generally affect mixed decisions, in derogation of the fiduciary standard to act solely in the interest of the patient without possibility of conflict. Although Herdrich is vague about the mechanics of relief, the one point that seems clear is that she seeks the return of profit from the pockets of the Carle HMO's owners, with the money to be given to the plan for the benefit of the participants. See 29 U. S. C. § 1109(a) (return of all profits is an appropriate ERISA remedy). Since the provision for profit is what makes the HMO a proprietary organization, her remedy in effect would be nothing less than elimination of the for-profit HMO. Her remedy might entail even more than that, although we are in no position to tell whether and to what extent nonprofit HMO schemes would ultimately survive the recognition of Herdrich's theoryY It is enough to recognize that the Judiciary has no warrant to precipitate the upheaval that would follow a refusal to dismiss Herdrich's ERISA claim. The fact is that for over 27 years the Congress of the United States has promoted the formation of HMO practices. The Health Maintenance Organization Act of 1973, 87 Stat. 914, 42 U. S. C. § 300e et seq., allowed the formation of HMOs that assume financial risks for the provision of health-care services, and Congress has amended the Act several times, most recently in 1996. See 110 Stat. 1976, 42 U. S. C. § 300e (1994 ed., Supp. III). If Congress wishes to restrict its approval of HMO practice to certain 11 Herdrich's theory might well portend the end of nonprofit HMOs as well, since those HMOs can set doctors' salaries. A claim against a nonprofit HMO could easily allege that salaries were excessively high because they were funded by limiting care, and some nonprofits actually use incentive schemes similar to that challenged here, see Pulvers v. Kaiser Foundation Health Plan, 99 Cal. App. 3d 560, 565, 160 Cal. Rptr. 392, 393-394 (1979) (rejecting claim against nonprofit HMO based on physician incentives). See Brody, Agents Without Principals: The Economic Convergence of the Nonprofit and For-Profit Organizational Forms, 40 N. Y. L. S. L. Rev. 457, 493, and n. 152 (1996) (discussing ways in which nonprofit health providers may reward physician employees). 234 preferred forms, it may choose to do so. But the Federal Judiciary would be acting contrary to the congressional policy of allowing HMO organizations if it were to entertain an ERISA fiduciary claim portending wholesale attacks on existing HMOs solely because of their structure, untethered to claims of concrete harm. C The Court of Appeals did not purport to entertain quite the broadside attack that Herdrich's ERISA claim thus entails, see 154 F. 3d, at 373, and the second possible consequence of applying the fiduciary standard that requires our attention would flow from the difficulty of extending it to particular mixed decisions that on Herdrich's theory are fiduciary in nature. The fiduciary is, of course, obliged to act exclusively in the interest of the beneficiary, but this translates into no rule readily applicable to HMO decisions or those of any other variety of medical practice. While the incentive of the HMO physician is to give treatment sparingly, imposing a fiduciary obligation upon him would not lead to a simple default rule, say, that whenever it is reasonably possible to disagree about treatment options, the physician should treat aggressively. After all, HMOs came into being because some groups of physicians consistently provided more aggressive treatment than others in similar circumstances, with results not perceived as justified by the marginal expense and risk associated with intervention; excessive surgery is not in the patient's best interest, whether provided by fee-for-service surgeons or HMO surgeons subject to a default rule urging them to operate. Nor would it be possible to translate fiduciary duty into a standard that would allow recovery from an HMO whenever a mixed decision influenced by the HMO's financial incentive resulted in a bad outcome for the patient. It would be so easy to allege, and to find, an economic influence when sparing care did not lead to a well patient, that 235 any such standard in practice would allow a factfinder to convert an HMO into a guarantor of recovery. These difficulties may have led the Court of Appeals to try to confine the fiduciary breach to cases where "the sole purpose" of delaying or withholding treatment was to increase the physician's financial reward, ibid. But this attempt to confine mixed decision claims to their most egregious examples entails erroneous corruption of fiduciary obligation and would simply lead to further difficulties that we think fatal. While a mixed decision made solely to benefit the HMO or its physician would violate a fiduciary duty, the fiduciary standard condemns far more than that, in its requirement of "an eye single" toward beneficiaries' interests, Donovan v. Bierwirth, 680 F.2d 263 , 271 (CA2 1982). But whether under the Court of Appeals's rule or a straight standard of undivided loyalty, the defense of any HMO would be that its physician did not act out of financial interest but for good medical reasons, the plausibility of which would require reference to standards of reasonable and customary medical practice in like circumstances. That, of course, is the traditional standard of the common law. See W. Keeton, D. Dobbs, R. Keeton, & D. Owens, Prosser and Keeton on Law of Torts § 32, pp. 188-189 (5th ed. 1984). Thus, for all practical purposes, every claim of fiduciary breach by an HMO physician making a mixed decision would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians. What would be the value to the plan participant of having this kind of ERISA fiduciary action? It would simply apply the law already available in state courts and federal diversity actions today, and the formulaic addition of an allegation of financial incentive would do nothing but bring the same claim into a federal court under federal-question jurisdiction. It is true that in States that do not allow malpractice actions against HMOs the fiduciary claim would offer a plaintiff a 236 further defendant to be sued for direct liability, and in some cases the HMO might have a deeper pocket than the physician. But we have seen enough to know that ERISA was not enacted out of concern that physicians were too poor to be sued, or in order to federalize malpractice litigation in the name of fiduciary duty for any other reason. It is difficult, in fact, to find any advantage to participants across the board, except that allowing them to bring malpractice actions in the guise of federal fiduciary breach claims against HMOs would make them eligible for awards of attorney's fees if they won. See 29 U. S. C. § 1132(g)(1). But, again, we can be fairly sure that Congress did not create fiduciary obligations out of concern that state plaintiffs were not suing often enough, or were paying too much in legal fees. The mischief of Herdrich's position would, indeed, go further than mere replication of state malpractice actions with HMO defendants. For not only would an HMO be liable as a fiduciary in the first instance for its own breach of fiduciary duty committed through the acts of its physician employee, but the physician employee would also be subject to liability as a fiduciary on the same basic analysis that would charge the HMO. The physician who made the mixed administrative decision would be exercising authority in the way described by ERISA and would therefore be deemed to be a fiduciary. See 29 CFR §§2509.75-5, Question D-1; 2509.75-8, Question D-3 (1993) (stating that an individual who exercises authority on behalf of an ERISA fiduciary in interpreting and administering a plan will be deemed a fiduciary). Hence the physician, too, would be subject to suit in federal court applying an ERISA standard of reasonable medical skill. This result, in turn, would raise a puzzling issue of preemption. On its face, federal fiduciary law applying a malpractice standard would seem to be a prescription for preemption of state malpractice law, since the new ERISA cause of action would cover the subject of a state-law malpractice claim. See 29 U. S. C. § 1144 (preempting state 237 laws that "relate to [an] employee benefit plan"). To be sure, New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 , 654-655 (1995), throws some cold water on the preemption theory; there, we held that, in the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose. But in that case the convergence of state and federal law was not so clear as in the situation we are positing; the state-law standard had not been subsumed by the standard to be applied under ERISA. We could struggle with this problem, but first it is well to ask, again, what would be gained by opening the federal courthouse doors for a fiduciary malpractice claim, save for possibly random fortuities such as more favorable scheduling, or the ancillary opportunity to seek attorney's fees. And again, we know that Congress had no such haphazard boons in prospect when it defined the ERISA fiduciary, nor such a risk to the efficiency of federal courts as a new fiduciary malpractice jurisdiction would pose in welcoming such unheard-of fiduciary litigation. IV We hold that mixed eligibility decisions by HMO physicians are not fiduciary decisions under ERISA. Herdrich's ERISA count fails to state an ERISA claim, and the judgment of the Court of Appeals is reversed. It is so ordered.

In the case of Pegram et al. v. Herdrich, the Supreme Court ruled that health maintenance organizations (HMOs) and their physician owners are not considered fiduciaries under the Employee Retirement Income Security Act of 1974 (ERISA) when making mixed treatment and eligibility decisions. The case involved a patient, Herdrich, who sued her HMO, Carle, for fraud after a delay in receiving an ultrasound led to a ruptured appendix and subsequent health complications. Herdrich argued that Carle's incentive structure, which rewarded physician owners for limiting medical care, created an inherent breach of ERISA fiduciary duty. However, the Court found that the defining feature of an HMO is its receipt of a fixed fee per patient, and that cost-control measures and financial incentives for physicians are common features of HMO schemes. The Court also noted that any legal principle distinguishing Carle's incentive scheme from those of other HMOs would raise issues of preemption with state malpractice law. Ultimately, the Court held that mixed eligibility decisions by HMO physicians are not fiduciary decisions under ERISA, and Herdrich's claim was dismissed.

Labor & Employment

Clark County School District v. Breeden

https://supreme.justia.com/cases/federal/us/532/268/

OCTOBER TERM, 2000 Syllabus CLARK COUNTY SCHOOL DISTRICT v. BREEDEN ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-866. Decided April 23, 2001 At a meeting with respondent and a male employee to review job applicants' psychological evaluation reports, respondent's male supervisor read aloud a sexually explicit remark that one applicant had made to a co-worker, looked at respondent, and stated, "I don't know what that means." The other employee replied, "Well, I'll tell you later," and both men chuckled. Respondent complained about the comment to the offending supervisor and other officials of their employer, petitioner Clark County School District. Pursuant to Title VII of the Civil Rights Act of 1964, she subsequently filed a 42 U. S. C. § 2000e-3(a) retaliation claim against petitioner, asserting that she was punished for these complaints and also for filing charges against petitioner with the Nevada Equal Rights Commission and the Equal Employment Opportunity Commission and for filing the present suit. The District Court granted petitioner summary judgment, but the Ninth Circuit reversed. Held: Respondent's claims are insufficient to withstand a summary judgment motion. No one could reasonably believe that the incident of which respondent complained violated Title VII. Sexual harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment. Faragher v. Boca Raton, 524 U. S. 775 , 786. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in employment terms and conditions. The actions of respondent's supervisor and co-worker are at worst an isolated incident that cannot remotely be considered "extremely serious." Regarding respondent's claim that she was punitively transferred for filing charges and the present suit, she failed to show the requisite causal connection between her protected activities and the transfer. Petitioner did not implement the transfer until 20 months after respondent filed her charges, and it was contemplating the transfer before it learned of her suit. Certiorari granted; 232 F.3d 893 , reversed. 269 PER CURIAM. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U. S. C. § 2000e-3(a), it is unlawful "for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." In 1997, respondent filed a § 2000e-3(a) retaliation claim against petitioner Clark County School District. The claim as eventually amended alleged that petitioner had taken two separate adverse employment actions against her in response to two different protected activities in which she had engaged. The District Court granted summary judgment to petitioner, No. CV-S-97-365-DWH(RJJ) (D. Nev., Feb. 9, 1999), but a panel of the Court of Appeals for the Ninth Circuit reversed over the dissent of Judge Fernandez, No. 99-15522,2000 WL 991821 (July 19, 2000) (per curiam) (unpublished), judgt. order reported at 232 F.3d 893 . We grant the writ of certiorari and reverse. On October 21, 1994, respondent's male supervisor met with respondent and another male employee to review the psychological evaluation reports of four job applicants. The report for one of the applicants disclosed that the applicant had once commented to a co-worker, "I hear making love to you is like making love to the Grand Canyon." Brief in Opposition 3. At the meeting respondent's supervisor read the comment aloud, looked at respondent and stated, "I don't know what that means." Ibid. The other employee then said, "Well, I'll tell you later," and both men chuckled. Ibid. Respondent later complained about the comment to the offending employee, to Assistant Superintendent George Ann Rice, the employee's supervisor, and to another assistant 270 superintendent of petitioner. Her first claim of retaliation asserts that she was punished for these complaints. The Court of Appeals for the Ninth Circuit has applied § 2000e-3(a) to protect employee "oppos[ition]" not just to practices that are actually "made ... unlawful" by Title VII, but also to practices that the employee could reasonably believe were unlawful. 2000 WL 991821, at *1 (stating that respondent's opposition was protected "if she had a reasonable, good faith belief that the incident involving the sexually explicit remark constituted unlawful sexual harassment"); Trent v. Valley Electric Assn. Inc., 41 F.3d 524 , 526 (CA9 1994). We have no occasion to rule on the propriety of this interpretation, because even assuming it is correct, no one could reasonably believe that the incident recounted above violated Title VII. Title VII forbids actions taken on the basis of sex that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment." 42 U. S. C. § 2000e-2(a)(1). Just three Terms ago, we reiterated, what was plain from our previous decisions, that sexual harassment is actionable under Title VII only if it is "so 'severe or pervasive' as to 'alter the conditions of [the victim's] employment and create an abusive working environment.'" Faragher v. Boca Raton, 524 U. S. 775 , 786 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 67 (1986) (some internal quotation marks omitted)). See also Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 , 752 (1998) (Only harassing conduct that is "severe or pervasive" can produce a "constructive alteratio[n] in the terms or conditions of employment"); Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 81 (1998) (Title VII "forbids only behavior so objectively offensive as to alter the 'conditions' of the victim's employment"). Workplace conduct is not measured in isolation; instead, "whether an environment is sufficiently hostile or abusive" must be judged "by 'looking at all the circumstances,' including the 'frequency of the dis- 271 criminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Faragher v. Boca Raton, supra, at 787-788 (quoting Harris v. Forklift Systems, Inc., 510 U. S. 17 ,23 (1993)). Hence, "[a] recurring point in [our] opinions is that simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Faragher v. Boca Raton, supra, at 788 (citation and internal quotation marks omitted). No reasonable person could have believed that the single incident recounted above violated Title VII's standard. The ordinary terms and conditions of respondent's job required her to review the sexually explicit statement in the course of screening job applicants. Her co-workers who participated in the hiring process were subject to the same requirement, and indeed, in the District Court respondent "conceded that it did not bother or upset her" to read the statement in the file. App. to Pet. for Cert. 15 (District Court opinion). Her supervisor's comment, made at a meeting to review the application, that he did not know what the statement meant; her co-worker's responding comment; and the chuckling of both are at worst an "isolated inciden[t]" that cannot remotely be considered "extremely serious," as our cases require, Faragher v. Boca Raton, supra, at 788. The holding of the Court of Appeals to the contrary must be reversed. Besides claiming that she was punished for complaining to petitioner's personnel about the alleged sexual harassment, respondent also claimed that she was punished for filing charges against petitioner with the Nevada Equal Rights Commission and the Equal Employment Opportunity Commission (EEOC) and for filing the present suit. Respondent filed her lawsuit on April 1, 1997; on April 10, 1997, respondent's supervisor, Assistant Superintendent Rice, "mentioned 272 to Allin Chandler, Executive Director of plaintiff's union, that she was contemplating transferring plaintiff to the position of Director of Professional Development Education," App. to Pet. for Cert. 11-12 (District Court opinion); and this transfer was "carried through" in May, Brief in Opposition 8. In order to show, as her defense against summary judgment required, the existence of a causal connection between her protected activities and the transfer, respondent "relie[d] wholly on the temporal proximity of the filing of her complaint on April 1, 1997 and Rice's statement to plaintiff's union representative on April 10, 1997 that she was considering transferring plaintiff to the [new] position." App. to Pet. for Cert. 21-22 (District Court opinion). The District Court, however, found that respondent did not serve petitioner with the summons and complaint until April 11, 1997, one day after Rice had made the statement, and Rice filed an affidavit stating that she did not become aware of the lawsuit until after April 11, a claim that respondent did not challenge. Hence, the court concluded, respondent "ha[d] not shown that any causal connection exists between her protected activities and the adverse employment decision." Id., at 21. The Court of Appeals reversed, relying on two facts: The EEOC had issued a right-to-sue letter to respondent three months before Rice announced she was contemplating the transfer, and the actual transfer occurred one month after Rice learned of respondent's suit. 2000 WL 991821, at *3. The latter fact is immaterial in light of the fact that petitioner concededly was contemplating the transfer before it learned of the suit. Employers need not suspend previously planned transfers upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality. As for the right-to-sue letter: Respondent did not rely on that letter in the District Court and did not mention it in 273 her opening brief on appeal. Her demonstration of causality all along had rested upon the connection between the transfer and the filing of her lawsuit-to which connection the letter was irrelevant. When, however, petitioner's answering brief in the Court of Appeals demonstrated conclusively the lack of causation between the filing of respondent's lawsuit and Rice's decision, respondent mentioned the letter for the first time in her reply brief, Reply Brief in No. 99-15522 (CA9) pp. 9-10. The Ninth Circuit's opinion did not adopt respondent's utterly implausible suggestion that the EEOC's issuance of a right-to-sue letter-an action in which the employee takes no part-is a protected activity of the employee, see 42 U. S. C. § 2000e-3(a). Rather, the opinion suggests that the letter provided petitioner with its first notice of respondent's charge before the EEOC, and hence allowed the inference that the transfer proposal made three months later was petitioner's reaction to the charge. See 2000 WL 991821, at *3. This will not do. First, there is no indication that Rice even knew about the right-to-sue letter when she proposed transferring respondent. And second, if one presumes she knew about it, one must also presume that she (or her predecessor) knew almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed. (The complaint had been filed on August 23, 1995, and both Title VII and its implementing regulations require that an employer be given notice within 10 days of filing, 42 U. S. C. §§ 2000e-5(b), (e)(l); 29 CFR § 1601.14 (2000).) The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be "very close," O'Neal v. Ferguson Constr. Co., 237 F.3d 1248 , 1253 (CAlO 2001). See, e. g., Richmond v. Oneok, Inc., 120 F.3d 205 , 209 (CAlO 1997) (3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168 , 1174-1175 (CA7 1992) 274 (4-month period insufficient). Action taken (as here) 20 months later suggests, by itself, no causality at all. In short, neither the grounds that respondent presented to the District Court, nor the ground she added on appeal, nor even the ground the Court of Appeals developed on its own, sufficed to establish a dispute substantial enough to withstand the motion for summary judgment. The District Court's granting of that motion was correct. The judgment of the Court of Appeals is reversed. It is so ordered.

Clark County School District v. Breeden (2001) concerned a female employee's retaliation claim against her employer under Title VII of the Civil Rights Act of 1964. The employee, Breeden, alleged that she was punished for complaining about a sexually explicit remark made by her male supervisor during a meeting and for filing charges with the relevant employment commissions. The Supreme Court held that Breeden's claims were insufficient to withstand a summary judgment motion, as no one could reasonably believe that the incident she complained about violated Title VII. The Court also found that she failed to show a causal connection between her protected activities and her transfer, as the transfer occurred 20 months after she filed her charges and the employer was already contemplating the transfer beforehand. The Court reversed the lower court's decision.

Labor & Employment

Circuit City Stores, Inc. v. Adams

https://supreme.justia.com/cases/federal/us/532/105/

OCTOBER TERM, 2000 Syllabus CIRCUIT CITY STORES, INC. v. ADAMS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 99-1379. Argued November 6, 2000-Decided March 21, 2001 A provision in respondent's application for work at petitioner electronics retailer required all employment disputes to be settled by arbitration. After he was hired, respondent filed a state-law employment discrimination action against petitioner, which then sued in federal court to enjoin the state-court action and to compel arbitration pursuant to the Federal Arbitration Act (FAA). The District Court entered the requested order. The Ninth Circuit reversed, interpreting § 1 of the FAA-which excludes from that Act's coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce" -to exempt all employment contracts from the FAA's reach. Held: The § 1 exemption is confined to transportation workers. Pp. 111-124. (a) The FAA's coverage provision, § 2, compels judicial enforcement of arbitration agreements "in any ... contract evidencing a transaction involving commerce." In Allied-Bruce Terminix Coso v. Dobson, 513 U. S. 265 , the Court interpreted § 2's "involving commerce" phrase as implementing Congress' intent "to exercise [its] commerce power to the full." Id., at 277. Pp. 111-113. (b) The Court rejects respondent's contention that the word "transaction" in § 2 extends only to commercial contracts, and that therefore an employment contract is not a "contract evidencing a transaction involving interstate commerce" at all. If that were true, the separate § 1 exemption that is here at issue would be pointless. See, e. g., Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552 , 562. Accordingly, any argument that arbitration agreements in employment contracts are not covered by the FAA must be premised on the language of the § 1 exclusion itself. pp. 113-114. (c) The statutory text forecloses the construction that § 1 excludes all employment contracts from the FAA. Respondent relies on AlliedBruce's expansive reading of "involving commerce" to contend that § 1's "engaged in ... commerce" language should have a like reach, exempting from the FAA all employment contracts falling within Congress' commerce power. This reading of § 1 runs into the insurmountable tex- 106 Syllabus tual obstacle that, unlike § 2's "involving commerce" language, the § 1 words "any other class of workers engaged in ... commerce" constitute a residual phrase, following, in the same sentence, explicit reference to "seamen" and "railroad employees." The wording thus calls for application of the maxim ejusdem generis, under which the residual clause should be read to give effect to the terms "seamen" and "railroad employees," and should be controlled and defined by reference to those terms. See, e. g., Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117, 129. Application of ejusdem generis is also in full accord with other sound considerations bearing upon the proper interpretation of the clause. In prior cases, the Court has read "engaged in commerce" as a term of art, indicating a limited assertion of federal jurisdiction. See, e. g., United States v. American Building Maintenance Industries, 422 U. S. 271 , 279-280. The Court is not persuaded by the assertion that its § 1 interpretation should be guided by the fact that, when Congress adopted the FAA, the phrase "engaged in commerce" came close to expressing the outer limits of its Commerce Clause power as then understood, see, e. g., The Employers' Liability Cases, 207 U. S. 463 , 498. This fact alone does not provide any basis to adopt, "by judicial decision, rather than amendatory legislation," Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 , 202, an expansive construction of the FAA's exclusion provision that goes beyond the meaning of the words Congress used. While it is possible that Congress might have chosen a different jurisdictional formulation had it known that the Court later would embrace a less restrictive reading of the Commerce Clause, § 1's text precludes interpreting the exclusion provision to defeat the language of § 2 as to all employment contracts. The statutory context in which the "engaged in commerce" language is found, i. e., in a residual provision, and the FAA's purpose of overcoming judicial hostility to arbitration further compel that the § 1 exclusion be afforded a narrow construction. The better reading of § 1, in accord with the prevailing view in the Courts of Appeals, is that § 1 exempts from the FAA only employment contracts of transportation workers. Pp. 114-119. (d) As the Court's conclusion is directed by § 1's text, the rather sparse legislative history of the exclusion provision need not be assessed. The Court rejects respondent's argument that the Court's holding attributes an irrational intent to Congress by excluding from the FAA's coverage those employment contracts that most involve interstate commerce, i. e., those of transportation workers, while including employment contracts having a lesser connection to commerce. It is a permissible inference that the former contracts were excluded because Congress had already enacted, or soon would enact, statutes governing 107 transportation workers' employment relationships and did not wish to unsettle established or developing statutory dispute resolution schemes covering those workers. As for the residual exclusion of "any other class of workers engaged in foreign or interstate commerce," it would be rational for Congress to ensure that workers in general would be covered by the FAA, while reserving for itself more specific legislation for transportation workers. Pp. 119-121. (e) Amici argue that, under the Court's reading, the FAA in effect pre-empts state employment laws restricting the use of arbitration agreements. That criticism is not properly directed at today's holding, but at Southland Corp. v. Keating, 465 U. S. 1 , holding that Congress intended the FAA to apply in state courts, and to pre-empt state antiarbitration laws to the contrary. The Court explicitly declined to overrule Southland in Allied-Bruce, supra, at 272, and Congress has not moved to overturn Southland in response to Allied-Bruce. Nor is Southland directly implicated in this case, which concerns the application of the FAA in a federal, rather than in a state, court. The Court should not chip away at Southland by indirection. Furthermore, there are real benefits to arbitration in the employment context, including avoidance of litigation costs compounded by difficult choice-of-Iaw questions and by the necessity of bifurcating the proceedings where state law precludes arbitration of certain types of employment claims but not others. Adoption of respondent's position would call into doubt the efficacy of many employers' alternative dispute resolution procedures, in the process undermining the FAA's proarbitration purposes and breeding litigation from a statute that seeks to avoid it. Allied-Bruce, supra, at 275. Pp. 121-124. 194 F.3d 1070 , reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Parts II and III, post, p. 124. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 133. David E. Nagle argued the cause for petitioner. With him on the briefs were W Stephen Cannon, Pamela G. Parsons, Walter E. Dellinger, Samuel Estreicher, and Rex Darrell Berry. 108 Counsel Michael Rubin argued the cause for respondent. With him on the brief were Scott A. Kronland, Cliff Palefsky, and Steven L. Robinson. * *Briefs of amici curiae urging reversal were filed for the American Arbitration Association by Florence M. Peterson, Jay W Waks, and James H. Carter; for the Chamber of Commerce of the United States of America by Lawrence Z. Lorber, Lawrence R. Sandak, Stephen A. Bokat, and Robin S. Conrad; for the Council for Employment Law Equity by Garry G. Mathiason; for Credit Suisse First Boston by Stephen J. Marzen, Meredith Kolsky Lewis, and Joseph T. McLaughlin; for the Employers Group by Daniel H. Bromberg, Richard H. Sayler, and William J. Emanuel; for the Equal Employment Advisory Council et al. by Ann Elizabeth Reesman, Daniel V. Yager, and Heather L. MacDougall; for the Securities Industry Association by Michael Delikat, Stuart J. Kaswell, and George Kramer; for the Society for Human Resource Management by David E. Block and Christine L. Wilson; and for the Texas Employment Law Council by W Carl Jordan and Robert L. Ivey. Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, James A. Feldman, Henry L. Solano, Philip B. Sklover, and Robert J. Gregory; for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Catherine Z. Ysrael, Supervising Deputy Attorney General, and Thomas P. Reilly, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Mark Pryor of Arkansas, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Alan G. Lance of Idaho, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, D. Michael Fisher of Pennsylvania, William H. Sorrell of Vermont, Christine Q Gregoire of Washington, and Darrell V. McGraw, Jr., of West Virginia; for the Division of Labor Standards Enforcement, Department of Industrial Relations, State of California, by William A. Reich; for AARP by Thomas W Osborne, Laurie A. McCann, Sally P. Dunaway, and Melvin Radowitz; for the Association of Trial Lawyers of America by Jeffrey Robert White, Eric Schnapper, and Frederick M. Baron; for Law Professors by Robert Belton, James J. Brudney, David S. Schwartz, Nathan P. Feinsinger, James E. Jones, Jr., Cynthia L. Estlund, Michael 109 JUSTICE KENNEDY delivered the opinion of the Court. Section 1 of the Federal Arbitration Act (FAA or Act) excludes from the Act's coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U. S. C. § 1. All but one of the Courts of Appeals which have addressed the issue interpret this provision as exempting contracts of employment of transportation workers, but not other employment contracts, from the FAA's coverage. A different interpretation has been adopted by the Court of Appeals for the Ninth Circuit, which construes the exemption so that all contracts of employment are beyond the FAA's reach, whether or not the worker is engaged in transportation. It applied that rule to the instant case. We now decide that the better interpretation is to construe the statute, as most of the Courts of Appeals have done, to confine the exemption to transportation workers. I In October 1995, respondent Saint Clair Adams applied for a job at petitioner Circuit City Stores, Inc., a national retailer of consumer electronics. Adams signed an employment application which included the following provision: "I agree that I will settle any and all previously unasserted claims, disputes or controversies arising out of or H. Gottesman, Jeffrey W Stempel, Katherine Van Wezel, and Clyde W Summers; for the Lawyers' Committee for Civil Rights Under Law et al. by Paul W Mollica, Daniel F. Kolb, John Payton, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Richard T. Seymour, Teresa A. Ferrante, Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, Charles Stephen Ralston, Dennis C. Hayes, Antonia Hernandez, Judith L. Lichtman, Donna R. Lenhoff, Marcia D. Greenberger, Julie Goldscheid, and Yolanda S. Wu; for the National Academy of Arbitrators by David E. Feller and John Kagel; and for the National Employment Lawyers Association by James M. True III and Paula A. Brantner. Lewis Maltby filed a brief for the National Workrights Institute as amicus curiae. 110 relating to my application or candidacy for employment, employment and/or cessation of employment with Circuit City, exclusively by final and binding arbitration before a neutral Arbitrator. By way of example only, such claims include claims under federal, state, and local statutory or common law, such as the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, as amended, including the amendments of the Civil Rights Act of 1991, the Americans with Disabilities Act, the law of contract and [the] law of tort." App. 13 (emphasis in original). Adams was hired as a sales counselor in Circuit City's store in Santa Rosa, California. Two years later, Adams filed an employment discrimination lawsuit against Circuit City in state court, asserting claims under California's Fair Employment and Housing Act, Cal. Govt. Code Ann. § 12900 et seq. (West 1992 and Supp. 1997), and other claims based on general tort theories under California law. Circuit City filed suit in the United States District Court for the Northern District of California, seeking to enjoin the state-court action and to compel arbitration of respondent's claims pursuant to the FAA, 9 U. S. C. §§ 116. The District Court entered the requested order. Respondent, the court concluded, was obligated by the arbitration agreement to submit his claims against the employer to binding arbitration. An appeal followed. While respondent's appeal was pending in the Court of Appeals for the Ninth Circuit, the court ruled on the key issue in an unrelated case. The court held the FAA does not apply to contracts of employment. See Craft v. Campbell Soup Co., 177 F.3d 1083 (1999). In the instant case, following the rule announced in Craft, the Court of Appeals held the arbitration agreement between Adams and Circuit City was contained in a "contract of employment," and so was not subject to the FAA. 194 F.3d 1070 (1999). Circuit City petitioned this Court, noting that the Ninth Circuit's 111 conclusion that all employment contracts are excluded from the FAA conflicts with every other Court of Appeals to have addressed the question. See, e. g., McWilliams v. Logicon, Inc., 143 F.3d 573 , 575-576 (CAlO 1998); O'Neil v. Hilton Head Hospital, 115 F.3d 272 , 274 (CA4 1997); Pryner v. Tractor Supply Co., 109 F.3d 354 , 358 (CA7 1997); Cole v. Burns Int'l Security Servs., 105 F.3d 1465 , 1470-1472 (CADC 1997); Rojas v. TK Communications, Inc., 87 F.3d 745 ,747-748 (CA5 1996); Asplundh Tree Co. v. Bates, 71 F.3d 592 , 596-601 (CA6 1995); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064 , 1069 (CA2 1972); Dickstein v. DuPont, 443 F.2d 783 , 785 (CA1 1971); Tenney Engineering, Inc. v. United Elec. & Machine Workers of Am., 207 F. 2d 450 (CA3 1953). We granted certiorari to resolve the issue. 529 U. S. 1129 (2000). II A Congress enacted the FAA in 1925. As the Court has explained, the FAA was a response to hostility of American courts to the enforcement of arbitration agreements, a judicial disposition inherited from then-longstanding English practice. See, e. g., Allied-Bruce Terminix Coso v. Dobson, 513 U. S. 265 , 270-271 (1995); Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 , 24 (1991). To give effect to this purpose, the FAA compels judicial enforcement of a wide range of written arbitration agreements. The FAA's coverage provision, § 2, provides that "[a] written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such 112 grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. § 2. We had occasion in Allied-Bruce, supra, at 273-277, to consider the significance of Congress' use of the words "involving commerce" in § 2. The analysis began with a reaffirmation of earlier decisions concluding that the FAA was enacted pursuant to Congress' substantive power to regulate interstate commerce and admiralty, see Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 , 405 (1967), and that the Act was applicable in state courts and pre-emptive of state laws hostile to arbitration, see Southland Corp. v. Keating, 465 U. S. 1 (1984). Relying upon these background principles and upon the evident reach of the words "involving commerce," the Court interpreted § 2 as implementing Congress' intent "to exercise [its] commerce power to the full." Allied-Bruce, supra, at 277. The instant case, of course, involves not the basic coverage authorization under § 2 of the Act, but the exemption from coverage under § 1. The exemption clause provides the Act shall not apply "to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U. S. C. § 1. Most Courts of Appeals conclude the exclusion provision is limited to transportation workers, defined, for instance, as those workers "'actually engaged in the movement of goods in interstate commerce.''' Cole, supra, at 1471. As we stated at the outset, the Court of Appeals for the Ninth Circuit takes a different view and interprets the § 1 exception to exclude all contracts of employment from the reach of the FAA. This comprehensive exemption had been advocated by amici curiae in Gilmer, where we addressed the question whether a registered securities representative's employment discrimination claim under the Age Discrimination in Employment Act of 1967, 81 Stat. 602, as amended, 29 U. S. C. § 621 et seq., could be submitted to arbitration pursuant to an agreement in his securities registration application. 113 Concluding that the application was not a "contract of employment" at all, we found it unnecessary to reach the meaning of § 1. See Gilmer, supra, at 25, n. 2. There is no such dispute in this case; while Circuit City argued in its petition for certiorari that the employment application signed by Adams was not a "contract of employment," we declined to grant certiorari on this point. So the issue reserved in Gilmer is presented here. B Respondent, at the outset, contends that we need not address the meaning of the § 1 exclusion provision to decide the case in his favor. In his view, an employment contract is not a "contract evidencing a transaction involving interstate commerce" at all, since the word "transaction" in § 2 extends only to commercial contracts. See Craft, 177 F. 3d, at 1085 (concluding that § 2 covers only "commercial deal[s] or merchant's sale[s]"). This line of reasoning proves too much, for it would make the § 1 exclusion provision superfluous. If all contracts of employment are beyond the scope of the Act under the § 2 coverage provision, the separate exemption for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in ... interstate commerce" would be pointless. See, e. g., Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552 , 562 (1990) ("Our cases express a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment"). The proffered interpretation of "evidencing a transaction involving commerce," furthermore, would be inconsistent with Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), where we held that § 2 required the arbitration of an age discrimination claim based on an agreement in a securities registration application, a dispute that did not arise from a "commercial deal or merchant's sale." Nor could respondent's construction of § 2 be reconciled with the expansive reading of those words adopted in Allied-Bruce, 513 U. S., at 277, 279-280. If, then, 114 there is an argument to be made that arbitration agreements in employment contracts are not covered by the Act, it must be premised on the language of the § 1 exclusion provision itself. Respondent, endorsing the reasoning of the Court of Appeals for the Ninth Circuit that the provision excludes all employment contracts, relies on the asserted breadth of the words "contracts of employment of ... any other class of workers engaged in ... commerce." Referring to our construction of § 2's coverage provision in Allied-Bruce-con cluding that the words "involving commerce" evidence the congressional intent to regulate to the full extent of its commerce power-respondent contends § l's interpretation should have a like reach, thus exempting all employment contracts. The two provisions, it is argued, are coterminous; under this view the "involving commerce" provision brings within the FAA's scope all contracts within the Congress' commerce power, and the "engaged in ... commerce" language in § 1 in turn exempts from the FAA all employment contracts falling within that authority. This reading of § 1, however, runs into an immediate and, in our view, insurmountable textual obstacle. Unlike the "involving commerce" language in § 2, the words "any other class of workers engaged in ... commerce" constitute a residual phrase, following, in the same sentence, explicit reference to "seamen" and "railroad employees." Construing the residual phrase to exclude all employment contracts fails to give independent effect to the statute's enumeration of the specific categories of workers which precedes it; there would be no need for Congress to use the phrases "seamen" and "railroad employees" if those same classes of workers were subsumed within the meaning of the "engaged in ... commerce" residual clause. The wording of § 1 calls for the application of the maxim ejusdem generis, the statutory canon that "[w]here general words follow specific words in a statutory enumeration, the general words are construed to 115 embrace only objects similar in nature to those objects enumerated by the preceding specific words." 2A N. Singer, Sutherland on Statutes and Statutory Construction § 47.17 (1991); see also Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117 , 129 (1991). Under this rule of construction the residual clause should be read to give effect to the terms "seamen" and "railroad employees," and should itself be controlled and defined by reference to the enumerated categories of workers which are recited just before it; the interpretation of the clause pressed by respondent fails to produce these results. Canons of construction need not be conclusive and are often countered, of course, by some maxim pointing in a different direction. The application of the rule ejusdem generis in this case, however, is in full accord with other sound considerations bearing upon the proper interpretation of the clause. For even if the term "engaged in commerce" stood alone in § 1, we would not construe the provision to exclude all contracts of employment from the FAA. Congress uses different modifiers to the word "commerce" in the design and enactment of its statutes. The phrase "affecting commerce" indicates Congress' intent to regulate to the outer limits of its authority under the Commerce Clause. See, e. g., Allied-Bruce, 513 U. S., at 277. The "involving commerce" phrase, the operative words for the reach of the basic coverage provision in § 2, was at issue in Allied-Bruce. That particular phrase had not been interpreted before by this Court. Considering the usual meaning of the word "involving," and the pro-arbitration purposes of the FAA, Allied-Bruce held the "word 'involving,' like 'affecting,' signals an intent to exercise Congress' commerce power to the full." Ibid. Unlike those phrases, however, the general words "in commerce" and the specific phrase "engaged in commerce" are understood to have a more limited reach. In Allied-Bruce itself the Court said the words "in commerce" are "of tenfound words of art" that we have not read as expressing 116 congressional intent to regulate to the outer limits of authority under the Commerce Clause. Id., at 273; see also United States v. American Building Maintenance Industries, 422 U. S. 271 , 279-280 (1975) (phrase "engaged in commerce" is "a term of art, indicating a limited assertion of federal jurisdiction"); Jones v. United States, 529 U. S. 848 , 855 (2000) (phrase "used in commerce" "is most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce"). It is argued that we should assess the meaning of the phrase "engaged in commerce" in a different manner here, because the FAA was enacted when congressional authority to regulate under the commerce power was to a large extent confined by our decisions. See United States v. Lopez, 514 U. S. 549, 556 (1995) (noting that Supreme Court decisions beginning in 1937 "ushered in an era of Commerce Clause jurisprudence that greatly expanded the previously defined authority of Congress under that Clause"). When the FAA was enacted in 1925, respondent reasons, the phrase "engaged in commerce" was not a term of art indicating a limited assertion of congressional jurisdiction; to the contrary, it is said, the formulation came close to expressing the outer limits of Congress' power as then understood. See, e. g., The Employers' Liability Cases, 207 U. S. 463 , 498 (1908) (holding unconstitutional jurisdictional provision in Federal Employers Liability Act (FELA) covering the employees of "every common carrier engaged in trade or commerce"); Second Employers' Liability Cases, 223 U. S. 1 , 48-49 (1912); but cf. Illinois Central R. Co. v. Behrens, 233 U. S. 473 (1914) (noting in dicta that the amended FELA's application to common carriers "while engaging in commerce" did not reach all employment relationships within Congress' commerce power). Were this mode of interpretation to prevail, we would take into account the scope of the Commerce Clause, as then elaborated by the Court, at the date of the FAA's enactment in order to interpret what the statute means now. 117 A variable standard for interpreting common, jurisdictional phrases would contradict our earlier cases and bring instability to statutory interpretation. The Court has declined in past cases to afford significance, in construing the meaning of the statutory jurisdictional provisions "in commerce" and "engaged in commerce," to the circumstance that the statute predated shifts in the Court's Commerce Clause cases. In FTC v. Bunte Brothers, Inc., 312 U. S. 349 (1941), the Court rejected the contention that the phrase "in commerce" in § 5 of the Federal Trade Commission Act, 38 Stat. 719, 15 U. S. C. § 45, a provision enacted by Congress in 1914, should be read in as expansive a manner as "affecting commerce." See Bunte Bros., supra, at 350-351. We entertained a similar argument in a pair of cases decided in the 1974 Term concerning the meaning of the phrase "engaged in commerce" in § 7 of the Clayton Act, 38 Stat. 731, 15 U. S. C. § 18, another 1914 congressional enactment. See American Building Maintenance, supra, at 277-283; Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 , 199-202 (1974). We held that the phrase "engaged in commerce" in § 7 "means engaged in the flow of interstate commerce, and was not intended to reach all corporations engaged in activities subject to the federal commerce power." American Building Maintenance, supra, at 283; cf. Gulf Oil, supra, at 202 (expressing doubt as to whether an "argument from the history and practical purposes of the Clayton Act" could justify "radical expansion of the Clayton Act's scope beyond that which the statutory language defines"). The Court's reluctance to accept contentions that Congress used the words "in commerce" or "engaged in commerce" to regulate to the full extent of its commerce power rests on sound foundation, as it affords objective and consistent significance to the meaning of the words Congress uses when it defines the reach of a statute. To say that the statutory words "engaged in commerce" are subject to variable interpretations depending upon the date of adoption, even a date 118 before the phrase became a term of art, ignores the reason why the formulation became a term of art in the first place: The plain meaning of the words "engaged in commerce" is narrower than the more open-ended formulations "affecting commerce" and "involving commerce." See, e. g., Gulf Oil, supra, at 195 (phrase "engaged in commerce" "appears to denote only persons or activities within the flow of interstate commerce"). It would be unwieldy for Congress, for the Court, and for litigants to be required to deconstruct statutory Commerce Clause phrases depending upon the year of a particular statutory enactment. In rejecting the contention that the meaning of the phrase "engaged in commerce" in § 1 of the FAA should be given a broader construction than justified by its evident language simply because it was enacted in 1925 rather than 1938, we do not mean to suggest that statutory jurisdictional formulations "necessarily have a uniform meaning whenever used by Congress." American Building Maintenance Industries, supra, at 277. As the Court has noted: "The judicial task in marking out the extent to which Congress has exercised its constitutional power over commerce is not that of devising an abstract formula." A. B. Kirschbaum Co. v. Walling, 316 U. S. 517 , 520 (1942). We must, of course, construe the "engaged in commerce" language in the FAA with reference to the statutory context in which it is found and in a manner consistent with the FAA's purpose. These considerations, however, further compel that the § 1 exclusion provision be afforded a narrow construction. As discussed above, the location of the phrase "any other class of workers engaged in ... commerce" in a residual provision, after specific categories of workers have been enumerated, undermines any attempt to give the provision a sweeping, openended construction. And the fact that the provision is contained in a statute that "seeks broadly to overcome judicial hostility to arbitration agreements," Allied-Bruce, 513 U. S., at 272-273, which the Court concluded in Allied-Bruce coun- 119 seled in favor of an expansive reading of § 2, gives no reason to abandon the precise reading of a provision that exempts contracts from the FAA's coverage. In sum, the text of the FAA forecloses the construction of § 1 followed by the Court of Appeals in the case under review, a construction which would exclude all employment contracts from the FAA. While the historical arguments respecting Congress' understanding of its power in 1925 are not insubstantial, this fact alone does not give us basis to adopt, "by judicial decision rather than amendatory legislation," Gulf Oil, supra, at 202, an expansive construction of the FAA's exclusion provision that goes beyond the meaning of the words Congress used. While it is of course possible to speculate that Congress might have chosen a different jurisdictional formulation had it known that the Court would soon embrace a less restrictive reading of the Commerce Clause, the text of § 1 precludes interpreting the exclusion provision to defeat the language of § 2 as to all employment contracts. Section 1 exempts from the FAA only contracts of employment of transportation workers. C As the conclusion we reach today is directed by the text of § 1, we need not assess the legislative history of the exclusion provision. See Ratzlafv. United States, 510 U. S. 135 , 147148 (1994) ("[W]e do not resort to legislative history to cloud a statutory text that is clear"). We do note, however, that the legislative record on the § 1 exemption is quite sparse. Respondent points to no language in either Committee Report addressing the meaning of the provision, nor to any mention of the § 1 exclusion during debate on the FAA on the floor of the House or Senate. Instead, respondent places greatest reliance upon testimony before a Senate subcommittee hearing suggesting that the exception may have been added in response to the objections of the president of the International Seamen's Union of America. See Hearing on 120 S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9 (1923). Legislative history is problematic even when the attempt is to draw inferences from the intent of duly appointed committees of the Congress. It becomes far more so when we consult sources still more steps removed from the full Congress and speculate upon the significance of the fact that a certain interest group sponsored or opposed particular legislation. Cf. Kelly v. Robinson, 479 U. S. 36 , 51, n. 13 (1986) ("[N]one of those statements was made by a Member of Congress, nor were they included in the official Senate and House Reports. We decline to accord any significance to these statements"). We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal-even assuming the precise intent of the group can be determined, a point doubtful both as a general rule and in the instant case. It is for the Congress, not the courts, to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes. Nor can we accept respondent's argument that our holding attributes an irrational intent to Congress. "Under petitioner's reading of § 1," he contends, "those employment contracts most involving interstate commerce, and thus most assuredly within the Commerce Clause power in 1925 ... are excluded from [the] Act's coverage; while those employment contracts having a less direct and less certain connection to interstate commerce ... would come within the Act's affirmative coverage and would not be excluded." Brief for Respondent 38 (emphases in original). We see no paradox in the congressional decision to exempt the workers over whom the commerce power was most apparent. To the contrary, it is a permissible inference that the employment contracts of the classes of workers in § 1 were excluded from the FAA precisely because of Congress' undoubted authority to govern the employment relationships 121 at issue by the enactment of statutes specific to them. By the time the FAA was passed, Congress had already enacted federal legislation providing for the arbitration of disputes between seamen and their employers, see Shipping Commissioners Act of 1872, 17 Stat. 262. When the FAA was adopted, moreover, grievance procedures existed for railroad employees under federal law, see Transportation Act of 1920, §§ 300-316, 41 Stat. 456, and the passage of a more comprehensive statute providing for the mediation and arbitration of railroad labor disputes was imminent, see Railway Labor Act of 1926, 44 Stat. 577, 46 U. S. C. § 651 (repealed). It is reasonable to assume that Congress excluded "seamen" and "railroad employees" from the FAA for the simple reason that it did not wish to unsettle established or developing statutory dispute resolution schemes covering specific workers. As for the residual exclusion of "any other class of workers engaged in foreign or interstate commerce," Congress' demonstrated concern with transportation workers and their necessary role in the free flow of goods explains the linkage to the two specific, enumerated types of workers identified in the preceding portion of the sentence. It would be rational for Congress to ensure that workers in general would be covered by the provisions of the FAA, while reserving for itself more specific legislation for those engaged in transportation. See Pryner v. Tractor Supply Co., 109 F. 3d, at 358 (Posner, C. J.). Indeed, such legislation was soon to follow, with the amendment of the Railway Labor Act in 1936 to include air carriers and their employees, see 49 Stat. 1189, 45 U. S. C. §§ 181-188. III Various amici, including the attorneys general of 21 States, object that the reading of the § 1 exclusion provision adopted today intrudes upon the policies of the separate States. They point out that, by requiring arbitration agreements in most employment contracts to be covered by the 122 FAA, the statute in effect pre-empts those state employment laws which restrict or limit the ability of employees and employers to enter into arbitration agreements. It is argued that States should be permitted, pursuant to their traditional role in regulating employment relationships, to prohibit employees like respondent from contracting away their right to pursue state-law discrimination claims in court. It is not our holding today which is the proper target of this criticism. The line of argument is relevant instead to the Court's decision in Southland Corp. v. Keating, 465 U. S. 1 (1984), holding that Congress intended the FAA to apply in state courts, and to pre-empt state antiarbitration laws to the contrary. See id., at 16. The question of Southland's continuing vitality was given explicit consideration in Allied-Bruce, and the Court declined to overrule it. 513 U. S., at 272; see also id., at 282 (O'CONNOR, J., concurring). The decision, furthermore, is not directly implicated in this case, which concerns the application of the FAA in a federal, rather than in a state, court. The Court should not chip away at Southland by indirection, especially by the adoption of the variable statutory interpretation theory advanced by the respondent in the instant case. Not all of the Justices who join to day's holding agreed with Allied-Bruce, see 513 U. S., at 284 (SCALIA, J., dissenting); id., at 285 (THOMAS, J., dissenting), but it would be incongruous to adopt, as we did in Allied-Bruce, a conventional reading of the FAA's coverage in § 2 in order to implement proarbitration policies and an unconventional reading of the reach of § 1 in order to undo the same coverage. In All iedBruce the Court noted that Congress had not moved to overturn Southland, see 513 U. S., at 272; and we now note that it has not done so in response to Allied-Bruce itself. Furthermore, for parties to employment contracts not involving the specific exempted categories set forth in § 1, it is true here, just as it was for the parties to the contract at issue in Allied-Bruce, that there are real benefits to the 123 enforcement of arbitration provisions. We have been clear in rejecting the supposition that the advantages of the arbitration process somehow disappear when transferred to the employment context. See Gilmer, 500 U. S., at 30-32. Arbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts. These litigation costs to parties (and the accompanying burden to the courts) would be compounded by the difficult choice-of-Iaw questions that are often presented in disputes arising from the employment relationship, cf. Egelhoff v. Egelhoff, post, at 149 (noting possible "choice-of-Iaw problems" presented by state laws affecting administration of Employee Retirement Income Security Act of 1974 plans), and the necessity of bifurcation of proceedings in those cases where state law precludes arbitration of certain types of employment claims but not others. The considerable complexity and uncertainty that the construction of § 1 urged by respondent would introduce into the enforceability of arbitration agreements in employment contracts would call into doubt the efficacy of alternative dispute resolution procedures adopted by many of the Nation's employers, in the process undermining the FAA's pro arbitration purposes and "breeding litigation from a statute that seeks to avoid it." Allied-Bruce, supra, at 275. The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law; as we noted in Gilmer, "'[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.''' 500 U. S., at 26 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 , 628 (1985)). Gilmer, of course, involved a federal 124 statute, while the argument here is that a state statute ought not be denied state judicial enforcement while awaiting the outcome of arbitration. That matter, though, was addressed in Southland and Allied-Bruce, and we do not revisit the question here. *** For the foregoing reasons, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, and with whom JUSTICE SOUTER joins as to Parts II and III, dissenting. JUSTICE SOUTER has cogently explained why the Court's parsimonious construction of § 1 of the Federal Arbitration Act (FAA or Act) is not consistent with its expansive reading of § 2. I join his dissent, but believe that the Court's heavy reliance on the views expressed by the Courts of Appeals during the past decade makes it appropriate to comment on three earlier chapters in the history of this venerable statute. I Section 2 of the FAA makes enforceable written agreements to arbitrate "in any maritime transaction or a contract evidencing a transaction involving commerce." 9 U. S. C. § 2. If we were writing on a clean slate, there would be good reason to conclude that neither the phrase "maritime transaction" nor the phrase "contract evidencing a transaction involving commerce" was intended to encompass employment contracts.1 1 Doing so, in any event, is not precluded by our decision in Allied-Bruce Terminix Coso v. Dobson, 513 U. S. 265 (1995). While we held that § 2 of 125 The history of the Act, which is extensive and well documented, makes clear that the FAA was a response to the refusal of courts to enforce commercial arbitration agreements, which were commonly used in the maritime context. The original bill was drafted by the Committee on Commerce, Trade, and Commercial Law of the American Bar Association (ABA) upon consideration of "the further extension of the principle of commercial arbitration." Report of the Forty-third Annual Meeting of the ABA, 45 A. B. A. Rep. 75 (1920) (emphasis added). As drafted, the bill was understood by Members of Congress to "simply provid[e] for one thing, and that is to give an opportunity to enforce an agreement in commercial contracts and admiralty contracts." 65 Congo Rec. 1931 (1924) (remarks of Rep. Graham) (emphasis added).2 It is no surprise, then, that when the legislation the FAA evinces Congress' intent to exercise its full Commerce Clause power, id., at 277, the case did not involve a contract of employment, nor did it consider whether such contracts fall within either category of § 2's coverage provision, however broadly construed, in light of the legislative history detailed infra this page and 126-127. 2 Consistent with this understanding, Rep. Mills, who introduced the original bill in the House, explained that it "provides that where there are commercial contracts and there is disagreement under the contract, the court can [en]force an arbitration agreement in the same way as other portions of the contract." 65 Congo Rec., at 11080 (emphasis added). And before the Senate, the chairman of the New York Chamber of Commerce, one of the many business organizations that requested introduction of the bill, testified that it was needed to "enable business men to settle their disputes expeditiously and economically, and will reduce the congestion in the Federal and State courts." Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 2 (1923) (Hearing) (emphasis added). See also id., at 14 (letter of H. Hoover, Secretary of Commerce) ("I have been, as you may know, very strongly impressed with the urgent need of a Federal commercial arbitration act. The American Bar Association has now joined hands with the business men of this country to the same effect and unanimously approved" the bill drafted by the ABA committee and introduced in both Houses of Congress (emphasis added)). 126 was first introduced in 1922,3 it did not mention employment contracts, but did contain a rather precise definition of the term "maritime transactions" that underscored the commercial character of the proposed bill. 4 Indeed, neither the history of the drafting of the original bill by the ABA, nor the records of the deliberations in Congress during the years preceding the ultimate enactment of the Act in 1925, contain any evidence that the proponents of the legislation intended it to apply to agreements affecting employment. Nevertheless, the original bill was opposed by representatives of organized labor, most notably the president of the International Seamen's Union of America,5 because of their 3 S. 4214, 67th Cong., 4th Sess. (1922) (S. 4214); H. R. 13522, 67th Cong., 4th Sess. (1922) (H. R. 13522). See 64 Congo Rec. 732, 797 (1922). 4 "[M]aritime transactions" was defined as "charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, seamen's wages, collisions, or any other matters in foreign or interstate commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction." S. 4214, § 1; H. R. 13522, § 1. Although there was no illustrative definition of "contract evidencing a transaction involving commerce," the draft defined "commerce" as "commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation." S. 4214, § 1; H. R. 13522, § 1. Considered together, these definitions embrace maritime and nonmaritime commercial transactions, and with one possible exception do not remotely suggest coverage of employment contracts. That exception, "seamen's wages," was eliminated by the time the bill was reintroduced in the next session of Congress, when the exclusions in § 1 were added. See Joint Hearings on S. 1005 and H. R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 2 (1924) (Joint Hearings); see also infra, at 127. These definitions were enacted as amended and remain essentially the same today. 5He stated: "[T]his bill provides for reintroduction of forced or involuntary labor, if the freeman through his necessities shall be induced to sign. Will such 127 concern that the legislation might authorize federal judicial enforcement of arbitration clauses in employment contracts and collective-bargaining agreements.6 In response to those objections, the chairman of the ABA committee that drafted the legislation emphasized at a Senate Judiciary Subcommittee hearing that "[i]t is not intended that this shall be an act referring to labor disputes, at all," but he also observed that "if your honorable committee should feel that there is any danger of that, they should add to the bill the following language, 'but nothing herein contained shall apply to seamen or any class of workers in interstate and foreign commerce.'" Hearing 9. Similarly, another supporter of the bill, then Secretary of Commerce Herbert Hoover, suggested that "[i]f objection appears to the inclusion of workers' contracts in the law's scheme, it might be well amended by stating 'but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in interstate or foreign commerce.'" Id., at 14. The legislation was reintroduced in the next session of Congress with Secretary Hoover's exclusionary language added to § 1,7 and the amendment eliminated organized labor's opposition to the proposed law. 8 contracts be signed? Esau agreed, because he was hungry. It was the desire to live that caused slavery to begin and continue. With the growing hunger in modern society, there will be but few that will be able to resist. The personal hunger of the seaman, and the hunger of the wife and children of the railroad man will surely tempt them to sign, and so with sundry other workers in 'Interstate and Foreign Commerce.''' Proceedings of the Twenty-sixth Annual Convention of the International Seamen's Union of America 203-204 (1923) (emphasis added). 6 See Hearing 9. See also Textile Workers v. Lincoln Mills of Ala., 353 8 Indeed, in a postenactment comment on the amendment, the Executive Council of the American Federation of Labor reported: "Protests from the American Federation of Labor and the International Seamen's Union brought an amendment which provided that 'nothing 128 That amendment is what the Court construes today. History amply supports the proposition that it was an uncontroversial provision that merely confirmed the fact that no one interested in the enactment of the FAA ever intended or expected that § 2 would apply to employment contracts. It is particularly ironic, therefore, that the amendment has provided the Court with its sole justification for refusing to give the text of § 2 a natural reading. Playing ostrich to the substantial history behind the amendment, see ante, at 119 ("[WJe need not assess the legislative history of the exclusion provision"), the Court reasons in a vacuum that "[i]f all contracts of employment are beyond the scope of the Act under the § 2 coverage provision, the separate exemption" in § 1 "would be pointless," ante, at 113. But contrary to the Court's suggestion, it is not "pointless" to adopt a clarifying amendment in order to eliminate opposition to a bill. Moreover, the majority's reasoning is squarely contradicted by the Court's approach in Bernhardt v. Polygraphic Co. of America, 350 U. S. 198 , 200, 201, n. 3 (1956), where the Court concluded that an employment contract did not "evidence 'a transaction involving commerce' within the meaning of § 2 of the Act," and therefore did not "reach the further question whether in any event petitioner would be included in 'any other class of workers' within the exceptions of § 1 of the Act." The irony of the Court's reading of § 2 to include contracts of employment is compounded by its cramped interpretation of the exclusion inserted into § 1. As proposed and enacted, the exclusion fully responded to the concerns of the Seamen's Union and other labor organizations that § 2 might encom- herein contained shall apply to contracts of employment of seamen, railroad employes or any other class of workers engaged in foreign or interstate commerce.' This exempted labor from the provisions of the law, although its sponsors denied there was any intention to include labor disputes." Proceedings of the Forty-fifth Annual Convention of the American Federation of Labor 52 (1925). 129 pass employment contracts by expressly exempting the labor agreements not only of "seamen" and "railroad employees," but also of "any other class of workers engaged in foreign or interstate commerce." 9 U. S. C. § 1 (emphasis added). Today, however, the Court fulfills the original-and originally unfounded-fears of organized labor by essentially rewriting the text of § 1 to exclude the employment contracts solely of "seamen, railroad employees, or any other class of [transportation] workers engaged in foreign or interstate commerce." See ante, at 119. In contrast, whether one views the legislation before or after the amendment to § 1, it is clear that it was not intended to apply to employment contracts at all. II A quarter century after the FAA was passed, many Courts of Appeals were presented with the question whether collective-bargaining agreements were "contracts of employment" for purposes of § l's exclusion. The courts split over that question, with at least the Third, Fourth, and Fifth Circuits answering in the affirmative,9 and the First and Sixth Circuits answering in the negative.lO Most of these cases neither involved employees engaged in transportation nor turned on whether the workers were so occupied. Indeed, the general assumption seemed to be, as the Sixth Circuit stated early on, that § 1 "was deliberately worded by the Congress to exclude from the [FAA] all contracts of employ- 9 Lincoln Mills of Ala. v. Textile Workers, 230 F.2d 81 , 86 (CA5 1956), rev'd on other grounds, 353 U. S. 448 (1957); Electrical Workers v. Miller Metal Products, Inc., 215 F.2d 221 , 224 (CA4 1954); Electric R. and Motor Coach Employees v. Pennsylvania Greyhound Lines, Inc., 192 F.2d 310 , 313 (CA3 1951). Apparently, two other Circuits shared this view. See Mercury Oil Refining Co. v. Oil Workers, 187 F.2d 980 , 983 (CAW 1951); Shirley-Herman Co. v. Hod Carriers, 182 F.2d 806 , 809 (CA2 1950). 10 Electrical Workers v. General Elec. Co., 233 F.2d 85 , 100 (CA1 1956), aff'd on other grounds, 353 U. S. 547 (1957); Hoover Motor Express Co., Inc. v. Teamsters, 217 F.2d 49 ,53 (CA6 1954). 130 ment of workers engaged in interstate commerce." Gatliff Coal Co. v. Cox, 142 F.2d 876, 882 (1944). The contrary view that the Court endorses today-namely, that only employees engaged in interstate transportation are excluded by § 1-was not expressed until 1954, by the Third Circuit in Tenney Engineering, Inc. v. Electrical Workers, 207 F.2d 450 , 452 (1953). And that decision, significantly, was rejected shortly thereafter by the Fourth Circuit. See Electrical Workers v. Miller Metal Products, Inc., 215 F.2d 221 , 224 (1954). The conflict among the Circuits that persisted in the 1950's thus suggests that it may be inappropriate to attach as much weight to recent Court of Appeals opinions as the Court does in this case. See ante, at 109, 110-111, 112. Even more important than the 1950's conflict, however, is the way in which this Court tried to resolve the debate. In Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448 (1957), the Court granted certiorari to consider the union's claim that, in a suit brought under § 301 of the Labor Management Relations Act, 1947 (LMRA), a federal court may enforce the arbitration clause in a collective-bargaining agreement. The union argued that such authority was implicitly granted by § 301 and explicitly granted by § 2 of the FAA. In support of the latter argument, the union asked the Court to rule either that a collective-bargaining agreement is not a "contrac[t] of employment" within the meaning of the exclusion in § 1, or that the exclusion is limited to transportation workers.11 The Court did not accept either argument, but held that § 301 itself provided the authority to compel arbitration. The fact that the Court relied on § 301 of the LMRA, a statutory provision that does not mention arbitration, rather than the FAA, a statute that expressly authorizes the enforcement of arbitration agreements, strongly implies that the Court had concluded that the FAA simply did 11 See Brief for Petitioner in Textile Workers v. Lincoln Mills of Ala., 131 not apply because § 1 exempts labor contracts. That was how Justice Frankfurter, who of course was present during the deliberations on the case, explained the disposition of the FAA issues. See 353 U. S., at 466-468 (dissenting opinion).12 Even if Justice Frankfurter's description of the majority's rejection of the applicability of the FAA does not suffice to establish Textile Workers as precedent for the meaning of § 1, his opinion unquestionably reveals his own interpretation of the Act. Moreover, given that Justice Marshall and I have also subscribed to that reading of § 1,13 and that three more Members of this Court do so in dissenting from today's decision, it follows that more Justices have endorsed that view than the one the Court now adopts. That fact, of course, does not control the disposition of this case, but it does seem to me that it is entitled to at least as much respect as the number of Court of Appeals decisions to which the Court repeatedly refers. III Times have changed. Judges in the 19th century disfavored private arbitration. The 1925 Act was intended to overcome that attitude, but a number of this Court's cases decided in the last several decades have pushed the pendu- 12 In Justice Frankfurter's words, "Naturally enough, I find rejection, though not explicit, of the availability of the Federal Arbitration Act to enforce arbitration clauses in collectivebargaining agreements in the silent treatment given that Act by the Court's opinion. If an Act that authorizes the federal courts to enforce arbitration provisions in contracts generally, but specifically denies authority to decree that remedy for 'contracts of employment,' were available, the Court would hardly spin such power out of the empty darkness of § 301. I would make this rejection explicit, recognizing that when Congress passed legislation to enable arbitration agreements to be enforced by the federal courts, it saw fit to exclude this remedy with respect to labor contracts." Textile Workers v. Lincoln Mills of Ala., 353 U. S., at 466 (dissenting opinion). 13 See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 , 36, 38-41 (1991) (dissenting opinion). 132 lum far beyond a neutral attitude and endorsed a policy that strongly favors private arbitration.14 The strength of that policy preference has been echoed in the recent Court of Appeals opinions on which the Court relies.15 In a sense, therefore, the Court is standing on its own shoulders when it points to those cases as the basis for its narrow construction of the exclusion in § 1. There is little doubt that the Court's interpretation of the Act has given it a scope far beyond the expectations of the Congress that enacted it. See, e. g., Southland Corp. v. Keating, 465 U. S. 1 , 17-21 (1984) (STEVENS, J., concurring in part and dissenting in part); id., at 21-36 (O'CONNOR, J., dissenting). It is not necessarily wrong for the Court to put its own imprint on a statute. But when its refusal to look beyond the raw statutory text enables it to disregard countervailing considerations that were expressed by Members of the enacting Congress and that remain valid today, the Court misuses its authority. As the history of the legislation indicates, the potential disparity in bargaining power between individual employees and large employers was the source of organized labor's opposition to the Act, which it feared would require courts to enforce unfair employment contracts. That same concern, as JUSTICE SOUTER points out, see post, at 138, n. 2, underlay Congress' exemption of contracts of 14 See, e. g., Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985); Southland Corp. v. Keating, 465 U. S. 1 (1984); Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1 (1983); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 (1967). 15 See, e. g., O'Neil v. Hilton Head Hosp., 115 F.3d 272 , 274 (CA4 1997) ("The circuit courts have uniformly reasoned that the strong federal policy in favor of arbitration requires a narrow reading of this section 1 exemption. Thus, those courts have limited the section 1 exemption to seamen, railroad workers, and other workers actually involved in the interstate transportation of goods"). 133 employment from mandatory arbitration. When the Court simply ignores the interest of the unrepresented employee, it skews its interpretation with its own policy preferences. This case illustrates the wisdom of an observation made by Justice Aharon Barak of the Supreme Court of Israel. He has perceptively noted that the "minimalist" judge "who holds that the purpose of the statute may be learned only from its language" has more discretion than the judge "who will seek guidance from every reliable source." Judicial Discretion 62 (Y. Kaufmann transl. 1989). A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, may produce a result that is consistent with a court's own views of how things should be, but it may also defeat the very purpose for which a provision was enacted. That is the sad result in this case. I respectfully dissent. JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. Section 2 of the Federal Arbitration Act (FAA or Act) provides for the enforceability of a written arbitration clause in "any maritime transaction or a contract evidencing a transaction involving commerce," 9 U. S. C. § 2, while § 1 exempts from the Act's coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Whatever the understanding of Congress's implied admiralty power may have been when the Act was passed in 1925, the commerce power was then thought to be far narrower than we have subsequently come to see it. As a consequence, there are two quite different ways of reading the scope of the Act's provisions. One way would be to say, for example, that the coverage provision extends only to those contracts "involving commerce" that were understood to be covered in 1925; the other would be to read it as exercising Congress's commerce jurisdiction in its modern conception in the same way it was 134 thought to implement the more limited view of the Commerce Clause in 1925. The first possibility would result in a statutory ambit frozen in time, behooving Congress to amend the statute whenever it desired to expand arbitration clause enforcement beyond its scope in 1925; the second would produce an elastic reach, based on an understanding that Congress used language intended to go as far as Congress could go, whatever that might be over time. In Allied-Bruce Terminix Coso v. Dobson, 513 U. S. 265 (1995), we decided that the elastic understanding of § 2 was the more sensible way to give effect to what Congress intended when it legislated to cover contracts "involving commerce," a phrase that we found an apt way of providing that coverage would extend to the outer constitutional limits under the Commerce Clause. The question here is whether a similarly general phrase in the § 1 exemption, referring to contracts of "any ... class of workers engaged in foreign or interstate commerce," should receive a correspondingly evolutionary reading, so as to expand the exemption for employment contracts to keep pace with the enhanced reach of the general enforceability provision. If it is tempting to answer yes, on the principle that what is sauce for the goose is sauce for the gander, it is sobering to realize that the Courts of Appeals have, albeit with some fits and starts as noted by JUSTICE STEVENS, ante, at 129-130 (dissenting opinion),l overwhelmingly rejected the evolutionary reading of § 1 accepted by the Court of Appeals in this case. See ante, at 110-111 (opinion of the Court) (citing cases). A ma- 1 Compare, e. g., Asplundh Tree Expert Co. v. Bates, 71 F.3d 592 , 600 601 (CA6 1995) (construing exclusion narrowly), with Willis v. Dean Witter Reynolds, 948 F.2d 305 ,311-312 (CA6 1991) (concluding, in dicta, that contracts of employment are generally excluded), and Gatliff Coal Co. v. Cox, 142 F.2d 876, 882 (CA6 1944) ("[T]he Arbitration Act excluded employment contracts"). See also Craft v. Campbell Soup Co., 177 F.3d 1083 , 1086, n. 6 (CA9 1999) (noting intracircuit inconsistency). 135 jority of this Court now puts its imprimatur on the majority view among the Courts of Appeals. The number of courts arrayed against reading the § 1 exemption in a way that would allow it to grow parallel to the expanding § 2 coverage reflects the fact that this minority view faces two hurdles, each textually based and apparent from the face of the Act. First, the language of coverage (a contract evidencing a transaction "involving commerce") is different from the language of the exemption (a contract of a worker "engaged in ... commerce"). Second, the "engaged in ... commerce" catchall phrase in the exemption is placed in the text following more specific exemptions for employment contracts of "seamen" and "railroad employees." The placement possibly indicates that workers who are excused from arbitrating by virtue of the catchall exclusion must resemble seamen and railroad workers, perhaps by being employees who actually handle and move goods as they are shipped interstate or internationally. Neither hurdle turns out to be a bar, however. The first objection is at best inconclusive and weaker than the grounds to reject it; the second is even more certainly inapposite, for reasons the Court itself has stated but misunderstood. I Is Congress further from a plenary exercise of the commerce power when it deals with contracts of workers "engaged in ... commerce" than with contracts detailing transactions "involving commerce?" The answer is an easy yes, insofar as the former are only the class of labor contracts, while the latter are not so limited. But that is not the point. The question is whether Congress used language indicating that it meant to cover as many contracts as the Commerce Clause allows it to reach within each class of contracts addressed. In Allied-Bruce we examined the 1925 context and held that "involving commerce" showed just such a plenary intention, even though at the time we decided that case 136 we had long understood "affecting commerce" to be the quintessential expression of an intended plenary exercise of commerce power. 513 U. S., at 273-274; see also Wickard v. Filburn, 317 U. S. 111 (1942). Again looking to the context of the time, I reach the same conclusion about the phrase "engaged in commerce" as a description of employment contracts exempted from the Act. When the Act was passed (and the commerce power was closely confined) our case law indicated that the only employment relationships subject to the commerce power were those in which workers were actually engaged in interstate commerce. Compare The Employers' Liability Cases, 207 U. S. 463, 496, 498 (1908) (suggesting that regulation of the employment relations of railroad employees "actually engaged in an operation of interstate commerce" is permissible under the Commerce Clause but that regulation of a railroad company's clerical force is not), with Hammer v. Dagenhart, 247 U. S. 251 , 271-276 (1918) (invalidating statute that had the "necessary effect" of "regulat[ing] the hours of labor of children in factories and mines within the States"). Thus, by using "engaged in" for the exclusion, Congress showed an intent to exclude to the limit of its power to cover employment contracts in the first place, and it did so just as clearly as its use of "involving commerce" showed its intent to legislate to the hilt over commercial contracts at a more general level. That conclusion is in fact borne out by the statement of the then-Secretary of Commerce, Herbert Hoover, who suggested to Congress that the § 1 exclusion language should be adopted "[i]f objection appears to the inclusion of workers' contracts in the law's scheme." Sales and Contracts to Sell in Interstate and Foreign Commerce, and Federal Commercial Arbitration: Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 14 (1923) (hereinafter Hearing on S. 4213 et al.). 137 The Court cites FTC v. Bunte Brothers, Inc., 312 U. S. 349 (1941), United States v. American Building Maintenance Industries, 422 U. S. 271 (1975), and Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186 (1974), for the proposition that "engaged in" has acquired a more restricted meaning as a term of art, immune to tampering now. Ante, at 117-118. But none of the cited cases dealt with the question here, whether exemption language is to be read as petrified when coverage language is read to grow. Nor do the cases support the Court's unwillingness to look beyond the four corners of the statute to determine whether the words in question necessarily "'have a uniform meaning whenever used by Congress,'" ante, at 118 (quoting American Building Maintenance, supra, at 277). Compare ante, at 119 ("[WJe need not assess the legislative history of the exclusion provision"), with, e. g., American Building Maintenance, supra, at 279283 (examining legislative history and agency enforcement of the Clayton Act before resolving meaning of "engaged in commerce"). The Court has no good reason, therefore, to reject a reading of "engaged in" as an expression of intent to legislate to the full extent of the commerce power over employment contracts. The statute is accordingly entitled to a coherent reading as a whole, see, e. g., King v. St. Vincent's Hospital, 502 U. S. 215 , 221 (1991), by treating the exemption for employment contracts as keeping pace with the expanded understanding of the commerce power generally. II The second hurdle is cleared more easily still, and the Court has shown how. Like some Courts of Appeals before it, the majority today finds great significance in the fact that the generally phrased exemption for the employment contracts of workers "engaged in commerce" does not stand alone, but occurs at the end of a sequence of more specific 138 exemptions: for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." Like those other courts, this Court sees the sequence as an occasion to apply the interpretive maxim of ejusdem generis, that is, when specific terms are followed by a general one, the latter is meant to cover only examples of the same sort as the preceding specifics. Here, the same sort is thought to be contracts of transportation workers, or employees of transporters, the very carriers of commerce. And that, of course, excludes respondent Adams from benefit of the exemption, for he is employed by a retail seller. Like many interpretive canons, however, ejusdem generis is a fallback, and if there are good reasons not to apply it, it is put aside. E. g., Norfolk & Western R. Co. v. Train Dispatchers, 499 U. S. 117 , 129 (1991).2 There are good reasons here. As Adams argued, it is imputing something very odd to the working of the congressional brain to say that Congress took care to bar application of the Act to the class of employment contracts it most obviously had authority to legislate about in 1925, contracts of workers employed by carriers and handlers of commerce, while covering only employees "engaged" in less obvious ways, over whose coverage litigation might be anticipated with uncertain results. It would seem to have made more sense either to cover all coverable employment contracts or to exclude them all. In fact, exclusion might well have been in order based on concern that arbitration could prove expensive or unfavorable to em- 2 What is more, the Court has repeatedly explained that the canon is triggered only by uncertain statutory text, e. g., Garcia v. United States, 469 U. S. 70 , 74-75 (1984); Gooch v. United States, 297 U. S. 124 , 128 (1936), and that it can be overcome by, inter alia, contrary legislative history, e. g., Watt v. Western Nuclear, Inc., 462 U. S. 36 , 44, n. 5 (1983). The Court today turns this practice upside down, using ejusdem generis to establish that the text is so clear that legislative history is irrelevant. Ante, at 119. 139 ployees, many of whom lack the bargaining power to resist an arbitration clause if their prospective employers insist on one.3 And excluding all employment contracts from the Act's enforcement of mandatory arbitration clauses is consistent with Secretary Hoover's suggestion that the exemption language would respond to any "objection ... to the inclusion of workers' contracts." The Court tries to deflect the anomaly of excluding only carrier contracts by suggesting that Congress used the reference to seamen and rail workers to indicate the class of employees whose employment relations it had already legislated about and would be most likely to legislate about in the future. Ante, at 120-121. This explanation, however, does nothing to eliminate the anomaly. On the contrary, the explanation tells us why Congress might have referred specifically to the sea and rail workers; but, if so, it also indicates that Congress almost certainly intended the catchall phrase to be just as broad as its terms, without any interpretive squeeze in the name of ejusdem generis. The very fact, as the Court points out, that Congress already had spoken on the subjects of sailors and rail workers and had tailored the legislation to the particular circumstances of the sea and rail carriers may well have been reason for mentioning them specifically. But making the specific references was in that case an act of special care to make sure that the FAA not be construed to modify the existing legislation so exactly aimed; that was no reason at all to limit the general FAA exclusion from applying to employment 3 Senator Walsh expressed this concern during a subcommittee hearing on the FAA: "'The trouble about the matter is that a great many of these contracts that are entered into are really not voluntar[y] things at all .... It is the same with a good many contracts of employment. A man says, "These are our terms. All right, take it or leave it." Well, there is nothing for the man to do except to sign it; and then he surrenders his right to have his case tried by the court, and has to have it tried before a tribunal in which he has no confidence at all.''' Hearing on S. 4213 et al., at 9. 140 contracts that had not been targeted with special legislation. Congress did not need to worry especially about the FAA's effect on legislation that did not exist and was not contemplated. As to workers uncovered by any specific legislation, Congress could write on a clean slate, and what it wrote was a general exclusion for employment contracts within Congress's power to regulate. The Court has understood this point before, holding that the existence of a special reason for emphasizing specific examples of a statutory class can negate any inference that an otherwise unqualified general phrase was meant to apply only to matters ejusdem generis. 4 On the Court's own reading of the history, then, the explanation for the catchall is not ejusdem generis; instead, the explanation for the specifics is ex abundanti cautela, abundance of caution, see Fort Stewart Schools v. FLRA, 495 U. S. 641, 646 (1990). Nothing stands in the way of construing the coverage and exclusion clauses together, consistently and coherently. I respectfully dissent. 4 In Watt v. Western Nuclear, Inc., supra, at 44, n. 5, the Court concluded that the ejusdem generis canon did not apply to the words "coal and other minerals" where "[t]here were special reasons for expressly addressing coal that negate any inference that the phrase 'and other minerals' was meant to reserve only substances ejusdem generis," namely that Congress wanted "to make clear that coal was reserved even though existing law treated it differently from other minerals."

Circuit City Stores, Inc. v. Adams: The Supreme Court held that a provision in an employment application requiring arbitration for all disputes is enforceable under the Federal Arbitration Act (FAA), except for transportation workers. The Court interpreted the FAA's coverage to include all contracts involving interstate commerce, including employment contracts. However, the Court also found that the FAA's exclusion for "contracts of employment" only applies to transportation workers, such as seamen and railroad employees. Therefore, the arbitration agreement in this case was valid and the employee's state-law employment discrimination claim could be compelled to arbitration.

Labor & Employment

Aetna Health Inc. v. Davila

https://supreme.justia.com/cases/federal/us/542/200/

OPINION OF THE COURT AETNA HEALTH INC. V. DAVILA 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 02-1845 AND 03-83 AETNA HEALTH INC., fka AETNA U. S. HEALTHCARE INC. and AETNA U. S. HEALTHCARE OF NORTH TEXAS INC., PETITIONER 02–1845 v. JUAN DAVILA CIGNA HEALTHCARE OF TEXAS, INC., dba CIGNA CORPORATION, PETITIONER 03–83 v. RUBY R. CALAD et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 21, 2004] Justice Thomas delivered the opinion of the Court.    In these consolidated cases, two individuals sued their respective health maintenance organizations (HMOs) for alleged failures to exercise ordinary care in the handling of coverage decisions, in violation of a duty imposed by the Texas Health Care Liability Act (THCLA), Tex. Civ. Prac. & Rem. Code Ann. §§88.001–88.003 (2004 Supp. Pamphlet). We granted certiorari to decide whether the individuals’ causes of action are completely pre-empted by the “interlocking, interrelated, and interdependent remedial scheme,” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 , 146 (1985), found at §502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891, as amended, 29 U. S. C. §1132(a) et seq . 540 U. S. 981 (2003). We hold that the causes of action are completely pre-empted and hence removable from state to federal court. The Court of Appeals, having reached a contrary conclusion, is reversed. I A    Respondent Juan Davila is a participant, and respondent Ruby Calad is a beneficiary, in ERISA-regulated employee benefit plans. Their respective plan sponsors had entered into agreements with petitioners, Aetna Health Inc. and CIGNA Healthcare of Texas, Inc., to administer the plans. Under Davila’s plan, for instance, Aetna reviews requests for coverage and pays providers, such as doctors, hospitals, and nursing homes, which perform covered services for members; under Calad’s plan sponsor’s agreement, CIGNA is responsible for plan benefits and coverage decisions.    Respondents both suffered injuries allegedly arising from Aetna’s and CIGNA’s decisions not to provide coverage for certain treatment and services recommended by respondents’ treating physicians. Davila’s treating physician prescribed Vioxx to remedy Davila’s arthritis pain, but Aetna refused to pay for it. Davila did not appeal or contest this decision, nor did he purchase Vioxx with his own resources and seek reimbursement. Instead, Davila began taking Naprosyn, from which he allegedly suffered a severe reaction that required extensive treatment and hospitalization. Calad underwent surgery, and although her treating physician recommended an extended hospital stay, a CIGNA discharge nurse determined that Calad did not meet the plan’s criteria for a continued hospital stay. CIGNA consequently denied coverage for the extended hospital stay. Calad experienced postsurgery complications forcing her to return to the hospital. She alleges that these complications would not have occurred had CIGNA approved coverage for a longer hospital stay.    Respondents brought separate suits in Texas state court against petitioners. Invoking THCLA §88.002(a), respondents argued that petitioners’ refusal to cover the requested services violated their “duty to exercise ordinary care when making health care treatment decisions,” and that these refusals “proximately caused” their injuries. Ibid. Petitioners removed the cases to Federal District Courts, arguing that respondents’ causes of action fit within the scope of, and were therefore completely pre-empted by, ERISA §502(a). The respective District Courts agreed, and declined to remand the cases to state court. Because respondents refused to amend their complaints to bring explicit ERISA claims, the District Courts dismissed the complaints with prejudice. B    Both Davila and Calad appealed the refusals to remand to state court. The United States Court of Appeals for the Fifth Circuit consolidated their cases with several others raising similar issues. The Court of Appeals recognized that state causes of action that “duplicat[e] or fal[l] within the scope of an ERISA §502(a) remedy” are completely pre-empted and hence removable to federal court. Roark v. Humana, Inc., 307 F. 3d 298, 305 (2002) (internal quotation marks and citations omitted). After examining the causes of action available under §502(a), the Court of Appeals determined that respondents’ claims could possibly fall under only two: §502(a)(1)(B), which provides a cause of action for the recovery of wrongfully denied benefits, and §502(a)(2), which allows suit against a plan fiduciary for breaches of fiduciary duty to the plan.    Analyzing §502(a)(2) first, the Court of Appeals concluded that, under Pegram v. Herdrich, 530 U. S. 211 (2000), the decisions for which petitioners were being sued were “mixed eligibility and treatment decisions” and hence were not fiduciary in nature. 307 F. 3d, at 307–308.[ Footnote 1 ] The Court of Appeals next determined that respondents’ claims did not fall within §502(a)(1)(B)’s scope. It found significant that respondents “assert tort claims,” while §502(a)(1)(B) “creates a cause of action for breach of contract,” id. , at 309, and also that respondents “are not seeking reimbursement for benefits denied them,” but rather request “tort damages” arising from “an external, statutorily imposed duty of ‘ordinary care.’ ” Ibid. From Rush Prudential HMO, Inc. v. Moran, 536 U. S. 355 (2002), the Court of Appeals derived the principle that complete pre-emption is limited to situations in which “States … duplicate the causes of action listed in ERISA §502(a),” and concluded that “[b]ecause the THCLA does not provide an action for collecting benefits,” it fell outside the scope of §502(a)(1)(B). 307 F. 3d, at 310–311. II A    Under the removal statute, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant” to federal court. 28 U. S. C. §1441(a). One category of cases of which district courts have original jurisdiction are “federal question” cases: cases “arising under the Constitution, laws, or treaties of the United States.” §1331. We face in these cases the issue whether respondents’ causes of action arise under federal law.    Ordinarily, determining whether a particular case arises under federal law turns on the “ ‘well-pleaded complaint’ ” rule. Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 , 9–10 (1983). The Court has explained that “whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute[,] … must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U. S. 74 , 75–76 (1914). In particular, the existence of a federal defense normally does not create statutory “arising under” jurisdiction, Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908), and “a defendant may not [generally] remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” Franchise Tax Bd. , supra , at 10. There is an exception, however, to the well-pleaded complaint rule. “[W]hen a federal statute wholly displaces the state-law cause of action through complete pre-emption,” the state claim can be removed. Beneficial Nat. Bank v. Anderson , 539 U. S. 1 , 8 (2003). This is so because “[w]hen the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law.” Ibid. ERISA is one of these statutes. B    Congress enacted ERISA to “protect … the interests of participants in employee benefit plans and their beneficiaries” by setting out substantive regulatory requirements for employee benefit plans and to “provid[e] for appropriate remedies, sanctions, and ready access to the Federal courts.” 29 U. S. C. §1001(b). The purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans. To this end, ERISA includes expansive pre-emption provisions, see ERISA §514, 29 U. S. C. §1144, which are intended to ensure that employee benefit plan regulation would be “exclusively a federal concern.” Alessi v. Raybestos-Manhattan, Inc. , 451 U. S. 504 , 523 (1981).    ERISA’s “comprehensive legislative scheme” includes “an integrated system of procedures for enforcement.” Russell , 473 U. S., at 147 (internal quotation marks and citation omitted). This integrated enforcement mechanism, ERISA §502(a), 29 U. S. C. §1132(a), is a distinctive feature of ERISA, and essential to accomplish Congress’ purpose of creating a comprehensive statute for the regulation of employee benefit plans. As the Court said in Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (1987): “[T]he detailed provisions of §502(a) set forth a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans. The policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA. ‘The six carefully integrated civil enforcement provisions found in §502(a) of the statute as finally enacted … provide strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ ” Id ., at 54 (quoting Russell , supra , at 146). Therefore, any state-law cause of action that duplicates, supplements, or supplants the ERISA civil enforcement remedy conflicts with the clear congressional intent to make the ERISA remedy exclusive and is therefore pre-empted. See 481 U. S., at 54–56; see also Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 143–145 (1990).    The pre-emptive force of ERISA §502(a) is still stronger. In Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 , 65–66 (1987), the Court determined that the similarity of the language used in the Labor Management Relations Act, 1947 (LMRA), and ERISA, combined with the “clear intention” of Congress “to make §502(a)(1)(B) suits brought by participants or beneficiaries federal questions for the purposes of federal court jurisdiction in like manner as §301 of the LMRA,” established that ERISA §502(a)(1)(B)’s pre-emptive force mirrored the pre-emptive force of LMRA §301. Since LMRA §301 converts state causes of action into federal ones for purposes of determining the propriety of removal, see Avco Corp. v. Machinists , 390 U. S. 557 (1968), so too does ERISA §502(a)(1)(B). Thus, the ERISA civil enforcement mechanism is one of those provisions with such “extraordinary pre-emptive power” that it “converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life , 481 U. S., at 65–66 . Hence, “causes of action within the scope of the civil enforcement provisions of §502(a) [are] removable to federal court.” Id ., at 66. III A    ERISA §502(a)(1)(B) provides: “A civil action may be brought—(1) by a participant or beneficiary— … (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U. S. C. §1132(a)(1)(B). This provision is relatively straightforward. If a participant or beneficiary believes that benefits promised to him under the terms of the plan are not provided, he can bring suit seeking provision of those benefits. A participant or beneficiary can also bring suit generically to “enforce his rights” under the plan, or to clarify any of his rights to future benefits. Any dispute over the precise terms of the plan is resolved by a court under a de novo review standard, unless the terms of the plan “giv[e] the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch , 489 U. S. 101 , 115 (1989).    It follows that if an individual brings suit complaining of a denial of coverage for medical care, where the individual is entitled to such coverage only because of the terms of an ERISA-regulated employee benefit plan, and where no legal duty (state or federal) independent of ERISA or the plan terms is violated, then the suit falls “within the scope of” ERISA §502(a)(1)(B). Metropolitan Life , supra , at 66. In other words, if an individual, at some point in time, could have brought his claim under ERISA §502(a)(1)(B), and where there is no other independent legal duty that is implicated by a defendant’s actions, then the individual’s cause of action is completely pre-empted by ERISA §502(a)(1)(B).    To determine whether respondents’ causes of action fall “within the scope” of ERISA §502(a)(1)(B), we must examine respondents’ complaints, the statute on which their claims are based (the THCLA), and the various plan documents. Davila alleges that Aetna provides health coverage under his employer’s health benefits plan. App. H to Pet. for Cert. in No. 02–1845, p. 67a, ¶ ;11. Davila also alleges that after his primary care physician prescribed Vioxx, Aetna refused to pay for it. Id ., at 67a, ¶ ;12. The only action complained of was Aetna’s refusal to approve payment for Davila’s Vioxx prescription. Further, the only relationship Aetna had with Davila was its partial administration of Davila’s employer’s benefit plan. See App. 25, 31, 39–40, 45–48, 108.    Similarly, Calad alleges that she receives, as her husband’s beneficiary under an ERISA-regulated benefit plan, health coverage from CIGNA. Id., at 184, ¶ ;17. She alleges that she was informed by CIGNA, upon admittance into a hospital for major surgery, that she would be authorized to stay for only one day. Id., at 184, ¶ ;18. She also alleges that CIGNA, acting through a discharge nurse, refused to authorize more than a single day despite the advice and recommendation of her treating physician. Id ., at 185, ¶ ;¶ ;20, 21. Calad contests only CIGNA’s decision to refuse coverage for her hospital stay. Id. , at 185, ¶ ;20. And, as in Davila’s case, the only connection between Calad and CIGNA is CIGNA’s administration of portions of Calad’s ERISA-regulated benefit plan. Id., at 219–221.    It is clear, then, that respondents complain only about denials of coverage promised under the terms of ERISA-regulated employee benefit plans. Upon the denial of benefits, respondents could have paid for the treatment themselves and then sought reimbursement through a §502(a)(1)(B) action, or sought a preliminary injunction, see Pryzbowski v. U. S. Healthcare, Inc. , 245 F. 3d 266, 274 (CA3 2001) (giving examples where federal courts have issued such preliminary injunctions).[ Footnote 2 ]    Respondents contend, however, that the complained-of actions violate legal duties that arise independently of ERISA or the terms of the employee benefit plans at issue in these cases. Both respondents brought suit specifically under the THCLA, alleging that petitioners “controlled, influenced, participated in and made decisions which affected the quality of the diagnosis, care, and treatment provided” in a manner that violated “the duty of ordinary care set forth in §§88.001 and 88.002.” App. H to Pet. for Cert. in No. 02–1845, at 69a, ¶ ;18; see also App. 187, ¶ ;28. Respondents contend that this duty of ordinary care is an independent legal duty. They analogize to this Court’s decisions interpreting LMRA §301, 29 U. S. C. §1081, with particular focus on Caterpillar Inc. v. Williams, 482 U. S. 386 (1987) (suit for breach of individual employment contract, even if defendant’s action also constituted a breach of an entirely separate collective bargaining agreement, not pre-empted by LMRA §301). Because this duty of ordinary care arises independently of any duty imposed by ERISA or the plan terms, the argument goes, any civil action to enforce this duty is not within the scope of the ERISA civil enforcement mechanism.    The duties imposed by the THCLA in the context of these cases, however, do not arise independently of ERISA or the plan terms. The THCLA does impose a duty on managed care entities to “exercise ordinary care when making health care treatment decisions,” and makes them liable for damages proximately caused by failures to abide by that duty. §88.002(a). However, if a managed care entity correctly concluded that, under the terms of the relevant plan, a particular treatment was not covered, the managed care entity’s denial of coverage would not be a proximate cause of any injuries arising from the denial. Rather, the failure of the plan itself to cover the requested treatment would be the proximate cause.[ Footnote 3 ] More significantly, the THCLA clearly states that “[t]he standards in Subsections (a) and (b) create no obligation on the part of the health insurance carrier, health maintenance organization, or other managed care entity to provide to an insured or enrollee treatment which is not covered by the health care plan of the entity.” §88.002(d). Hence, a managed care entity could not be subject to liability under the THCLA if it denied coverage for any treatment not covered by the health care plan that it was administering.    Thus, interpretation of the terms of respondents’ benefit plans forms an essential part of their THCLA claim, and THCLA liability would exist here only because of petitioners’ administration of ERISA-regulated benefit plans. Petitioners’ potential liability under the THCLA in these cases, then, derives entirely from the particular rights and obligations established by the benefit plans. So, unlike the state-law claims in Caterpillar , supra , respondents’ THCLA causes of action are not entirely independent of the federally regulated contract itself. Cf. Allis&nbhyph;Chalmers Corp. v. Lueck , 471 U. S. 202 , 217 (1985) (state-law tort of bad faith handling of insurance claim pre-empted by LMRA §301, since the “duties imposed and rights established through the state tort … derive[d] from the rights and obligations established by the contract”); Steelworkers v. Rawson, 495 U. S. 362 , 371 (1990) (state-law tort action brought due to alleged negligence in the inspection of a mine was pre-empted, as the duty to inspect the mine arose solely out of the collective-bargaining agreement).    Hence, respondents bring suit only to rectify a wrongful denial of benefits promised under ERISA-regulated plans, and do not attempt to remedy any violation of a legal duty independent of ERISA. We hold that respondents’ state causes of action fall “within the scope of” ERISA §502(a)(1)(B), Metropolitan Life , 481 U. S., at 66, and are therefore completely pre-empted by ERISA §502 and removable to federal district court.[ Footnote 4 ] B    The Court of Appeals came to a contrary conclusion for several reasons, all of them erroneous. First, the Court of Appeals found significant that respondents “assert a tort claim for tort damages” rather than “a contract claim for contract damages,” and that respondents “are not seeking reimbursement for benefits denied them.” 307 F. 3d, at 309 . But, distinguishing between pre-empted and non-pre-empted claims based on the particular label affixed to them would “elevate form over substance and allow parties to evade” the pre-emptive scope of ERISA simply “by relabeling their contract claims as claims for tortious breach of contract.” Allis-Chalmers , supra , at 211. Nor can the mere fact that the state cause of action attempts to authorize remedies beyond those authorized by ERISA §502(a) put the cause of action outside the scope of the ERISA civil enforcement mechanism. In Pilot Life , Metropolitan Life , and Ingersoll-Rand , the plaintiffs all brought state claims that were labeled either tort or tort-like. See Pilot Life , 481 U. S., at 43 (suit for, inter alia , “Tortious Breach of Contract”); Metropolitan Life , supra, at 61–62 (suit requesting damages for “mental anguish caused by breach of [the] contract”); Ingersoll-Rand , 498 U. S., at 136 (suit brought under various tort and contract theories). And, the plaintiffs in these three cases all sought remedies beyond those authorized under ERISA. See Pilot Life , supra , at 43 (compensatory and punitive damages); Metropolitan Life , supra , at 61 (mental anguish); Ingersoll-Rand , supra , at 136 (punitive damages, mental anguish). And, in all these cases, the plaintiffs’ claims were pre-empted. The limited remedies available under ERISA are an inherent part of the “careful balancing” between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans. Pilot Life , supra , at 55.    Second, the Court of Appeals believed that “the wording of [respondents’] plans is immaterial” to their claims, as “they invoke an external, statutorily imposed duty of ‘ordinary care.’ ” 307 F. 3d, at 309. But as we have already discussed, the wording of the plans is certainly material to their state causes of action, and the duty of “ordinary care” that the THCLA creates is not external to their rights under their respective plans.    Ultimately, the Court of Appeals rested its decision on one line from Rush Prudential . There, we described our holding in Ingersoll-Rand as follows: “[W]hile state law duplicated the elements of a claim available under ERISA, it converted the remedy from an equitable one under §1132(a)(3) (available exclusively in federal district courts) into a legal one for money damages (available in a state tribunal).” 536 U. S., at 379. The point of this sentence was to describe why the state cause of action in Ingersoll-Rand was pre-empted by ERISA §502(a): It was pre-empted because it attempted to convert an equitable remedy into a legal remedy. Nowhere in Rush Prudential did we suggest that the pre-emptive force of ERISA §502(a) is limited to the situation in which a state cause of action precisely duplicates a cause of action under ERISA §502(a).    Nor would it be consistent with our precedent to conclude that only strictly duplicative state causes of action are pre-empted. Frequently, in order to receive exemplary damages on a state claim, a plaintiff must prove facts beyond the bare minimum necessary to establish entitlement to an award. Cf. Allis-Chalmers, 471 U. S., at 217 (bad-faith refusal to honor a claim needed to be proved in order to recover exemplary damages). In order to recover for mental anguish, for instance, the plaintiffs in Ingersoll-Rand and Metropolitan Life would presumably have had to prove the existence of mental anguish; there is no such element in an ordinary suit brought under ERISA §502(a)(1)(B). See Ingersoll-Rand , supra , at 136; Metropolitan Life , supra , at 61. This did not save these state causes of action from pre-emption. Congress’ intent to make the ERISA civil enforcement mechanism exclusive would be undermined if state causes of action that supplement the ERISA §502(a) remedies were permitted, even if the elements of the state cause of action did not precisely duplicate the elements of an ERISA claim. C    Respondents also argue—for the first time in their brief to this Court—that the THCLA is a law that regulates insurance, and hence that ERISA §514(b)(2)(A) saves their causes of action from pre-emption (and thereby from complete pre-emption).[ Footnote 5 ] This argument is unavailing. The existence of a comprehensive remedial scheme can demonstrate an “overpowering federal policy” that determines the interpretation of a statutory provision designed to save state law from being pre-empted. Rush Prudential , 536 U. S., at 375. ERISA’s civil enforcement provision is one such example. See ibid .    As this Court stated in Pilot Life , “our understanding of [§514(b)(2)(A)] must be informed by the legislative intent concerning the civil enforcement provisions provided by ERISA §502(a), 29 U. S. C. §1132(a).” 481 U. S., at 52. The Court concluded that “[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA.” Id ., at 54. The Court then held, based on “the common-sense understanding of the saving clause, the McCarran-Ferguson Act factors defining the business of insurance, and, most importantly , the clear expression of congressional intent that ERISA’s civil enforcement scheme be exclusive, . . . that [the plaintiff’s] state law suit asserting improper processing of a claim for benefits under an ERISA-regulated plan is not saved by §514(b)(2)(A).” Id. , at 57 (emphasis added). Pilot Life ’s reasoning applies here with full force. Allowing respondents to proceed with their state-law suits would “pose an obstacle to the purposes and objectives of Congress.” Id. , at 52. As this Court has recognized in both Rush Prudential and Pilot Life , ERISA §514(b)(2)(A) must be interpreted in light of the congressional intent to create an exclusive federal remedy in ERISA §502(a). Under ordinary principles of conflict pre-emption, then, even a state law that can arguably be characterized as “regulating insurance” will be pre-empted if it provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA’s remedial scheme. IV    Respondents, their amici , and some Courts of Appeals have relied heavily upon Pegram v. Herdrich, 530 U. S. 211 (2000), in arguing that ERISA does not pre-empt or completely pre-empt state suits such as respondents’. They contend that Pegram makes it clear that causes of action such as respondents’ do not “relate to [an] employee benefit plan,” ERISA §514(a), 29 U. S. C. §1144(a), and hence are not pre-empted. See Brief for Respondents 35–38; Cicio v. Does , 321 F. 3d 83, 100–104 (CA2 2003); see also Land v. CIGNA Healthcare , 339 F. 3d 1286, 1292–1294 (CA11 2003). Pegram cannot be read so broadly. In Pegram , the plaintiff sued her physician-owned-and-operated HMO (which provided medical coverage through plaintiff’s employer pursuant to an ERISA-regulated benefit plan) and her treating physician, both for medical malpractice and for a breach of an ERISA fiduciary duty. See 530 U. S., at 215–216. The plaintiff’s treating physician was also the person charged with administering plaintiff’s benefits; it was she who decided whether certain treatments were covered. See id. , at 228. We reasoned that the physician’s “eligibility decision and the treatment decision were inextricably mixed.” Id ., at 229. We concluded that “Congress did not intend [the defendant HMO] or any other HMO to be treated as a fiduciary to the extent that it makes mixed eligibility decisions acting through its physicians.” Id ., at 231.    A benefit determination under ERISA, though, is generally a fiduciary act. See Bruch, 489 U. S., at 111–113. “At common law, fiduciary duties characteristically attach to decisions about managing assets and distributing property to beneficiaries.” Pegram , supra , at 231; cf. 2A A. Scott & W. Fratcher, Law of Trusts §§182, 183 (4th ed. 1987); G. Bogert & G. Bogert, Law of Trusts & Trustees §541 (rev. 2d ed. 1993). Hence, a benefit determination is part and parcel of the ordinary fiduciary responsibilities connected to the administration of a plan. See Varity Corp . v. Howe , 516 U. S. 489 , 512 (1996) (relevant plan fiduciaries owe a “fiduciary duty with respect to the interpretation of plan documents and the payment of claims”). The fact that a benefits determination is infused with medical judgments does not alter this result. Pegram itself recognized this principle. Pegram , in highlighting its conclusion that “mixed eligibility decisions” were not fiduciary in nature, contrasted the operation of “[t]raditional trustees administer[ing] a medical trust” and “physicians through whom HMOs act.” 530 U. S., at 231–232. A traditional medical trust is administered by “paying out money to buy medical care, whereas physicians making mixed eligibility decisions consume the money as well.” Ibid . And, significantly, the Court stated that “[p]rivate trustees do not make treatment judgments.” Id ., at 232. But a trustee managing a medical trust undoubtedly must make administrative decisions that require the exercise of medical judgment. Petitioners are not the employers of respondents’ treating physicians and are therefore in a somewhat analogous position to that of a trustee for a traditional medical trust.[ Footnote 6 ]    ERISA itself and its implementing regulations confirm this interpretation. ERISA defines a fiduciary as any person “to the extent … he has any discretionary authority or discretionary responsibility in the administration of [an employee benefit] plan.” §3(21)(A)(iii), 29 U. S. C. §1002(21)(A)(iii). When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries. See Varity Corp ., supra , at 511 (plan administrator “engages in a fiduciary act when making a discretionary determination about whether a claimant is entitled to benefits under the terms of the plan documents”). Also, ERISA §503, which specifies minimum requirements for a plan’s claim procedure, requires plans to “afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.” 29 U. S. C. §1133(2). This strongly suggests that the ultimate decisionmaker in a plan regarding an award of benefits must be a fiduciary and must be acting as a fiduciary when determining a participant’s or beneficiary’s claim. The relevant regulations also establish extensive requirements to ensure full and fair review of benefit denials. See 29 CFR §2560.503–1 (2004). These regulations, on their face, apply equally to health benefit plans and other plans, and do not draw distinctions between medical and nonmedical benefits determinations. Indeed, the regulations strongly imply that benefits determinations involving medical judgments are, just as much as any other benefits determinations, actions by plan fiduciaries. See, e.g. , §2560.503–1(h)(3)(iii). Classifying any entity with discretionary authority over benefits determinations as anything but a plan fiduciary would thus conflict with ERISA’s statutory and regulatory scheme.    Since administrators making benefits determinations, even determinations based extensively on medical judgments, are ordinarily acting as plan fiduciaries, it was essential to Pegram ’s conclusion that the decisions challenged there were truly “mixed eligibility and treatment decisions,” 530 U. S., at 229, i.e. , medical necessity decisions made by the plaintiff’s treating physician qua treating physician and qua benefits administrator. Put another way, the reasoning of Pegram “only make[s] sense where the underlying negligence also plausibly constitutes medical maltreatment by a party who can be deemed to be a treating physician or such a physician’s employer.” Cicio , 321 F. 3d, at 109 (Calabresi, J., dissenting in part). Here, however, petitioners are neither respondents’ treating physicians nor the employers of respondents’ treating physicians. Petitioners’ coverage decisions, then, are pure eligibility decisions, and Pegram is not implicated. V    We hold that respondents’ causes of action, brought to remedy only the denial of benefits under ERISA-regulated benefit plans, fall within the scope of, and are completely pre-empted by, ERISA §502(a)(1)(B), and thus removable to federal district court. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.[ Footnote 7 ] It is so ordered. Footnote 1 In this Court, petitioners do not claim or argue that respondents’ causes of action fall under ERISA §502(a)(2). Because petitioners do not argue this point, and since we can resolve these cases entirely by reference to ERISA §502(a)(1)(B), we do not address ERISA §502(a)(2). Footnote 2 Respondents also argue that the benefit due under their ERISA-regulated employee benefit plans is simply the membership in the respective HMOs, not coverage for the particular medical treatments that are delineated in the plan documents. See Brief for Respondents 28–30. Respondents did not identify this possible argument in their brief in opposition to the petitions for certiorari, and we deem it waived. See this Court’s Rule 15.2. Footnote 3 To take a clear example, if the terms of the health care plan specifically exclude from coverage the cost of an appendectomy, then any injuries caused by the refusal to cover the appendectomy are properly attributed to the terms of the plan itself, not the managed care entity that applied those terms. Footnote 4 Respondents also argue that ERISA §502(a) completely pre-empts a state cause of action only if the cause of action would be pre-empted under ERISA §514(a); respondents then argue that their causes of action do not fall under the terms of §514(a). But a state cause of action that provides an alternative remedy to those provided by the ERISA civil enforcement mechanism conflicts with Congress’ clear intent to make the ERISA mechanism exclusive. See Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 142 (1990) (holding that “[e]ven if there were no express pre-emption [under ERISA §514(a)]” of the cause of action in that case, it “would be pre-empted because it conflict[ed] directly with an ERISA cause of action”). Footnote 5 ERISA §514(b)(2)(A), 29 U. S. C. §1144(b)(2)(A), reads, as relevant: “[N]othing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” Footnote 6 Both Pilot Life and Metropolitan Life support this understanding. The plaintiffs in Pilot Life and Metropolitan Life challenged disability determinations made by the insurers of their ERISA-regulated employee benefit plans. See Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 43 (1987); Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 , 61 (1987). A disability determination often involves medical judgments. See, e.g. , ibid. (plaintiff determined not to be disabled only after a medical examination undertaken by one of his employer’s physicians). Yet, in both Pilot Life and Metropolitan Life , the Court held that the causes of action were pre-empted. Cf. Black & Decker Disability Plan v. Nord, 538 U. S. 822 (2003) (discussing “treating physician” rule in the context of disability determinations made by ERISA-regulated disability plans). Footnote 7 The United States, as amicus , suggests that some individuals in respondents’ positions could possibly receive some form of “make-whole” relief under ERISA §502(a)(3). Brief for United States as Amicus Curiae 27, n. 13. However, after their respective District Courts denied their motions for remand, respondents had the opportunity to amend their complaints to bring expressly a claim under ERISA §502(a). Respondents declined to do so; the District Courts therefore dismissed their complaints with prejudice. See App. 147–148; id. , at 298; App. B to Pet. for Cert. in No. 02–1845, pp. 34a–35a; App. B to Pet. for Cert. in No. 03–83, p. 40a. Respondents have thus chosen not to pursue any ERISA claim, including any claim arising under ERISA §502(a)(3). The scope of this provision, then, is not before us, and we do not address it. GINSBURG, J., CONCURRING AETNA HEALTH INC. V. DAVILA 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NOS. 02-1845 AND 03-83 AETNA HEALTH INC., fka AETNA U. S. HEALTHCARE INC. and AETNA U. S. HEALTHCARE OF NORTH TEXAS INC., PETITIONER 02–1845 v. JUAN DAVILA CIGNA HEALTHCARE OF TEXAS, INC., dba CIGNA CORPORATION, PETITIONER 03–83 v. RUBY R. CALAD et al. on writs of certiorari to the united states court of appeals for the fifth circuit [June 21, 2004] Justice Ginsburg , with whom Justice Breyer joins, concurring.    The Court today holds that the claims respondents asserted under Texas law are totally preempted by §502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U. S. C. §1132(a). That decision is consistent with our governing case law on ERISA’s preemptive scope. I therefore join the Court’s opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204 (2002), I also join “the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime.” DiFelice v. AETNA U. S. Healthcare , 346 F. 3d 442, 453 (CA3 2003) (Becker, J., concurring).    Because the Court has coupled an encompassing interpretation of ERISA’s preemptive force with a cramped construction of the “equitable relief” allowable under §502(a)(3), a “regulatory vacuum” exists: “[V]irtually all state law remedies are preempted but very few federal substitutes are provided.” Id ., at 456 (internal quotation marks omitted).    A series of the Court’s decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain make-whole relief. First, in Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), the Court stated, in dicta: “[T]here is a stark absence—in [ERISA] itself and in its legislative history—of any reference to an intention to authorize the recovery of extracontractual damages” for consequential injuries. Id ., at 148. Then, in Mertens v. Hewitt Associates, 508 U. S. 248 (1993), the Court held that §502(a)(3)’s term “ ‘equitable relief ’ … refer[s] to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Id ., at 256 (emphasis in original). Most recently, in Great-West , the Court ruled that, as “§502(a)(3), by its terms, only allows for equitable relief,” the provision excludes “the imposition of personal liability … for a contractual obligation to pay money.” 534 U. S., at 221 (emphasis in original).    As the array of lower court cases and opinions documents, see, e.g. , DiFelice; Cicio v. Does , 321 F. 3d 83 (CA2 2003), cert. pending sub nom. Vytra Healthcare v. Cicio , No. 03–69, fresh consideration of the availability of consequential damages under §502(a)(3) is plainly in order. See 321 F. 3d, at 106, 107 (Calabresi, J., dissenting in part) (“gaping wound” caused by the breadth of preemption and limited remedies under ERISA, as interpreted by this Court, will not be healed until the Court “start[s] over” or Congress “wipe[s] the slate clean”); DiFelice , 346 F. 3d, at 467 (“The vital thing … is that either Congress or the Court act quickly, because the current situation is plainly untenable.”); Langbein, What ERISA Means by “Equitable”: The Supreme Court’s Trail of Error in Russell , Mertens , and Great-West , 103 Colum. L. Rev. 1317, 1365 (2003) (hereinafter Langbein) (“The Supreme Court needs to … realign ERISA remedy law with the trust remedial tradition that Congress intended [when it provided in §502(a)(3) for] ‘appropriate equitable relief.’ ”).    The Government notes a potential amelioration. Recognizing that “this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary ,” the Government suggests that the Act, as currently written and interpreted, may “allo[w] at least some forms of ‘make-whole’ relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench.” Brief for United States as Amicus Curiae 27–28, n. 13 (emphases added); cf. ante , at 19 (“entity with discretionary authority over benefits determinations” is a “plan fiduciary”); Tr. of Oral Arg. 13 (“Aetna is [a fiduciary]—and CIGNA is for purposes of claims processing.”). As the Court points out, respondents here declined the opportunity to amend their complaints to state claims for relief under §502(a); the District Court, therefore, properly dismissed their suits with prejudice. See ante , at 20, n. 7. But the Government’s suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue.    “Congress … intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief.” Langbein 1319. I anticipate that Congress, or this Court, will one day so confirm.

In Aetna Health Inc. v. Davila, the Supreme Court held that state law claims against health maintenance organizations (HMOs) for alleged failures in handling coverage decisions are completely pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA). The Court found that the respondents' claims fell within the scope of ERISA's civil enforcement provision, which provides an exclusive federal remedy for such claims. As a result, the respondents' state law claims were pre-empted and could be removed to federal court.

Labor & Employment

Desert Palace. Inc. v. Costa

https://supreme.justia.com/cases/federal/us/539/90/

OCTOBER TERM, 2002 Syllabus DESERT PALACE, INC., DBA CAESARS PALACE HOTEL & CASINO v. COSTA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 02-679. Argued April 21, 2003-Decided June 9,2003 Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice for an employer ... to discriminate against any individual ... , because of ... sex." 42 U. S. C. § 2000e-2(a)(1). In Price Waterhouse v. Hopkins, 490 U. S. 228 , this Court considered whether an employment decision is made "because of" sex in a "mixed-motive" case, i. e., where both legitimate and illegitimate reasons motivated the decision. Although the Court concluded that an employer had an affirmative defense if it could prove that it would have made the same decision had gender not played a role, it was divided on the question of when the burden of proof shifts to an employer to prove the defense. JUSTICE O'CONNOR, concurring in the judgment, concluded that the burden would shift only where a disparate treatment plaintiff could show by "direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision." Id., at 276. Congress subsequently passed the Civil Rights Act of 1991 (1991 Act), which provides, among other things, that (1) an unlawful employment practice is established "when the complaining party demonstrates that ... sex ... was a motivating factor for any employment practice, even though other factors also motivated the practice," 42 U. S. C. § 2000e-2(m), and (2) if an individual proves a violation under § 2000e-2(m), the employer can avail itself of a limited affirmative defense that restricts the available remedies if it demonstrates that it would have taken the same action absent the impermissible motivating factor, § 2000e-5(g)(2)(B). Respondent, who was petitioner's only female warehouse worker and heavy equipment operator, had problems with management and her co-workers, which led to escalating disciplinary sanctions and her ultimate termination. She subsequently filed this lawsuit, asserting, inter alia, a Title VII sex discrimination claim. Based on the evidence she presented at trial, the District Court denied petitioner's motion for judgment as a matter of law and submitted the case to the jury. The District Court instructed the jury, as relevant here, that if respondent proved by a preponderance of the evidence that sex was a motivating factor in the adverse work conditions imposed on her, but petitioner's conduct was also motivated by lawful 91 reasons, she was entitled to damages unless petitioner proved by a preponderance of the evidence that it would have treated her similarly had gender played no role. Petitioner unsuccessfully objected to this instruction, claiming that respondent had not adduced "direct evidence" that sex was a motivating factor in petitioner's decision. The jury awarded respondent backpay and compensatory and punitive damages, and the District Court denied petitioner's renewed motion for judgment as a matter of law. A Ninth Circuit panel vacated and remanded, agreeing with petitioner that the District Court had erred in giving the mixed-motive instruction. The en banc court, however, reinstated the judgment, finding that the 1991 Act does not impose any special evidentiary requirement. Held: Direct evidence of discrimination is not required for a plaintiff to obtain a mixed-motive jury instruction under Title VII. The starting point for this Court's analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U. S. 249 , 253-254. Where, as here, the statute's words are unambiguous, the judicial inquiry is complete. Id., at 254. Section 2000e-2(m) unambiguously states that a plaintiff need only demonstrate that an employer used a forbidden consideration with respect to any employment practice. On its face, it does not mention that a plaintiff must make a heightened showing through direct evidence. Moreover, Congress explicitly defined "demonstrates" as to "mee[t] the burdens of production and persuasion." § 2000e-2(m). Had Congress intended to require direct evidence, it could have included language to that effect in § 2000e-2(m), as it has unequivocally done when imposing heightened proof requirements in other circumstances. See, e. g., 42 U. S. C. § 5851(b)(3)(D). Title VII's silence also suggests that this Court should not depart from the conventional rule of civil litigation generally applied in Title VII cases, which requires a plaintiff to prove his case by a preponderance of the evidence using direct or circumstantial evidence. This Court has often acknowledged the utility of circumstantial evidence in discrimination cases and has never questioned its adequacy in criminal cases, even though proof beyond a reasonable doubt is required. Finally, the use of the term "demonstrates" in other Title VII provisions tends to show that § 2000e-2(m) does not incorporate a direct evidence requirement. See e. g., § 2000e2(k)(1)(A)(i). Pp.98-102. 299 F.3d 838 , affirmed. THOMAS, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, post, p. 102. 92 Mark J. Ricciardi argued the cause for petitioner. With him on the briefs were Roger K. Quillen, Paul A. Ades, and Corbett N. Gordon. Irving L. Gornstein argued the cause for the United States as amicus curiae. On the brief were Solicitor General Olson, Assistant Attorneys General McCallum and Boyd, Deputy Solicitor General Clement, Dennis J. Dimsey, and Teresa Kwong. Robert N. Peccole argued the cause for respondent. With him on the brief was Eric Schnapper. * JUSTICE THOMAS delivered the opinion of the Court. The question before us in this case is whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (1991 Act). We hold that direct evidence is not required. I A Since 1964, Title VII has made it an "unlawful employment practice for an employer ... to discriminate against any indi- * Ann Elizabeth Reesman, Katherine Y. K. Cheung, Stephen A. Bokat, and Ellen D. Bryant filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Association of Trial Lawyers of America by Jeffrey L. Needle; for the Lawyers' Committee for Civil Rights Under Law et al. by Michael C. Subit, Barbara R. Arnwine, Thomas J. Henderson, Michael L. Foreman, Kristin M. Dadey, Thomas W Osborne, Laurie A. McCann, Daniel B. Kohrman, Melvin Radowitz, Lenora M. Lapidus, Vincent A. Eng, Judith L. Lichtman, Jocelyn C. Frye, and Dennis C. Hayes; and for Ann B. Hopkins by Douglas Ronald B. Schwartz and Jenifer Bosco filed a brief for the National Employment Lawyers Association as amicus curiae. 93 vidual ... , because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, 42 U. S. C. § 2000e2(a)(1) (emphasis added). In Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), the Court considered whether an employment decision is made "because of" sex in a "mixedmotive" case, i. e., where both legitimate and illegitimate reasons motivated the decision. The Court concluded that, under § 2000e-2(a)(1), an employer could "avoid a finding of liability ... by proving that it would have made the same decision even if it had not allowed gender to play such a role." Id., at 244; see id., at 261, n. (White, J., concurring in judgment); id., at 261 (O'CONNOR, J., concurring in judgment). The Court was divided, however, over the predicate question of when the burden of proof may be shifted to an employer to prove the affirmative defense. Justice Brennan, writing for a plurality of four Justices, would have held that "when a plaintiff ... proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account." Id., at 258 (emphasis added). The plurality did not, however, "suggest a limitation on the possible ways of proving that [gender] stereotyping played a motivating role in an employment decision." Id., at 251-252. Justice White and JUSTICE O'CONNOR both concurred in the judgment. Justice White would have held that the case was governed by Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), and would have shifted the burden to the employer only when a plaintiff "show[ed] that the unlawful motive was a substantial factor in the adverse employment action." Price Waterhouse, supra, at 259. JUSTICE O'CONNOR, like Justice White, would have required the plaintiff to show that an illegitimate consideration was a "substantial factor" in the employment decision. 490 U. S., at 276. But, under JUSTICE O'CONNOR'S view, "the burden on the issue 94 of causation" would shift to the employer only where "a disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision." Ibid. (emphasis added). Two years after Price Waterhouse, Congress passed the 1991 Act "in large part [as] a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964." Landgraf v. USI Film Products, 511 U. S. 244 , 250 (1994). In particular, § 107 of the 1991 Act, which is at issue in this case, "respond[ed]" to Price Waterhouse by "setting forth standards applicable in 'mixed motive' cases" in two new statutory provisions.1 511 U. S., at 251. The first establishes an alternative for proving that an "unlawful employment practice" has occurred: "Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U. S. C. § 2000e-2(m). The second provides that, with respect to "a claim in which an individual proves a violation under section 2000e-2(m)," the employer has a limited affirmative defense that does not absolve it of liability, but restricts the remedies available to a plaintiff. The available remedies include only declaratory relief, certain types of injunctive relief, and attorney's fees and costs. § 2000e-5(g)(2)(B).2 In order to avail itself of 1 This case does not require us to decide when, if ever, § 107 applies outside of the mixed-motive context. 2 Title 42 U. S. C. § 2000e-5(g)(2)(B) provides in full: "On a claim in which an individual proves a violation under section 2000e2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court- "(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly 95 the affirmative defense, the employer must "demonstrat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor." Ibid. Since the passage of the 1991 Act, the Courts of Appeals have divided over whether a plaintiff must prove by direct evidence that an impermissible consideration was a "motivating factor" in an adverse employment action. See 42 U. S. C. § 2000e-2(m). Relying primarily on JUSTICE O'CONNOR'S concurrence in Price Waterhouse, a number of courts have held that direct evidence is required to establish liability under §2000e-2(m). See, e. g., Mohr v. Dustrol, Inc., 306 F. 3d 636, 640-641 (CA8 2002); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572 , 580 (CA1 1999); Trotter v. Board of Trustees of Univ. of Ala., 91 F.3d 1449 , 1453-1454 (CAll 1996); Fuller v. Phipps, 67 F.3d 1137 , 1142 (CA4 1995). In the decision below, however, the Ninth Circuit concluded otherwise. See infra, at 97-98. B Petitioner Desert Palace, Inc., dba Caesar's Palace Hotel & Casino of Las Vegas, Nevada, employed respondent Catharina Costa as a warehouse worker and heavy equipment operator. Respondent was the only woman in this job and in her local Teamsters bargaining unit. Respondent experienced a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension. Petitioner finally terminated respondent after she was involved in a physical altercation in a warehouse elevator with fellow Teamsters member Herbert Gerber. Petitioner disciplined both employees because the facts surrounding the incident were in dispute, but attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and "(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A)." 96 Gerber, who had a clean disciplinary record, received only a 5-day suspension. Respondent subsequently filed this lawsuit against petitioner in the United States District Court for the District of Nevada, asserting claims of sex discrimination and sexual harassment under Title VII. The District Court dismissed the sexual harassment claim, but allowed the claim for sex discrimination to go to the jury. At trial, respondent presented evidence that (1) she was singled out for "intense 'stalking'" by one of her supervisors, (2) she received harsher discipline than men for the same conduct, (3) she was treated less favorably than men in the assignment of overtime, and (4) supervisors repeatedly "stack[ed]" her disciplinary record and "frequently used or tolerated" sex-based slurs against her. 299 F.3d 838 , 845-846 (CA9 2002). Based on this evidence, the District Court denied petitioner's motion for judgment as a matter of law, and submitted the case to the jury with instructions, two of which are relevant here. First, without objection from petitioner, the District Court instructed the jury that" '[t]he plaintiff has the burden of proving ... by a preponderance of the evidence'" that she "'suffered adverse work conditions'" and that her sex "'was a motivating factor in any such work conditions imposed upon her.'" Id., at 858. Second, the District Court gave the jury the following mixed-motive instruction: "'You have heard evidence that the defendant's treatment of the plaintiff was motivated by the plaintiff's sex and also by other lawful reasons. If you find that the plaintiff's sex was a motivating factor in the defendant's treatment of the plaintiff, the plaintiff is entitled to your verdict, even if you find that the defendant's conduct was also motivated by a lawful reason. "'However, if you find that the defendant's treatment of the plaintiff was motivated by both gender and lawful reasons, you must decide whether the plaintiff is entitled 97 to damages. The plaintiff is entitled to damages unless the defendant proves by a preponderance of the evidence that the defendant would have treated plaintiff similarly even if the plaintiff's gender had played no role in the employment decision.'" Ibid. Petitioner unsuccessfully objected to this instruction, claiming that respondent had failed to adduce "direct evidence" that sex was a motivating factor in her dismissal or in any of the other adverse employment actions taken against her. The jury rendered a verdict for respondent, awarding backpay, compensatory damages, and punitive damages. The District Court denied petitioner's renewed motion for judgment as a matter of law. The Court of Appeals initially vacated and remanded, holding that the District Court had erred in giving the mixed-motive instruction because respondent had failed to present "substantial evidence of conduct or statements by the employer directly reflecting discriminatory animus." 268 F.3d 882 , 884 (CA9 2001). In addition, the panel concluded that petitioner was entitled to judgment as a matter of law on the termination claim because the evidence was insufficient to prove that respondent was "terminated because she was a woman." Id., at 890. The Court of Appeals reinstated the District Court's judgment after rehearing the case en banco 299 F.3d 838 (CA9 2002). The en banc court saw no need to decide whether JUSTICE O'CONNOR'S concurrence in Price Waterhouse controlled because it concluded that JUSTICE O'CONNOR'S references to "direct evidence" had been "wholly abrogated" by the 1991 Act. 299 F. 3d, at 850. And, turning "to the language" of § 2000e-2(m), the court observed that the statute "imposes no special [evidentiary] requirement and does not reference 'direct evidence.'" Id., at 853. Accordingly, the court concluded that a "plaintiff ... may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic played 'a moti- 98 vating factor.'" Id., at 853-854 (footnote omitted). Based on that standard, the Court of Appeals held that respondent's evidence was sufficient to warrant a mixed-motive instruction and that a reasonable jury could have found that respondent's sex was a "motivating factor in her treatment." Id., at 859. Four judges of the en banc panel dissented, relying in large part on "the reasoning of the prior opinion of the three-judge panel." Id., at 866. We granted certiorari. 537 U. S. 1099 (2003). II This case provides us with the first opportunity to consider the effects of the 1991 Act on jury instructions in mixedmotive cases. Specifically, we must decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction under 42 U. S. C. § 2000e-2(m). Petitioner's argument on this point proceeds in three steps: (1) JUSTICE O'CONNOR'S opinion is the holding of Price Waterhouse; (2) JUSTICE O'CONNOR'S Price Waterhouse opinion requires direct evidence of discrimination before a mixed-motive instruction can be given; and (3) the 1991 Act does nothing to abrogate that holding. Like the Court of Appeals, we see no need to address which of the opinions in Price Waterhouse is controlling: the third step of petitioner's argument is flawed, primarily because it is inconsistent with the text of § 2000e-2(m). Our precedents make clear that the starting point for our analysis is the statutory text. See Connecticut Nat. Bank v. Germain, 503 U. S. 249 , 253-254 (1992). And where, as here, the words of the statute are unambiguous, the "'judicial inquiry is complete.'" Id., at 254 (quoting Rubin v. United States, 449 U. S. 424 , 430 (1981)). Section 2000e2(m) unambiguously states that a plaintiff need only "demonstrat[e]" that an employer used a forbidden consideration with respect to "any employment practice." On its face, the statute does not mention, much less require, that a plaintiff 99 make a heightened showing through direct evidence. Indeed, petitioner concedes as much. Tr. of Oral Arg. 9. Moreover, Congress explicitly defined the term "demonstrates" in the 1991 Act, leaving little doubt that no special evidentiary showing is required. Title VII defines the term " 'demonstrates' " as to "mee[t] the burdens of production and persuasion." § 2000e(m). If Congress intended the term " 'demonstrates' " to require that the "burdens of production and persuasion" be met by direct evidence or some other heightened showing, it could have made that intent clear by including language to that effect in § 2000e(m). Its failure to do so is significant, for Congress has been unequivocal when imposing heightened proof requirements in other circumstances, including in other provisions of Title 42. See, e. g., 8 U. S. C. § 1158(a)(2)(B) (stating that an asylum application may not be filed unless an alien "demonstrates by clear and convincing evidence" that the application was filed within one year of the alien's arrival in the United States); 42 U. S. C. § 5851(b)(3)(D) (providing that "[r]elief may not be ordered" against an employer in retaliation cases involving whistle blowers under the Atomic Energy Act where the employer is able to "demonstrat[e] by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" (emphasis added)); cf. Price Waterhouse, 490 U. S., at 253 (plurality opinion) ("Only rarely have we required clear and convincing proof where the action defended against seeks only conventional relief"). In addition, Title VII's silence with respect to the type of evidence required in mixed-motive cases also suggests that we should not depart from the "[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases." Ibid. That rule requires a plaintiff to prove his case "by a preponderance of the evidence," ibid., using "direct or circumstantial evidence," Postal Service Bd. of Governors v. Aikens, 460 U. S. 711 , 714, n. 3 (1983). We have often acknowledged 100 the utility of circumstantial evidence in discrimination cases. For instance, in Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 (2000), we recognized that evidence that a defendant's explanation for an employment practice is "unworthy of credence" is "one form of circumstantial evidence that is probative of intentional discrimination." Id., at 147 (emphasis added). The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Rogers v. Missouri Pacific R. Co., 352 U. S. 500 , 508, n. 17 (1957). The adequacy of circumstantial evidence also extends beyond civil cases; we have never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required. See Holland v. United States, 348 U. S. 121 , 140 (1954) (observing that, in criminal cases, circumstantial evidence is "intrinsically no different from testimonial evidence"). And juries are routinely instructed that "[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence." 1A K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions, Criminal § 12.04 (5th ed. 2000); see also 4 L. Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Federal Jury Instructions ~ 74.01 (2002) (model instruction 74-2). It is not surprising, therefore, that neither petitioner nor its amici curiae can point to any other circumstance in which we have restricted a litigant to the presentation of direct evidence absent some affirmative directive in a statute. Tr. of Oral Arg. 13. Finally, the use of the term "demonstrates" in other provisions of Title VII tends to show further that § 2000e-2(m) does not incorporate a direct evidence requirement. See, e. g., 42 U. S. C. §§ 2000e-2(k)(1)(A)(i), 2000e-5(g)(2)(B). For instance, § 2000e-5(g)(2)(B) requires an employer to "demon- 101 strat[e] that [it] would have taken the same action in the absence of the impermissible motivating factor" in order to take advantage of the partial affirmative defense. Due to the similarity in structure between that provision and § 2000e-2(m), it would be logical to assume that the term "demonstrates" would carry the same meaning with respect to both provisions. But when pressed at oral argument about whether direct evidence is required before the partial affirmative defense can be invoked, petitioner did not "agree that ... the defendant or the employer has any heightened standard" to satisfy. Tr. of Oral Arg. 7. Absent some congressional indication to the contrary, we decline to give the same term in the same Act a different meaning depending on whether the rights of the plaintiff or the defendant are at issue. See Commissioner v. Lundy, 516 U. S. 235 , 250 (1996) ("The interrelationship and close proximity of these provisions of the statute 'presents a classic case for application of the "normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning"'" (quoting Sullivan v. Stroop, 496 U. S. 478 , 484 (1990))). For the reasons stated above, we agree with the Court of Appeals that no heightened showing is required under § 2000e-2(m).3 *** In order to obtain an instruction under § 2000e-2(m), a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that "race, color, religion, sex, or national origin was a motivating factor for any employment practice." Because direct evidence of discrimination is not required in mixed-motive 3 Of course, in light of our conclusion that direct evidence is not required under § 2000e-2(m), we need not address the second question on which we granted certiorari: "What are the appropriate standards for lower courts to follow in making a direct evidence determination in 'mixed-motive' cases under Title VII?" Pet. for Cert. i. 102 cases, the Court of Appeals correctly concluded that the District Court did not abuse its discretion in giving a mixedmotive instruction to the jury. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. JUSTICE O'CONNOR, concurring. I join the Court's opinion. In my view, prior to the Civil Rights Act of 1991, the evidentiary rule we developed to shift the burden of persuasion in mixed-motive cases was appropriately applied only where a disparate treatment plaintiff "demonstrated by direct evidence that an illegitimate factor played a substantial role" in an adverse employment decision. Price Waterhouse v. Hopkins, 490 U. S. 228 , 275 (1989) (O'CONNOR, J., concurring in judgment). This showing triggered "the deterrent purpose of the statute" and permitted a reasonable factfinder to conclude that "absent further explanation, the employer's discriminatory motivation 'caused' the employment decision." Id., at 265. As the Court's opinion explains, in the Civil Rights Act of 1991, Congress codified a new evidentiary rule for mixedmotive cases arising under Title VII. Ante, at 98-10l. I therefore agree with the Court that the District Court did not abuse its discretion in giving a mixed-motive instruction to the jury.

In this case, the Supreme Court ruled that direct evidence of discrimination is not required for a plaintiff to demonstrate that their employer was motivated by discriminatory factors in a mixed-motive employment decision under Title VII of the Civil Rights Act of 1964. The Court affirmed the lower court's decision to give a mixed-motive instruction to the jury and upheld the verdict in favor of the respondent, a female warehouse worker who faced adverse work conditions and ultimate termination.

Labor & Employment

Rush Prudential HMO, Inc. v. Moran

https://supreme.justia.com/cases/federal/us/536/355/

OCTOBER TERM, 2001 Syllabus RUSH PRUDENTIAL HMO, INC. v. MORAN ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No.00-1021. Argued January 16, 2002-Decided June 20, 2002 Petitioner Rush Prudential HMO, Inc., a health maintenance organization (HMO) that contracts to provide medical services for employee welfare benefit plans covered by the Employee Retirement Income Security Act of 1974 (ERISA), denied respondent Moran's request to have surgery by an unaffiliated specialist on the ground that the procedure was not medically necessary. Moran made a written demand for an independent medical review of her claim, as guaranteed by §4-10 of Illinois's HMO Act, which further provides that "[i]n the event that the reviewing physician determines the covered service to be medically necessary," the HMO "shall provide" the service. Rush refused her demand, and Moran sued in state court to compel compliance with the Act. That court ordered the review, which found the treatment necessary, but Rush again denied the claim. While the suit was pending, Moran had the surgery and amended her complaint to seek reimbursement. Rush removed the case to federal court, arguing that the amended complaint stated a claim for ERISA benefits. The District Court treated Moran's claim as a suit under ERISA and denied it on the ground that ERISA preempted § 4-10. The Seventh Circuit reversed. It found Moran's reimbursement claim preempted by ERISA so as to place the case in federal court, but it concluded that the state Act was not preempted as a state law that "relate[s] to" an employee benefit plan, 29 U. S. C. § 1144(a), because it also "regulates insurance" under ERISA's saving clause, § 1144(b)(2)(A). Held: ERISA does not preempt the Illinois HMO Act. Pp. 364-387. (a) In deciding whether a law regulates insurance, this Court starts with a commonsense view of the matter, Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 , 740, which requires a law to "be specifically directed toward" the insurance industry, Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 50. It then tests the results of the commonsense enquiry by employing the three factors used to point to insurance laws spared from federal preemption under the McCarran-Ferguson Act. Pp. 365-375. (1) The Illinois HMO Act is directed toward the insurance industry, and thus is an insurance regulation under a commonsense view. Although an HMO provides health care in addition to insurance, nothing 356 in the saving clause requires an either-or choice between health care and insurance. Congress recognized, the year before passing ERISA, that HMOs are risk-bearing organizations subject to state insurance regulation. That conception has not changed in the intervening years. States have been adopting their own HMO enabling Acts, and at least 40, including Illinois, regulate HMOs primarily through state insurance departments. Rush cannot submerge HMOs' insurance features beneath an exclusive characterization of HMOs as health care providers. And the argument of Rush and its amici that §4-10 sweeps beyond the insurance industry, capturing organizations that provide no insurance and regulating noninsurance activities of HMOs that do, is based on unsound assumptions. Pp. 366-373. (2) The McCarran-Ferguson factors confirm this conclusion. A state law does not have to satisfy all three factors to survive preemption, and § 4-10 clearly satisfies two. The independent review requirement satisfies the factor that a provision regulate "an integral part of the policy relationship between the insurer and the insured." Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119 , 129. Illinois adds an extra review layer when there is an internal disagreement about an HMO's denial of coverage, and the reviewer both applies a medical care standard and construes policy terms. Thus, the review affects a policy relationship by translating the relationship under the HMO agreement into concrete terms of specific obligation or freedom from duty. The factor that the law be aimed at a practice "limited to entities within the insurance industry," ibid., is satisfied for many of the same reasons that the law passes the commonsense test: It regulates application of HMO contracts and provides for review of claim denials; once it is established that HMO contracts are contracts for insurance, it is clear that §4-1O does not apply to entities outside the insurance industry. pp. 373-375. (b) This Court rejects Rush's contention that, even though ERISA's saving clause ostensibly forecloses preemption, congressional intent to the contrary is so clear that it overrides the statutory provision. Pp. 375-386. (1) The Court has recognized an overpowering federal policy of exclusivity in ERISA's civil enforcement provisions located at 29 U. S. C. § 1132(a); and it has anticipated that in a conflict between congressional polices of exclusively federal remedies and the States' regulation of insurance, the state regulation would lose out if it allows remedies that Congress rejected in ERISA, Pilot Life, 481 U. S., at 54. Rush argues that § 4-10 is preempted for creating the kind of alternative remedy that this Court disparaged in Pilot Life, one that subverts congressional intent, clearly expressed through ERISA's structure and legislative history, that the federal remedy displace state causes of action. Rush 357 overstates Pilot Life's rule. The enquiry into state processes alleged to "supplemen[t] or supplan[t]" ERISA remedies, id., at 56, has, up to now, been more straightforward than it is here. Pilot Life, Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 , and Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , all involved an additional claim or remedy that ERISA did not authorize. In contrast, the review here may settle a benefit claim's fate, but the state statute does not enlarge the claim beyond the benefits available in any § 1132(a) action. And although the reviewer's determination would presumably replace the HMO's as to what is medically necessary, the ultimate relief available would still be what ERISA authorizes in a § 1132(a) suit for benefits. This case therefore resembles the claims-procedure rule that the Court sustained in UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 . Section 4-1O's procedure does not fall within Pilot Life's categorical preemption. Pp. 377-380. (2) Nor does §4-10's procedural imposition interfere unreasonably with Congress's intention to provide a uniform federal regime of "rights and obligations" under ERISA. Although this Court has recognized a limited exception from the saving clause for alternative causes of action and alternative remedies, further limits on insurance regulation preserved by ERISA are unlikely to deserve recognition. A State might provide for a type of review that would so resemble an adjudication as to fall within Pilot Life's categorical bar, but that is not the case here. Section 4-10 is significantly different from common arbitration. The independent reviewer has no free-ranging power to construe contract terms, but instead confines review to the single phrase "medically necessary." That reviewer must be a physician with credentials similar to those of the primary care physician and is expected to exercise independent medical judgment, based on medical records submitted by the parties, in deciding what medical necessity requires. This process does not resemble either contract interpretation or evidentiary litigation before a neutral arbiter as much as it looks like the practice of obtaining a second opinion. In addition, §4-10 does not clash with any deferential standard for reviewing benefit denials in judicial proceedings. ERISA itself says nothing about a standard. It simply requires plans to afford a beneficiary some mechanism for internal review of a benefit denial and provides a right to a subsequent judicial forum for a claim to recover benefits. Although certain "discretionary" plan interpretations may receive deference from a reviewing court, see Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101 , 115, nothing in ERISA requires that medical necessity decisions be "discretionary" in the first place. Pp. 381-386. 230 F.3d 959 , affirmed. 358 SOUTER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA and KENNEDY, JJ., joined, post, p. 388. John G. Roberts, Jr., argued the cause for petitioner. With him on the briefs were Clifford D. Stromberg, Craig A. Hoover, Jonathan S. Franklin, Catherine E. Stetson, James Daniel P. Albers argued the cause for respondents. With him on the brief for respondent Moran were Mark E. Rust and Stanley C. Fickle. James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, and John Philip Schmidt and Mary Ellen Margaret Welsh, Assistant Attorneys General, filed a brief for respondent State of Illinois. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, James A. Feldman, Howard M. Radzely, Allen H. Feldman, Nathaniel 1. Spiller, and Elizabeth Hopkins.* * Miguel A. Estrada and Andrew S. Tulumello filed a brief for the American Association of Health Plans, Inc., et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the State of Texas et al. by John Cornyn, Attorney General of Texas, Howard G. Baldwin, Jr., First Assistant Attorney General, Jeffrey S. Boyd, Deputy Attorney General, Julie Parsley, Solicitor General, Christopher Livingston, Assistant Attorney General, and David C. Mattax, and by the Attorneys General for their respective jurisdictions as follows: Janet Napolitano of Arizona, Bill Lockyer of California, Gregory D'Auria of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Steve Carter of Indiana, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Roy Cooper of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charles M. 359 JUSTICE SOUTER delivered the opinion of the Court. Section 4-10 of Illinois's Health Maintenance Organization Act, 215 Ill. Compo Stat., ch. 125, § 4-10 (2000), provides recipients of health coverage by such organizations with a right to independent medical review of certain denials of benefits. The issue in this case is whether the statute, as applied to health benefits provided by a health maintenance organization under contract with an employee welfare benefit plan, is preempted by the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 29 U. S. C. § 1001 et seq. We hold it is not. I Petitioner, Rush Prudential HMO, Inc., is a health maintenance organization (HMO) that contracts to provide medical services for employee welfare benefit plans covered by ERISA. Respondent Debra Moran is a beneficiary under one such plan, sponsored by her husband's employer. Rush's "Certificate of Group Coverage," issued to employees who participate in employer-sponsored plans, promises that Rush will provide them with "medically necessary" services. The terms of the certificate give Rush the "broadest possible discretion" to determine whether a medical service claimed by a Condon of South Carolina, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Randolph A. Beales of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, Hoke MacMillan of Wyoming, and Anabelle Rodriguez of Puerto Rico; for AARP et al. by Mary Ellen Signorille, Michael R. Schuster, Paula Brantner, Ronald Dean, and Judith L. Lichtman; for the American Medical Association et al. by Jack R. Bierig, Richard G. Taranto, Jon N. Ekdahl, Leonard A. Nelson, and Saul J. Morse; for the National Association of Insurance Commissioners by Jennifer R. Cook, Mary Elizabeth Senkewicz, and Marc I. Machiz; and for Texas Watch et al. by George Parker Young. Briefs of amici curiae were filed for the California Consumer Health Care Council et al. by Sharon J. Arkin; and for United Policyholders by Arnold R. Levinson. 360 beneficiary is covered under the certificate. The certificate specifies that a service is covered as "medically necessary" if Rush finds: "(a) [The service] is furnished or authorized by a Participating Doctor for the diagnosis or the treatment of a Sickness or Injury or for the maintenance of a person's good health. "(b) The prevailing opinion within the appropriate specialty of the United States medical profession is that [the service] is safe and effective for its intended use, and that its omission would adversely affect the person's medical condition. "(c) It is furnished by a provider with appropriate training, experience, staff and facilities to furnish that particular service or supply." Record, PI. Exh. A, p. 21. As the certificate explains, Rush contracts with physicians "to arrange for or provide services and supplies for medical care and treatment" of covered persons. Each covered person selects a primary care physician from those under contract to Rush, while Rush will pay for medical services by an unaffiliated physician only if the services have been "authorized" both by the primary care physician and Rush's medical director. See id., at 11, 16. In 1996, when Moran began to have pain and numbness in her right shoulder, Dr. Arthur LaMarre, her primary care physician, unsuccessfully administered "conservative" treatments such as physiotherapy. In October 1997, Dr. LaMarre recommended that Rush approve surgery by an unaffiliated specialist, Dr. Julia Terzis, who had developed an unconventional treatment for Moran's condition. Although Dr. LaMarre said that Moran would be "best served" by that procedure, Rush denied the request and, after Moran's internal appeals, affirmed the denial on the ground that the procedure was not "medically necessary." 230 F.3d 959 , 963 (CA7 361 2000). Rush instead proposed that Moran undergo standard surgery, performed by a physician affiliated with Rush. In January 1998, Moran made a written demand for an independent medical review of her claim, as guaranteed by § 4-10 of Illinois's HMO Act, 215 Ill. Compo Stat., ch. 125, § 4-10 et seq. (2000), which provides: "Each Health Maintenance Organization shall provide a mechanism for the timely review by a physician holding the same class of license as the primary care physician, who is unaffiliated with the Health Maintenance Organization, jointly selected by the patient ... , primary care physician and the Health Maintenance Organization in the event of a dispute between the primary care physician and the Health Maintenance Organization regarding the medical necessity of a covered service proposed by a primary care physician. In the event that the reviewing physician determines the covered service to be medically necessary, the Health Maintenance Organization shall provide the covered service." The Act defines a "Health Maintenance Organization" as "any organization formed under the laws of this or another state to provide or arrange for one or more health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers." Ch. 125, § 1-2.1 1 In the health care industry, the term "Health Maintenance Organization" has been defined as "[a] prepaid organized delivery system where the organization and the primary care physicians assume some financial risk for the care provided to its enrolled members .... In a pure HMO, members must obtain care from within the system if it is to be reimbursed." Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. of Health Politics, Policy and Law 75, 96 (Spring 1993) (emphasis in original). The term "Managed Care Organization" is used more broadly to refer to any number of systems combining health care delivery with financing. Id., at 97. The Illinois definition of HMO does not appear to be limited to the tradi- 362 When Rush failed to provide the independent review, Moran sued in an Illinois state court to compel compliance with the state Act. Rush removed the suit to Federal District Court, arguing that the cause of action was "completely preempted" under ERISA. 230 F. 3d, at 964. While the suit was pending, Moran had surgery by Dr. Terzis at her own expense and submitted a $94,841.27 reimbursement claim to Rush. Rush treated the claim as a renewed request for benefits and began a new inquiry to determine coverage. The three doctors consulted by Rush said the surgery had been medically unnecessary. Meanwhile, the federal court remanded the case back to state court on Moran's motion, concluding that because Moran's request for independent review under § 4-10 would not require interpretation of the terms of an ERISA plan, the claim was not "completely preempted" so as to permit removal under 28 U. S. C. § 1441.2 230 F. 3d, at 964. The state court enforced the state statute and ordered Rush to submit to review by an independent physician. The doctor selected was a reconstructive surgeon at Johns Hopkins Medical Center, Dr. A. Lee Dellon. Dr. Dellon decided that Dr. Terzis's treatment had been medically necessary, based on the definition of medical necessity in Rush's Certificate of tional usage of that term, but instead is likely to encompass a variety of different structures (although Illinois does distinguish HMOs from pure insurers by regulating "traditional" health insurance in a different portion of its insurance laws, 215 Ill. Compo Stat., ch. 5 (2000)). Except where otherwise indicated, we use the term "HMO" because that is the term used by the State and the parties; what we intend is simply to describe the structures covered by the Illinois Act. 2Jn light of our holding today that §4-10 is not preempted by ERISA, the propriety of this ruling is questionable; a suit to compel compliance with §4-10 in the context of an ERISA plan would seem to be akin to a suit to compel compliance with the terms of a plan under 29 U. S. C. § 1132(a)(3). Alternatively, the proper course may have been to bring a suit to recover benefits due, alleging that the denial was improper in the absence of compliance with §4-10. We need not resolve today which of these options is more consonant with ERISA. 363 Group Coverage, as well as his own medical judgment. Rush's medical director, however, refused to concede that the surgery had been medically necessary, and denied Moran's claim in January 1999. Moran amended her complaint in state court to seek reimbursement for the surgery as "medically necessary" under Illinois's HMO Act, and Rush again removed to federal court, arguing that Moran's amended complaint stated a claim for ERISA benefits and was thus completely preempted by ERISA's civil enforcement provisions, 29 U. S. C. § 1132(a), as construed by this Court in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987). The District Court treated Moran's claim as a suit under ERISA, and denied the claim on the ground that ERISA preempted Illinois's independent review statute.3 The Court of Appeals for the Seventh Circuit reversed. 230 F.3d 959 (2000). Although it found Moran's state-law reimbursement claim completely preempted by ERISA so as to place the case in federal court, the Seventh Circuit did not agree that the substantive provisions of Illinois's HMO Act were so preempted. The court noted that although ERISA broadly preempts any state laws that "relate to" employee benefit plans, 29 U. S. C. § 1144(a), state laws that "regulat[e] 3 No party has challenged Rush's status as defendant in this case, despite the fact that many lower courts have interpreted ERISA to permit suits under § ll32(a) only against ERISA plans, administrators, or fiduciaries. See, e. g., Everhart v. Allmerica Financial Life Ins. Co., 275 F.3d 751 , 754-756 (CA9 2001); Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186 , 187 (CAll 1997); Jass v. Prudential Health Care Plan, Inc., 88 F.3d 1482 , 1490 (CA7 1996). Without commenting on the correctness of such holdings, we assume (although the information does not appear in the record) that Rush has failed to challenge its status as defendant because it is, in fact, the plan administrator. This conclusion is buttressed by the fact that the plan's sponsor has granted Rush discretion to interpret the terms of its coverage, and by the fact that one of Rush's challenges to the Illinois statute is based on what Rush perceives as the limits that statute places on fiduciary discretion. Whatever Rush's true status may be, however, it is immaterial to our holding. 364 insurance" are saved from preemption, § 1144(b)(2)(A). The court held that the Illinois HMO Act was such a law, the independent review requirement being little different from a state-mandated contractual term of the sort this Court had held to survive ERISA preemption. See 230 F. 3d, at 972 (citing UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 , 375-376 (1999)). The Seventh Circuit rejected the contention that Illinois's independent review requirement constituted a forbidden "alternative remedy" under this Court's holding in Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 (1987), and emphasized that § 4-10 does not authorize any particular form of relief in state courts; rather, with respect to any ERISA health plan, the judgment of the independent reviewer is only enforceable in an action brought under ERISA's civil enforcement scheme, 29 U. S. C. § 1132(a). 230 Because the decision of the Court of Appeals conflicted with the Fifth Circuit's treatment of a similar provision of Texas law in Corporate Health Ins., Inc. v. Texas Dept. of Ins., 215 F.3d 526 (2000), we granted certiorari, 533 U. S. 948 (2001). We now affirm. II To "safeguar[d] ... the establishment, operation, and administration" of employee benefit plans, ERISA sets "minimum standards ... assuring the equitable character of such plans and their financial soundness," 29 U. S. C. § 1001(a), and contains an express preemption provision that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan .... " § 1144(a). A saving clause then reclaims a substantial amount of ground with its provision that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." § 1144(b)(2)(A). The "unhelpful" drafting of these antiphonal clauses, New York State Confer- 365 ence of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 , 656 (1995), occupies a substantial share of this Court's time, see, e. g., Egelhoff v. Egelhoff, 532 U. S. 141 (2001); UNUM Life Ins. Co. of America v. Ward, supra; California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316 (1997); Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). In trying to extrapolate congressional intent in a case like this, when congressional language seems simultaneously to preempt everything and hardly anything, we "have no choice" but to temper the assumption that "'the ordinary meaning ... accurately expresses the legislative purpose,'" id., at 740 (quoting Park 'N Fly v. Dollar Park & Fly, Inc., 469 U. S. 189 , 194 (1985)), with the qualification" 'that the historic police powers of the States were not [meant] to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.''' Travelers, supra, at 655 (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218 , 230 (1947)). It is beyond serious dispute that under existing precedent § 4-10 of the Illinois HMO Act "relates to" employee benefit plans within the meaning of § 1144(a). The state law bears "indirectly but substantially on all insured benefit plans," Metropolitan Life, 471 U. S., at 739, by requiring them to submit to an extra layer of review for certain benefit denials if they purchase medical coverage from any of the common types of health care organizations covered by the state law's definition of HMO. As a law that "relates to" ERISA plans under § 1144(a), § 4-10 is saved from preemption only if it also "regulates insurance" under § 1144(b)(2)(A). Rush insists that the Act is not such a law. A In Metropolitan Life, we said that in deciding whether a law "regulates insurance" under ERISA's saving clause, we start with a "common-sense view of the matter," 471 U. S., 366 at 740, under which "a law must not just have an impact on the insurance industry, but must be specifically directed toward that industry." Pilot Life Ins. Co. v. Dedeaux, supra, at 50. We then test the results of the commonsense enquiry by employing the three factors used to point to insurance laws spared from federal preemption under the McCarran-Ferguson Act, 15 U. S. C. § 1011 et seq.4 Although this is not the place to plot the exact perimeter of the saving clause, it is generally fair to think of the combined "commonsense" and McCarran-Ferguson factors as parsing the "who" and the "what": when insurers are regulated with respect to their insurance practices, the state law survives ERISA. Cf. Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205 , 211 (1979) (explaining that the "business of insurance" is not coextensive with the "business of insurers"). 1 The commonsense enquiry focuses on "primary elements of an insurance contract[, which] are the spreading and underwriting of a policyholder's risk." Ibid. The Illinois statute addresses these elements by defining "health maintenance organization" by reference to the risk that it bears. See 215 Ill. Compo Stat., ch. 125, § 1-2(9) (2000) (an HMO "provide[s] or arrange[s] for ... health care plans under a system which causes any part of the risk of health care delivery to be borne by the organization or its providers"). Rush contends that seeing an HMO as an insurer distorts the nature of an HMO, which is, after all, a health care provider, too. This, Rush argues, should determine its characterization, with the consequence that regulation of an HMO is not insurance regulation within the meaning of ERISA. 4The McCarran-Ferguson Act requires that the business of insurance be subject to state regulation, and, subject to certain exceptions, mandates that "[n]o Act of Congress shall be construed to invalidate ... any law enacted by any State for the purpose of regulating the business of insurance .... " 15 U. S. C. § 1012(b). 367 The answer to Rush is, of course, that an HMO is both: it provides health care, and it does so as an insurer. Nothing in the saving clause requires an either-or choice between health care and insurance in deciding a preemption question, and as long as providing insurance fairly accounts for the application of state law, the saving clause may apply. There is no serious question about that here, for it would ignore the whole purpose of the HMO-style of organization to conceive of HMOs (even in the traditional sense, see n. 1, supra) without their insurance element. "The defining feature of an HMO is receipt of a fixed fee for each patient enrolled under the terms of a contract to provide specified health care if needed." Pegram v. Herdrich, 530 U. S. 211 , 218 (2000). "The HMO thus assumes the financial risk of providing the benefits promised: if a participant never gets sick, the HMO keeps the money regardless, and if a participant becomes expensively ill, the HMO is responsible for the treatment .... " Id., at 218-219. The HMO design goes beyond the simple truism that all contracts are, in some sense, insurance against future fluctuations in price, R. Posner, Economic Analysis of Law 104 (4th ed. 1992), because HMOs actually underwrite and spread risk among their participants, see, e. g., R. Shouldice, Introduction to Managed Care 450-462 (1991), a feature distinctive to insurance, see, e. g., SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S. 65 , 73 (1959) (underwriting of risk is an "earmark of insurance as it has commonly been conceived of in popular understanding and usage"); Royal Drug, supra, at 214-215, n. 12 ("[U]nless there is some element of spreading risk more widely, there is no underwriting of risk"). So Congress has understood from the start, when the phrase "Health Maintenance Organization" was established and defined in the HMO Act of 1973. The Act was intended to encourage the development of HMOs as a new form of health care delivery system, see S. Rep. No. 93-129, pp. 7-9 368 (1973), and when Congress set the standards that the new health delivery organizations would have to meet to get certain federal benefits, the terms included requirements that the organizations bear and manage risk. See, e. g., Health Maintenance Organization Act of 1973, § 1301(c), 87 Stat. 916, as amended, 42 U. S. C. § 300e(c); S. Rep. No. 93-129, at 14 (explaining that HMOs necessarily bear some of the risk of providing service, and requiring that a qualifying HMO "assum[e] direct financial responsibility, without benefit of reinsurance, for care ... in excess of the first five thousand dollars per enrollee per year"). The Senate Committee Report explained that federally qualified HMOs would be required to provide "a basic package of benefits, consistent with existing health insurance patterns," id., at 10, and the very text of the Act assumed that state insurance laws would apply to HMOs; it provided that to the extent state insurance capitalization and reserve requirements were too stringent to permit the formation of HMOs, "qualified" HMOs would be exempt from such limiting regulation. See § 1311, 42 U. S. C. § 300e-10. This congressional understanding that it was promoting a novel form of insurance was made explicit in the Senate Report's reference to the practices of "health insurers to charge premium rates based upon the actual claims experience of a particular group of subscribers," thus "raising costs and diminishing the availability of health insurance for those suffering from costly illnesses," S. Rep. No. 93-129, at 29-30. The federal Act responded to this insurance practice by requiring qualifying HMOs to adopt uniform capitation rates, see § 1301(b), 42 U. S. C. § 300e(b), and it was because of that mandate "pos[ing] substantial competitive problems to newly emerging HMOs," S. Rep. No. 93-129, at 30, that Congress authorized funding subsidies, see § 1304, 42 U. S. C. § 300e-4. The Senate explanation left no doubt that it viewed an HMO as an insurer; the subsidy was justified because "the same stringent requirements do not apply to other indemnity or service benefits insurance plans." 369 S. Rep. No. 93-129, at 30. In other words, one year before it passed ERISA, Congress itself defined HMOs in part by reference to risk, set minimum standards for managing the risk, showed awareness that States regulated HMOs as insurers, and compared HMOs to "indemnity or service benefits insurance plans." This conception has not changed in the intervening years. Since passage of the federal Act, States have been adopting their own HMO enabling Acts, and today, at least 40 of them, including Illinois, regulate HMOs primarily through the States' insurance departments, see Aspen Health Law and Compliance Center, Managed Care Law Manual 31-32 (Supp. 6, Nov. 1997), although they may be treated differently from traditional insurers, owing to their additional role as health care providers,5 see, e. g., Alaska Ins. Code § 21.86.010 (2000) (health department reviews HMO before insurance commissioner grants a certificate of authority); Ohio Rev. Code Ann. § 1742.21 (West 1994) (health department may inspect HMO). Finally, this view shared by Congress and the States has passed into common understanding. HMOs (broadly defined) have "grown explosively in the past decade and [are] now the dominant form of health plan coverage for privately insured individuals." Gold & Hurley, The Role of Managed Care "Products" in Managed Care "Plans," in Contemporary Managed Care 47 (M. Gold ed. 1998). While the original form of the HMO was a single corporation employing its own physicians, the 1980's saw a variety of other types of structures develop even as traditional insurers altered their own 5We have, in a limited number of cases, found certain contracts not to be part of the "business of insurance" under McCarran- Ferguson, notwithstanding their classification as such for the purpose of state regulation. See, e. g., SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S. 65 (1959). Even then, however, we recognized that such classifications are relevant to the enquiry, because Congress, in leaving the "business of insurance" to the States, "was legislating concerning a concept which had taken on its coloration and meaning largely from state law, from state practice, from state usage." Id., at 69. 370 plans by adopting HMO-like cost-control measures. See Weiner & de Lissovoy, Razing a Tower of Babel: A Taxonomy for Managed Care and Health Insurance Plans, 18 J. of Health Politics, Policy and Law 75, 83 (Spring 1993). The dominant feature is the combination of insurer and provider, see Gold & Hurley, supra, at 47, and "an observer may be hard pressed to uncover the differences among products that bill themselves as HMOs, [preferred provider organizations], or managed care overlays to health insurance," Managed Care Law Manual, supra, at 1. Thus, virtually all commentators on the American health care system describe HMOs as a combination of insurer and provider, and observe that in recent years, traditional "indemnity" insurance has fallen out of favor. See, e. g., Weiner & de Lissovoy, supra, at 77 ("A common characteristic of the new managed care plans was the degree to which the roles of insurer and provider became integrated"); Gold, Understanding the Roots: Health Maintenance Organizations in Historical Context, in Contemporary Managed Care, supra, at 7, 8, 13; Managed Care Law Manual, supra, at 1; R. Rosenblatt, S. Law, & S. Rosenbaum, Law and the American Health Care System 552 (1997); Shouldice, Introduction to Managed Care, at 13, 20. Rush cannot checkmate common sense by trying to submerge HMOs' insurance features beneath an exclusive characterization of HMOs as providers of health care. 2 On a second tack, Rush and its amici dispute that §4-10 is aimed specifically at the insurance industry. They say the law sweeps too broadly with definitions capturing organizations that provide no insurance, and by regulating noninsurance activities of HMOs that do. Rush points out that Illinois law defines HMOs to include organizations that cause the risk of health care delivery to be borne by the organization itself, or by "its providers." 215 Ill. Compo Stat., ch. 125, § 1-2(9) (2000). In Rush's view, the reference to "its 371 providers" suggests that an organization may be an HMO under state law (and subject to § 4-10) even if it does not bear risk itself, either because it has "devolve[d]" the risk of health care delivery onto others, or because it has contracted only to provide "administrative" or other services for selffunded plans. Brief for Petitioner 38. These arguments, however, are built on unsound assumptions. Rush's first contention assumes that an HMO is no longer an insurer when it arranges to limit its exposure, as when an HMO arranges for capitated contracts to compensate its affiliated physicians with a set fee for each HMO patient regardless of the treatment provided. Under such an arrangement, Rush claims, the risk is not borne by the HMO at all. In a similar vein, Rush points out that HMOs may contract with third-party insurers to protect themselves against large claims. The problem with Rush's argument is simply that a reinsurance contract does not take the primary insurer out of the insurance business, c:t: Hartford Fire Ins. Co. v. Califor nia, 509 U. S. 764 (1993) (applying McCarran-Ferguson to a dispute involving primary insurers and reinsurers); id., at 772-773 ("[P]rimary insurers ... usually purchase insurance to cover a portion of the risk they assume from the consumer"), and capitation contracts do not relieve the HMO of its obligations to the beneficiary. The HMO is still bound to provide medical care to its members, and this is so regardless of the ability of physicians or third-party insurers to honor their contracts with the HMO. Nor do we see anything standing in the way of applying the saving clause if we assume that the general state definition of HMO would include a contractor that provides only administrative services for a self-funded plan.6 Rush points 6 ERISA's "deemer" clause provides an exception to its saving clause that prohibits States from regulating self-funded plans as insurers. See 29 U. S. C. § 1144(b)(2)(B); FMC Corp. v. Holliday, 498 U. S. 52 , 61 (1990). Therefore, Illinois's Act would not be "saved" as an insurance law to the 372 out that the general definition of HMO under Illinois law includes not only organizations that "provide" health care plans, but those that "arrange for" them to be provided, so long as "any part of the risk of health care delivery" rests upon "the organization or its providers." 215 Ill. Compo Stat., ch. 125, § 1-2(9) (2000). See Brief for Petitioner 38. Rush hypothesizes a sort of medical matchmaker, bringing together ERISA plans and medical care providers; even if the latter bear all the risks, the matchmaker would be an HMO under the Illinois definition. Rush would conclude from this that § 4-10 covers noninsurers, and so is not directed specifically to the insurance industry. Ergo, ERISA's saving clause would not apply. It is far from clear, though, that the terms of § 4-10 would even theoretically apply to the matchmaker, for the requirement that the HMO "provide" the covered service if the independent reviewer finds it medically necessary seems to assume that the HMO in question is a provider, not the mere arranger mentioned in the general definition of an HMO. Even on the most generous reading of Rush's argument, however, it boils down to the bare possibility (not the likelihood) of some overbreadth in the application of § 4-10 beyond orthodox HMOs, and there is no reason to think Congress would have meant such minimal application to noninsurers to remove a state law entirely from the category of insurance regulation saved from preemption. In sum, prior to ERISA's passage, Congress demonstrated an awareness of HMOs as risk-bearing organizations subject to state insurance regulation, the state Act defines HMOs by reference to risk bearing, HMOs have taken over much business formerly performed by traditional indemnity insurers, and they are almost universally regulated as insurers under state law. That HMOs are not traditional "indem- extent it applied to self-funded plans. This fact, however, does not bear on Rush's challenge to the law as one that is targeted toward non-riskbearing organizations. 373 nity" insurers is no matter; "we would not undertake to freeze the concepts of 'insurance' ... into the mold they fitted when these Federal Acts were passed." SEC v. Variable Annuity Life Ins. Co. of America, 359 U. S., at 71. Thus, the Illinois HMO Act is a law "directed toward" the insurance industry, and an "insurance regulation" under a "commonsense" view. B The McCarran-Ferguson factors confirm our conclusion. A law regulating insurance for McCarran- Ferguson purposes targets practices or provisions that "ha[ve] the effect of transferring or spreading a policyholder's risk; ... [that are] an integral part of the policy relationship between the insurer and the insured; and [are] limited to entities within the insurance industry." Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119 , 129 (1982). Because the factors are guideposts, a state law is not required to satisfy all three McCarran-Ferguson criteria to survive preemption, see UNUM Life Ins. Co. v. Ward, 526 U. S., at 373, and so we follow our precedent and leave open whether the review mandated here may be described as going to a practice that "spread[s] a policyholder's risk." For in any event, the second and third factors are clearly satisfied by § 4-10. It is obvious enough that the independent review requirement regulates "an integral part of the policy relationship between the insurer and the insured." Illinois adds an extra layer of review when there is internal disagreement about an HMO's denial of coverage. The reviewer applies both a standard of medical care (medical necessity) and characteristically, as in this case, construes policy terms. C£ Pe gram v. Herdrich, 530 U. S., at 228-229. The review affects the "policy relationship" between HMO and covered persons by translating the relationship under the HMO agreement into concrete terms of specific obligation or freedom from duty. Hence our repeated statements that the interpretation of insurance contracts is at the "core" of the business of 374 insurance. E. g., SEC v. National Securities, Inc., 393 U. S. 453 , 460 (1969). Rush says otherwise, citing Union Labor Life Ins. Co. v. Pireno, supra, and insisting that that case holds external review of coverage decisions to be outside the "policy relationship." But Rush misreads Pireno. We held there that an insurer's use of a "peer review" committee to gauge the necessity of particular treatments was not a practice integral to the policy relationship for the purposes of McCarranFerguson. 458 U. S., at 131-132. We emphasized, however, that the insurer's resort to peer review was simply the insurer's unilateral choice to seek advice if and when it cared to do so. The policy said nothing on the matter. The insurer's contract for advice from a third party was no concern of the insured, who was not bound by the peer review committee's recommendation any more, for that matter, than the insurer was. Thus it was not too much of an exaggeration to conclude that the practice was "a matter of indifference to the policyholder," id., at 132. Section 4-10, by contrast, is different on all counts, providing as it does a legal right to the insured, enforceable against the HMO, to obtain an authoritative determination of the HMO's medical obligations. The final factor, that the law be aimed at a "practice ... limited to entities within the insurance industry," id., at 129, is satisfied for many of the same reasons that the law passes the commonsense test. The law regulates application of HMO contracts and provides for review of claim denials; once it is established that HMO contracts are, in fact, contracts for insurance (and not merely contracts for medical care), it is clear that § 4-10 does not apply to entities outside the insurance industry (although it does not, of course, apply to all entities within it). Even if we accepted Rush's contention, rejected already, that the law regulates HMOs even when they act as pure administrators, we would still find the third factor satisfied. 375 That factor requires the targets of the law to be limited to entities within the insurance industry, and even a matchmaking HMO would fall within the insurance industry. But the implausibility of Rush's hypothesis that the pure administrator would be bound by § 4-10 obviates any need to say more under this third factor. Cf. Barnett Bank of Marion Gty., N. A. v. Nelson, 517 U. S. 25 , 39 (1996) (holding that a federal statute permitting banks to act as agents of insurance companies, although not insurers themselves, was a statute regulating the "business of insurance" for McCarran- Ferguson purposes). III Given that § 4-10 regulates insurance, ERISA's mandate that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance," 29 U. S. C. § 1144(b)(2)(A), ostensibly forecloses preemption. See Metropolitan Life, 471 U. S., at 746 ("If a state law 'regulates insurance,' ... it is not preempted"). Rush, however, does not give up. It argues for preemption anyway, emphasizing that the question is ultimately one of congressional intent, which sometimes is so clear that it overrides a statutory provision designed to save state law from being preempted. See American Telephone & Telegraph Go. v. Gentral Office Telephone, Inc., 524 U. S. 214, 227 (1998) (AT&T) (clause in Communications Act of 1934 purporting to save "the remedies now existing at common law or by statute," 47 U. S. C. §414 (1994 ed.), defeated by overriding policy of the filed-rate doctrine); Adams Express Go. v. Groninger, 226 U. S. 491 , 507 (1913) (saving clause will not sanction state laws that would nullify policy expressed in federal statute; "the act cannot be said to destroy itself" (internal quotation marks omitted)). In ERISA law, we have recognized one example of this sort of overpowering federal policy in the civil enforcement provisions, 29 U. S. C. § 1132(a), authorizing civil actions for 376 six specific types of relief.7 In Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 (1985), we said those provisions amounted to an "interlocking, interrelated, and interdependent remedial scheme," id., at 146, which Pilot Life described as "represent[ing] a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," 481 U. S., at 54. So, we have held, the civil enforcement provisions are of such extraordinarily preemptive power that they override even the "well-pleaded complaint" rule for establishing the conditions under which a cause of action may be removed to a federal forum. Metropolitan Life Ins. Co. v. Taylor, 481 U. S., at 63-64. 7Title 29 U. S. C. § 1132(a) provides in relevant part: "A civil action may be brought- "(1) by a participant or beneficiary- "(A) for the relief provided for in subsection (c) of this section [concerning requests to the administrator for information], or "(E) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; "(2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title [breach of fiduciary duty]; "(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (E) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan; "(4) by the Secretary, or by a participant, or beneficiary for appropriate relief in the case of a violation of 1025(c) of this title [information to be furnished to participants]; "(5) except as otherwise provided in subsection (b) of this section, by the Secretary (A) to enjoin any act or practice which violates any provision of this subchapter, or (E) to obtain other appropriate equitable relief (i) to redress such violation or (ii) to enforce any provision of this subchapter; "(6) by the Secretary to collect any civil penalty under paragraph (2), (4), (5), or (6) of subsection (c) of this section or under subsection (i) or (l) of this section." 377 A Although we have yet to encounter a forced choice between the congressional policies of exclusively federal remedies and the "reservation of the business of insurance to the States," Metropolitan Life, 471 U. S., at 744, n. 21, we have anticipated such a conflict, with the state insurance regulation losing out if it allows plan participants "to obtain remedies ... that Congress rejected in ERISA," Pilot Life, supra, at 54. In Pilot Life, an ERISA plan participant who had been denied benefits sued in a state court on state tort and contract claims. He sought not merely damages for breach of contract, but also damages for emotional distress and punitive damages, both of which we had held unavailable under relevant ERISA provisions. Russell, supra, at 148. We not only rejected the notion that these common law contract claims "regulat[ed] insurance," Pilot Life, 481 U. S., at 50-51, but went on to say that, regardless, Congress intended a "federal common law of rights and obligations" to develop under ERISA, id., at 56, without embellishment by independent state remedies. As in AT&T, we said the saving clause had to stop short of subverting congressional intent, clearly expressed "through the structure and legislative history[,] that the federal remedy ... displace state causes of action." 481 U. S., at 57.8 Rush says that the day has come to turn dictum into holding by declaring that the state insurance regulation, § 4-10, is preempted for creating just the kind of "alternative remedy" we disparaged in Pilot Life. As Rush sees it, the inde- 8 Rush and its amici interpret Pilot Life to have gone a step further to hold that any law that presents such a conflict with federal goals is simply not a law that "regulates insurance," however else the "insurance" test comes out. We believe the point is largely academic. As will be discussed further, even under Rush's approach, a court must still determine whether the state law at issue does, in fact, create such a conflict. Thus, we believe that it is more logical to proceed as we have done here. 378 pendent review procedure is a form of binding arbitration that allows an ERISA beneficiary to submit claims to a new decisionmaker to examine Rush's determination de novo, supplanting judicial review under the "arbitrary and capricious" standard ordinarily applied when discretionary plan interpretations are challenged. Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101 , 110-112 (1989). Rush says that the beneficiary's option falls within Pilot Life's notion of a remedy that "supplement[s] or supplant[s]" the remedies available under ERISA. 481 U. S., at 56. We think, however, that Rush overstates the rule expressed in Pilot Life. The enquiry into state processes alleged to "supplemen[t] or supplan[t]" the federal scheme by allowing beneficiaries "to obtain remedies under state law that Congress rejected in ERISA," id., at 54, has, up to now, been far more straightforward than it is here. The first case touching on the point did not involve preemption at all; it arose from an ERISA beneficiary's reliance on ERISA's own enforcement scheme to claim a private right of action for types of damages beyond those expressly provided. Russell, 473 U. S., at 145. We concluded that Congress had not intended causes of action under ERISA itself beyond those specified in § 1132(a). Id., at 148. Two years later we determined in Metropolitan Life Ins. Co. v. Taylor, supra, that Congress had so completely preempted the field of benefits law that an ostensibly state cause of action for benefits was necessarily a "creature of federal law" removable to federal court. Id., at 64 (internal quotation marks omitted). Russell and Taylor naturally led to the holding in Pilot Life that ERISA would not tolerate a diversity action seeking monetary damages for breach generally and for consequential emotional distress, neither of which Congress had authorized in § 1132(a). These monetary awards were claimed as remedies to be provided at the ultimate step of plan enforcement, and even if they could have been characterized as products of "insurance regulation," they would have signifi- 379 cantly expanded the potential scope of ultimate liability imposed upon employers by the ERISA scheme. Since Pilot Life, we have found only one other state law to "conflict" with § 1132(a) in providing a prohibited alternative remedy. In Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 (1990), we had no trouble finding that Texas's tort of wrongful discharge, turning on an employer's motivation to avoid paying pension benefits, conflicted with ERISA enforcement; while state law duplicated the elements of a claim available under ERISA, it converted the remedy from an equitable one under § 1132(a)(3) (available exclusively in federal district courts) into a legal one for money damages (available in a state tribunal). Thus, Ingersoll-Rand fit within the category of state laws Pilot Life had held to be incompatible with ERISA's enforcement scheme; the law provided a form of ultimate relief in a judicial forum that added to the judicial remedies provided by ERISA. Any such provision patently violates ERISA's policy of inducing employers to offer benefits by assuring a predictable set of liabilities, under uniform standards of primary conduct and a uniform regime of ultimate remedial orders and awards when a violation has occurred. See Pilot Life, supra, at 56 (" 'The uniformity of decision ... will help administrators ... predict the legality of proposed actions without the necessity of reference to varying state laws'" (quoting H. R. Rep. No. 93-533, p. 12 (1973))); 481 u. S., at 56 ("The expectations that a federal common law of rights and obligations under ERISAregulated plans would develop ... would make little sense if the remedies available to ERISA participants and beneficiaries under [§ 1132(a)] could be supplemented or supplanted by varying state laws"). But this case addresses a state regulatory scheme that provides no new cause of action under state law and authorizes no new form of ultimate relief. While independent review under § 4-10 may well settle the fate of a benefit claim under a particular contract, the state statute does not en- 380 large the claim beyond the benefits available in any action brought under § 1132(a). And although the reviewer's determination would presumably replace that of the HMO as to what is "medically necessary" under this contract,9 the relief ultimately available would still be what ERISA authorizes in a suit for benefits under § 1132(a).10 This case therefore does not involve the sort of additional claim or remedy exemplified in Pilot Life, Russell, and IngersollRand, but instead bears a resemblance to the claimsprocedure rule that we sustained in UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 (1999), holding that a state law barring enforcement of a policy's time limitation on submitting claims did not conflict with § 1132(a), even though the state "rule of decision," id., at 377, could mean the difference between success and failure for a beneficiary. The procedure provided by § 4-10 does not fall within Pilot Life's categorical preemption. 9The parties do not dispute that §4-10, as a matter of state law, purports to make the independent reviewer's judgment dispositive as to what is "medically necessary." We accept this interpretation of the meaning of the statute for the purposes of our opinion. 10 This is not to say that the court would have no role beyond ordering compliance with the reviewer's determination. The court would have the responsibility, for example, to fashion appropriate relief, or to determine whether other aspects of the plan (beyond the "medical necessity" of a particular treatment) affect the relative rights of the parties. Rush, for example, has chosen to guarantee medically necessary services to plan participants. For that reason, to the extent §4-10 may render the independent reviewer the final word on what is necessary, see n. 9, supra, Rush is obligated to provide the service. But insurance contracts do not have to contain such guarantees, and not all do. Some, for instance, guarantee medically necessary care, but then modify that obligation by excluding experimental procedures from coverage. See, e. g., Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192 (CA8 2002). Obviously, §4-10 does not have anything to say about whether a proposed procedure is experimental. There is also the possibility, though we do not decide the issue today, that a reviewer's judgment could be challenged as inaccurate or biased, just as the decision of a plan fiduciary might be so challenged. 381 B Rush still argues for going beyond Pilot Life, making the preemption issue here one of degree, whether the state procedural imposition interferes unreasonably with Congress's intention to provide a uniform federal regime of "rights and obligations" under ERISA. However, "[s]uch disuniformities ... are the inevitable result of the congressional decision to 'save' local insurance regulation." Metropolitan Life, 471 U. S., at 747.11 Although we have recognized a limited exception from the saving clause for alternative causes of action and alternative remedies in the sense described above, we have never indicated that there might be additional justifications for qualifying the clause's application. Rush's arguments today convince us that further limits on insurance regulation preserved by ERISA are unlikely to deserve recognition. To be sure, a State might provide for a type of "review" that would so resemble an adjudication as to fall within Pilot Life's categorical bar. Rush, and the dissent, post, at 394 (opinion of THOMAS, J.), contend that § 4-10 fills that bill by imposing an alternative scheme of arbitral adjudication at 11 Thus, we do not believe that the mere fact that state independent review laws are likely to entail different procedures will impose burdens on plan administration that would threaten the object of 29 U. S. C. § 1132(a); it is the HMO contracting with a plan, and not the plan itself, that will be subject to these regulations, and every HMO will have to establish procedures for conforming with the local laws, regardless of what this Court may think ERISA forbids. This means that there will be no special burden of compliance upon an ERISA plan beyond what the HMO has already provided for. And although the added compliance cost to the HMO may ultimately be passed on to the ERISA plan, we have said that such "indirect economic effect[s]," New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 , 659 (1995), are not enough to preempt state regulation even outside of the insurance context. We recognize, of course, that a State might enact an independent review requirement with procedures so elaborate, and burdens so onerous, that they might undermine § 1132(a). No such system is before us. 382 odds with the manifest congressional purpose to confine adjudication of disputes to the courts. It does not turn out to be this simple, however, and a closer look at the state law reveals a scheme significantly different from common arbitration as a way of construing and applying contract terms. In the classic sense, arbitration occurs when "parties in dispute choose a judge to render a final and binding decision on the merits of the controversy and on the basis of proofs presented by the parties." 1 1. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law § 2.1.1 (1995) (internal quotation marks omitted); see also Uniform Arbitration Act § 5, 7 U. L. A. 173 (1997) (discussing submission evidence and empowering arbitrator to "hear and determine the controversy upon the evidence produced"); Commercial Dispute Resolution Procedures of the American Arbitration Association ~~ R33-R35 (Sept. 2000) (discussing the taking of evidence). Arbitrators typically hold hearings at which parties may submit evidence and conduct cross-examinations, e. g., Uniform Arbitration Act § 5, and are often invested with many powers over the dispute and the parties, including the power to subpoena witnesses and administer oaths, e. g., Federal Arbitration Act, 9 U. S. C. § 7; 28 U. S. C. § 653; Uniform Arbitration Act § 7, 7 U. L. A., at 199; Cal. Civ. Proc. Code Ann. §§ 1282.6, 1282.8 (West 1982). Section 4-10 does resemble an arbitration provision, then, to the extent that the independent reviewer considers disputes about the meaning of the HMO contract 12 and receives "evidence" in the form of medical records, statements from 12 Nothing in the Act states that the reviewer should refer to the definitions of medical necessity contained in the contract, but the reviewer did, in this case, refer to that definition. Thus, we will assume that some degree of contract interpretation is required under the Act. Were no interpretation required, there would be a real question as to whether §4-10 is properly characterized as a species of mandated-benefit law of the type we approved in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985). 383 physicians, and the like. But this is as far as the resemblance to arbitration goes, for the other features of review under § 4-10 give the proceeding a different character, one not at all at odds with the policy behind § 1132(a). The Act does not give the independent reviewer a free-ranging power to construe contract terms, but instead, confines review to a single term: the phrase "medical necessity," used to define the services covered under the contract. This limitation, in turn, implicates a feature of HMO benefit determinations that we described in Pegram v. Herdrich, 530 U. S. 211 (2000). We explained that when an HMO guarantees medically necessary care, determinations of coverage "cannot be untangled from physicians' judgments about reasonable medical treatment." Id., at 229. This is just how the Illinois Act operates; the independent examiner must be a physician with credentials similar to those of the primary care physician, 215 Ill. Compo Stat., ch. 125, § 4-10 (2000), and is expected to exercise independent medical judgment in deciding what medical necessity requires. Accordingly, the reviewer in this case did not hold the kind of conventional evidentiary hearing common in arbitration, but simply received medical records submitted by the parties, and ultimately came to a professional judgment of his own. Tr. of Oral Arg. 30-32. Once this process is set in motion, it does not resemble either contract interpretation or evidentiary litigation before a neutral arbiter, as much as it looks like a practice (having nothing to do with arbitration) of obtaining another medical opinion. The reference to an independent reviewer is similar to the submission to a second physician, which many health insurers are required by law to provide before denying coverage.13 The practice of obtaining a second opinion, however, is far removed from any notion of an enforcement scheme, and 13 See, e. g., Cal. Ins. Code Ann. § 10123.68 (West Supp. 2002); Ind. Code §27-13-37-5 (1999); N. J. Stat. Ann. § 17B:26-2.3 (1996); Okla. Admin. Code § 365:10-5-4 (1996); R. I. Gen. Laws § 27-39-2 (1998). 384 once §4-10 is seen as something akin to a mandate for second-opinion practice in order to ensure sound medical judgments, the preemption argument that arbitration under § 4-10 supplants judicial enforcement runs out of steam. Next, Rush argues that §4-10 clashes with a substantive rule intended to be preserved by the system of uniform enforcement, stressing a feature of judicial review highly prized by benefit plans: a deferential standard for reviewing benefit denials. Whereas Firestone Tire & Rubber Co. v. Bruch, 489 U. S., at 115, recognized that an ERISA plan could be designed to grant "discretion" to a plan fiduciary, deserving deference from a court reviewing a discretionary judgment, § 4-10 provides that when a plan purchases medical services and insurance from an HMO, benefit denials are subject to apparently de novo review. If a plan should continue to balk at providing a service the reviewer has found medically necessary, the reviewer's determination could carry great weight in a subsequent suit for benefits under § 1132(a),14 depriving the plan of the judicial deference a fiduciary's medical judgment might have obtained if judicial review of the plan's decision had been immediate.15 Again, however, the significance of §4-10 is not wholly captured by Rush's argument, which requires some perspec- 14 See n. 10, supra. 15 An issue implicated by this case but requiring no resolution is the degree to which a plan provision for unfettered discretion in benefit determinations guarantees truly deferential review. In Firestone Tire itself, we noted that review for abuse of discretion would home in on any conflict of interest on the plan fiduciary's part, if a conflict was plausibly raised. That last observation was underscored only two Terms ago in Pegram v. Herdrich, 530 U. S. 211 (2000), when we again noted the potential for conflict when an HMO makes decisions about appropriate treatment, see id., at 219-220. It is a fair question just how deferential the review can be when the judicial eye is peeled for conflict of interest. Moreover, as we explained in Pegram, "it is at least questionable whether Congress would have had mixed eligibility decisions in mind when it provided that decisions administering a plan were fiduciary in nature." Id., at 232. Our decision today does not require us to resolve these questions. 385 tive for evaluation. First, in determining whether state procedural requirements deprive plan administrators of any right to a uniform standard of review, it is worth recalling that ERISA itself provides nothing about the standard. It simply requires plans to afford a beneficiary some mechanism for internal review of a benefit denial, 29 U. S. C. § 1133(2), and provides a right to a subsequent judicial forum for a claim to recover benefits, § 1132(a)(1)(B). Whatever the standards for reviewing benefit denials may be, they cannot conflict with anything in the text of the statute, which we have read to require a uniform judicial regime of categories of relief and standards of primary conduct, not a uniformly lenient regime of reviewing benefit determinations. See Pilot Life, 481 U. S., at 56.16 Not only is there no ERISA provision directly providing a lenient standard for judicial review of benefit denials, but there is no requirement necessarily entailing such an effect even indirectly. When this Court dealt with the review standards on which the statute was silent, we held that a general or default rule of de novo review could be replaced 16 Rush presents the alternative argument that § 4-10 is preempted as conflicting with ERISA's requirement that a benefit denial be reviewed by a named fiduciary, 29 U. S. C. § 1133(2). Rush contends that §4-10 interferes with fiduciary discretion by forcing the provision of benefits over a fiduciary's objection. Happily, we need not decide today whether § 1133(2) carries the same preemptive force of § 1132(a) such that it overrides even the express saving clause for insurance regulation, because we see no conflict. Section 1133 merely requires that plans provide internal appeals of benefit denials; § 4-10 plays no role in this process, instead providing for extra review once the internal process is complete. Nor is there any conflict in the removal of fiduciary "discretion"; as described below, ERISA does not require that such decisions be discretionary, and insurance regulation is not preempted merely because it conflicts with substantive plan terms. See UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 , 376 (1999) ("Under [Petitioner's] interpretation ... insurers could displace any state regulation simply by inserting a contrary term in plan documents. This interpretation would virtually rea[d] the saving clause out of ERISA" (internal quotation marks and citations omitted)). 386 by deferential review if the ERISA plan itself provided that the plan's benefit determinations were matters of high or unfettered discretion, see Firestone Tire, supra, at 115. Nothing in ERISA, however, requires that these kinds of decisions be so "discretionary" in the first place; whether they are is simply a matter of plan design or the drafting of an HMO contract. In this respect, then, §4-10 prohibits designing an insurance contract so as to accord unfettered discretion to the insurer to interpret the contract's terms. As such, it does not implicate ERISA's enforcement scheme at all, and is no different from the types of substantive state regulation of insurance contracts we have in the past permitted to survive preemption, such as mandated-benefit statutes and statutes prohibiting the denial of claims solely on the ground of untimeliness.17 See Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985); UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 (1999). *** In sum, § 4-10 imposes no new obligation or remedy like the causes of action considered in Russell, Pilot Life, and Ingersoll-Rand. Even in its formal guise, the State Act bears a closer resemblance to second-opinion requirements than to arbitration schemes. Deferential review in the HMO context is not a settled given; §4-10 operates before the stage of judicial review; the independent reviewer's de novo examination of the benefit claim mirrors the general or 17We do not mean to imply that States are free to create other forms of binding arbitration to provide de novo review of any terms of insurance contracts; as discussed above, our decision rests in part on our recognition that the disuniformity Congress hoped to avoid is not implicated by decisions that are so heavily imbued with expert medical judgments. Rather, we hold that the feature of § 4-10 that provides a different standard of review with respect to mixed eligibility decisions from what would be available in court is not enough to create a conflict that undermines congressional policy in favor of uniformity of remedies. 387 default rule we have ourselves recognized; and its effect is no greater than that of mandated-benefit regulation. In deciding what to make of these facts and conclusions, it helps to go back to where we started and recall the ways States regulate insurance in looking out for the welfare of their citizens. Illinois has chosen to regulate insurance as one way to regulate the practice of medicine, which we have previously held to be permissible under ERISA, see Metropolitan Life, 471 U. S., at 741. While the statute designed to do this undeniably eliminates whatever may have remained of a plan sponsor's option to minimize scrutiny of benefit denials, this effect of eliminating an insurer's autonomy to guarantee terms congenial to its own interests is the stuff of garden variety insurance regulation through the imposition of standard policy terms. See id., at 742 ("[S]tate laws regulating the substantive terms of insurance contracts were commonplace well before the mid-70's"). It is therefore hard to imagine a reservation of state power to regulate insurance that would not be meant to cover restrictions of the insurer's advantage in this kind of way. And any lingering doubt about the reasonableness of § 4-10 in affecting the application of § 1132(a) may be put to rest by recalling that regulating insurance tied to what is medically necessary is probably inseparable from enforcing the quintessentially state-law standards of reasonable medical care. See Pe gram v. Herdrich, 530 U. S., at 236. "[I]n the field of health care, a subject of traditional state regulation, there is no ERISA preemption without clear manifestation of congressional purpose." Id., at 237. To the extent that benefit litigation in some federal courts may have to account for the effects of § 4-10, it would be an exaggeration to hold that the objectives of § 1132(a) are undermined. The saving clause is entitled to prevail here, and we affirm the judgment. It is so ordered. 388 JUSTICE THOMAS, with whom THE CHIEF JUSTICE, JusTICE SCALIA, and JUSTICE KENNEDY join, dissenting. This Court has repeatedly recognized that ERISA's civil enforcement provision, § 502 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1132, provides the exclusive vehicle for actions asserting a claim for benefits under health plans governed by ERISA, and therefore that state laws that create additional remedies are preempted. See, e. g., Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 52 (1987); Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134 , 146-147 (1985). Such exclusivity of remedies is necessary to further Congress' interest in establishing a uniform federal law of employee benefits so that employers are encouraged to provide benefits to their employees: "To require plan providers to design their programs in an environment of differing state regulations would complicate the administration of nationwide plans, producing inefficiencies that employers might offset with decreased benefits." FMC Corp. v. Holliday, 498 U. S. 52 , 60 (1990). Of course, the "expectations that a federal common law of rights and obligations under ERISA-regulated plans would develop ... would make little sense if the remedies available to ERISA participants and beneficiaries under § 502(a) could be supplemented or supplanted by varying state laws." Pilot Life, supra, at 56. Therefore, as the Court concedes, see ante, at 377, even a state law that "regulates insurance" may be pre-empted if it supplements the remedies provided by ERISA, despite ERISA's saving clause, § 514(b)(2)(A), 29 U. S. C. § 1144(b)(2)(A). See Silkwood v. Kerr-McGee Corp., 464 U. S. 238 , 248 (1984) (noting that state laws that stand as an obstacle to the accomplishment of the full purposes and objectives of Congress are pre-empted).l Today, however, 1 I would assume without deciding that 215 Ill. Compo Stat., ch. 125, §4-10 (2000) is a law that "regulates insurance." We can begin and end the pre-emption analysis by asking if § 4-10 conflicts with the provisions 389 the Court takes the unprecedented step of allowing respondent Debra Moran to short circuit ERISA's remedial scheme by allowing her claim for benefits to be determined in the first instance through an arbitral-like procedure provided under Illinois law, and by a decisionmaker other than a court. See 215 Ill. Compo Stat., ch. 125, § 4-10 (2000). This decision not only conflicts with our precedents, it also eviscerates the uniformity of ERISA remedies Congress deemed integral to the "careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans." Pilot Life, supra, at 54. I would reverse the Court of Appeals' judgment and remand for a determination whether Moran was entitled to reimbursement absent the independent review conducted under § 4-10. I From the facts of this case one can readily understand why Moran sought recourse under § 4-10. Moran is covered by a medical benefits plan sponsored by her husband's employer and governed by ERISA. Petitioner Rush Prudential HMO, Inc., is the employer's health maintenance organization (HMO) provider for the plan. Petitioner's Member Certificate of Coverage (Certificate) details the scope of coverage under the plan and provides petitioner with "the broadest possible discretion" to interpret the terms of the plan and to determine participants' entitlement to benefits. 1 Record, Exh. A, p. 8. The Certificate specifically excludes from coverage services that are not "medically necessary." Id., at 21. As the Court describes, ante, at 360-362, Moran underwent a nonstandard surgical procedure.2 Prior to of ERISA or operates to frustrate its objects. See, e. g., Boggs v. Boggs, 520 U. S. 833 , 841 (1997). 2 While the Court characterizes it as an "unconventional treatment," the Court of Appeals described this surgery more clinically as "rib resection, extensive scale-nectomy," and "microneurolysis of the lower roots of the brachial plexus under intraoperative microscopic magnification." 230 390 Moran's surgery, which was performed by an unaffiliated doctor, petitioner denied coverage for the procedure on at least three separate occasions, concluding that this surgery was not "medically necessary." For the same reason, petitioner denied Moran's request for postsurgery reimbursement in the amount of $94,841.27. Before finally determining that the specific treatment sought by Moran was not "medically necessary," petitioner consulted no fewer than six doctors, reviewed Moran's medical records, and consulted peer-reviewed medicalliterature.3 In the course of its review, petitioner informed Moran that "there is no prevailing opinion within the appropriate specialty of the United States medical profession that the procedure proposed [by Moran] is safe and effective for its intended use and that the omission of the procedure would adversely affect [her] medical condition." 1 Record, Exh. E, at 2. Petitioner did agree to cover the standard treatment for Moran's ailment, see n. 2, supra; n. 4, infra, concluding that peer-reviewed literature "demonstrates that [the standard surgery] is effective therapy in the treatment of [Moran's condition]." 1 Record, Exh. E, at 3. Moran, however, was not satisfied with this option. After exhausting the plan's internal review mechanism, Moran F. 3d 959, 963 (CA72000). The standard procedure for Moran's condition, as described by the Court of Appeals, involves (like the nonstandard surgery) rib resection with scale-nectomy, but it does not include "microneurolysis of the brachial plexus," which is the procedure Moran wanted and her primary care physician recommended. See id., at 963-964. In any event, no one disputes that the procedure was not the standard surgical procedure for Moran's condition or that the Certificate covers even nonstandard surgery if it is "medically necessary." 3 Petitioner thus appears to have complied with § 503 of ERISA, which requires every employee benefit plan to "provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied," and to "afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim." 29 U. S. C. § 1133. 391 chose to bypass the relief provided by ERISA. She invoked § 4-10 of the Illinois HMO Act, which requires HMOs to provide a mechanism for review by an independent physician when the patient's primary care physician and HMO disagree about the medical necessity of a treatment proposed by the primary care physician. See 215 Ill. Compo Stat., ch. 125, § 4-10 (2000). While Moran's primary care physician acknowledged that petitioner's affiliated surgeons had not recommended the unconventional surgery and that he was not "an expert in this or any other area of surgery," 1 Record, Exh. C, he nonetheless opined, without explanation, that Moran would be "best served" by having that surgery, ibid. Dr. A. Lee Dellon, an unaffiliated physician who served as the independent medical reviewer, concluded that the surgery for which petitioner denied coverage "was appropriate," that it was "the same type of surgery" he would have done, and that Moran "had all of the indications and therefore the medical necessity to carry out" the nonstandard surgery. Appellant's Separate App. (CA7), pp. A42-A43.4 Under § 410, Dr. Dellon's determination conclusively established Moran's right to benefits under Illinois law. See 215 Ill. Compo Stat., ch. 125, § 4-10 ("In the event that the reviewing physician determines the covered service to be medically necessary, the [HMO] shall provide the covered service" (emphasis added)). 230 F.3d 959 , 972-973 (CA7 2000). Nevertheless, petitioner again denied benefits, steadfastly maintaining that the unconventional surgery was not medically necessary. While the Court of Appeals recharacterized Moran's claim for reimbursement under § 4-10 as a claim for benefits under ERISA § 502(a)(1)(B), it reversed the judg- 4 Even Dr. Dellon acknowledged, however, both that "[t]here is no particular research study" to determine whether failure to perform the nonstandard surgery would adversely affect Moran's medical condition and that the most common operation for Moran's condition in the United States was the standard surgery that petitioner had agreed to cover. Appellant's Separate App. (CA7), p. A43. 392 ment of the District Court based solely on Dr. Dellon's judgment that the surgery was "medically necessary." II Section 514(a)'s broad language provides that ERISA "shall supersede any and all State laws insofar as they ... relate to any employee benefit plan," except as provided in § 514(b). 29 U. S. C. § 1144(a). This language demonstrates "Congress's intent to establish the regulation of employee welfare benefit plans 'as exclusively a federal concern.'" New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645 , 656 (1995) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U. S. 504 , 523 (1981)). It was intended to "ensure that plans and plan sponsors would be subject to a uniform body of benefits law" so as to "minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government" and to prevent "the potential for conflict in substantive law ... requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction." Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 142 (1990). See also Egelhoff v. Egelhoff, 532 U. S. 141 , 148 (2001). To be sure, this broad goal of uniformity is in some tension with the so-called "saving clause," which provides that ERISA does not "exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." § 514(b)(2)(A) of ERISA, 29 U. S. C. § 1144(b)(2)(A). As the Court has suggested on more than one occasion, the pre-emption and saving clauses are almost antithetically broad and" 'are not a model of legislative drafting.'" John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U. S. 86 , 99 (1993) (quoting Pilot Life, 481 U. S., at 46). But because there is "no solid basis for believing that Congress, when it designed ERISA, intended fundamentally to alter traditional pre-emption analysis," the Court has con- 393 cluded that federal pre-emption occurs where state law governing insurance "'stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.'" Harris Trust, supra, at 99 (quoting Silkwood, 464 U. S., at 248). Consequently, the Court until today had consistently held that state laws that seek to supplant or add to the exclusive remedies in § 502(a) of ERISA, 29 U. S. C. § 1132(a), are preempted because they conflict with Congress' objective that rights under ERISA plans are to be enforced under a uniform national system. See, e. g., Ingersoll-Rand Co., supra, at 142-145; Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 , 64-66 (1987); Pilot Life, supra, at 52-57. The Court has explained that § 502(a) creates an "interlocking, interrelated, and interdependent remedial scheme," and that a beneficiary who claims that he was wrongfully denied benefits has "a panoply of remedial devices" at his disposal. Russell, 473 U. S., at 146. It is exactly this enforcement scheme that Pilot Life described as "represent[ing] a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," 481 U. S., at 54. Central to that balance is the development of "a federal common law of rights and obligations under ERISA-regulated plans." Id., at 56. In addressing the relationship between ERISA's remedies under § 502(a) and a state law regulating insurance, the Court has observed that "[t]he policy choices reflected in the inclusion of certain remedies and the exclusion of others under the federal scheme would be completely undermined if ERISA-plan participants and beneficiaries were free to obtain remedies under state law that Congress rejected in ERISA." Id., at 54. Thus, while the preeminent federal interest in the uniform administration of employee benefit plans yields in some instances to varying state regulation of the business of insurance, the exclusivity and uniformity of 394 ERISA's enforcement scheme remains paramount. "Congress intended § 502(a) to be the exclusive remedy for rights guaranteed under ERISA." Ingersoll-Rand Co., supra, at 144. In accordance with ordinary principles of conflict preemption, therefore, even a state law "regulating insurance" will be pre-empted if it provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA's remedial scheme. See, e. g., Pilot Life, supra, at 54 (citing Russell, supra, at 146); Harris Trust, supra, at 99 (citing Silkwood, supra, at 248). III The question for the Court, therefore, is whether §4-10 provides such a vehicle. Without question, Moran had a "panoply of remedial devices," Russell, supra, at 146, available under § 502 of ERISA when petitioner denied her claim for benefits.5 Section 502(a)(1)(B) of ERISA provided the most obvious remedy: a civil suit to recover benefits due under the terms of the plan. 29 U. S. C. § 1132(a)(1)(B). But rather than bring such a suit, Moran sought to have her right to benefits determined outside of ERISA's remedial scheme through the arbitral-like mechanism available under §4-10. Section 4-10 cannot be characterized as anything other than an alternative state-law remedy or vehicle for seeking benefits. In the first place, § 4-10 comes into play only if the HMO and the claimant dispute the claimant's entitlement to benefits; the purpose of the review is to determine whether a claimant is entitled to benefits. Contrary to the majority's characterization of § 4-10 as nothing more than a state law 5 Commonly included in the panoply constituting part of this enforcement scheme are: suits under § 502(a)(1)(B) (authorizing an action to recover benefits, obtain a declaratory judgment that one is entitled to benefits, and to enjoin an improper refusal to pay benefits); suits under §§ 502(a)(2) and 409 (authorizing suit to seek removal of the fiduciary); and a claim for attorney's fees under § 502(g). See Russell, 473 U. S., at 146 147; Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41 , 53 (1987). 395 regarding medical standards, ante, at 383-384, it is in fact a binding determination of whether benefits are due: "In the event that the reviewing physician determines the covered service to be medically necessary, the [HMO] shall provide the covered service." 215 Ill. Compo Stat., ch. 125, § 4-10 (2000) (emphasis added). Section 4-10 is thus most precisely characterized as an arbitration-like mechanism to settle benefits disputes. See Brief for United States as Amicus Curiae 23 (conceding as much). There is no question that arbitration constitutes an alternative remedy to litigation. See, e. g., Air Line Pilots v. Miller, 523 U. S. 866 , 876, 880 (1998) (referring to "arbitral remedy" and "arbitration remedy"); DelCostello v. Teamsters, 462 U. S. 151 , 163 (1983) (referring to "arbitration remedies"); Great American Fed. Sav. & Loan Assn. v. Novotny, 442 U. S. 366 , 377-378 (1979) (noting that arbitration and litigation are "alternative remedies"); 3 D. Dobbs, Law of Remedies § 12.23 (2d ed. 1993) (explaining that arbitration "is itself a remedy"). Consequently, although a contractual agreement to arbitrate-which does not constitute a "State law" relating to "any employee benefit plan"-is outside § 514(a) of ERISA's pre-emptive scope, States may not circumvent ERISA pre-emption by mandating an alternative arbitral-like remedy as a plan term enforceable through an ERISA action. To be sure, the majority is correct that §4-10 does not mirror all procedural and evidentiary aspects of "common arbitration." Ante, at 381-383. But as a binding decision on the merits of the controversy the § 4-10 review resembles nothing so closely as arbitration. See generally 1 1. MacNeil, R. Spediel, & T. Stipanowich, Federal Arbitration Law § 2.1.1 (1995). That the decision of the § 4-10 medical reviewer is ultimately enforceable through a suit under § 502(a) of ERISA further supports the proposition that it tracks the arbitral remedy. Like the decision of any arbitrator, it is enforceable through a subsequent judicial action, but judicial 396 review of an arbitration award is very limited, as was the Court of Appeals' review in this case. See, e. g., Paperworkers v. Misco, Inc., 484 U. S. 29 , 36-37 (1987) (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564 , 567-568 (1960)). Although the Court of Appeals recharacterized Moran's claim for reimbursement under §4-10 as a claim for benefits under § 502(a)(1)(B) of ERISA, the Court of Appeals did not interpret the plan terms or purport to analyze whether the plan fiduciary had engaged in the "full and fair review" of Moran's claim for benefits that § 503(2) of ERISA, 29 U. S. C. § 1133(2), requires. Rather, it rubberstamped the independent medical reviewer's judgment that Moran's surgery was "medically necessary," granting summary judgment to Moran on her claim for benefits solely on that basis. Thus, as Judge Posner aptly noted in his dissent from the denial of rehearing en banc below, §4-10 "establishes a system of appellate review of benefits decisions that is distinct from the provision in ERISA for suits in federal court to enforce entitlements conferred by ERISA plans." 230 F. 3d, at 973. IV The Court of Appeals attempted to evade the pre-emptive force of ERISA's exclusive remedial scheme primarily by characterizing the alternative enforcement mechanism created by § 4-10 as a "contract term" under state law.6 Id., at 972. The Court saves §4-10 from pre-emption in a somewhat different manner, distinguishing it from an alternative enforcement mechanism because it does not "enlarge the 6The Court of Appeals concluded that §4-10 is saved from pre-emption because it is a law that "regulates insurance," and that it does not conflict with the exclusive enforcement mechanism of § 502 because § 4-10's independent review mechanism is a state-mandated contractual term of the sort that survived ERISA pre-emption in UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 , 375-376 (1999). In the Court of Appeals' view, the independent review provision, like any other mandatory contract term, can be enforced through an action brought under § 502(a) of ERISA, 29 U. S. C. § 1132(a), pursuant to state law. 230 F. 3d, at 972. 397 claim beyond the benefits available in any action brought under § 1132(a)," and characterizing it as "something akin to a mandate for second-opinion practice in order to ensure sound medical judgments." Ante, at 379-380, 384. Neither approach is sound. The Court of Appeals' approach assumes that a State may impose an alternative enforcement mechanism through mandated contract terms even though it could not otherwise impose such an enforcement mechanism on a health plan governed by ERISA. No party cites any authority for that novel proposition, and I am aware of none. Cf. Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 , 16-17 (1987) (noting that a State cannot avoid ERISA pre-emption on the ground that its regulation only mandates a benefit plan; such an approach would "permit States to circumvent ERISA's pre-emption provision, by allowing them to require directly what they are forbidden to regulate"). To hold otherwise would be to eviscerate ERISA's comprehensive and exclusive remedial scheme because a claim to benefits under an employee benefits plan could be determined under each State's particular remedial devices so long as they were made contract terms. Such formalist tricks cannot be sufficient to bypass ERISA's exclusive remedies; we should not interpret ERISA in such a way as to destroy it. With respect to the Court's position, Congress' intention that § 502(a) be the exclusive remedy for rights guaranteed under ERISA has informed this Court's weighing of the pre-emption and saving clauses. While the Court has previously focused on ERISA's overall enforcement mechanism and remedial scheme, see infra, at 393-394, the Court today ignores the "interlocking, interrelated, and interdependent" nature of that remedial scheme and announces that the relevant inquiry is whether a state regulatory scheme "provides [a] new cause of action" or authorizes a "new form of ultimate relief." Ante, at 379. These newly created principles have no roots in the precedents of this Court. That §4-10 also 398 effectively provides for a second opinion to better ensure sound medical practice is simply irrelevant to the question whether it, in fact, provides a binding mechanism for a participant or beneficiary to pursue a claim for benefits because it is on this latter basis that § 4-10 is pre-empted. The Court's attempt to diminish §4-10's effect by characterizing it as one where "the reviewer's determination would presumably replace that of the HMO," ante, at 380 (emphasis added), is puzzling given that the statute makes such a determination conclusive and the Court of Appeals treated it as a binding adjudication. For these same reasons, it is troubling that the Court views the review under §4-10 as nothing more than a practice "of obtaining a second [medical] opinion." Ante, at 383. The independent reviewer may, like most arbitrators, possess special expertise or knowledge in the area subject to arbitration. But while a second medical opinion is nothing more than that-an opinion-a determination under § 4-10 is a conclusive determination with respect to the award of benefits. And the Court's reference to Pegram v. Herdrich, 530 U. S. 211 (2000), as support for its Alice in Wonderland-like claim that the §4-10 proceeding is "far removed from any notion of an enforcement scheme," ante, at 383, is equally perplexing, given that the treatment is long over and the issue presented is purely an eligibility decision with respect to reimbursement.7 7 I also disagree with the Court's suggestion that, following Pegram v. Herdrich, 530 U. S. 211 (2000), HMOs are exempted from ERISA whenever a coverage or reimbursement decision relies in any respect on medical judgment. Ante, at 383, 386, n. 17. Pegram decided the limited question whether relief was available under § 1109 for claims of fiduciary breach against HMOs based on its physicians' medical decisions. Quite sensibly, in my view, that question was answered in the negative because otherwise, "for all practical purposes, every claim of fiduciary breach by an HMO physician making a mixed decision would boil down to a malpractice claim, and the fiduciary standard would be nothing but the malpractice standard traditionally applied in actions against physicians." 530 U. S., at 235. 399 As we held in Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724 (1985), a State may, of course, require that employee health plans provide certain substantive benefits. See id., at 746 (holding that a state law mandating mental health benefits was not within ERISA's pre-emptive reach). Indeed, were a State to require that insurance companies provide all "medically necessary care" or even that it must provide a second opinion before denying benefits, I have little doubt that such substantive requirements would withstand ERISA's pre-emptive force. But recourse to those benefits, like all others, could be sought only through an action under § 502 and not, as is the case here, through an arbitration-like remedial device. Section 4-10 does not, in any event, purport to extend a new substantive benefit. Rather, it merely sets up a procedure to conclusively determine whether the HMO's decision to deny benefits was correct when the parties disagree, a task that lies within the exclusive province of the courts through an action under § 502(a). By contrast, a state law regulating insurance that merely affects whether a plan participant or beneficiary may pursue the remedies available under ERISA's remedial scheme, such as California's notice-prejudice rule, is not pre-empted because it has nothing to do with § 502(a)'s exclusive enforcement scheme. In UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358 (1999), the Court evaluated California's socalled notice-prejudice rule, which provides that an insurer cannot avoid liability in cases where a claim is not filed in a timely fashion absent proof that the insurer was actually prejudiced because of the delay. In holding that it was not pre-empted, the Court did not suggest that this rule provided a substantive plan term. The Court expressly declined to address the Solicitor General's argument that the saving clause saves even state law "conferring causes of action or affecting remedies that regulate insurance." See id., at 376-377, n. 7 (internal quotation marks omitted). While 400 a law may "effectively creat[e] a mandatory contract term," id., at 374 (internal quotation marks omitted), and even provide the rule of decision with respect to whether a claim is out of time, and thus whether benefits will ultimately be received, such laws do not create an alternative enforcement mechanism with respect to recovery of plan benefits. They merely allow the participant to proceed via ERISA's enforcement scheme. To my mind, neither Metropolitan Life nor UNUM addresses, let alone purports to answer, the question before us today. *** Section 4-10 constitutes an arbitral-like state remedy through which plan members may seek to resolve conclusively a disputed right to benefits. Some 40 other States have similar laws, though these vary as to applicability, procedures, standards, deadlines, and consequences of independent review. See Brief for Respondent State of Illinois 12, n.4 (citing state independent review statutes); see also Kaiser Family Foundation, K. Politz, J. Crowley, K. Lucia, & E. Bangit, Assessing State External Review Programs and the Effects of Pending Federal Patients' Rights Legislation (May 2002) (comparing state program features). Allowing disparate state laws that provide inconsistent external review requirements to govern a participant's or beneficiary's claim to benefits under an employee benefit plan is wholly destructive of Congress' expressly stated goal of uniformity in this area. Moreover, it is inimical to a scheme for furthering and protecting the "careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans," given that the development of a federal common law under ERISA-regulated plans has consistently been deemed central to that balance.8 Pilot Life, 481 U. S., at 54, 56. While 8 The Court suggests that a state law's impact on cost is not relevant after New York State Conference of Blue Cross & Blue Shield Plans 401 it is true that disuniformity is the inevitable result of the congressional decision to save local insurance regulation, this does not answer the altogether different question before the Court today, which is whether a state law "regulating insurance" nonetheless provides a separate vehicle to assert a claim for benefits outside of, or in addition to, ERISA's remedial scheme. See, e. g., id., at 54 (citing Russell, 473 U. S., at 146); Harris Trust, 510 U. S., at 99 (citing Silkwood, 464 U. S., at 248). If it does, the exclusivity and uniformity of ERISA's enforcement scheme must remain paramount and the state law is pre-empted in accordance with ordinary principles of conflict pre-emption.9 v. Travelers Ins. Co., 514 U. S. 645 , 662 (1995), which holds that a state law providing for surcharges on hospital rates did not, based solely on their indirect economic effect, "bear the requisite 'connection with' ERISA plans to trigger pre-emption." But Travelers addressed only the question whether a state law "relates to" an ERISA plan so as to fall within § 514(a)'s broad pre-emptive scope in the first place and is not relevant to the inquiry here. The Court holds that "[i]t is beyond serious dispute," ante, at 365, that § 4-10 does "relate to" an ERISA plan; § 4-10's economic effects are necessarily relevant to the extent that they upset the object of § 1132(a). See Ingersoll-Rand Co. v. McClendon, 498 U. S. 133 , 142 (1990) ("Section 514(a) was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among States or between States and the Federal Government. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries"). 9 The Court isolates the "plan" from the HMO and then concludes that the independent review provision does not "threaten the object of 29 U. S. C. § 1132" because it does not affect the plan, but only the HMO. Ante, at 381, n. 11. To my knowledge such a distinction is novel. Cf. Pegram, 530 U. S., at 223 (recognizing that the agreement between an HMO and an employer may provide elements of a plan by setting out the rules under which care is provided). Its application is particularly novel here, where the Court appears to view the HMO as the plan administrator, leaving one to wonder how the myriad state independent review procedures can help but have an impact on plan administration. Ante, at 363, n.3. 402 For the reasons noted by the Court, independent review provisions may sound very appealing. Efforts to expand the variety of remedies available to aggrieved beneficiaries beyond those set forth in ERISA are obviously designed to increase the chances that patients will be able to receive treatments they desire, and most of us are naturally sympathetic to those suffering from illness who seek further options. Nevertheless, the Court would do well to remember that no employer is required to provide any health benefit plan under ERISA and that the entire advent of managed care, and the genesis of HMOs, stemmed from spiraling health costs. To the extent that independent review provisions such as §4-10 make it more likely that HMOs will have to subsidize beneficiaries' treatments of choice, they undermine the ability of HMOs to control costs, which, in turn, undermines the ability of employers to provide health care coverage for employees. As a consequence, independent review provisions could create a disincentive to the formation of employee health benefit plans, a problem that Congress addressed by making ERISA's remedial scheme exclusive and uniform. While it may well be the case that the advantages of allowing States to implement independent review requirements as a supplement to the remedies currently provided under ERISA outweigh this drawback, this is a judgment that, pursuant to ERISA, must be made by Congress. I respectfully dissent.

The Supreme Court ruled that the Illinois HMO Act, which guarantees independent medical reviews for patients whose treatment requests are denied by their health maintenance organization (HMO), is not preempted by the Employee Retirement Income Security Act of 1974 (ERISA). The Court found that the Illinois HMO Act regulates insurance and is therefore exempt from ERISA preemption under the saving clause. This decision allows state laws that regulate insurance to provide additional protections for patients beyond those offered by ERISA.

Labor & Employment

Major League Baseball Players' Ass'n v. Garvey

https://supreme.justia.com/cases/federal/us/532/504/

OCTOBER TERM, 2000 Syllabus MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION v. GARVEY ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-1210. Decided May 14,2001 After arbitrators found that the Major League Baseball Clubs (Clubs) colluded in the market for free-agent services after the 1985, 1986, and 1987 baseball seasons, the Clubs and petitioner agreed that the Clubs would establish a fund to be distributed to injured players. The "Framework" that petitioner designed to evaluate individual claims provided, inter alia, that players could seek an arbitrator's review of a distribution plan, but the arbitrator could determine only whether the Framework and its criteria were properly applied. Respondent Garvey sought arbitration after his damages claim was rejected. At his hearing, he produced a letter from San Diego Padres president and CEO Smith, stating that Smith had offered to extend Garvey's contract, but the Padres refused to negotiate thereafter due to collusion. The arbitrator denied the claim because the letter contradicted Smith's testimony denying collusion in earlier arbitration proceedings. The Federal District Court denied Garvey's motion to vacate the arbitrator's award. In Garvey I, the Ninth Circuit reversed. It found that review of the award's merits was warranted because the arbitrator's refusal to credit Smith's letter was inexplicable and bordered on irrational since arbitrators had previously concluded that the owners' testimony denying collusion was false, and that there was strong support for the letter's truthfulness. On remand, the District Court remanded the case for further arbitration, and Garvey appealed. Finding that Garvey I left only one possible result, the Ninth Circuit in Garvey II reversed and directed the District Court to remand the case to arbitration with instructions to enter an award for Garvey. Held: The Ninth Circuit's decision to resolve the dispute and bar further proceedings is at odds with governing law. Judicial review of a laborarbitration decision pursuant to a collective-bargaining agreement is very limited. Courts are not authorized to review an arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Paperworkers v. Misco, Inc., 484 U. S. 29 , 36. Only when the arbitrator effectively dispenses his own brand of industrial justice may his decision be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 , 597. 505 When the judiciary weighs a particular claim's merits, it usurps a nmction entrusted to the arbitrator. As a rule a court must not foreclose further proceedings by settling the merits according to its own judgment of the appropriate result. It should simply vacate the award, leaving open the possibility of further proceedings if the agreement permits them. The Ninth Circuit recited these principles but erred in applying them. In Garvey I, it overturned the arbitrator's decision because it disagreed with his factual findings with respect to credibility, but even serious error on the arbitrator's part does not justify overturning his decision where, as here, he is construing a contract and acting within the scope of his authority, Misco, supra, at 38. And in Garvey II, the court resolved the dispute's merits based on its assessment of the record before the arbitrator, which it ordinarily cannot do, no matter how erroneous the arbitrator's decision, Misco, supra, at 40, n. 10. Even when the arbitrator's award may properly be vacated, the appropriate remedy is to remand the case for further arbitration proceedings. Certiorari granted; 243 F.3d 547 , reversed and remanded. PER CURIAM. The Court of Appeals for the Ninth Circuit here rejected an arbitrator's factual findings and then resolved the merits of the parties' dispute instead of remanding the case for further arbitration proceedings. Because the court's determination conflicts with our cases limiting review of an arbitrator's award entered pursuant to an agreement between an employer and a labor organization and prescribing the appropriate remedy where vacation of the award is warranted, we grant the petition for a writ of certiorari and reverse. The motions for leave to file briefs amicus curiae of the National Academy of Arbitrators and the Office of the Commissioner of Baseball are granted. In the late 1980's, petitioner Major League Baseball Players Association (Association) filed grievances against the Major League Baseball Clubs (Clubs), claiming the Clubs had colluded in the market for free-agent services after the 1985, 1986, and 1987 baseball seasons, in violation of the industry's collective-bargaining agreement. A free agent is a player who may contract with any Club, rather than one whose right to contract is restricted to a particular Club. In a 506 Per Curiam series of decisions, arbitrators found collusion by the Clubs and damage to the players. The Association and Clubs subsequently entered into a Global Settlement Agreement (Agreement), pursuant to which the Clubs established a $280 million fund to be distributed to injured players. The Association also designed a "Framework" to evaluate the individual player's claims, and, applying that Framework, recommended distribution plans for claims relating to a particular season or seasons. The Framework provided that players could seek an arbitrator's review of the distribution plan. The arbitrator would determine "'only whether the approved Framework and the criteria set forth therein have been properly applied in the proposed Distribution Plan.'" Garvey v. Roberts, 203 F. 3d 580, 583 (CA9 2000) (Garvey I). The Framework set forth factors to be considered in evaluating players' claims, as well as specific requirements for lost contract-extension claims. Such claims were cognizable "'only in those cases where evidence exists that a specific offer of an extension was made by a club prior to collusion only to thereafter be withdrawn when the collusion scheme was initiated.'" Id., at 584. Respondent Steve Garvey, a retired, highly regarded first baseman, submitted a claim for damages of approximately $3 million. He alleged that his contract with the San Diego Padres was not extended to the 1988 and 1989 seasons due to collusion. The Association rejected Garvey's claim in February 1996, because he presented no evidence that the Padres actually offered to extend his contract. Garvey objected, and an arbitration hearing was held. He testified that the Padres offered to extend his contract for the 1988 and 1989 seasons and then withdrew the offer after they began colluding with other teams. He presented a June 1996 letter from Ballard Smith, Padres' President and CEO from 1979 to 1987, stating that, before the end of the 1985 season, Smith offered to extend Garvey's contract through 507 the 1989 season, but that the Padres refused to negotiate with Garvey thereafter due to collusion. The arbitrator denied Garvey's claim, after seeking additional documentation from the parties. In his award, he explained that" '[t]here exists ... substantial doubt as to the credibility of the statements in the Smith letter.'" Id., at 586. He noted the "stark contradictions" between the 1996 letter and Smith's testimony in the earlier arbitration proceedings regarding collusion, where Smith, like other owners, denied collusion and stated that the Padres simply were not interested in extending Garvey's contract. Ibid. The arbitrator determined that, due to these contradictions, he "'must reject [Smith's] more recent assertion that Garvey did not receive [a contract] extension'" due to collusion, and found that Garvey had not shown a specific offer of extension. Ibid. He concluded: "'The shadow cast over the credibility of the Smith testimony coupled with the absence of any other corroboration of the claim submitted by Garvey compels a finding that the Padres declined to extend his contract not because of the constraints of the collusion effort of the clubs but rather as a baseball judgment founded upon [Garvey's] age and recent injury history.'" Ibid. Garvey moved in Federal District Court to vacate the arbitrator's award, alleging that the arbitrator violated the Framework by denying his claim. The District Court denied the motion. The Court of Appeals for the Ninth Circuit reversed by a divided vote. The court acknowledged that judicial review of an arbitrator's decision in a labor dispute is extremely limited. But it held that review of the merits of the arbitrator's award was warranted in this case, because the arbitrator "'dispensed his own brand of industrial justice.'" Id., at 589. The court recognized that Smith's prior testimony with respect to collusion conflicted with the statements in his 1996 letter. But in the court's view, the arbitra- 508 Per Curiam tor's refusal to credit Smith's letter was "inexplicable" and "border[ed] on the irrational," because a panel of arbitrators, chaired by the arbitrator involved here, had previously concluded that the owners' prior testimony was false. Id., at 590. The court rejected the arbitrator's reliance on the absence of other corroborating evidence, attributing that fact to Smith and Garvey's direct negotiations. The court also found that the record provided "strong support" for the truthfulness of Smith's 1996 letter. Id., at 591-592. The Court of Appeals reversed and remanded with directions to vacate the award. The District Court then remanded the case to the arbitration panel for further hearings, and Garvey appealed. The Court of Appeals, again by a divided vote, explained that Garvey I established that "the conclusion that Smith made Garvey an offer and subsequently withdrew it because of the collusion scheme was the only conclusion that the arbitrator could draw from the record in the proceedings." No. 00-56080, 2000 WL 1801383, *1 (CA9, Dec. 7, 2000) (unpublished), judgt. order reported at 243 F.3d 547 (Garvey II). Noting that its prior instructions might have been unclear, the court clarified that Garvey I "left only one possible result-the result our holding contemplated-an award in Garvey's favor." 2000 WL 1801383, at *1. The Court of Appeals reversed the District Court and directed that it remand the case to the arbitration panel with instructions to enter an award for Garvey in the amount he claimed.1 1 Garvey contends that, because the Association's petition was filed more than 90 days after Garvey I, we cannot consider a challenge raising issues resolved in that decision. But there is no question that the Association's petition was filed in sufficient time for us to review Garvey II, and we have authority to consider questions determined in earlier stages of the litigation where certiorari is sought from the most recent of the judgments of the Court of Appeals. Mercer v. Theriot, 377 U. S. 152 (1964) (per curiam); Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U. S. 251 , 258 (1916). 509 The parties do not dispute that this case arises under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185(a), as the controversy involves an assertion of rights under an agreement between an employer and a labor organization. Although Garvey's specific allegation is that the arbitrator violated the Framework for resolving players' claims for damages, that Framework was designed to facilitate payments to remedy the Clubs' breach of the collective-bargaining agreement. Garvey's right to be made whole is founded on that agreement. Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement. Paperworkers v. Misco, Inc., 484 U. S. 29 , 36 (1987). We recently reiterated that if an "'arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,' the fact that 'a court is convinced he committed serious error does not suffice to overturn his decision.'" Eastern Associated Coal Corp. v. Mine Workers, 531 U. S. 57 , 62 (2000) (quoting Misco, supra, at 38). It is only when the arbitrator strays from interpretation and application of the agreement and effectively "dispense[s] his own brand of industrial justice" that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 , 597 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's "improvident, even silly, factfinding" does not provide a basis for a reviewing court to refuse to enforce the award. Misco, 484 U. S., at 39. In discussing the courts' limited role in reviewing the merits of arbitration awards, we have stated that" 'courts ... have no business weighing the merits of the grievance [or] considering whether there is equity in a particular claim.'" 510 Per Curiam Id., at 37 (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564, 568 (1960)). When the judiciary does so, "it usurps a function which ... is entrusted to the arbitration tribunal." Id., at 569; see also Enterprise Wheel & Car Corp., supra, at 599 ("It is the arbitrator's construction [of the agreement] which was bargained for ... "). Consistent with this limited role, we said in Misco that "[e]ven in the very rare instances when an arbitrator's procedural aberrations rise to the level of affirmative misconduct, as a rule the court must not foreclose further proceedings by settling the merits according to its own judgment of the appropriate result." 484 U. S., at 40-41, n. 10. That step, we explained, "would improperly substitute a judicial determination for the arbitrator's decision that the parties bargained for" in their agreement. Ibid. Instead, the court should "simply vacate the award, thus leaving open the possibility of further proceedings if they are permitted under the terms of the agreement." Ibid. To be sure, the Court of Appeals here recited these principles, but its application of them is nothing short of baffling. The substance of the court's discussion reveals that it overturned the arbitrator's decision because it disagreed with the arbitrator's factual findings, particularly those with respect to credibility. The Court of Appeals, it appears, would have credited Smith's 1996 letter, and found the arbitrator's refusal to do so at worst "irrational" and at best "bizarre." Garvey I, 203 F. 3d, at 590-591. But even "serious error" on the arbitrator's part does not justify overturning his decision, where, as here, he is construing a contract and acting within the scope of his authority. Misco, supra, at 38. In Garvey II, the court clarified that Garvey I both rejected the arbitrator's findings and went further, resolving the merits of the parties' dispute based on the court's assessment of the record before the arbitrator. For that reason, the court found further arbitration proceedings inappropri- 511 ate. But again, established law ordinarily precludes a court from resolving the merits of the parties' dispute on the basis of its own factual determinations, no matter how erroneous the arbitrator's decision. Misco, supra, at 40, n. 10; see also American Mfg. Co., supra, at 568. Even when the arbitrator's award may properly be vacated, the appropriate remedy is to remand the case for further arbitration proceedings. Misco, supra, at 40, n. 10. The dissent suggests that the remedy described in Misco is limited to cases where the arbitrator's errors are procedural. Post, at 512 (opinion of STEVENS, J.). Misco did involve procedural issues, but our discussion regarding the appropriate remedy was not so limited. If a remand is appropriate even when the arbitrator's award has been set aside for "procedural aberrations" that constitute "affirmative misconduct," it follows that a remand ordinarily will be appropriate when the arbitrator simply made factual findings that the reviewing court perceives as "irrational." The Court of Appeals usurped the arbitrator's role by resolving the dispute and barring further proceedings, a result at odds with this governing law.2 For the foregoing reasons, the Court of Appeals erred in reversing the order of the District Court denying the motion to vacate the arbitrator's award, and it erred further in directing that judgment be entered in Garvey's favor. The petition for a writ of certiorari is granted, the judgment of 2 In any event, no serious error on the arbitrator's part is apparent in this case. The fact that an earlier panel of arbitrators rejected the owners' testimony as a whole does not compel the conclusion that the panel found Smith's specific statements with respect to Garvey to be false. The arbitrator's explanation for his decision indicates that he simply found Smith an unreliable witness and that, in the absence of corroborating evidence, he could only conclude that Garvey failed to show that the Padres had offered to extend his contract. The arbitrator's analysis may have been unpersuasive to the Court of Appeals, but his decision hardly qualifies as serious error, let alone irrational or inexplicable error. And, as we have said, any such error would not justify the actions taken by the court. 512 STEVENS, J., dissenting the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE GINSBURG, concurring in part and concurring in the judgment. I agree with the Court that in Garvey v. Roberts, 203 F. 3d 580 (CA9 2000), the Ninth Circuit should not have disturbed the arbitrator's award. Correction of that error sets this case straight. I see no need to say more. JUSTICE STEVENS, dissenting. It is well settled that an arbitrator "does not sit to dispense his own brand of industrial justice." Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593 , 597 (1960). We have also said fairly definitively, albeit in dicta, that a court should remedy an arbitrator's "procedural aberrations" by vacating the award and remanding for further proceedings. Paperworkers v. Misco, Inc., 484 U. S. 29 , 40-41, n. 10 (1987). Our cases, however, do not provide significant guidance as to what standards a federal court should use in assessing whether an arbitrator's behavior is so untethered to either the agreement of the parties or the factual record so as to constitute an attempt to "dispense his own brand of industrial justice." Nor, more importantly, do they tell us how, having made such a finding, courts should deal with "the extraordinary circumstance in which the arbitrator's own rulings make clear that, more than being simply erroneous, his finding is completely inexplicable and borders on the irrational." Garvey v. Roberts, 203 F.3d 580 , 590 (CA9 2000) (case below). Because our case law is not sufficiently clear to allow me to conclude that the case below was wrongly decided-let alone to conclude that the decision was so wrong as to require the extraordinary remedy of a sum- 513 mary reversal-I dissent from the Court's disposition of this petition. Without the benefit of briefing or argument, today the Court resolves two difficult questions. First, it decides that even if the Court of Appeals' appraisal of the merits is correct-that is to say, even if the arbitrator did dispense his own brand of justice untethered to the agreement of the parties, and even if the correct disposition of the matter is perfectly clear-the only course open to a reviewing court is to remand the matter for another arbitration. That conclusion is not compelled by any of our cases, nor by any analysis offered by the Court. As the issue is subject to serious arguments on both sides, the Court should have set this case for argument if it wanted to answer this remedial question. Second, without reviewing the record or soliciting briefing, the Court concludes that, in any event, "no serious error on the arbitrator's part is apparent in this case." Ante, at 511, n. 2. At this stage in the proceedings, I simply cannot endorse that conclusion. After examining the record, obtaining briefing, and hearing oral argument, the Court of Appeals offered a reasoned explanation of its conclusion. See 203 F. 3d, at 589-592; see also id., at 593-594 (Hawkins, J., concurring). Whether or not I would ultimately agree with the Ninth Circuit's analysis, I find the Court's willingness to reverse a factbound determination of the Court of Appeals without engaging that court's reasoning a troubling departure from our normal practice. * Accordingly, I respectfully dissent. *The Court's opinion is somewhat ambiguous as to its reasons for overturning the portion of the Court of Appeals' decision setting aside the arbitration. It is unclear whether the majority is saying that a court may never set aside an arbitration because of a factual error, no matter how perverse, or whether the Court merely holds that the error in this case was not sufficiently severe to allow a court to take that step. If it is the latter, the Court offers no explanation of what standards it is using or of its reasons for reaching that conclusion.

The Supreme Court reversed the Ninth Circuit's decision to resolve a labor arbitration dispute between the Major League Baseball Players Association and the Clubs, finding that the Ninth Circuit's decision to bar further proceedings was contrary to governing law. The Court held that judicial review of labor arbitration decisions is limited and that courts are not authorized to review an arbitrator's decision on the merits, even if there are allegations of factual errors or misinterpretation of the agreement. The Court emphasized that arbitrators dispense their own brand of industrial justice and that courts must not settle the merits of a case according to their judgment. The Court did not address the Ninth Circuit's finding of serious error on the arbitrator's part, instead focusing on the process followed by the lower court.

Labor & Employment

Clackamas Gastroenterology Associates, P.C. v. Wells

https://supreme.justia.com/cases/federal/us/538/440/

OCTOBER TERM, 2002 Syllabus CLACKAMAS GASTROENTEROLOGY ASSOCIATES, P. C. v. WELLS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 01-1435. Argued February 25, 2003-Decided April 22, 2003 Respondent filed suit alleging that petitioner medical clinic violated the Americans with Disabilities Act of 1990 (ADA or Act) when it terminated her employment. Petitioner moved for summary judgment, asserting that it was not covered by the Act because it did not have 15 or more employees for the 20 weeks required by the ADA. That assertion's accuracy depends on whether the four physician-shareholders who own the professional corporation and constitute its board of directors are counted as employees. In granting the motion, the District Court concluded that the physicians were more analogous to partners in a partnership than to shareholders in a corporation and therefore were not employees under the ADA. The Ninth Circuit reversed, finding no reason to permit a professional corporation to reap the tax and civil liability advantages of its corporate status and then argue that it is like a partnership so as to avoid employment discrimination liability. Held: 1. The common-law element of control is the principal guidepost to be followed in deciding whether the four director-shareholder physicians in this case should be counted as "employees." Where, as here, a statute does not helpfully define the term "employee," this Court's cases construing similar language give guidance in how best to fill the statutory text's gap. Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318 , 322, 323. The professional corporation is a new type of business entity with no exact common-law precedent, but the common law's definition of the master-servant relationship provides helpful guidance: the focus on the master's control over the servant. Accordingly, the Equal Employment Opportunity Commission (EEOC) argues that a court should examine whether shareholder-directors operate independently and manage the business or instead are subject to the firm's control. Specific EEOC guidelines discuss the broad question of who is an "employee" and the narrower one of when partners, officers, board of directors' members, and major shareholders qualify as employees. The Court is persuaded by the EEOC's focus on the common-law touchstone of control and specifically by its submission that each of six factors are relevant to the inquiry whether a shareholder-director is an employee. Pp. 444-451. 441 2. Because the District Court's findings appear to weigh in favor of concluding that the four physicians are not clinic employees, but evidence in the record may contradict those findings or support a contrary conclusion under the EEOC's standard, the case is remanded for further proceedings. P. 451. 271 F.3d 903 , reversed and remanded. STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, J., joined, post, p. 451. Steven W Seymour argued the cause for petitioner. With him on the briefs was Andria C. Kelly. Irving L. Gornstein argued the cause for the United States et al. as amici curiae urging reversal. With him on the brief were Solicitor General Olson, Deputy Solicitor General Clement, Philip B. Sklover, Lorraine C. Davis, and Robert J. Gregory. Craig A. Crispin argued the cause and filed a brief for respondent. * JUSTICE STEVENS delivered the opinion of the Court. The Americans with Disabilities Act of 1990 (ADA or Act), 104 Stat. 327, as amended, 42 U. S. C. § 12101 et seq., like other federal antidiscrimination legislation,l is inapplicable to very small businesses. Under the ADA an "em- *Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Lawyers' Committee for Civil Rights Under Law et al. by Barbara R. Arnwine, Thomas J. Henderson, Michael L. Foreman, Daniel B. Kohrman, Melvin Radowitz, Vincent A. Eng, Dennis C. Hayes, and Judith L. Lichtman; and for the National Employment Lawyers Association et al. by Merl H. Wayman and Jenifer Bosco. 1 See, e. g., 29 U. S. C. § 630(b) (setting forth a 20-employee threshold for coverage under the Age Discrimination in Employment Act of 1967 (ADEA)); 42 u. S. C. § 2000e(b) (establishing a 15-employee threshold for coverage under Title VII of the Civil Rights Act of 1964). 442 ployer" is not covered unless its work force includes "15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." § 12111(5). The question in this case is whether four physicians actively engaged in medical practice as shareholders and directors of a professional corporation should be counted as "employees." I Petitioner, Clackamas Gastroenterology Associates, P. C., is a medical clinic in Oregon. It employed respondent, Deborah Anne Wells, as a bookkeeper from 1986 until 1997. After her termination, she brought this action against the clinic alleging unlawful discrimination on the basis of disability under Title I of the ADA. Petitioner denied that it was covered by the Act and moved for summary judgment, asserting that it did not have 15 or more employees for the 20 weeks required by the statute. It is undisputed that the accuracy of that assertion depends on whether the four physician-shareholders who own the professional corporation and constitute its board of directors are counted as employees. The District Court, adopting the Magistrate Judge's findings and recommendation, granted the motion. Relying on an "economic realities" test adopted by the Seventh Circuit in EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 , 1178 (1984), the District Court concluded that the four doctors were "more analogous to partners in a partnership than to shareholders in a general corporation" and therefore were "not employees for purposes of the federal antidiscrimination laws." App. 89. A divided panel of the Court of Appeals for the Ninth Circuit reversed. Noting that the Second Circuit had rejected the economic realities approach, the majority held that the use of any corporation, including a professional corporation, " 'precludes any examination designed to determine whether the entity is in fact a partnership.'" 271 F.3d 903 , 905 443 (2001) (quoting Hyland v. New Haven Radiology Associates, p. c., 794 F.2d 793 , 798 (CA2 1986)). It saw "no reason to permit a professional corporation to secure the 'best of both possible worlds' by allowing it both to assert its corporate status in order to reap the tax and civil liability advantages and to argue that it is like a partnership in order to avoid liability for unlawful employment discrimination." 271 F. 3d, at 905. The dissenting judge stressed the differences between an Oregon physicians' professional corporation and an ordinary business corporation,2 and argued that Congress' 2 The dissenting judge summarized Oregon's treatment of professional corporations as follows: "In Oregon, a physicians' professional corporation, like this one, preserves the professional relationship between the physicians and their patients, as well as the standards of conduct that the medical profession requires. Or. Rev. Stat. § 58.185(2). Further, 'a shareholder of the corporation is personally liable as if the shareholder were rendering the service or services as an individual' with respect to all claims of negligence, wrongful acts or omissions, or misconduct committed in the rendering of professional services. Or. Rev. Stat. § 58.185(3) (emphasis added). A licensed professional also is jointly and severally liable for such claims, albeit with some dollar limitations. Or. Rev. Stat. § 58.185(4)-(9). Ordinary business corporation rules apply only to other aspects of the entity, apart from the provision of professional services. Or. Rev. Stat. § 58.185(11). A professional corporation's activities must remain consistent with the requirements of the type of license in question, Or. Rev. Stat. § 58.205, and it may merge only with other professional corporations, Or. Rev. Stat. § 58.196, so the provision of professional services-with its attendant liabilities-must remain at the heart of a P. C. like this defendant. "Additional special rules apply to professional corporations that are organized to practice medicine, none of which apply to ordinary business corporations. A majority of the directors, the holders of the majority of shares, and all officers except the secretary and treasurer must be Oregon-licensed physicians. Or. Rev. Stat. § 58.375(1)(a)-(c). The Board of Medical Examiners is given express statutory authority to require more than a majority of shares, and more than a majority of director positions, to be held by Oregon-licensed physicians. Or. Rev. Stat. § 58.375(1)(d) & (e). The Board of Medical Examiners also may restrict the corporate powers of a professional corporation organized for the purpose of practicing medicine, beyond the restrictions imposed on ordinary business corpora- 444 reasons for exempting small employers from the coverage of the Act should apply to petitioner. Id., at 906-909 (opinion of Graber, J.). We granted certiorari to resolve the conflict in the Circuits, which extends beyond the Seventh and the Second Circuits.3 536 U. S. 990 (2002). II "We have often been asked to construe the meaning of 'employee' where the statute containing the term does not helpfully define it." Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318 , 322 (1992). The definition of the term in the ADA simply states that an "employee" is "an individual employed by an employer." 42 U. S. C. § 12111(4). That surely qualifies as a mere "nominal definition" that is "completely circular and explains nothing." Darden, 503 U. S., at 323. As we explained in Darden, our cases construing similar language give us guidance on how best to fill the gap in the statutory text. In Darden we were faced with the question whether an insurance salesman was an independent contractor or an "employee" covered by the Employee Retirement Income Security Act of 1974 (ERISA). Because ERISA's definition of "employee" was "completely circular," 503 U. S., at 323, we followed the same general approach that we had previously used in deciding whether a sculptor was an "employee" within the meaning of the Copyright Act of 1976, see Community for Creative Non-Violence v. Reid, 490 U. S. 730 tions. Or. Rev. Stat. § 58.379. Lastly, Or. Rev. Stat. §§ 58.375 through 58.389 contain impediments to the transfer of shares and other corporate activities." 271 F. 3d, at 907-908 (opinion of Graber, J.) (footnote omitted). 3 The disagreement in the Circuits is not confined to the particulars of the ADA. For example, the Seventh Circuit's decision in EEOC v. Dowd & Dowd, Ltd., 736 F.2d 1177 (1984), concerned Title VII, and the Second Circuit's opinion in Hyland v. New Haven Radiology Associates, p. c., 794 F.2d 793 (1986), involved the ADEA. See also Devine v. Stone, Ley ton & Gershman, P. c., 100 F.3d 78 (CA8 1996) (Title VII case). 445 (1989),4 and we adopted a common-law test for determining who qualifies as an "employee" under ERISA.5 Quoting Reid, 490 U. S., at 739-740, we explained that "'when Congress has used the term "employee" without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.'" Darden, 503 U. S., at 322-323. Rather than looking to the common law, petitioner argues that courts should determine whether a shareholder-director of a professional corporation is an "employee" by asking whether the shareholder-director is, in reality, a "partner." Brief for Petitioner 9, 15-16,21 (arguing that the four shareholders in the clinic are more analogous to partners in a partnership than shareholders in a corporation and that 4 In Reid, 490 U. S., at 738, the ownership of a copyright in a statue depended on whether it had been "'prepared by an employee within the scope of his or her employment' " within the meaning of the Copyright Act of 1976. 5 Darden described the common-law test for determining whether a hired party is an employee as follows: "'[W]e consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.'" 503 U. S., at 323-324 (quoting Community for Creative Non-Violence v. Reid, 490 U. S. 730 , 751-752 (1989), and citing Restatement (Second) of Agency § 220(2) (1958)). These particular factors are not directly applicable to this case because we are not faced with drawing a line between independent contractors and employees. Rather, our inquiry is whether a shareholder-director is an employee or, alternatively, the kind of person that the common law would consider an employer. 446 "those who are properly classified as partners are not 'employees' for purposes of the anti-discrimination statutes"). The question whether a shareholder-director is an employee, however, cannot be answered by asking whether the shareholder-director appears to be the functional equivalent of a partner. Today there are partnerships that include hundreds of members, some of whom may well qualify as "employees" because control is concentrated in a small number of managing partners. Cf. Hishon v. King & Spalding, 467 U. S. 69 , 79, n. 2 (1984) (Powell, J., concurring) ("[A]n employer may not evade the strictures of Title VII simply by labeling its employees as 'partners"'); EEOC v. Sidley Austin Brown & Wood, 315 F.3d 696 , 709 (CA72002) (Easterbrook, J., concurring in part and concurring in judgment); Strother v. Southern California Permanente Medical Group, 79 F.3d 859 (CA9 1996). Thus, asking whether shareholder-directors are partners-rather than asking whether they are employees-simply begs the question. Nor does the approach adopted by the Court of Appeals in this case fare any better. The majority's approach, which paid particular attention to "the broad purpose of the ADA," 271 F. 3d, at 905, is consistent with the statutory purpose of ridding the Nation of the evil of discrimination. See 42 U. S. C. § 12101(b).6 Nevertheless, two countervailing considerations must be weighed in the balance. First, as the 6 The meaning of the term "employee" comes into play when determining whether an individual is an "employee" who may invoke the ADA's protections against discrimination in "hiring, advancement, or discharge," 42 U. S. C. § 12112(a), as well as when determining whether an individual is an "employee" for purposes of the 15-employee threshold. See § 12111(5)(A); see also Brief for United States et al. as Amici Curiae 10-11; Schmidt v. Ottawa Medical Center, P. c., 322 F.3d 461 (CA72003). Consequently, a broad reading of the term "employee" would-consistent with the statutory purpose of ridding the Nation of discrimination-tend to expand the coverage of the ADA by enlarging the number of employees entitled to protection and by reducing the number of firms entitled to exemption. 447 dissenting judge noted below, the congressional decision to limit the coverage of the legislation to firms with 15 or more employees has its own justification that must be respectednamely, easing entry into the market and preserving the competitive position of smaller firms. See 271 F. 3d, at 908 (opinion of Graber, J.) ("Congress decided 'to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail'" (quoting Papa v. Katy Industries, Inc., 166 F.3d 937 , 940 (CA7), cert. denied, 528 U. S. 1019 (1999))). Second, as Darden reminds us, congressional silence often reflects an expectation that courts will look to the common law to fill gaps in statutory text, particularly when an undefined term has a settled meaning at common law. Congress has overridden judicial decisions that went beyond the common law in an effort to correct "'the mischief'" at which a statute was aimed. See 503 U. S., at 324-325. Perhaps the Court of Appeals' and the parties' failure to look to the common law for guidance in this case stems from the fact that we are dealing with a new type of business entity that has no exact precedent in the common law. State statutes now permit incorporation for the purpose of practicing a profession, but in the past "the so-called learned professions were not permitted to organize as corporate entities." lA W. Fletcher, Cyclopedia of the Law of Private Corporations § 112.10 (rev. ed. 1997-2002). Thus, professional corporations are relatively young participants in the market, and their features vary from State to State. See generally 1 B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders ~ 2.06 (7th ed. 2002) (explaining that States began to authorize the creation of professional corporations in the late 1950's and that the momentum to form professional corporations grew in the 1970's). 448 Nonetheless, the common law's definition of the masterservant relationship does provide helpful guidance. At common law the relevant factors defining the master-servant relationship focus on the master's control over the servant. The general definition of the term "servant" in the Restatement (Second) of Agency § 2(2) (1957), for example, refers to a person whose work is "controlled or is subject to the right to control by the master." See also id., § 220(1) ("A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control"). In addition, the Restatement's more specific definition of the term "servant" lists factors to be considered when distinguishing between servants and independent contractors, the first of which is "the extent of control" that one may exercise over the details of the work of the other. Id., § 220(2)(a). We think that the common-law element of control is the principal guidepost that should be followed in this case. This is the position that is advocated by the Equal Employment Opportunity Commission (EEOC), the agency that has special enforcement responsibilities under the ADA and other federal statutes containing similar threshold issues for determining coverage. It argues that a court should examine "whether shareholder-directors operate independently and manage the business or instead are subject to the firm's control." Brief for United States et al. as Amici Curiae 8. According to the EEOC's view, "[i]f the shareholderdirectors operate independently and manage the business, they are proprietors and not employees; if they are subject to the firm's control, they are employees." Ibid. Specific EEOC guidelines discuss both the broad question of who is an "employee" and the narrower question of when partners, officers, members of boards of directors, and major shareholders qualify as employees. See 2 Equal Employment Opportunity Commission, Compliance Manual 449 §§ 605:0008-605:00010 (2000) (hereinafter EEOC Compliance Manual).7 With respect to the broad question, the guidelines list 16 factors-taken from Darden, 503 U. S., at 323324-that may be relevant to "whether the employer controls the means and manner of the worker's work performance." EEOC Compliance Manual § 605:0008, and n. 71.8 The guidelines list six factors to be considered in answering the narrower question, which they frame as "whether the individual acts independently and participates in managing the organization, or whether the individual is subject to the organization's control." Id., § 605:0009. We are persuaded by the EEOC's focus on the commonlaw touchstone of control, see Skidmore v. Swift & Co., 323 U. S. 134 , 140 (1944),9 and specifically by its submission that each of the following six factors is relevant to the inquiry whether a shareholder-director is an employee: "Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work 7The EEOC's manual states that it applies across the board to other federal antidiscrimination statutes. See EEOC Compliance Manual § 605:0001 ("This Section discusses coverage, timeliness, and other threshold issues to be considered when a charge is first filed under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA), the Americans with Disabilities Act of 1990 (ADA), or the Equal Pay Act of 1963 (EPA)" (footnote omitted)). 8 For example, the EEOC considers whether the work requires a high level of skill or expertise, whether the employer furnishes the tools, materials, and equipment, and whether the employer has the right to control when, where, and how the worker performs the job. Id., § 605:0008. 9 As the Government has acknowledged, see Tr. of Oral Arg. 19, the EEOC's Compliance Manual is not controlling-even though it may constitute a "body of experience and informed judgment" to which we may resort for guidance. Skidmore v. Swift & Co., 323 U. S., at 140; see also Christensen v. Harris County, 529 U. S. 576 , 587 (2000) (holding that agency interpretations contained in "policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law[,] do not warrant Chevron-style deference"). 450 "Whether and, if so, to what extent the organization supervises the individual's work "Whether the individual reports to someone higher in the organization "Whether and, if so, to what extent the individual is able to influence the organization "Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts "Whether the individual shares in the profits, losses, and liabilities of the organization." EEOC Compliance Manual § 605:0009.10 As the EEOC's standard reflects, an employer is the person, or group of persons, who owns and manages the enterprise. The employer can hire and fire employees, can assign tasks to employees and supervise their performance, and can decide how the profits and losses of the business are to be distributed. The mere fact that a person has a particular title-such as partner, director, or vice president-should not necessarily be used to determine whether he or she is an employee or a proprietor. See ibid. ("An individual's title ... does not determine whether the individual is a partner, officer, member of a board of directors, or major shareholder, as opposed to an employee"). Nor should the mere existence of a document styled "employment agreement" lead inexorably to the conclusion that either party is an employee. See ibid. (looking to whether "the parties intended that the individual be an employee, as expressed in written 10 The EEOC asserts that these six factors need not necessarily be treated as "exhaustive." Brief for United States et al. as Amici Curiae 9. We agree. The answer to whether a shareholder-director is an employee or an employer cannot be decided in every case by a "'shorthand formula or magic phrase.''' Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318, 324 (1992) (quoting NLRB v. United Ins. Co. of America, 390 U. S. 254, 258 (1968)). 451 agreements or contracts"). Rather, as was true in applying common-law rules to the independent-contractor-versusemployee issue confronted in Darden, the answer to whether a shareholder-director is an employee depends on "'all of the incidents of the relationship ... with no one factor being decisive.'" 503 U. S., at 324 (quoting NLRB v. United Ins. Co. of America, 390 U. S. 254 , 258 (1968)). III Some of the District Court's findings-when considered in light of the EEOC's standard-appear to weigh in favor of a conclusion that the four director-shareholder physicians in this case are not employees of the clinic. For example, they apparently control the operation of their clinic, they share the profits, and they are personally liable for malpractice claims. There may, however, be evidence in the record that would contradict those findings or support a contrary conclusion under the EEOC's standard that we endorse today.u Accordingly, as we did in Darden, we reverse the judgment of the Court of Appeals and remand the case to that court for further proceedings consistent with this opinion. It is so ordered. JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting. "There is nothing inherently inconsistent between the coexistence of a proprietary and an employment relationship." Goldberg v. Whitaker House Cooperative, Inc., 366 U. S. 28 , 32 (1961). As doctors performing the everyday work of petitioner Clackamas Gastroenterology Associates, P. C., the physician-shareholders function in several respects as 11 For example, the record indicates that the four director-shareholders receive salaries, Tr. of Oral Arg. 8, that they must comply with the standards established by the clinic, App. 66, and that they report to a personnel manager, ibid. 452 common-law employees, a designation they embrace for various purposes under federal and state law. Classifying as employees all doctors daily engaged as caregivers on Clackamas' premises, moreover, serves the animating purpose of the Americans with Disabilities Act of 1990 (ADA or Act). Seeing no cause to shelter Clackamas from the governance of the ADA, I would affirm the judgment of the Court of Appeals. An "employee," the ADA provides, is "an individual employed by an employer." 42 U. S. C. § 12111(4). Where, as here, a federal statute uses the word "employee" without explaining the term's intended scope, we ordinarily presume "Congress intended to describe the conventional masterservant relationship as understood by common-law agency doctrine." Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318 , 322-323 (1992) (internal quotation marks omitted). The Court today selects one of the common-law indicia of a master-servant relationship-control over the work of others engaged in the business of the enterprise-and accords that factor overriding significance. Ante, at 448. I would not so shrink the inquiry. Are the physician-shareholders "servants" of Clackamas for the purpose relevant here? The Restatement defines "servant" to mean "an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master." Restatement (Second) of Agency § 2(2) (1957) (hereinafter Restatement). When acting as clinic doctors, the physician-shareholders appear to fit the Restatement definition. The doctors provide services on behalf of the corporation, in whose name the practice is conducted. See Ore. Rev. Stat. Ann. § 58.185(1)(a) (1998 Supp.) (shareholders of a professional corporation "render the specified professional services of the corporation" (emphasis added)). The doctors have employment contracts with Clackamas, App. 71, under which they receive salaries and 453 yearly bonuses, Tr. of Oral Arg. 8, and they work at facilities owned or leased by the corporation, App. 29, 71. In performing their duties, the doctors must "compl[y] with ... standards [the organization has] established." Id., at 66; see Restatement, ch. 7, tit. B, Introductory Note, p. 479 ("[F]ully employed but highly placed employees of a corporation ... are not less servants because they are not controlled in their day-to-day work by other human beings. Their physical activities are controlled by their sense of obligation to devote their time and energies to the interests of the enterprise."). The physician-shareholders, it bears emphasis, invite the designation "employee" for various purposes under federal and state law. The Employee Retirement Income Security Act of 1974 (ERISA), much like the ADA, defines "employee" as "any individual employed by an employer." 29 U. S. C. § 1002(6). Clackamas readily acknowledges that the physician-shareholders are "employees" for ERISA purposes. Tr. of Oral Arg. 6-7. Indeed, gaining qualification as "employees" under ERISA was the prime reason the physician-shareholders chose the corporate form instead of a partnership. See id., at 7. Further, Clackamas agrees, the physician-shareholders are covered by Oregon's workers' compensation law, ibid., a statute applicable to "person[s] ... who ... furnish services for a remuneration, subject to the direction and control of an employer," Ore. Rev. Stat. Ann. § 656.005(30) (1996 Supp.). Finally, by electing to organize their practice as a corporation, the physician-shareholders created an entity separate and distinct from themselves, one that would afford them limited liability for the debts of the enterprise. §§ 58.185(4), (5), (10), (11) (1998 Supp.). I see no reason to allow the doctors to escape from their choice of corporate form when the question becomes whether they are employees for purposes of federal antidiscrimination statutes. Nothing in or about the ADA counsels otherwise. As the Court observes, the reason for exempting businesses with 454 fewer than 15 employees from the Act, was "to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail." Ante, at 447 (quotation from Papa v. Katy Industries, Inc., 166 F.3d 937 , 940 (CA7 1999)). The inquiry the Court endorses to determine the physician-shareholders' qualification as employees asks whether they "ac[t] independently and participat[e] in managing the organization, or ... [are] subject to the organization's control." Ante, at 449 (quoting 2 Equal Employment Opportunity Commission, Compliance Manual § 605:0009 (2000)). Under the Court's approach, a firm's coverage by the ADA might sometimes turn on variations in ownership structure unrelated to the magnitude of the company's business or its capacity for complying with federal prescriptions. This case is illustrative. In 1996, Clackamas had 4 physician-shareholders and at least 14 other employees for 28 full weeks; in 1997, it had 4 physician-shareholders and at least 14 other employees for 37 full weeks. App. 55-62; see 42 U. s. C. § 12111(5) (to be covered by the Act, an employer must have the requisite number of employees "for each working day in each of 20 or more calendar weeks in the current or preceding calendar year"). Beyond question, the corporation would have been covered by the ADA had one of the physician-shareholders sold his stake in the business and become a "mere" employee. Yet such a change in ownership arrangements would not alter the magnitude of Clackamas' operation: In both circumstances, the corporation would have had at least 18 people on site doing the everyday work of the clinic for the requisite number of weeks. The Equal Employment Opportunity Commission's approach, which the Court endorses, it is true, "excludes from protection those who are most able to control the firm's practices and who, as a consequence, are least vulnerable to the discriminatory treatment prohibited by the Act." Brief for 455 United States et al. as Amici Curiae 11; see 42 U. S. C. §§ 12111(8), 12112(a) (only "employees" are protected by the ADA). As this dispute demonstrates, however, the determination whether the physician-shareholders are employees of Clackamas affects not only whether they may sue under the ADA, but also-and of far greater practical importwhether employees like bookkeeper Deborah Anne Wells are covered by the Act. Because the character of the relationship between Clackamas and the doctors supplies no justification for withholding from clerical worker Wells federal protection against discrimination in the workplace, I would affirm the judgment of the Court of Appeals.

In *Clackamas Gastroenterology Associates, P.C. v. Wells*, the Supreme Court considered whether four physician-shareholders of a medical clinic were considered "employees" under the Americans with Disabilities Act (ADA). The Court held that the common-law element of control is the primary factor in determining whether an individual is an employee, and remanded the case for further consideration. Justice Stevens agreed with the outcome but disagreed with the majority's reasoning, arguing that the magnitude of a company's business and its capacity for complying with federal laws should be considered.

Labor & Employment

Pennsylvania State Police v. Suders

https://supreme.justia.com/cases/federal/us/542/129/

OPINION OF THE COURT PENNSYLVANIA STATE POLICE V. SUDERS 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-95 PENNSYLVANIA STATE POLICE, PETITIONER v. NANCY DREW SUDERS on writ of certiorari to the united states court of appeals for the third circuit [June 14, 2004]    Justice Ginsburg delivered the opinion of the Court.    Plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity she was forced to resign. The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII of the Civil Rights Act of 1964.    To establish hostile work environment, plaintiffs like Suders must show harassing behavior “sufficiently severe or pervasive to alter the conditions of [their] employment.” Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U. S. 17 , 22 (1993) (“[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their … gender … offends Title VII’s broad rule of workplace equality.”). Beyond that, we hold, to establish “constructive discharge,” the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. In so ruling today, we follow the path marked by our 1998 decisions in Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , and Faragher v. Boca Raton, 524 U. S. 775 . I    Because this case was decided against Suders in the District Court on the PSP’s motion for summary judgment, we recite the facts, as summarized by the Court of Appeals, in the light most favorable to Suders.[ Footnote 1 ] In March 1998, the PSP hired Suders as a police communica- tions operator for the McConnellsburg barracks. Suders v. Easton , 325 F. 3d 432, 436 (CA3 2003). Suders’ supervisors were Sergeant Eric D. Easton, Station Commander at the McConnellsburg barracks, Patrol Corporal William D. Baker, and Corporal Eric B. Prendergast. Ibid . Those three supervisors subjected Suders to a continuous barrage of sexual harassment that ceased only when she resigned from the force. Ibid .    Easton “would bring up [the subject of] people having sex with animals” each time Suders entered his office. Ibid . (internal quotation marks omitted).    He told Prendergast, in front of Suders, that young girls should be given instruction in how to gratify men with oral sex. Ibid . Easton also would sit down near Suders, wearing spandex shorts, and spread his legs apart. Ibid . Apparently imitating a move popularized by television wrestling, Baker repeatedly made an obscene gesture in Suders’ presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex. Id ., at 437. Baker made this gesture as many as five-to-ten times per night throughout Suders’ employment at the barracks. Ibid . Suders once told Baker she “ ‘d[id]n’t think [he] should be doing this’ ”; Baker responded by jumping on a chair and again performing the gesture, with the accompanying vulgarity. Ibid . Further, Baker would “rub his rear end in front of her and remark ‘I have a nice ass, don’t I?’ ” Ibid . Prendergast told Suders “ ‘the village idiot could do her job’ ”; wearing black gloves, he would pound on furniture to intimidate her. Ibid .[ Footnote 2 ]    In June 1998, Prendergast accused Suders of taking a missing accident file home with her. Id ., at 438. After that incident, Suders approached the PSP’s Equal Employment Opportunity Officer, Virginia Smith-Elliott, and told her she “might need some help.” Ibid . Smith-Elliott gave Suders her telephone number, but neither woman followed up on the conversation. Ibid . On August 18, 1998, Suders contacted Smith-Elliott again, this time stating that she was being harassed and was afraid. Ibid . Smith-Elliott told Suders to file a complaint, but did not tell her how to obtain the necessary form. Smith-Elliott’s response and the manner in which it was conveyed appeared to Suders insensitive and unhelpful. Ibid .    Two days later, Suders’ supervisors arrested her for theft, and Suders resigned from the force. The theft arrest occurred in the following circumstances. Suders had several times taken a computer-skills exam to satisfy a PSP job requirement. Id ., at 438–439. Each time, Suders’ supervisors told her that she had failed. Id ., at 439. Suders one day came upon her exams in a set of drawers in the women’s locker room. She concluded that her supervisors had never forwarded the tests for grading and that their reports of her failures were false. Ibid . Regarding the tests as her property, Suders removed them from the locker room. Ibid.; App. 11, 119–120. Upon finding that the exams had been removed, Suders’ supervisors devised a plan to arrest her for theft. 325 F. 3d, at 438–439. The officers dusted the drawer in which the exams had been stored with a theft-detection powder that turns hands blue when touched. Id ., at 439. As anticipated by Easton, Baker, and Prendergast, Suders attempted to return the tests to the drawer, whereupon her hands turned telltale blue. Ibid . The supervisors then apprehended and handcuffed her, photographed her blue hands, and commenced to question her. Ibid . Suders had previously prepared a written resignation, which she tendered soon after the supervisors detained her. Ibid . Nevertheless, the supervisors initially refused to release her. Instead, they brought her to an interrogation room, gave her warnings under Miranda v. Arizona, 384 U. S. 436 (1966), and continued to question her. Ibid . Suders reiterated that she wanted to resign, and Easton then let her leave. Ibid . The PSP never brought theft charges against her.    In September 2000, Suders sued the PSP in Federal District Court, alleging, inter alia , that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. §2000e et seq . App. 1, 12–13.[ Footnote 3 ] At the close of discovery, the District Court granted the PSP’s motion for summary judgment. Suders’ testimony, the District Court recognized, sufficed to permit a trier of fact to conclude that the supervisors had created a hostile work environment. App. to Pet. for Cert. 76a. The court nevertheless held that the PSP was not vicariously liable for the supervisors’ conduct. Id ., at 80a.    In so concluding, the District Court referred to our 1998 decision in Faragher v. Boca Raton, 524 U. S. 775 . See App. to Pet. for Cert. 77a–78a. In Faragher , along with Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , decided the same day, the Court distinguished between supervisor harassment unaccompanied by an adverse official act and supervisor harassment attended by “a tangible employment action.” Id., at 765; accord Faragher , 524 U. S., at 808. Both decisions hold that an employer is strictly liable for supervisor harassment that “culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” Ellerth , 524 U. S., at 765; accord Faragher , 524 U. S., at 808. But when no tangible employment action is taken, both decisions also hold, the employer may raise an affirmative defense to liability, subject to proof by a preponderance of the evidence: “The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Ellerth , 524 U. S., at 765; accord Faragher , 524 U. S., at 807.    Suders’ hostile work environment claim was untenable as a matter of law, the District Court stated, because she “unreasonably failed to avail herself of the PSP’s internal procedures for reporting any harassment.” App. to Pet. for Cert. 80a. Resigning just two days after she first mentioned anything about harassment to Equal Employment Opportunity Officer Smith-Elliott, the court noted, Suders had “never given [the PSP] the opportunity to respond to [her] complaints.” Ibid . The District Court did not address Suders’ constructive discharge claim.[ Footnote 4 ]    The Court of Appeals for the Third Circuit reversed and remanded the case for disposition on the merits. 325 F. 3d, at 462. The Third Circuit agreed with the District Court that Suders had presented evidence sufficient for a trier of fact to conclude that the supervisors had engaged in a “pattern of sexual harassment that was pervasive and regular.” Id ., at 442. But the appeals court disagreed with the District Court in two fundamental respects. First, the Court of Appeals held that, even assuming the PSP could assert the affirmative defense described in Ellerth and Faragher , genuine issues of material fact existed concerning the effectiveness of the PSP’s “program … to address sexual harassment claims.” 325 F. 3d, at 443. Second, the appeals court held that the District Court erred in failing to recognize that Suders had stated a claim of constructive discharge due to the hostile work environment. Ibid .[ Footnote 5 ]    A plaintiff alleging constructive discharge in violation of Title VII, the Court of Appeals stated, must establish: “(1) he or she suffered harassment or discrimination so intolerable that a reasonable person in the same position would have felt compelled to resign … ; and (2) the employee’s reaction to the workplace situation—that is, his or her decision to resign—was reasonable given the totality of circumstances … .” Id ., at 445. Viewing the complaint in that context, the court determined that Suders had raised genuine issues of material fact relating to her claim of constructive discharge. Id ., at 446.    The Court of Appeals then made the ruling challenged here: It held that “a constructive discharge, when proved, constitutes a tangible employment action.” Id ., at 447. Under Ellerth and Faragher , the court observed, such an action renders an employer strictly liable and precludes employer recourse to the affirmative defense announced in those decisions. 325 F. 3d, at 447. The Third Circuit recognized that the Courts of Appeals for the Second and Sixth Circuits had ruled otherwise. A constructive discharge resulting from a supervisor-created hostile work environment, both Circuits had held, does not qualify as a tangible employment action, and therefore does not stop an employer from invoking the Ellerth/Faragher affirmative defense. 325 F. 3d, at 452–453 (citing Caridad v. Metro-North Commuter R. Co. , 191 F. 3d 283, 294 (CA2 1999), and Turner v. Dowbrands, Inc ., No. 99–3984, 2000 WL 924599, *1 (CA6, June 26, 2000) (unpublished)). The Third Circuit, however, reasoned that a constructive discharge “ ‘constitutes a significant change in employment status’ by ending the employer-employee relationship” and “also inflicts the same type of ‘direct economic harm’ ” as the tangible employment actions Ellerth and Faragher offered by way of example (discharge, demotion, undesirable reassignment). 325 F. 3d, at 460 (quoting Ellerth , 524 U. S., at 761, 762). Satisfied that Suders had “raised genuine issues of material fact as to her claim of constructive discharge,” and that the PSP was “precluded from asserting the affirmative defense to liability advanced in support of its motion for summary judgment,” the Court of Appeals remanded Suders’ Title VII claim for trial. 325 F. 3d, at 461.    This Court granted certiorari, 540 U. S. 1046 (2003), to resolve the disagreement among the Circuits on the question whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher . Compare 325 F. 3d, at 461 (constructive discharge qualifies as a tangible employment action); Jaros v. LodgeNet Entertainment Corp. , 294 F. 3d 960, 966 (CA8 2002) (same), with Caridad , 191 F. 3d, at 294 (constructive discharge does not qualify as a tangible employment action); Turner , 2000 WL 924599, *1 (same), and Reed v. MBNA Marketing Systems, Inc. , 333 F. 3d 27, 33 (CA1 2003) (constructive discharge qualifies as a tangible employment action only when effected through a supervisor’s official act); Robinson v. Sappington , 351 F. 3d 317, 336 (CA7 2003) (same). We conclude that an employer does not have recourse to the Ellerth/Faragher affirmative defense when a supervisor’s official act precipitates the constructive discharge; absent such a “tangible employment action,” however, the defense is available to the employer whose supervisors are charged with harassment. We therefore vacate the Third Circuit’s judgment and remand the case for further proceedings. II A    Under the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 838–839 (3d ed. 1996) (hereinafter Lindemann & Grossman). The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign? See C. Weirich et al., 2002 Cumulative Supplement to Lindemann & Grossman 651–652, and n. 1 (collecting cases) (hereinafter Weirich).    The constructive discharge concept originated in the labor-law field in the 1930’s; the National Labor Relations Board (NLRB) developed the doctrine to address situations in which employers coerced employees to resign, often by creating intolerable working conditions, in retaliation for employees’ engagement in collective activities. Lieb, Constructive Discharge Under Section 8(a)(3) of the National Labor Relations Act: A Study in Undue Concern Over Motives, 7 Indus. Rel. L. J. 143, 146–148 (1985); see In re Sterling Corset Co. , 9 N. L. R. B. 858, 865 (1938) (first case to use term “constructive discharg[e]”). Over the next two decades, Courts of Appeals sustained NLRB constructive discharge rulings. See, e.g. , NLRB v. East Texas Motor Freight Lines , 140 F. 2d 404, 405 (CA5 1944) (first Circuit case to hold supervisor-caused resignation an unfair labor practice); NLRB v. Saxe-Glassman Shoe Corp ., 201 F. 2d 238, 243 (CA1 1953) (first Circuit case to allow backpay award for constructive discharge). By 1964, the year Title VII was enacted, the doctrine was solidly established in the federal courts. See Comment, That’s It, I Quit: Returning to First Principles in Constructive Discharge Doctrine, 23 Berkeley J. Emp. & Lab. L. 401, 410 (2002).    The Courts of Appeals have recognized constructive discharge claims in a wide range of Title VII cases. See, e.g. , Robinson , 351 F. 3d, at 336–337 (sexual harassment); Moore v. KUKA Welding Systems & Robot Corp. , 171 F. 3d 1073, 1080 (CA6 1999) (race); Bergstrom-Ek v. Best Oil Co. , 153 F. 3d 851, 858–859 (CA8 1998) (pregnancy); Amirmokri v. Baltimore Gas & Elec. Co. , 60 F. 3d 1126, 1132–1133 (CA4 1995) (national origin); Derr v. Gulf Oil Corp. , 796 F. 2d 340, 343 (CA10 1986) (sex); Young v. Southwestern Sav. & Loan Assn. , 509 F. 2d 140, 143–144 (CA5 1975) (religion). See also Goss v. Exxon Office Systems Co. , 747 F. 2d 885, 887 (CA3 1984) (“[A]pplication of the constructive discharge doctrine to Title VII cases has received apparently universal recognition among the courts of appeals which have addressed that issue.”); 3 L. Larson, Labor and Employment Law §59.05[8] (2003) (collecting cases). And the Equal Employment Opportunity Commission (EEOC), the federal agency charged with implementing Title VII, has stated: An employer “is responsible for a constructive discharge in the same manner that it is responsible for the outright discriminatory discharge of a charging party.” EEOC Compliance Manual 612:0006 (2002).    Although this Court has not had occasion earlier to hold that a claim for constructive discharge lies under Title VII, we have recognized constructive discharge in the labor-law context, see Sure&nbhyph;Tan, Inc. v. NLRB, 467 U. S. 883 , 894 (1984) (NLRB may find employer engaged in unfair labor practice “when, for the purpose of discouraging union activity, … [the employer] creates working conditions so intolerable that the employee has no option but to resign—a so-called ‘constructive discharge.’ ”). Furthermore, we have stated that “Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment.” Ellerth , 524 U. S., at 752. See also Meritor Savings Bank, FSB v. Vinson, 477 U. S., at 64 (“The phrase ‘terms, conditions, or privileges of employment’ [in Title VII] evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” (some internal quotation marks omitted)). We agree with the lower courts and the EEOC that Title VII encompasses employer liability for a constructive discharge. B    This case concerns an employer’s liability for one subset of Title VII constructive discharge claims: constructive discharge resulting from sexual harassment, or “hostile work environment,” attributable to a supervisor. Our starting point is the framework Ellerth and Faragher established to govern employer liability for sexual harassment by supervisors.[ Footnote 6 ] As earlier noted, see supra , at 5–6, those decisions delineate two categories of hostile work environment claims: (1) harassment that “culminates in a tangible employment action,” for which employers are strictly liable, Ellerth , 524 U. S., at 765; accord Faragher , 524 U. S., at 808, and (2) harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense, Ellerth , 524 U. S., at 765; accord Faragher , 524 U. S., at 807. With the background set out above in mind, we turn to the key issues here at stake: Into which Ellerth/Faragher category do hostile-environment constructive discharge claims fall—and what proof burdens do the parties bear in such cases.    In Ellerth and Faragher , the plaintiffs-employees sought to hold their employers vicariously liable for sexual harassment by their supervisors, even though the plaintiffs “suffer[ed] no adverse, tangible job consequences.” Ellerth , 524 U. S., at 747. Setting out a framework for employer liability in those decisions, this Court noted that Title VII’s definition of “employer” includes the employer’s “agent[s],” 42 U. S. C. §2000e(b). See Ellerth , 524 U. S., at 754. We viewed that definition as a direction to “interpret Title VII based on agency principles.” Ibid. The Restatement (Second) of Agency (1957) (hereinafter Restatement), the Court noted, states (in its black-letter formulation) that an employer is liable for the acts of its agent when the agent “ ‘was aided in accomplishing the tort by the existence of the agency relation.’ ” Ellerth , 524 U. S., at 758 (quoting Restatement §219(2)(d)); accord Faragher , 524 U. S., at 801.    We then identified “a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate.” Ellerth , 524 U. S., at 760. A tangible employment action, the Court explained, “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id ., at 761. Unlike injuries that could equally be inflicted by a co-worker, we stated, tangible employment actions “fall within the special province of the supervisor,” who “has been empowered by the company as … [an] agent to make economic decisions affecting other employees under his or her control.” Id ., at 762. The tangible employment action, the Court elaborated, is, in essential character, “an official act of the enterprise, a company act.” Ibid . It is “the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” Ibid . Often, the supervisor will “use [the company’s] internal processes” and thereby “obtain the imprimatur of the enterprise.” Ibid . Ordinarily, the tangible employment decision “is documented in official company records, and may be subject to review by higher level supervisors.” Ibid . In sum, we stated, “when a supervisor takes a tangible employment action against a subordinate[,] … it would be implausible to interpret agency principles to allow an employer to escape liability.” Id ., at 762–763.    When a supervisor’s harassment of a subordinate does not culminate in a tangible employment action, the Court next explained, it is “less obvious” that the agency relation is the driving force. Id ., at 763. We acknowledged that a supervisor’s “power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation.” Ibid . But we also recognized that “there are acts of harassment a supervisor might commit which might be the same acts a coemployee would commit, and there may be some circumstances where the supervisor’s status [would] mak[e] little difference.” Ibid .    An “aided-by-the-agency-relation” standard, the Court suggested, was insufficiently developed to press into service as the standard governing cases in which no tangible employment action is in the picture. Looking elsewhere for guidance, we focused on Title VII’s design “to encourage the creation of antiharassment policies and effective grievance mechanisms.” Id ., at 764. The Court reasoned that tying the liability standard to an employer’s effort to install effective grievance procedures would advance Congress’ purpose “to promote conciliation rather than litigation” of Title VII controversies. Ibid . At the same time, such linkage of liability limitation to effective preventive and corrective measures could serve Title VII’s deterrent purpose by “encourag[ing] employees to report harassing conduct before it becomes severe or pervasive.” Ibid . Accordingly, we held that when no tangible employment action is taken, the employer may defeat vicarious liability for supervisor harassment by establishing, as an affirmative defense, both that “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Id ., at 765; accord Faragher , 524 U. S., at 807. Ellerth and Faragher also clarified the parties’ respective proof burdens in hostile environment cases. Title VII, the Court noted, “borrows from tort law the avoidable consequences doctrine,” Ellerth , 524 U. S., at 764, under which victims have “a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize the damages’ that result from violations of the statute,” Faragher , 524 U. S., at 806 (quoting Ford Motor Co. v. EEOC, 458 U. S. 219 , 231, n. 15 (1982)). The Ellerth/Faragher affirmative defense accommodates that doctrine by requiring plaintiffs reasonably to stave off avoidable harm. But both decisions place the burden squarely on the defendant to prove that the plaintiff unreasonably failed to avoid or reduce harm. Ellerth , 524 U. S., at 765; accord Faragher , 524 U. S., at 807; cf. C. McCormick, Law of Damages 130 (1935) (defendant has burden of persuading factfinder “plaintiff could reasonably have reduced his loss or avoided injurious consequences”).[ Footnote 7 ] 1    The constructive discharge here at issue stems from, and can be regarded as an aggravated case of, sexual harassment or hostile work environment. For an atmosphere of sexual harassment or hostility to be actionable, we reiterate, see supra , at 1, the offending behavior “must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Meritor, 477 U. S., at 67 (internal quotation marks and brackets omitted). A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. See, e.g., Breeding v. Arthur J. Gallagher & Co. , 164 F. 3d 1151, 1160 (CA8 1999) (“[A]lthough there may be evidence from which a jury could find sexual harassment, … the facts alleged [for constructive discharge must be] … so intolerable that a reasonable person would be forced to quit.”); Perry v. Harris Chernin, Inc. , 126 F. 3d 1010, 1015 (CA7 1997) (“[U]nless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.”).[ Footnote 8 ]    Suders’ claim is of the same genre as the hostile work environment claims the Court analyzed in Ellerth and Faragher .[ Footnote 9 ] Essentially, Suders presents a “worse case” harassment scenario, harassment ratcheted up to the breaking point. Like the harassment considered in our pathmarking decisions, harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts. Unlike an actual termination, which is always effected through an official act of the company, a constructive discharge need not be. A constructive discharge involves both an employee’s decision to leave and precipitating conduct: The former involves no official action; the latter, like a harassment claim without any constructive discharge assertion, may or may not involve official action. See Brief for United States as Amicus Curiae 24.    To be sure, a constructive discharge is functionally the same as an actual termination in damages-enhancing respects. See supra , at 16, n. 8. As the Third Circuit observed, both “en[d] the employer-employee relationship,” and both “inflic[t] … direct economic harm.” 325 F. 3d, at 460 (internal quotation marks omitted). But when an official act does not underlie the constructive discharge, the Ellerth and Faragher analysis, we here hold, calls for extension of the affirmative defense to the employer. As those leading decisions indicate, official directions and declarations are the acts most likely to be brought home to the employer, the measures over which the employer can exercise greatest control. See Ellerth , 524 U. S., at 762. Absent “an official act of the enterprise,” ibid ., as the last straw, the employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force. And as Ellerth and Faragher further point out, an official act reflected in company records—a demotion or a reduction in compensation, for example—shows “beyond question” that the supervisor has used his managerial or controlling position to the employee’s disadvantage. See Ellerth , 524 U. S., at 760. Absent such an official act, the extent to which the supervisor’s misconduct has been aided by the agency relation, as we earlier recounted, see supra , at 13, is less certain. That uncertainty, our precedent establishes, see supra , at 13–14, justifies affording the employer the chance to establish, through the Ellerth/Faragher affirmative defense, that it should not be held vicariously liable. The Third Circuit drew the line differently. Under its formulation, the affirmative defense would be eliminated in all hostile-environment constructive discharge cases, but retained, as Ellerth and Faragher require, in “ordinary” hostile work environment cases, i.e. , cases involving no tangible employment action. That placement of the line, anomalously, would make the graver claim of hostile-environment constructive discharge easier to prove than its lesser included component, hostile work environment. Moreover, the Third Circuit’s formulation, that court itself recognized, would make matters complex, indeed, more than a little confusing to jurors. Creation of a hostile work environment is a necessary predicate to a hostile-environment constructive discharge case. Juries would be so informed. Under the Third Circuit’s decision, a jury, presumably, would be cautioned to consider the affirmative-defense evidence only in reaching a decision on the hostile work environment claim, and to ignore or at least downplay that same evidence in deciding the closely associated constructive discharge claim. It makes scant sense thus to alter the decisive instructions from one claim to the next when the only variation between the two claims is the severity of the hostile working conditions. Cf. Faragher , 524 U. S., at 801 (affirming “the virtue of categorical clarity”). We note, finally, two recent Court of Appeals decisions that indicate how the “official act” (or “tangible employment action”) criterion should play out when constructive discharge is alleged. Both decisions advance the untangled approach we approve in this opinion. In Reed v. MBNA Marketing Systems, Inc. , 333 F. 3d 27 (CA1 2003), the plaintiff claimed a constructive discharge based on her supervisor’s repeated sexual comments and an incident in which he sexually assaulted her. The First Circuit held that the alleged wrongdoing did not preclude the employer from asserting the Ellerth/Faragher affirmative defense. As the court explained in Reed , the supervisor’s behavior involved no official actions. Unlike, “ e.g. , an extremely dangerous job assignment to retaliate for spurned advances,” 333 F. 3d, at 33, the supervisor’s conduct in Reed “was exceedingly unofficial and involved no direct exercise of company authority”; indeed, it was “exactly the kind of wholly unauthorized conduct for which the affirmative defense was designed,” ibid . In contrast, in Robinson v. Sappington , 351 F. 3d 317 (CA7 2003), after the plaintiff complained that she was sexually harassed by the judge for whom she worked, the presiding judge decided to transfer her to another judge, but told her that “her first six months [in the new post] probably would be ‘hell,’ ” and that it was in her “ ‘best interest to resign.’ ” Id ., at 324. The Seventh Circuit held that the employer was precluded from asserting the affirmative defense to the plaintiff’s constructive discharge claim. The Robinson plaintiff’s decision to resign, the court explained, “resulted, at least in part, from [the presiding judge’s] official actio[n] in transferring” her to a judge who resisted placing her on his staff. Id ., at 337. The courts in Reed and Robinson properly recognized that Ellerth and Faragher , which divided the universe of supervisor-harassment claims according to the presence or absence of an official act, mark the path constructive discharge claims based on harassing conduct must follow. 2 In its summation, the Third Circuit qualified its holding that a constructive discharge itself “constitutes a tangible employment action within the meaning of Ellerth and Faragher .” 325 F. 3d, at 462. The affirmative defense Ellerth and Faragher delineated, the court said, might be imported into the anterior issue whether “the employee’s decision to resign was reasonable under the circumstances.” 325 F. 3d, at 462.[ Footnote 10 ] As the Third Circuit expressed its thinking: “[I]t may be relevant to a claim of constructive discharge whether an employer had an effective remedial scheme in place, whether an employer attempted to investigate, or otherwise to address, plaintiff’s complaints, and whether plaintiff took advantage of alternatives offered by antiharassment programs.” Ibid . These considerations, the Third Circuit recognized, “are, of course, the same considerations relevant to the affirmative defense in Ellerth and Faragher .” Ibid . The Third Circuit left open when and how the Ellerth/Faragher considerations would be brought home to the fact trier. It did not address specifically the allocation of pleading and persuasion burdens. It simply relied on “the wisdom and expertise of trial judges to exercise their gatekeeping authority when assessing whether all, some, or none of the evidence relating to employers’ antiharassment programs and to employees’ exploration of alternative avenues warrants introduction at trial.” 325 F. 3d, at 463. We see no cause for leaving the district courts thus unguided. Following Ellerth and Faragher , the plaintiff who alleges no tangible employment action has the duty to mitigate harm, but the defendant bears the burden to allege and prove that the plaintiff failed in that regard. See supra , at 14–15. The plaintiff might elect to allege facts relevant to mitigation in her pleading or to present those facts in her case in chief, but she would do so in anticipation of the employer’s affirmative defense, not as a legal requirement. * * * We agree with the Third Circuit that the case, in its current posture, presents genuine issues of material fact concerning Suders’ hostile work environment and constructive discharge claims.[ Footnote 11 ] We hold, however, that the Court of Appeals erred in declaring the affirmative defense described in Ellerth and Faragher never available in constructive discharge cases. Accordingly, we vacate the Third Circuit’s judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The PSP, we note, “vigorously dispute[s]” the truth of Suders’ allegations, contending that some of the incidents she describes “never happened at all,” while “others took place in a context quite different from that suggested by [Suders].” Brief for Petitioner 4, n. 3. Footnote 2 In addition, the supervisors made derogatory remarks about Suders’ age, e.g. , stating “ ‘a 25-year-old could catch on faster’ ” than she could, 325 F. 3d, at 436, and calling her “ ‘momma,’ ” id ., at 437. They further harassed her for having political influence. Ibid . Suders’ age and political-affiliation discrimination claims are not before us. Footnote 3 Suders raised several other claims that are not at issue here, including claims under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, 29 U. S. C. §621 et seq ., and the Pennsylvania Human Relations Act (PHRA), Pa. Stat. Ann., Tit. 43, §951 et seq . (Purdon 1991). App. 7. She also asserted claims against Easton, Baker, Prendergast, and Smith-Elliott in their individual capacities under Title VII, the ADEA, and the PHRA. App. to Pet. for Cert. 70a–73a. Footnote 4 The District Court disposed of all other claims in the PSP’s favor. The court granted the PSP summary judgment on Suders’ Title VII retaliation claim, observing that Suders did not engage in any protected activity, e.g. , she did not file a discrimination claim, prior to her resignation. Id ., at 80a–81a. It dismissed Suders’ ADEA and PHRA claims against the PSP on sovereign immunity grounds, id ., at 72a–73a, and her Title VII and ADEA claims against the individual defendants on the ground that those statutes do not provide for individual liability, id ., at 70a–72a. The court also dismissed the PHRA claims against the individual defendants because Suders had failed to respond to the defendants’ assertions of immunity. Id ., at 73a–74a. Suders did not raise any of the above claims on appeal. See Brief for Appellant in No. 01–3512 (CA3), p. 2; Brief for Appellees in No. 01–3512, p. 4. Footnote 5 Although Suders’ complaint did not expressly mention constructive discharge, the Third Circuit found “[t]he allegations of constructive discharge … apparent on the face of Suders’s [pleading].” 325 F. 3d, at 443; see ibid . (“In the very first paragraph, Suders alleged that she was ‘forced to suffer a termination of employment because she would not yield to sexual suggestions [and] innuendoes … .’ ” (quoting Introductory Statement to Suders’ complaint, reprinted in this Court at App. 6)). Footnote 6 Ellerth and Faragher expressed no view on the employer liability standard for co-worker harassment. Nor do we. Footnote 7 The employer is in the best position to know what remedial procedures it offers to employees and how those procedures operate. See 9 J. Wigmore, Evidence §2486, p. 290 (J. Chadbourn rev. ed. 1981) (“[T]he burden of proving a fact is said to be put on the party who presumably has peculiar means of knowledge enabling him to prove its falsity if it is false.” (emphasis deleted)). Footnote 8 As earlier noted, see supra , at 9, a prevailing constructive discharge plaintiff is entitled to all damages available for formal discharge. The plaintiff may recover postresignation damages, including both backpay and, in fitting circumstances, frontpay, see 1 Lindemann & Grossman 838; Weirich 651, as well as the compensatory and punitive damages now provided for Title VII claims generally, see 42 U. S. C. §1981a(a)(1); Pollard v. E. I. du Pont de Nemours & Co., 532 U. S. 843 , 848 (2001) (noting expanded remedies under Civil Rights Act of 1991). Footnote 9 Both the Ellerth and Faragher plaintiffs resigned from their posts; plaintiff Ellerth expressly alleged constructive discharge. See Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 748–749 (1998); Faragher v. Boca Raton, 524 U. S. 775 , 783 (1998). Although Ellerth’s constructive discharge claim was not before this Court, the decision’s omission of constructive discharge from its examples of tangible employment actions is conspicuous. See 524 U. S., at 761; Brief for Chamber of Commerce of the United States as Amicus Curiae 10 (“[T]his Court’s omission of constructive discharge in its discussion of tangible employment actions was widely regarded as a purposeful one.”). Tellingly, we stated that Ellerth “ha[d] not alleged she suffered a tangible employment action,” despite the fact that her complaint alleged constructive discharge. 524 U. S., at 766. Footnote 10 For similar expressions, see, e.g., Jaros v. LodgeNet Entertainment Corp. , 294 F. 3d 960, 965 (CA8 2002) (though not entitled to the Ellerth/Faragher affirmative defense, employer facing constructive discharge complaint may assert that plaintiff “did not give it a chance to respond to her [grievance]” in rebutting plaintiff’s contention that conditions were so intolerable as to force her resignation); Marrero v. Goya of Puerto Rico, Inc. , 304 F. 3d 7, 28 (CA1 2002) (“the jury reasonably can take into account how the employer responded to the plaintiff’s complaints, if any” in deciding whether conditions were intolerable); Hartman v. Sterling, Inc. , No. Civ. A. 01–CV–2630, 2003 WL 22358548, *13 (ED Pa., Sept. 10, 2003) (noting “it is relevant,” but not dispositive, whether plaintiff complained); Brief for Lawyers’ Committee for Civil Rights Under Law et al. as Amici Curiae 19 (affirmative defense unnecessary because of “the overlap between elements of constructive discharge and of the Faragher/Ellerth [affirmative] defense”). Footnote 11 Although most of the discriminatory behavior Suders alleged involved unofficial conduct, the events surrounding her computer-skills exams, see supra , at 4, were less obviously unofficial. THOMAS, J., DISSENTING PENNSYLVANIA STATE POLICE V. SUDERS 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-95 PENNSYLVANIA STATE POLICE, PETITIONER v. NANCY DREW SUDERS on writ of certiorari to the united states court of appeals for the third circuit [June 14, 2004]    Justice Thomas, dissenting.    As the Court explains, the National Labor Relations Board (NLRB) developed the concept of constructive discharge to address situations in which employers coerced employees into resigning because of the employees’ involvement in union activities. See ante , at 9–10. In light of this specific focus, the NLRB requires employees to establish two elements to prove a constructive discharge. First, the employer must impose burdens upon the employee that “cause, and [are] intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee’s union activities.” Crystal Princeton Refining Co. , 222 N. L. R. B. 1068, 1069 (1976).    When the constructive discharge concept was first imported into Title VII of the Civil Rights Act of 1964, some courts imposed similar requirements. See, e.g., Muller v. United States Steel Corp. , 509 F. 2d 923, 929 (CA10 1975) (requiring a showing that “an employer deliberately render[ed] the employee’s working conditions intolerable and thus force[d] him to quit his job”). Moreover, because the Court had not yet recognized the hostile work environment cause of action, the first successful Title VII constructive discharge claims typically involved adverse employment actions. See, Muller , supra (denial of job promotion); Derr v. Gulf Oil Corp. , 796 F. 2d 340, 344 (CA10 1986) (demotion). If, in order to establish a constructive discharge, an employee must prove that his employer subjected him to an adverse employment action with the specific intent of forcing the employee to quit, it makes sense to attach the same legal consequences to a constructive discharge as to an actual discharge.    The Court has now adopted a definition of constructive discharge, however, that does not in the least resemble actual discharge. The Court holds that to establish “constructive discharge,” a plaintiff must “show that the abusive working environment became so intolerable that [the employee’s] resignation qualified as a fitting response.” Ante , at 1. Under this rule, it is possible to allege a constructive discharge absent any adverse employment action. Moreover, a majority of Courts of Appeals have declined to impose a specific intent or reasonable foreseeability requirement. See, e.g., Brooks v. City of San Mateo , 229 F. 3d 917, 930 (CA9 2000) (“[C]onstructive discharge occurs when the working conditions deteriorate, as a result of discrimination, to the point that they become sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer” (internal quotation marks and citation omitted)).    Thus, as it is currently conceived, a “constructive” discharge does not require a “company act[] that can be performed only by the exercise of specific authority granted by the employer,” Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 768 (1998) (Thomas, J., dissenting) ( i.e., an adverse employment action), nor does it require that the act be undertaken with the same purpose as an actual discharge. Under these circumstances, it no longer makes sense to view a constructive discharge as equivalent to an actual discharge. Instead, as the Court points out, a constructive discharge is more akin to “an aggravated case of … sexual harassment or hostile work environment.” Ante , at 15. And under this “hostile work environment plus” framework, the proper standard for determining employer liability is the same standard for hostile work environment claims that I articulated in Burlington Industries, Inc. , supra . “An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor’s conduct to occur.” Id. , at 767. If a supervisor takes an adverse employment action because of sex that directly results in the constructive discharge, the employer is vicariously liable. Id., at 768. But, where the alleged constructive discharge results only from a hostile work environment, an employer is liable if negligent. Ibid. Because respondent has not adduced sufficient evidence of an adverse employment action taken because of her sex, nor has she proffered any evidence that petitioner knew or should have known of the alleged harassment, I would reverse the judgment of the Court of Appeals.

In *Pennsylvania State Police v. Suders*, the Supreme Court ruled that to prove "constructive discharge" in a sexual harassment case, an employee must show that the abusive work environment was so intolerable that resigning was a reasonable response. Employers can defend themselves by showing they had an effective complaint process, which the employee failed to use. However, if the employee quits due to an official change in employment status (demotion, pay cut, etc.), the employer's defense may not apply. The Court's ruling clarifies the burden of proof for hostile work environment and constructive discharge claims under Title VII of the Civil Rights Act.

Labor & Employment

EEOC v. Waffle House, Inc.

https://supreme.justia.com/cases/federal/us/534/279/

OCTOBER TERM, 2001 Syllabus EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAFFLE HOUSE, INC. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 99-1823. Argued October 10, 200l-Decided January 15,2002 Respondent's employees must each sign an agreement requiring employment disputes to be settled by binding arbitration. After Eric Baker suffered a seizure and was fired by respondent, he filed a timely discrimination charge with the Equal Employment Opportunity Commission (EEOC) alleging that his discharge violated Title I of the Americans with Disabilities Act of 1990 (ADA). The EEOC subsequently filed this enforcement suit, to which Baker is not a party, alleging that respondent's employment practices, including Baker's discharge "because of his disability," violated the ADA and that the violation was intentional and done with malice or reckless indifference. The complaint requested injunctive relief to "eradicate the effects of [respondent's] past and present unlawful employment practices"; specific relief designed to make Baker whole, including backpay, reinstatement, and compensatory damages; and punitive damages for malicious and reckless conduct. Respondent petitioned under the Federal Arbitration Act (FAA) to stay the EEOC's suit and compel arbitration, or to dismiss the action, but the District Court denied relief. The Fourth Circuit concluded that the arbitration agreement between Baker and respondent did not foreclose the enforcement action because the EEOC was not a party to the contract, but had independent statutory authority to bring suit in any federal district court where venue was proper. Nevertheless, the court held that the EEOC was limited to injunctive relief and precluded from seeking victim-specific relief because the FAA policy favoring enforcement of private arbitration agreements outweighs the EEOC's right to proceed in federal court when it seeks primarily to vindicate private, rather than public, interests. Held: An agreement between an employer and an employee to arbitrate employment-related disputes does not bar the EEOC from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an ADA enforcement action. Pp. 285-298. (a) The ADA directs the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when enforcing the ADA's prohibitions against employment discrimination on the basis of disability. Following the 280 Syllabus 1991 amendments to Title VII, the EEOC has authority to bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages, in both Title VII and ADA actions. Thus, these statutes unambiguously authorize the EEOC to obtain the relief that it seeks here if it can prove its case against respondent. Neither the statutes nor this Court's cases suggest that the existence of an arbitration agreement between private parties materially changes the EEOC's statutory nmction or the remedies otherwise available. pp. 285-288. (b) Despite the FAA policy favoring arbitration agreements, nothing in the FAA authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement. The FAA does not mention enforcement by public agencies; it ensures the enforceability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty's choice of a judicial forum. Pp.288-289. (c) The Fourth Circuit based its decision on its evaluation of the "competing policies" implemented by the ADA and the FAA, rather than on any language in either the statutes or the arbitration agreement between Baker and respondent. If the EEOC could prosecute its claim only with Baker's consent, or if its prayer for relief could be dictated by Baker, the lower court's analysis might be persuasive. But once a charge is filed, the exact opposite is true under the ADA, which clearly makes the EEOC the master of its own case, conferring on it the authority to evaluate the strength of the public interest at stake and to determine whether public resources should be committed to the recovery of victim-specific relief. Moreover, the Court of Appeals' attempt to balance policy goals against the arbitration agreement's clear language is inconsistent with this Court's cases holding that the FAA does not require parties to arbitrate when they have not agreed to do so. E. g., Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 , 478. Because the EEOC is not a party to the contract and has not agreed to arbitrate its claims, the FAA's proarbitration policy goals do not require the agency to relinquish its statutory authority to pursue victim-specific relief, regardless of the forum that the employer and employee have chosen to resolve their disputes. Pp. 290-296. (d) Although an employee's conduct may effectively limit the relief the EEOC can obtain in court if, for example, the employee fails to mitigate damages or accepts a monetary settlement, see, e. g., Ford Motor Co. v. EEOC, 458 U. S. 219 , 231-232, Baker has not sought arbitration, nor is there any indication that he has entered into settlement negotiations with respondent. The fact that ordinary principles of res 281 judicata, mootness, or mitigation may apply to EEOC claims does not mean the EEOC's claim is merely derivative. This Court has recognized several situations in which the EEOC does not stand in the employee's shoes, see, e. g., Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 , 368, and, in this context, the statute specifically grants the EEOC exclusive authority over the choice of forum and the prayer for relief once a charge has been filed. pp. 296-298. 193 F.3d 805 , reversed and remanded. STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 298. Paul D. Clement argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Acting Solicitor General Underwood, Acting Assistant Attorney General Yeomans, James A. Feldman, Gwendolyn Young Reams, Philip B. Sklover, Lorraine C. Davis, and Robert David L. Gordon argued the cause for respondent. With him on the brief were D. Gregory Valenza, Stephen F. Fisher, and Thomas C. Goldstein. * *Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W (Jay) Nixon, Attorney General of Missouri, James R. Layton, State Solicitor, and Alana M. Barragan-Scott, Deputy Solicitor, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Betty D. Montgomery of Ohio, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Mark Shurtleff of Utah, William H. Sorrell of Vermont, Darrell V. McGraw, Jr., of West Virginia, and Herbert D. Soll of the Northern Mariana Islands; for the Maryland Commission on Human Relations et al. by Lee D. Hoshall and Elizabeth Colette; for AARP by Thomas 282 JUSTICE STEVENS delivered the opinion of the Court. The question presented is whether an agreement between an employer and an employee to arbitrate employmentrelated disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 328, 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. V). I In his application for employment with respondent, Eric Baker agreed that "any dispute or claim" concerning his employment would be "settled by binding arbitration." 1 As a W Osborne, Laurie A. McCann, and Melvin Radowitz; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Lawyers' Committee for Civil Rights Under Law et al. by Paul W Mollica, John Payton, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, Karen K. Narasaki, Vincent A. Eng, Judith L. Lichtman, Martha F. Davis, Yolanda S. Wu, Marcia D. Greenberger, and Judith Appelbaum; for the National Employment Lawyers Association et al. by Michael Rubin, Scott A. Kronland, Cliff Palefsky, Steven R. Shapiro, Lenora M. Lapidus, F. Paul Bland, Jr., Arthur H. Bryant, and Paula A. Brantner; and for the National Whistleblower Center by Stephen M. Kohn, Michael Briefs of amici curiae urging affirmance were filed for Associated Industries of Massachusetts et al. by Michael E. Malamut; for the Council for Employment Law Equity by Walter Dellinger, Samuel Estreicher, and Mark A. de Bernardo; and for the Equal Employment Advisory Council by Ann Elizabeth Reesman and Rae T. Vann. 1 The agreement states: "The parties agree that any dispute or claim concerning Applicant's employment with Waffle House, Inc., or any subsidiary or Franchisee of Waffle House, Inc., or the terms, conditions or benefits of such employment, including whether such dispute or claim is arbitrable, will be settled by binding arbitration. The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time a demand for arbitration is made. A 283 condition of employment, all prospective Waffle House employees are required to sign an application containing a similar mandatory arbitration agreement. See App. 56. Baker began working as a grill operator at one of respondent's restaurants on August 10, 1994. Sixteen days later he suffered a seizure at work and soon thereafter was discharged. Id., at 43-44. Baker did not initiate arbitration proceedings, nor has he in the seven years since his termination, but he did file a timely charge of discrimination with the EEOC alleging that his discharge violated the ADA. After an investigation and an unsuccessful attempt to conciliate, the EEOC filed an enforcement action against respondent in the Federal District Court for the District of South Carolina,2 pursuant to § 107(a) of the ADA, 42 U. S. C. § 12117(a) (1994 ed.), and § 102 of the Civil Rights Act of 1991, as added, 105 Stat. 1072, 42 U. S. C. § 1981a (1994 ed.). Baker is not a party to the case. The EEOC's complaint alleged that respondent engaged in employment practices that violated the ADA, including its discharge of Baker "because of his disability," and that its violation was intentional, and "done with malice or with reckless indifference to [his] federally protected rights." The complaint requested the court to grant injunctive relief to "eradicate the effects of [respondent's] past and present unlawful employment prac- decision and award of the arbitrator made under the said rules shall be exclusive, final and binding on both parties, their heirs, executors, administrators, successors and assigns. The costs and expenses of the arbitration shall be borne evenly by the parties." App. 59. 2 Because no evidence of the employment practices alleged in the complaint has yet been presented, we of course express no opinion on the merits of the EEOC's case. We note, on the one hand, that the state human rights commission also investigated Baker's claim and found no basis for suit. On the other hand, the EEOC chooses to file suit in response to only a small number of the many charges received each year, see n. 7, infra. In keeping with normal appellate practice in cases arising at the pleading stage, we assume, arguendo, that the EEOC's case is meritorious. 284 tices," to order specific relief designed to make Baker whole, including backpay, reinstatement, and compensatory damages, and to award punitive damages for malicious and reckless conduct. App. 38-40. Respondent filed a petition under the Federal Arbitration Act (FAA), 9 U. s. C. § 1 et seq., to stay the EEOC's suit and compel arbitration, or to dismiss the action. Based on a factual determination that Baker's actual employment contract had not included the arbitration provision, the District Court denied the motion. The Court of Appeals granted an interlocutory appeal and held that a valid, enforceable arbitration agreement between Baker and respondent did exist. 193 F.3d 805 , 808 (CA4 1999). The court then proceeded to consider "what effect, if any, the binding arbitration agreement between Baker and Waffle House has on the EEOC, which filed this action in its own name both in the public interest and on behalf of Baker." Id., at 809. After reviewing the relevant statutes and the language of the contract, the court concluded that the agreement did not foreclose the enforcement action because the EEOC was not a party to the contract, and it has independent statutory authority to bring suit in any federal district court where venue is proper. Id., at 809-812. Nevertheless, the court held that the EEOC was precluded from seeking victim-specific relief in court because the policy goals expressed in the FAA required giving some effect to Baker's arbitration agreement. The majority explained: "When the EEOC seeks 'make-whole' relief for a charging party, the federal policy favoring enforcement of private arbitration agreements outweighs the EEOC's right to proceed in federal court because in that circumstance, the EEOC's public interest is minimal, as the EEOC seeks primarily to vindicate private, rather than public, interests. On the other hand, when the EEOC is pursuing large-scale injunctive relief, the balance tips in favor of EEOC enforcement efforts in federal court 285 because the public interest dominates the EEOC's action." Id., at 812.3 Therefore, according to the Court of Appeals, when an employee has signed a mandatory arbitration agreement, the EEOC's remedies in an enforcement action are limited to injunctive relief. Several Courts of Appeals have considered this issue and reached conflicting conclusions. Compare EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (CA6 1999) (employee's agreement to arbitrate does not affect the EEOC's independent statutory authority to pursue an enforcement action for injunctive relief, backpay, and damages in federal court), with EEOC v. Kidder, Peabody & Co., 156 F.3d 298 (CA2 1998) (allowing the EEOC to pursue injunctive relief in federal court, but precluding monetary relief); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nixon, 210 F.3d 814 (CA8), cert. denied, 531 U. S. 958 (2000) (same). We granted the EEOC's petition for certiorari to resolve this conflict, 532 U. S. 941 (2001), and now reverse. II Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when it is enforcing the ADA's prohibitions against employment discrimination on the basis of disability. 42 U. S. C. § 12117(a) (1994 ed.).4 Accordingly, the provisions of Title VII defining 3 One member of the panel dissented because he agreed with the District Court that, as a matter of fact, the arbitration clause was not included in Baker's actual contract of employment. 193 F. 3d, at 813. 4 Section 12117(a) provides: "The powers, remedies, and procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this title shall be the powers, remedies, and procedures this subchapter provides to the Commission, to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this chapter, or regulations promulgated under section 12116 of this title, concerning employment." 286 the EEOC's authority provide the starting point for our analysis. When Title VII was enacted in 1964, it authorized private actions by individual employees and public actions by the Attorney General in cases involving a "pattern or practice" of discrimination. 42 U. S. C. § 2000e-6(a) (1994 ed.). The EEOC, however, merely had the authority to investigate and, if possible, to conciliate charges of discrimination. See General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 , 325 (1980). In 1972, Congress amended Title VII to authorize the EEOC to bring its own enforcement actions; indeed, we have observed that the 1972 amendments created a system in which the EEOC was intended "to bear the primary burden of litigation," id., at 326. Those amendments authorize the courts to enjoin employers from engaging in unlawful employment practices, and to order appropriate affirmative action, which may include reinstatement, with or without backpay.5 Moreover, the amendments specify the judicial districts in which such actions may be brought.6 They do not mention arbitration proceedings. 5 "(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back pay; limitations on judicial orders "(1) 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 affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), 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. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." 42 U. S. C. § 2000e-5(g)(1) (1994 ed.). 6 Section 2000e-5(f)(3) provides: "Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction 287 In 1991, Congress again amended Title VII to allow the recovery of compensatory and punitive damages by a "complaining party." 42 U. s. C. § 1981a(a)(1) (1994 ed.). The term includes both private plaintiffs and the EEOC, § 1981a(d)(1)(A), and the amendments apply to ADA claims as well, §§ 1981a(a)(2), (d)(l)(B). As a complaining party, the EEOC may bring suit to enjoin an employer from engaging in unlawful employment practices, and to pursue reinstatement, backpay, and compensatory or punitive damages. Thus, these statutes unambiguously authorize the EEOC to obtain the relief that it seeks in its complaint if it can prove its case against respondent. Prior to the 1991 amendments, we recognized the difference between the EEOC's enforcement role and an individual employee's private cause of action in Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 (1977), and General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 (1980). Occidental presented the question whether EEOC enforcement actions are subject to the same statutes of limitations that govern individuals' claims. After engaging in an unsuccessful conciliation process, the EEOC filed suit in Federal District Court, on behalf of a female employee, alleging sex discrimination. The court granted the defendant's motion for summary judgment on the ground that the EEOC's claim was time barred; the EEOC filed suit after California's i-year statute of limitations had run. We reversed because "under the procedural structure created by the 1972 of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought." 288 amendments, the EEOC does not function simply as a vehicle for conducting litigation on behalf of private parties," 432 U. S., at 368. To hold otherwise would have undermined the agency's independent statutory responsibility to investigate and conciliate claims by subjecting the EEOC to inconsistent limitations periods. In General Telephone, the EEOC sought to bring a discrimination claim on behalf of all female employees at General Telephone's facilities in four States, without being certified as the class representative under Federal Rule of Civil Procedure 23. 446 U. S., at 321-322. Relying on the plain language of Title VII and the legislative intent behind the 1972 amendments, we held that the EEOC was not required to comply with Rule 23 because it "need look no further than § 706 for its authority to bring suit in its own name for the purpose, among others, of securing relief for a group of aggrieved individuals." Id., at 324. In light of the provisions granting the EEOC exclusive jurisdiction over the claim for 180 days after the employee files a charge, we concluded that "the EEOC is not merely a proxy for the victims of discrimination and that [its] enforcement suits should not be considered representative actions subject to Rule 23." Id., at 326. Against the backdrop of our decisions in Occidental and General Telephone, Congress expanded the remedies available in EEOC enforcement actions in 1991 to include compensatory and punitive damages. There is no language in the statutes or in either of these cases suggesting that the existence of an arbitration agreement between private parties materially changes the EEOC's statutory function or the remedies that are otherwise available. III The FAA was enacted in 1925, 43 Stat. 883, and then reenacted and codified in 1947 as Title 9 of the United States Code. It has not been amended since the enactment of Title 289 VII in 1964. As we have explained, its "purpose was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 , 24 (1991). The FAA broadly provides that a written provision in "a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. § 2. Employment contracts, except for those covering workers engaged in transportation, are covered by the FAA. Circuit City Stores, Inc. v. Adams, 532 U. S. 105 (2001). The FAA provides for stays of proceedings in federal district courts when an issue in the proceeding is referable to arbitration, and for orders compelling arbitration when one party has failed or refused to comply with an arbitration agreement. See 9 U. S. C. §§ 3 and 4. We have read these provisions to "manifest a 'liberal federal policy favoring arbitration agreements.'" Gilmer, 500 U. S., at 25 (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1 ,24 (1983)). Absent some ambiguity in the agreement, however, it is the language of the contract that defines the scope of disputes subject to arbitration. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 , 57 (1995) ("[T]he FAA's pro arbitration policy does not operate without regard to the wishes of the contracting parties"). For nothing in the statute authorizes a court to compel arbitration of any issues, or by any parties, that are not already covered in the agreement. The FAA does not mention enforcement by public agencies; it ensures the enforceability of private agreements to arbitrate, but otherwise does not purport to place any restriction on a nonparty's choice of a judicial forum. 290 IV The Court of Appeals based its decision on its evaluation of the "competing policies" implemented by the ADA and the FAA, rather than on any language in the text of either the statutes or the arbitration agreement between Baker and respondent. 193 F. 3d, at 812. It recognized that the EEOC never agreed to arbitrate its statutory claim, id., at 811 ("We must also recognize that in this case the EEOC is not a party to any arbitration agreement"), and that the EEOC has "independent statutory authority" to vindicate the public interest, but opined that permitting the EEOC to prosecute Baker's claim in court "would significantly trample" the strong federal policy favoring arbitration because Baker had agreed to submit his claim to arbitration. Id., at 812. To effectuate this policy, the court distinguished between injunctive and victim-specific relief, and held that the EEOC is barred from obtaining the latter because any public interest served when the EEOC pursues "make whole" relief is outweighed by the policy goals favoring arbitration. Only when the EEOC seeks broad injunctive relief, in the Court of Appeals' view, does the public interest overcome the goals underpinning the FAA. 7 7 This framework assumes the federal policy favoring arbitration will be undermined unless the EEOC's remedies are limited. The court failed to consider, however, that some of the benefits of arbitration are already built into the EEOC's statutory duties. Unlike individual employees, the EEOC cannot pursue a claim in court without first engaging in a conciliation process. 42 U. S. C. § 2000e-5(b) (1994 ed.). Thus, before the EEOC ever filed suit in this case, it attempted to reach a settlement with respondent. The court also neglected to take into account that the EEOC files suit in a small fraction of the charges employees file. For example, in fiscal year 2000, the EEOC received 79,896 charges of employment discrimination. Although the EEOC found reasonable cause in 8,248 charges, it only filed 291 lawsuits. Equal Employment Opportunity Commission, Enforcement Statistics and Litigation (as visited Nov. 18, 2001), http:// www.eeoc.gov/stats/enforcement.html. In contrast, 21,032 employment discrimination lawsuits were filed in 2000. See Administrative Office, 291 If it were true that the EEOC could prosecute its claim only with Baker's consent, or if its prayer for relief could be dictated by Baker, the court's analysis might be persuasive. But once a charge is filed, the exact opposite is true under the statute-the EEOC is in command of the process. The EEOC has exclusive jurisdiction over the claim for 180 days. During that time, the employee must obtain a right-to-sue letter from the agency before prosecuting the claim. If, however, the EEOC files suit on its own, the employee has no independent cause of action, although the employee may intervene in the EEOC's suit. 42 U. s. C. § 2000e-5(f)(1) (1994 ed.). In fact, the EEOC takes the position that it may pursue a claim on the employee's behalf even after the employee has disavowed any desire to seek relief. Brief for Petitioner 20. The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake. Absent textual support for a contrary view, it is the public agency's province-not that of the court-to determine Judicial Business of the United States Courts 2000, Table C-2A (Sept. 30, 2000). These numbers suggest that the EEOC files fewer than two percent of all antidiscrimination claims in federal court. Indeed, even among the cases where it finds reasonable cause, the EEOC files suit in fewer than five percent of those cases. Surely permitting the EEOC access to victim-specific relief in cases where the employee has agreed to binding arbitration, but has not yet brought a claim in arbitration, will have a negligible effect on the federal policy favoring arbitration. JUSTICE THOMAS notes that our interpretation of Title VII and the FAA "should not depend on how many cases the EEOC chooses to prosecute in any particular year." See post, at 314, n. 14 (dissenting opinion). And yet, the dissent predicts our holding will "reduce that arbitration agreement to all but a nullity," post, at 309, "discourag[e] the use of arbitration agreements," post, at 310, and "discourage employers from entering into settlement agreements," post, at 312. These claims are highly implausible given the EEOC's litigation practice over the past 20 years. When speculating about the impact this decision might have on the behavior of employees and employers, we think it is worth recognizing that the EEOC files suit in less than one percent of the charges filed each year. 292 whether public resources should be committed to the recovery of victim-specific relief. And if the agency makes that determination, the statutory text unambiguously authorizes it to proceed in a judicial forum. Respondent and the dissent contend that Title VII supports the Court of Appeals' bar against victim-specific relief, because the statute limits the EEOC's recovery to "appropriate" relief as determined by a court. See Brief for Respondent 19, and n. 8; post, at 301-303 (THOMAS, J., dissenting). They rely on § 706(g)(1), which provides that, after a finding of liability, "the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate." 42 U. S. C. § 2000e-5(g)(1) (1994 ed.) (emphasis added). They claim this provision limits the remedies available and directs courts, not the EEOC, to determine what relief is appropriate. The proposed reading is flawed for two reasons. First, under the plain language of the statute the term "appropriate" refers to only a subcategory of claims for equitable relief, not damages. The provision authorizing compensatory and punitive damages is in a separate section of the statute, § 1981a(a)(1), and is not limited by this language. The dissent responds by pointing to the phrase "may recover" in § 1981a(a)(1), and arguing that this too provides authority for prohibiting victim-specific relief. See post, at 303, n. 7. But this contention only highlights the second error in the proposed reading. If "appropriate" and "may recover" can be read to support respondent's position, then any discretionary language would constitute authorization for judge-made, per se rules. This is not the natural reading of the text. These terms obviously refer to the trial judge's discretion in a particular case to order reinstatement and award damages in an amount warranted by the facts of that 293 case. They do not permit a court to announce a categorical rule precluding an expressly authorized form of relief as inappropriate in all cases in which the employee has signed an arbitration agreement.8 The Court of Appeals wisely did not adopt respondent's reading of § 706(g). Instead, it simply sought to balance the policy goals of the FAA against the clear language of Title VII and the agreement. While this may be a more coherent approach, it is inconsistent with our recent arbitration cases. The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it "does not require parties to arbitrate when they have not agreed to do so." Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 , 478 (1989).9 See 8 JUSTICE THOMAS implicitly recognizes this distinction by qualifying his description of the courts' role as determining appropriate relief "in any given case," or "in a particular case." See post, at 301, 303. But the Court of Appeals' holding was not so limited. 193 F.3d 805 , 812 (CA4 1999) (holding that the EEOC "may not pursue relief in court ... specific to individuals who have waived their right to a judicial forum"). 9 In Volt, the parties to a construction contract agreed to arbitrate all disputes relating to the contract and specified that California law would apply. When one party sought to compel arbitration, the other invoked a California statute that authorizes a court to stay arbitration pending resolution of related litigation with third parties not bound by the agreement when inconsistent rulings are possible. We concluded that the FAA did not pre-empt the California statute because "the FAA does not confer a right to compel arbitration of any dispute at any time; it confers only the right to obtain an order directing that 'arbitration proceed in the manner provided for in [the parties'] agreement.'" 489 U. S., at 474-475 (quoting 9 U. S. C. §4). Similarly, the FAA enables respondent to compel Baker to arbitrate his claim, but it does not expand the range of claims subject to arbitration beyond what is provided for in the agreement. Our decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 (1995), is not inconsistent with this position. In Mastrobuono, we reiterated that clear contractual language governs our interpretation of arbitration agreements, but because the choice-of-Iaw provision in that case was ambiguous, we read the agreement to favor arbitration under the FAA rules. Id., at 62. While we distinguished Volt on the ground 294 also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395 , 404, n. 12 (1967) ("[T]he purpose of Congress in 1925 was to make arbitration agreements as enforceable as other contracts, but not more so"). Because the FAA is "at bottom a policy guaranteeing the enforcement of private contractual arrangements," Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 , 625 (1985), we look first to whether the parties agreed to arbitrate a dispute, not to general policy goals, to determine the scope of the agreement. Id., at 626. While ambiguities in the language of the agreement should be resolved in favor of arbitration, Volt, 489 U. S., at 476, we do not override the clear intent of the parties, or reach a result inconsistent with the plain text of the contract, simply because the policy favoring arbitration is implicated. "Arbitration under the [FAA] is a matter of consent, not coercion." Id., at 479. Here there is no ambiguity. No one asserts that the EEOC is a party to the contract, or that it agreed to arbitrate its claims. It goes without saying that a contract cannot bind a nonparty. Accordingly, the pro arbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so. Even if the policy goals underlying the FAA did necessitate some limit on the EEOC's statutory authority, the line drawn by the Court of Appeals between injunctive and victim-specific relief creates an uncomfortable fit with its avowed purpose of preserving the EEOC's public function while favoring arbitration. For that purpose, the category of victim-specific relief is both overinclusive and underinclusive. For example, it is overinclusive because while that we were reviewing a federal court's construction of the contract, 514 U. S., at 60, n. 4, regardless of the standard of review, in this case the Court of Appeals recognized that the EEOC was not bound by the agreement. When that much is clear, Volt and Mastrobuono both direct courts to respect the terms of the agreement without regard to the federal policy favoring arbitration. 295 punitive damages benefit the individual employee, they also serve an obvious public function in deterring future violations. See Newport v. Fact Concerts, Inc., 453 U. S. 247 , 266-270 (1981) ("Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor ... , and to deter him and others from similar extreme conduct"); Restatement (Second) of Torts § 908 (1977). Punitive damages may often have a greater impact on the behavior of other employers than the threat of an injunction, yet the EEOC is precluded from seeking this form of relief under the Court of Appeals' compromise scheme. And, it is underinclusive because injunctive relief, although seemingly not "victim-specific," can be seen as more closely tied to the employees' injury than to any public interest. See Occidental, 432 U. S., at 383 (REHNQUIST, J., dissenting) ("While injunctive relief may appear more 'broad based,' it nonetheless is redress for individuals"). The compromise solution reached by the Court of Appeals turns what is effectively a forum selection clause into a waiver of a nonparty's statutory remedies. But if the federal policy favoring arbitration trumps the plain language of Title VII and the contract, the EEOC should be barred from pursuing any claim outside the arbitral forum. If not, then the statutory language is clear; the EEOC has the authority to pursue victim-specific relief regardless of the forum that the employer and employee have chosen to resolve their disputes.10 Rather than attempt to split the difference, we are lOWe have held that federal statutory claims may be the subject of arbitration agreements that are enforceable pursuant to the FAA because the agreement only determines the choice of forum. "In these cases we recognized that '[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.' [Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 , 628 (1985)]." Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 , 26 (1991). To the extent the Court of Appeals construed an employee's agreement to submit his claims to an arbitral forum as a waiver of the substantive statutory 296 persuaded that, pursuant to Title VII and the ADA, whenever the EEOC chooses from among the many charges filed each year to bring an enforcement action in a particular case, the agency may be seeking to vindicate a public interest, not simply provide make-whole relief for the employee, even when it pursues entirely victim-specific relief. To hold otherwise would undermine the detailed enforcement scheme created by Congress simply to give greater effect to an agreement between private parties that does not even contemplate the EEOC's statutory functionY V It is true, as respondent and its amici have argued, that Baker's conduct may have the effect of limiting the relief that the EEOC may obtain in court. If, for example, he had failed to mitigate his damages, or had accepted a monetary settlement, any recovery by the EEOC would be limited accordingly. See, e. g., Ford Motor Co. v. EEOC, 458 U. S. 219 , 231-232 (1982) (Title VII claimant "forfeits his right to back- prerogative of the EEOC to enforce those claims for whatever relief and in whatever forum the EEOC sees fit, the court obscured this crucial distinction and ran afoul of our precedent. 11 If injunctive relief were the only remedy available, an employee who signed an arbitration agreement would have little incentive to file a charge with the EEOC. As a greater percentage of the work force becomes subject to arbitration agreements as a condition of employment, see Voluntary Arbitration in Worker Disputes Endorsed by 2 Groups, Wall Street Journal, June 20, 1997, p. B2 (reporting that the American Arbitration Association estimates "more than 3.5 million employees are covered" by arbitration agreements designating it to administer arbitration proceedings), the pool of charges from which the EEOC can choose cases that best vindicate the public interest would likely get smaller and become distorted. We have generally been reluctant to approve rules that may jeopardize the EEOC's ability to investigate and select cases from a broad sample of claims. Cf. EEOC v. Shell Oil Co., 466 U. S. 54 , 69 (1984) ("[I]t is crucial that the Commission's ability to investigate charges of systemic discrimination not be impaired"); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 , 368 (1977). 297 pay if he refuses a job substantially equivalent to the one he was denied"); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 , 1542 (CA9 1987) (employee's settlement "rendered her personal claims moot"); EEOC v. U. S. Steel Corp., 921 F.2d 489 , 495 (CA3 1990) (individuals who litigated their own claims were precluded by res judicata from obtaining individual relief in a subsequent EEOC action based on the same claims). As we have noted, it "goes without saying that the courts can and should preclude double recovery by an individual." General Telephone, 446 U. S., at 333. But no question concerning the validity of his claim or the character of the relief that could be appropriately awarded in either a judicial or an arbitral forum is presented by this record. Baker has not sought arbitration of his claim, nor is there any indication that he has entered into settlement negotiations with respondent. It is an open question whether a settlement or arbitration judgment would affect the validity of the EEOC's claim or the character of relief the EEOC may seek. The only issue before this Court is whether the fact that Baker has signed a mandatory arbitration agreement limits the remedies available to the EEOC. The text of the relevant statutes provides a clear answer to that question. They do not authorize the courts to balance the competing policies of the ADA and the FAA or to second-guess the agency's judgment concerning which of the remedies authorized by law that it shall seek in any given case. Moreover, it simply does not follow from the cases holding that the employee's conduct may affect the EEOC's recovery that the EEOC's claim is merely derivative. We have recognized several situations in which the EEOC does not stand in the employee's shoes. See Occidental, 432 U. S., at 368 (EEOC does not have to comply with state statutes of limitations); General Telephone, 446 U. S., at 326 (EEOC does not have to satisfy Rule 23 requirements); Gilmer, 500 U. S., at 32 (EEOC is not precluded from seeking classwide and equi- 298 table relief in court on behalf of an employee who signed an arbitration agreement). And, in this context, the statute specifically grants the EEOC exclusive authority over the choice of forum and the prayer for relief once a charge has been filed. The fact that ordinary principles of res judicata, mootness, or mitigation may apply to EEOC claims does not contradict these decisions, nor does it render the EEOC a proxy for the employee. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting. The Court holds today that the Equal Employment Opportunity Commission (EEOC or Commission) may obtain victim-specific remedies in court on behalf of an employee who had agreed to arbitrate discrimination claims against his employer. This decision conflicts with both the Federal Arbitration Act (FAA), 9 U. S. C. § 1 et seq., and the basic principle that the EEOC must take a victim of discrimination as it finds him. Absent explicit statutory authorization to the contrary, I cannot agree that the EEOC may do on behalf of an employee that which an employee has agreed not to do for himself. Accordingly, I would affirm the judgment of the Court of Appeals. I Before starting work as a grill operator for respondent Waffle House, Inc., Eric Scott Baker filled out and signed an employment application. This application included an arbitration clause providing that "any dispute or claim concerning Applicant's employment with Waffle House, Inc., or any subsidiary or Franchisee of Waffle House, Inc., or the terms, 299 conditions or benefits of such employment ... will be settled by binding arbitration." App. 59. The Court does not dispute that the arbitration agreement between Waffle House and Baker falls comfortably within the scope of the FAA, see Circuit City Stores, Inc. v. Adams, 532 U. S. 105 (2001), which provides that "[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable." 9 U. S. C. § 2. Neither does the Court contest that claims arising under federal employment discrimination laws, such as Baker's claim that Waffle House discharged him in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. § 12101 et seq. (1994 ed. and Supp. V), may be subject to compulsory arbitration. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 , 23 (1991) (holding that a claim arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. § 621 et seq. (1994 ed.), may be subject to compulsory arbitration). 1 The Court therefore does not dispute that 1 Admittedly, this case involves a claim under the ADA while Gilmer addressed compulsory arbitration in the context of the ADEA. Nevertheless, I see no reason why an employee should not be required to abide by an agreement to arbitrate an ADA claim. In assessing whether Congress has precluded the enforcement of an arbitration agreement with respect to a particular statutory claim, this Court has held that a party should be held to an arbitration agreement "unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue." Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U. S. 614 ,628 (1985). Here, the text of the ADA does not suggest that Congress intended for ADA claims to fall outside the purview of the FAA. Indeed, the ADA expressly encourages the use of arbitration and other forms of alternative dispute resolution, rather than litigation, to resolve claims under the statute: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under this [Act]." 42 U. S. C. § 12212 (1994 ed.). 300 Baker, by signing an arbitration agreement, waived his ability either to bring an ADA claim against Waffle House in court or, consequently, to obtain relief for himself in that forum. The EEOC, in its complaint, sought to obtain the victimspecific relief for Baker that he could not seek for himself, asking a court to make Baker whole by providing reinstatement with backpay and compensatory damages and to pay Baker punitive damages.2 App. 39-40. In its responses to interrogatories and directives to produce filed the same day as its complaint, the EEOC stated unambiguously: "All amounts recovered from Defendant Employer in this litigation will be received directly by Mr. Baker based on his charge of discrimination against Defendant Employer." Id., at 52. The EEOC also admitted that it was "bring[ing] this action on behalf of Eric Scott Baker." 3 Id., at 51. By allowing the EEOC to obtain victim-specific remedies for Baker, the Court therefore concludes that the EEOC may do "on behalf of ... Baker" that which he cannot do for himself. The Court's conclusion rests upon the following premise advanced by the EEOC: An arbitration agreement between an employer and an employee may not limit the remedies that the Commission may obtain in court because 2 The EEOC, in its prayer for relief, also requested that the court enjoin Waffle House from engaging in any discriminatory employment practice and asked the court to order Waffle House to institute policies, practices, and programs which would provide equal employment opportunities for qualified individuals with disabilities, and which would eradicate the effect of its past and present unlawful employment practices. App. 39. The Court of Appeals concluded that Baker's arbitration agreement did not preclude the EEOC from seeking such broad-based relief, and Waffle House has not appealed that ruling. See 193 F.3d 805 , 813, n. 3 (CA4 1999). 3 Although the EEOC's complaint alleged that Waffle House engaged in "unlawful employment practices," in violation of § 102(a) of the ADA, 42 U. S. C. § 12112(a) (1994 ed.), it mentioned no instances of discriminatory conduct on the part of Waffle House other than its discharge of Baker. App. 38 (emphasis added). 301 Title VII "grants the EEOC the right to obtain all statutory remedies in any action it brings."4 Brief for Petitioner 17. The EEOC contends that "the statute in clear terms authorizes [it] to obtain all of the listed forms of relief," referring to those types of relief set forth in 42 U. S. C. § 2000e-5(g)(1) (1994 ed.) (including injunctive relief and reinstatement with backpay) as well as the forms of relief listed in § 1981a(a)(1) (compensatory and punitive damages). Brief for Petitioner 17-18. Endorsing the EEOC's position, the Court concludes that "these statutes unambiguously authorize the EEOC to obtain the relief that it seeks in its complaint if it can prove its case against respondent." Ante, at 287. The Court's position, however, is inconsistent with the relevant statutory provision. For while the EEOC has the statutory right to bring suit, see § 2000e-5(f)(1), it has no statutory entitlement to obtain a particular remedy. Rather, the plain language of § 2000e-5(g)(1) makes clear that it is a court's role to decide whether to "enjoin the respondent ... , and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate." (Emphasis added.) Whether a particular remedy is "appropriate" in any given case is a question for a court and not for the EEOC.5 See Albemarle Paper Co. 4 Title I of the ADA expressly incorporates "[t]he powers, remedies, and procedures set forth in [Title VII]." 42 U. S. C. § 12117(a). That includes the procedures applicable to enforcement actions as well as the equitable relief available under § 2000e-5(g). 5 The EEOC also points out that Title VII gives the EEOC, and not an individual victim of discrimination, the choice of forum when the EEOC files an enforcement action. See § 2000e-5(f)(3). Since the statute gives the victim no say in the matter, the EEOC argues that an employee, by signing an arbitration agreement, should not be able to effectively negate ex ante the EEOC's statutory authority to choose the forum in which it brings suit. Brief for Petitioner 21-23. The Court, wisely, does not rely heavily on this argument since nothing in the Court of Appeals' decision 302 v. Moody, 422 U. S. 405 , 415-416 (1975) ("The [Title VII] scheme implicitly recognizes that there may be cases calling for one remedy but not another, and ... these choices are, of course, left in the first instance to the district courts"); Selgas v. American Airlines, Inc., 104 F.3d 9 , 13, n. 2 (CA1 1997) ("It is clear that in a Title VII case, it is the court which has discretion to fashion relief comprised of the equitable remedies it sees as appropriate, and not the parties which may determine which equitable remedies are available"). Had Congress wished to give the EEOC the authority to determine whether a particular remedy is appropriate under § 2000e-5, it clearly knew how to draft language to that effect. See § 2000e-16(b) (providing that the EEOC shall have the authority to enforce § 2000e-16(a)'s prohibition of employment discrimination within federal agencies "through appropriate remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate the policies of this section"). But Congress specifically declined to grant the EEOC such authority when it empowered the Commission to bring lawsuits against private employers. Both the original House version and the original Senate version of the Equal Employment Opportunity Act of 1972 would have granted the EEOC powers similar to those possessed by the National Labor Relations Board to adjudicate a complaint and implement a remedy. See H. R. 1746, 92d Cong., 1st Sess., § 706(h) (1971), and S. 2515, 92d Cong., 1st Sess., § 4(h) (1971), reprinted in Legislative History of the Equal Employment Opportunity Act of 1972, pp. 7-8, 164165. These bills were amended, however, once they reached the floor of both Houses of Congress to replace such "ceaseand-desist" authority with the power only to prosecute an prevents the EEOC from choosing to file suit in any appropriate judicial district set forth in § 2000e-5(f)(3). Rather, the Court of Appeals' holding only limits the remedies that the EEOC may obtain when it decides to institute a judicial action. See 193 F. 3d, at 806-807. 303 action in court. See 117 Congo Rec. 32088-32111 (1971); 118 Congo Rec. 3965-3979 (1972). The statutory scheme enacted by Congress thus entitles neither the EEOC nor an employee, upon filing a lawsuit, to obtain a particular remedy by establishing that an employer discriminated in violation of the law. 6 In both cases, 42 U. S. C. § 2000e-5(g)(1) governs, and that provision unambiguously requires a court to determine what relief is "appropriate" in a particular case.7 II Because Congress has not given the EEOC the authority to usurp the traditional role of courts to determine what constitutes "appropriate" relief in a given case, it is necessary to examine whether it would be "appropriate" to allow the EEOC to obtain victim-specific relief for Baker here, notwithstanding the fact that Baker, by signing an arbitration 6 The Court, in fact, implicitly admits as much. Contradicting its earlier assertion that the "statutes unambiguously authorize the EEOC to obtain the relief that it seeks in its complaint if it can prove its case against respondent," ante, at 287 (emphasis added), the Court later concludes that the statutory scheme gives the trial judge "discretion in a particular case to order reinstatement and award damages in an amount warranted by the facts of that case." Ante, at 292-293. 7 Similarly, the EEOC's authority to obtain legal remedies is also no greater than that of an employee acting on his own behalf. Title 42 U. S. C. § 1981a(a)(2), which was enacted as part of the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1072, provides that the EEOC or an employee "may recover compensatory and punitive damages" in addition to the forms of relief authorized by § 2000e-5(g)(1). (Emphasis added.) Nothing in § 1981a(a), however, alters the fundamental proposition that it is for the judiciary to determine what relief (of all the relief that plaintiffs "may recover" under the statute) the particular plaintiff before the court is entitled to. The statutory language does not purport to grant the EEOC or an employee the absolute right to obtain damages in every case of proven discrimination, despite the operation of such legal doctrines as time bar, accord and satisfaction, or (as in this case) binding agreement to arbitrate. 304 agreement, has waived his ability to seek such relief on his own behalf in a judicial forum. For two reasons, I conclude it is not "appropriate" to allow the EEOC to do on behalf of Baker that which Baker is precluded from doing for himself. A To begin with, when the EEOC litigates to obtain relief on behalf of a particular employee, the Commission must take that individual as it finds him. Whether the EEOC or an employee files a particular lawsuit, the employee is the ultimate beneficiary of victim-specific relief. The relevance of the employee's circumstances therefore does not change simply because the EEOC, rather than the employee himself, is litigating the case, and a court must consider these circumstances in fashioning an "appropriate" remedy.8 As a result, the EEOC's ability to obtain relief is often limited by the actions of an employee on whose behalf the Commission may wish to bring a lawsuit. If an employee signs an agreement to waive or settle discrimination claims against an employer, for example, the EEOC may not recover victim-specific relief on that employee's behalf. See, e. g., EEOC v. Cosmair, Inc., 821 F.2d 1085 , 1091 (CAS 1987); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 , 1543 (CA9 1987); see also EEOC: Guidance on Waivers Under the ADA and Other Civil Rights Laws, EEOC Compliance Manual (BNA) N:2345, N:2347 (Apr. 10, 1997) (hereinafter EEOC Compliance Manual) (recognizing that a valid waiver or set- 8 I agree with the Court that, in order to determine whether a particular remedy is "appropriate," it is necessary to examine the specific facts of the case at hand. See ante, at 292-293. For this reason, the statutory scheme does not permit us to announce a categorical rule barring lower courts from ever awarding a form of relief expressly authorized by the statute. When the same set of facts arises in different cases, however, such cases should be adjudicated in a consistent manner. Therefore, this Court surely may specify particular circumstances under which it would be inappropriate for trial courts to award certain types of relief, such as victim-specific remedies. 305 tlement agreement precludes the EEOC from recovering victim-specific relief for an employee). In addition, an employee who fails to mitigate his damages limits his ability to obtain relief, whether he files his own lawsuit or the EEOC files an action on his behalf. See Ford Motor Co. v. EEOC, 458 U. S. 219 , 231-232 (1982). An employee's unilateral attempt to pursue his own discrimination claim may also limit the EEOC's ability to obtain victim-specific relief for that employee. If a court rejects the merits of a claim in a private lawsuit brought by an employee, for example, res judicata bars the EEOC from recovering victim-specific relief on behalf of that employee in a later action. See, e. g., EEOC In all of the aforementioned situations, the same general principle applies: To the extent that the EEOC is seeking victim-specific relief in court for a particular employee, it is able to obtain no more relief for that employee than the employee could recover for himself by bringing his own lawsuit. The EEOC, therefore, should not be able to obtain victimspecific relief for Baker in court through its own lawsuit here when Baker waived his right to seek relief for himself in a judicial forum by signing an arbitration agreement. The Court concludes that the EEOC's claim is not "merely derivative" of an employee's claim and argues that "[w]e have recognized several situations in which the EEOC does not stand in the employee's shoes." Ante, at 297. The Court's opinion, however, attacks a straw man because this case does not turn on whether the EEOC's "claim" is wholly derivative of an employee's "claim." Like the Court of Appeals below, I do not question the EEOC's ability to seek declaratory and broad-based injunctive relief in a case where a particular employee, such as Baker, would not be able to pursue such relief in court. Rather, the dispute here turns on whether the EEOC's ability to obtain victim-specific relief is dependent upon the victim's ability to obtain such relief for himself. 306 The Court claims that three cases support its argument that the EEOC's claim is not "merely derivative" of an employee's claim. See Gilmer v. Interstate/Johnson Lane Corp., 500 U. S., at 24; General Telephone Co. of Northwest v. EEOC, 446 U. S. 318 , 325 (1980); Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355 , 368 (1977). Once the actual nature of the dispute is properly understood, however, it is apparent that these cases do not support the Court's position, for none of them suggests that the EEOC should be allowed to recover victim-specific relief on behalf of an employee who has waived his ability to obtain such relief for himself in court by signing a valid arbitration agreement. In Gilmer, for example, this Court addressed whether arbitration procedures are inadequate in discrimination cases because they do not allow for "broad equitable relief and class actions." 500 U. S., at 32. Rejecting this argument, the Court noted that valid arbitration agreements "will not preclude the EEOC from bringing actions seeking class-wide and equitable relief." Ibid. Conspicuously absent from the Court's opinion, however, was any suggestion that the EEOC could obtain victim-specific relief on behalf of an employee who had signed a valid arbitration agreement. Cf. ibid. Similarly, in General Telephone, this Court held only that lawsuits filed by the EEOC should not be considered representative actions under Federal Rule of Civil Procedure 23. In reaching this conclusion, the Court noted that "the EEOC is not merely a proxy for the victims of discrimination." 446 U. S., at 326. To be sure, I agree that to the extent the EEOC seeks broad-based declaratory and equitable relief in court, the Commission undoubtedly acts both as a representative of a specific employee and to "vindicate the public interest in preventing employment discrimination." Ibid. But neither this dual function nor anything in General Telephone detracts from the proposition that when the EEOC seeks to secure victim-specific relief in court, it may obtain 307 no more relief for an individual than the individual could obtain for himself. Even the EEOC recognizes the dual nature of its role.9 See EEOC Compliance Manual N:2346 (citing General Telephone, supra, at 326). In its compliance manual, the EEOC states that "every charge filed with the EEOC carries two potential claims for relief: the charging party's claim for individual relief, and the EEOC's claim to 'vindicate the public interest in preventing employment discrimination.''' EEOC Compliance Manual N:2346. It is for this reason that "a private agreement can eliminate an individual's right to personal recovery, [but] it cannot interfere with EEOC's right to enforce ... the ADA ... by seeking relief that will benefit the public and any victims of an employer's unlawful practices who have not validly waived their claims." Id., at N:2347.1O In the final case cited by the Court, Occidental Life Ins. Co. v. EEOC, this Court held that state statutes of limita- 9 The EEOC has consistently recognized that the Commission represents individual employees when it files an action in court. In this case, for instance, the EEOC stated in its answers to interrogatories that it brought this action "on behalf of Eric Scott Baker." See Part I, supra. Moreover, the EEOC has maintained in numerous cases that its attorneys have an attorney-client relationship with charging parties and their communications with charging parties are therefore privileged. See, e. g., EEOC v. Johnson & Higgins Inc., 78 FEP Cases 1127 (SDNY 1998); EEOC v. McDonnell Douglas Corp., 948 F. Supp. 54 (ED Mo. 1996). 10 This Court has recognized that victim-specific remedies also serve the public goals of antidiscrimination statutes. See, e. g., McKennon v. Nashville Banner Publishing Co., 513 U. S. 352 , 357-358 (1995). Nevertheless, when the EEOC is seeking such remedies, it is only serving the public interest to the extent that an employee seeking the same relief for himself through litigation or arbitration would also be serving the public interest. It is when the EEOC is seeking broader relief that its unique role in vindicating the public interest comes to the fore. The Commission's motivation to secure such relief is likely to be greater than that of an individual employee, who may be primarily concerned with securing relief only for himself. 308 tions do not apply to lawsuits brought by the EEOC, because "[u]nlike the typical litigant against whom a statute of limitations might appropriately run, the EEOC is required by law to refrain from commencing a civil action until it has discharged its administrative duties." 432 U. S., at 368. The Court also noted that the i-year statute of limitations at issue in that case "could under some circumstances directly conflict with the timetable for administrative action expressly established in the 1972 Act." Id., at 368-369. Precluding the EEOC from seeking victim-specific remedies in court on behalf of an employee who has signed an arbitration agreement, however, would in no way impede the Commission from discharging its administrative duties nor would it directly conflict with any provision of the statute. In fact, such a result is entirely consistent with the federal policy underlying the Court's decision in Occidental: that employment discrimination claims should be resolved quickly and out of court. See id., at 368. B Not only would it be "inappropriate" for a court to allow the EEOC to obtain victim-specific relief on behalf of Baker, to do so in this case would contravene the "liberal federal policy favoring arbitration agreements" embodied in the FAA. See Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1 ,24 (1983). Under the terms of the FAA, Waffle House's arbitration agreement with Baker is valid and enforceable. See Part I, supra. The Court reasons, however, that the FAA is not implicated in this case because the EEOC was not a party to the arbitration agreement and "[i]t goes without saying that a contract cannot bind a nonparty." Ante, at 294. The Court's analysis entirely misses the point. The relevant question here is not whether the EEOC should be bound by Baker's agreement to arbitrate. Rather, it is whether a court should give effect to the arbitration agreement be- 309 tween Waffle House and Baker or whether it should instead allow the EEOC to reduce that arbitration agreement to all but a nullity. I believe that the FAA compels the former course.ll By allowing the EEOC to pursue victim-specific relief on behalf of Baker under these circumstances, the Court eviscerates Baker's arbitration agreement with Waffle House and liberates Baker from the consequences of his agreement. Waffle House gains nothing and, if anything, will be worse off in cases where the EEOC brings an enforcement action should it continue to utilize arbitration agreements in the future. This is because it will face the prospect of defending itself in two different forums against two different parties seeking precisely the same relief. It could face the EEOC in court and the employee in an arbitral forum. The Court does not decide here whether an arbitral judgment would "affect the validity of the EEOC's claim or the character of relief the EEOC may seek" in courtP Ante, at 297. Given the reasoning in the Court's opinion, however, the proverbial handwriting is on the wall. If the EEOC indeed is "the master of its own case," ante, at 291, I do not see how an employee's independent decision to pursue arbitral proceedings could affect the validity of the "EEOC's claim" llThe Court also reasons that "the FAA enables respondent to compel Baker to arbitrate his claim, but it does not expand the range of claims subject to arbitration beyond what is provided for in the agreement." Ante, at 293, n. 9. The Court does not explain, however, how the EEOC's ADA claim on Baker's behalf differs in any meaningful respect from the ADA claim that Baker would have been compelled to submit to arbitration. 12 In the vast majority of cases, an individual employee's arbitral proceeding will be resolved before a parallel court action brought by the EEOC. See Maltby, Private Justice: Employment Arbitration and Civil Rights, 30 Colum. Human Rights L. Rev. 29, 55 (1998) (reporting that in arbitration the average employment discrimination case is resolved in under nine months while the average employment discrimination case filed in federal district court is not resolved for almost two years). 310 in court. Should this Court in a later case determine that an unfavorable arbitral judgment against an employee precludes the EEOC from seeking similar relief for that employee in court, then the Court's jurisprudence will stand for the following proposition: The EEOC may seek relief for an employee who has signed an arbitration agreement unless that employee decides that he would rather abide by his agreement and arbitrate his claim. Reconciling such a result with the FAA, however, would seem to be an impossible task and would make a mockery of the rationale underlying the Court's holding here: that the EEOC is "the master of its own case." Ante, at 291. Assuming that the Court means what it says, an arbitral judgment will not preclude the EEOC's claim for victimspecific relief from going forward, and courts will have to adjust damages awards to avoid double recovery. See ante, at 297. If an employee, for instance, is able to recover $20,000 through arbitration and a court later concludes in an action brought by the EEOC that the employee is actually entitled to $100,000 in damages, one assumes that a court would only award the EEOC an additional $80,000 to give to the employee. Suppose, however, that the situation is reversed: An arbitrator awards an employee $100,000, but a court later determines that the employee is only entitled to $20,000 in damages. Will the court be required to order the employee to return $80,000 to his employer? I seriously doubt it. The Court's decision thus places those employers utilizing arbitration agreements at a serious disadvantage. Their employees will be allowed two bites at the apple-one in arbitration and one in litigation conducted by the EEOCand will be able to benefit from the more favorable of the two rulings. This result, however, discourages the use of arbitration agreements and is thus completely inconsistent with the policies underlying the FAA. 311 C While the Court explicitly decides today only "whether the fact that Baker has signed a mandatory arbitration agreement limits the remedies available to the EEOC," ibid., its opinion sets this Court on a path that has no logical or principled stopping point. For example, if "[t]he statute clearly makes the EEOC the master of its own case," ante, at 291, and the filing of a charge puts the Commission "in command of the process," ibid., then it is likely after this decision that an employee's decision to enter into a settlement agreement with his employer no longer will preclude the EEOC from obtaining relief for that employee in court. While the Court suggests that ordinary principles of mootness "may apply to EEOC claims," ante, at 298, this observation, given the reasoning in the Court's opinion, seems largely beside the point. It should go without saying that mootness principles apply to EEOC claims. For instance, if the EEOC settles claims with an employer, the Commission obviously cannot continue to pursue those same claims in court. An employee's settlement agreement with an employer, however, does not "moot" an action brought by the EEOC nor does it preclude the EEOC from seeking broadbased relief. Rather, a settlement may only limit the EEOC's ability to obtain victim-specific relief for the employee signing the settlement agreement. See, e. g., Good year Aerospace Corp., 813 F. 2d, at 1541-1544. The real question addressed by the Court's decision today is whether an employee can enter into an agreement with an employer that limits the relief the EEOC may seek in court on that employee's behalf. And if, in the Court's view, an employee cannot compromise the EEOC's ability to obtain particular remedies by signing an arbitration agreement, then I do not see how an employee may be permitted to do the exact same thing by signing a settlement agreement. See Scherk v. Alberto-Culver Co., 417 U. S. 506 , 511 (1974) 312 (noting that one purpose of the FAA is to place arbitration agreements "'upon the same footing as other contracts'" (citation omitted)). The Court's reasoning, for example, forecloses the argument that it would be inappropriate under 42 U. S. C. § 2000e-5(g)(1) for a court to award victim-specific relief in any case where an employee had already settled his claim. If the statutory provision, according to the Court, does not "permit a court to announce a categorical rule precluding an expressly authorized form of relief as inappropriate in all cases in which the employee has signed an arbitration agreement," then it surely does not "constitute authorization for [a] judge-made, per se rul[e]" barring the EEOC from obtaining victim-specific remedies on behalf of an employee who has signed a valid settlement agreement. Ante, at 292, 293. Unfortunately, it is therefore likely that under the logic of the Court's opinion the EEOC now will be able to seek victim-specific relief in court on behalf of employees who have already settled their claims. Such a result, however, would contradict this Court's suggestion in Gilmer that employment discrimination disputes "can be settled ... without any EEOC involvement." 500 U. S., at 28. More importantly, it would discourage employers from entering into settlement agreements and thus frustrate Congress' desire to expedite relief for victims of discrimination, see Ford Motor Co. v. EEOC, 458 U. S., at 221; Occidental Life, 432 U. S., at 364-365, and to resolve employment discrimination disputes out of court. See 42 U. S. C. § 12212 (encouraging alternative means of dispute resolution, including settlement negotiations, to avoid litigation under the ADA). III Rather than allowing the EEOC to undermine a valid and enforceable arbitration agreement between an employer and an employee in the manner sanctioned by the Court today, I would choose a different path. As this Court has stated, 313 courts are "not at liberty to pick and choose among congressional enactments, and when two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn., 491 U. S. 490 , 510 (1989). In this case, I think that the EEOC's statutory authority to enforce the ADA can be easily reconciled with the FAA. Congress has not indicated that the ADA's enforcement scheme should be interpreted in a manner that undermines the FAA. Rather, in two separate places, Congress has specifically encouraged the use of arbitration to resolve disputes under the ADA. First, in the ADA itself, Congress stated: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under this chapter." 42 U. S. C. § 12212 (emphasis added). Second, Congress used virtually identical language to encourage the use of arbitration to resolve disputes under the ADA in the Civil Rights Act of 1991. See Pub. L. 102-166, § 118, 105 Stat. 1081.13 The EEOC contends that these provisions do not apply to this dispute because the Commission has not signed an arbitration agreement with Waffle House and the provisions encourage arbitration "only when the parties have consented to arbitration." Reply Brief for Petitioner 17. Remarkably, the EEOC at the same time questions whether it even has the statutory authority to take this step. See Brief 13 This provision states: "Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title." Among "the Acts or provisions of Federal law" amended by the Civil Rights Act of 1991 was the ADA. See Pub. L. 102-166, § 118, 105 Stat. 1081. 314 for Petitioner 22, n. 7. As a result, the EEOC's view seems to be that Congress has encouraged the use of arbitration to resolve disputes under the ADA only in situations where the EEOC does not wish to bring an enforcement action in court. This limiting principle, however, is nowhere to be found in § 12212. The use of arbitration to resolve all disputes under the ADA is clearly "authorized by law." See Part I, supra. Consequently, I see no indication that Congress intended to grant the EEOC authority to enforce the ADA in a manner that undermines valid and enforceable arbitration agreements.14 In the last 20 years, this Court has expanded the reach and scope of the FAA, holding, for instance, that the statute applies even to state-law claims in state court and pre-empts all contrary state statutes. See Allied-Bruce Terminix Coso v. Dobson, 513 U. S. 265 (1995); Southland Corp. v. Keating, 465 U. S. 1 (1984). I have not always agreed with this Court's jurisprudence in this area, see, e. g., Allied-Bruce, supra, at 285-297 (THOMAS, J., dissenting), but it seems to me that what's good for the goose is good for the gander. The Court should not impose the FAA upon States in the absence of any indication that Congress intended such a result, see Southland, supra, at 25-30 (O'CONNOR, J., dissenting), yet refuse to interpret a federal statute in a manner 14 I do not see the relevance of the Court's suggestion that its decision will only "have a negligible effect on the federal policy favoring arbitration" because the EEOC brings relatively few lawsuits. Ante, at 291, n. 7. In my view, either the EEOC has been authorized by statute to undermine valid and enforceable arbitration agreements, such as the one at issue in this case, or one should read the Commission's enforcement authority and the FAA in a harmonious manner. This Court's jurisprudence and the proper interpretation of the relevant statutes should not depend on how many cases the EEOC chooses to prosecute in any particular year. I simply see no statutory basis for the Court's implication that the EEOC has the authority to undermine valid and enforceable arbitration agreements so long as the Commission only opts to interfere with a relatively limited number of agreements. 315 compatible with the FAA, especially when Congress has expressly encouraged that claims under that federal statute be resolved through arbitration. Given the utter lack of statutory support for the Court's holding, I can only conclude that its decision today is rooted in some notion that employment discrimination claims should be treated differently from other claims in the context of arbitration. I had thought, however, that this Court had decisively repudiated that principle in Gilmer. See 500 U. S., at 27-28 (holding that arbitration agreements can be enforced without contravening the "important social policies" furthered by the ADEA). For all of these reasons, I respectfully dissent.

In *Equal Employment Opportunity Commission v. Waffle House, Inc.*, the Supreme Court ruled that an agreement between an employer and an employee to arbitrate employment-related disputes does not prevent the Equal Employment Opportunity Commission (EEOC) from seeking victim-specific judicial relief, such as backpay, reinstatement, and damages, in a case brought under the Americans with Disabilities Act (ADA). The Court found that the EEOC has the authority to obtain such relief on behalf of employees who have signed arbitration agreements, and that the Federal Arbitration Act (FAA) does not limit the EEOC's ability to pursue these remedies in court.

Labor & Employment

IBP, Inc. v. Alvarez

https://supreme.justia.com/cases/federal/us/546/21/

OPINION OF THE COURT IBP, INC. V. ALVAREZ 546 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NOS. 03-1238 AND 04-66 IBP, INC., PETITIONER 03–1238 v. GABRIEL ALVAREZ, individually and on behalf of all others similarly situated, et al. on writ of certiorari to the united states court of appeals for the ninth circuit ABDELA TUM, et al. , PETITIONERS 04–66 v. BARBER FOODS, INC., dba BARBER FOODS on writ of certiorari to the united states court of appeals for the first circuit [November 8, 2005]    Justice Stevens delivered the opinion of the Court.    These consolidated cases raise questions concerning the coverage of the Fair Labor Standards Act of 1938 (FLSA), as amended by the Portal-to-Portal Act of 1947, with respect to activities of employees who must don protective clothing on the employer’s premises before they engage in the productive labor for which they are primarily hired. The principal question, which is presented in both cases, is whether the time employees spend walking between the changing area and the production area is compensable under the FLSA. The second question, which is presented only in No. 04–66, is whether the time employees spend waiting to put on the protective gear is compensable under the statute. In No. 03–1238, the Court of Appeals for the Ninth Circuit answered “yes” to the first question, 339 F. 3d 894 (2003); in No. 04–66, the Court of Appeals for the First Circuit answered “no” to both questions, 360 F. 3d 274, 281 (2004). We granted certiorari to resolve the conflict. 543 U. S. ___ (2005). I    As enacted in 1938, the FLSA, 29 U. S. C. §201 et seq. , required employers engaged in the production of goods for commerce to pay their employees a minimum wage of “not less than 25 cents an hour,” §6(a)(1), 52 Stat. 1062, and prohibited the employment of any person for workweeks in excess of 40 hours after the second year following the legislation “unless such employee receives compensation for his employment in excess of [40] hours … at a rate not less than one and one-half times the regular rate at which he is employed,” id. , §7(a)(3), at 1063. Neither “work” nor “workweek” is defined in the statute.[ Footnote 1 ]    Our early cases defined those terms broadly. In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944), we held that time spent traveling from iron ore mine portals to underground working areas was compensable; relying on the remedial purposes of the statute and Webster’s Dictionary, we described “work or employment” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id., at 598; see id., at 598, n. 11. The same year, in Armour & Co. v. Wantock, 323 U. S. 126 (1944), we clarified that “exertion” was not in fact necessary for an activity to constitute “work” under the FLSA. We pointed out that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Id. , at 133. Two years later, in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 (1946), we defined “the statutory workweek” to “include all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Id. , at 690–691. Accordingly, we held that the time necessarily spent by employees walking from time clocks near the factory entrance gate to their workstations must be treated as part of the workweek. Id. , at 691–692.    The year after our decision in Anderson , Congress passed the Portal-to-Portal Act, amending certain provisions of the FLSA. Based on findings that judicial interpretations of the FLSA had superseded “long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation,” 61 Stat. 84, it responded with two statutory remedies, the first relating to “existing claims,” id. , at 85–86, and the second to “future claims,” id., at 87–88. Both remedies distinguish between working time that is compensable pursuant to contract or custom and practice, on the one hand, and time that was found compensable under this Court’s expansive reading of the FLSA, on the other. Like the original FLSA, however, the Portal-to-Portal Act omits any definition of the term “work.”    With respect to existing claims, the Portal-to-Portal Act provided that employers would not incur liability on account of their failure to pay minimum wages or overtime compensation for any activity that was not compensable by either an express contract or an established custom or practice.[ Footnote 2 ] With respect to “future claims,” the Act preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been treated as compensable under our cases: walking on the employer’s premises to and from the actual place of performance of the principal activity of the employee, and activities that are “preliminary or postliminary” to that principal activity.    Specifically, Part III of the Portal-to-Portal Act, entitled “future claims,” provides in relevant part:    “Sec. 4. Relief from Certain Future Claims Under the Fair Labor Standards Act of 1938 … —    “(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, … on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act—    “(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and    “(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” 61 Stat. 86–87 (codified at 29 U. S. C. §254(a)).    Other than its express exceptions for travel to and from the location of the employee’s “principal activity,” and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court’s earlier descriptions of the terms “work” and “workweek,” or to define the term “workday.” A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked “within” the workday. That regulation states: “[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§4] have no application” 29 CFR §790.6(a) (2005).[ Footnote 3 ] Similarly, consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” §790.6(b). These regulations have remained in effect since 1947, see 12 Fed. Reg. 7658 (1947), and no party disputes the validity of the continuous workday rule.    In 1955, eight years after the enactment of the Portal-to-Portal Act and the promulgation of these interpretive regulations, we were confronted with the question whether workers in a battery plant had a statutory right to compensation for the “time incident to changing clothes at the beginning of the shift and showering at the end, where they must make extensive use of dangerously caustic and toxic materials, and are compelled by circumstances, including vital considerations of health and hygiene, to change clothes and to shower in facilities which state law requires their employers to provide… .” Steiner v. Mitchell, 350 U. S. 247 , 248 (1956). After distinguishing “changing clothes and showering under normal conditions” and stressing the important health and safety risks associated with the production of batteries, id. , at 249, the Court endorsed the Court of Appeals’ conclusion that these activities were compensable under the FLSA. In reaching this result, we specifically agreed with the Court of Appeals that “the term ‘principal activity or activities’ in Section 4 [of the Portal-to-Portal Act] embraces all activities which are an ‘integral and indispensable part of the principal activities,’ and that the activities in question fall within this category.” Id. , at 252–253. Thus, under Steiner , activities, such as the donning and doffing of specialized protective gear, that are “performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4(a)(1).” Id., at 256. The principal question presented by these consolidated cases—both of which involve required protective gear that the courts below found integral and indispensable to the employees’ work—is whether postdonning and predoffing walking time is specifically excluded by §4(a)(1). We conclude that it is not. II Petitioner in No. 03–1238, IBP, Inc. (IBP), is a large producer of fresh beef, pork, and related products. At its plant in Pasco, Washington, it employs approximately 178 workers in 113 job classifications in the slaughter division and 800 line workers in 145 job classifications in the processing division. All production workers in both divisions must wear outer garments, hardhats, hairnets, earplugs, gloves, sleeves, aprons, leggings, and boots. Many of them, particularly those who use knives, must also wear a variety of protective equipment for their hands, arms, torsos, and legs; this gear includes chain link metal aprons, vests, plexiglass armguards, and special gloves. IBP requires its employees to store their equipment and tools in company locker rooms, where most of them don their protective gear. Production workers’ pay is based on the time spent cutting and bagging meat. Pay begins with the first piece of meat and ends with the last piece of meat. Since 1998, however, IBP has also paid for four minutes of clothes- changing time.[ Footnote 4 ] In 1999, respondents, IBP employees, filed this class action to recover compensation for preproduction and postproduction work, including the time spent donning and doffing protective gear and walking between the locker rooms and the production floor before and after their assigned shifts. After a lengthy bench trial, the District Court for the Eastern District of Washington held that donning and doffing of protective gear that was unique to the jobs at issue were compensable under the FLSA because they were integral and indispensable to the work of the employees who wore such equipment. Moreover, consistent with the continuous workday rule, the District Court concluded that, for those employees required to don and doff unique protective gear, the walking time between the locker room and the production floor was also compensable because it occurs during the workday.[ Footnote 5 ] The court did not, however, allow any recovery for ordinary clothes changing and washing, or for the “donning and doffing of hard hat[s], ear plugs, safety glasses, boots [or] hairnet[s].” App. to Pet. for Cert. in No. 03–1238, p. 65a. The District Court proceeded to apply these legal conclusions in making detailed factual findings with regard to the different groups of employees. For example, the District Court found that, under its view of what was covered by the FLSA, processing division knife users were entitled to compensation for between 12 and 14 minutes of preproduction and postproduction work, including 3.3 to 4.4 minutes of walking time. The Court of Appeals agreed with the District Court’s ultimate conclusions on these issues, but in part for different reasons. 339 F. 3d 894 (CA9 2003). After noting that the question whether activities “ ‘are an integral and indispensable part of the principal activities’ ” within the meaning of Steiner, is “context specific,” 339 F. 3d, at 902, the Court of Appeals endorsed the distinction between the burdensome donning and doffing of elaborate protective gear, on the one hand, and the time spent donning and doffing nonunique gear such as hardhats and safety goggles, on the other. It did so not because donning and doffing nonunique gear are categorically excluded from being “principal activities” as defined by the Portal-to-Portal Act, but rather because, in the context of this case, the time employees spent donning and doffing nonunique protective gear was “ ‘ de minimis as a matter of law.’ ” Id. , at 904. IBP does not challenge the holding below that, in light of Steiner , the donning and doffing of unique protective gear are “principal activities” under §4 of the Portal-to-Portal Act. Moreover, IBP has not asked us to overrule Steiner . Considerations of stare decisis are particularly forceful in the area of statutory construction, especially when a unanimous interpretation of a statute has been accepted as settled law for several decades. Thus, the only question for us to decide is whether the Court of Appeals correctly rejected IBP’s contention that the walking between the locker rooms and the production areas is excluded from FLSA coverage by §4(a)(1) of the Portal-to-Portal Act. IBP argues that the text of §4(a)(1), the history and purpose of its enactment, and the Department of Labor’s interpretive guidance compel the conclusion that the Portal-to-Portal Act excludes this walking time from the scope of the FLSA. We find each of these arguments unpersuasive. Text IBP correctly points out that our decision in Steiner held only that the donning and doffing of protective gear in that case were activities “integral and indispensable” to the workers’ principal activity of making batteries. 350 U. S., at 256. In IBP’s view, a category of “integral and indispensable” activities that may be compensable because they are not merely preliminary or postliminary within the meaning of §4(a)(2) is not necessarily coextensive with the actual “principal activities” which the employee “is employed to perform” within the meaning of §4(a)(1). In other words, IBP argues that, even though the court below concluded that donning and doffing of unique protective gear are “integral and indispensable” to the employees’ principal activity, this means only that the donning and doffing of such gear are themselves covered by the FLSA. According to IBP, the donning is not a “principal activity” that starts the workday, and the walking that occurs immediately after donning and immediately before doffing is not compensable. In effect, IBP asks us to create a third category of activities—those that are “integral and indispensable” to a “principal activity” and thus not excluded from coverage by §4(a)(2), but that are not themselves “principal activities” as that term is defined by §4(a)(1). IBP’s submission is foreclosed by Steiner . As noted above, in Steiner , we made it clear that §4 of the Portal-to-Portal Act does not remove activities which are “ ‘integral and indispensable’ ” to “ ‘principal activities’ ” from FLSA coverage precisely because such activities are themselves “principal activities.” Id., at 253. While Steiner specifically addressed the proper interpretation of the term “principal activity or activities” in §4(a)(2), there is no plausible argument that these terms mean something different in §4(a)(2) than they do in §4(a)(1).[ Footnote 6 ] This is not only because of the normal rule of statutory interpretation that identical words used in different parts of the same statute are generally presumed to have the same meaning. E.g. , Sullivan v. Stroop, 496 U. S. 478 , 484 (1990). It is also because §4(a)(2) refers to “ said principal activity or activities.” 61 Stat. 87 (emphasis added). The “said” is an explicit reference to the use of the identical term in §4(a)(1). Indeed, IBP has not offered any support for the unlikely proposition that Congress intended to create an intermediate category of activities that would be sufficiently “principal” to be compensable, but not sufficiently principal to commence the workday. Accepting the necessary import of our holding in Steiner , we conclude that the locker rooms where the special safety gear is donned and doffed are the relevant “place of performance” of the principal activity that the employee was employed to perform within the meaning of §4(a)(1). Walking to that place before starting work is excluded from FLSA coverage, but the statutory text does not exclude walking from that place to another area within the plant immediately after the workday has commenced. Purpose IBP emphasizes that our decision in Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 , may well have been the proximate cause of the enactment of the Portal-to-Portal Act. In that case we held that the FLSA mandated compensation for the time that employees spent walking from time clocks located near the plant entrance to their respective places of work prior to the start of their productive labor. Id., at 690–691. In IBP’s view, Congress’ forceful repudiation of that holding reflects a purpose to exclude what IBP regards as the quite similar walking time spent by respondents before and after their work slaughtering cattle and processing meat. Even if there is ambiguity in the statute, we should construe it to effectuate that important purpose. This argument is also unpersuasive. There is a critical difference between the walking at issue in Anderson and the walking at issue in this case. In Anderson the walking preceded the employees’ principal activity; it occurred before the workday began. The relevant walking in this case occurs after the workday begins and before it ends. Only if we were to endorse IBP’s novel submission that an activity can be sufficiently “principal” to be compensable, but not sufficiently so to start the workday, would this case be comparable to Anderson. Moreover, there is a significant difference between the open-ended and potentially expansive liability that might result from a rule that treated travel before the workday begins as compensable, and the rule at issue in this case. Indeed, for processing division knife users, the largest segment of the work force at IBP’s plant, the walking time in dispute here consumes less time than the donning and doffing activities that precede or follow it. It is more comparable to time spent walking between two different positions on an assembly line than to the prework walking in Anderson. Regulations The regulations adopted by the Secretary of Labor in 1947 support respondents’ view that when donning and doffing of protective gear are compensable activities, they may also define the outer limits of the workday. Under those regulations, the few minutes spent walking between the locker rooms and the production area are similar to the time spent walking between two different workplaces on the disassembly line. See 29 CFR §790.7(c) (2005) (explaining that the Portal-to-Portal Act does not affect the compensability of time spent traveling from the place of performance of one principal activity to that of another). See also §785.38 (explaining, in a later regulation interpreting the FLSA, that “[w]here an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work, and must be counted as hours worked …”). IBP argues, however, that two provisions in the regulations point to a different conclusion—the use of the phrase “whistle to whistle” in discussing the limits of the “workday,” §790.6, and a footnote stating that postchanging walking time is not “necessarily” excluded from the scope of §4(a)(1). §790.7(g), n. 49. The “whistle to whistle” reference does reflect the view that in most situations the workday will be defined by the beginning and ending of the primary productive activity. But the relevant text describes the workday as “roughly the period ‘from whistle to whistle.’ ” §790.6(a) (emphasis added). Indeed, the next subsection of this same regulation states: “ ‘Workday’ as used in the Portal Act means, in general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” §790.6(b). IBP’s emphasis on the “whistle to whistle” reference is unavailing. The footnote on which IBP relies states: “Washing up after work, like the changing of clothes, may in certain situations be so directly related to the specific work the employee is employed to perform that it would be regarded as an integral part of the employee’s ‘principal activity.’ This does not necessarily mean , however, that travel between the washroom or clothes-changing place and the actual place of performance of the specific work the employee is employed to perform, would be excluded from the type of travel to which section 4(a) refers.” §790.7(g), n. 49 (emphasis added; citations omitted). This footnote does indicate that the Secretary assumed that there would be some cases in which walking between a locker room where the employee performs her first principal activity and the production line would be covered by the FLSA and some cases in which it would not be. That assumption is, of course, inconsistent with IBP’s submission that such walking is always excluded by §4(a), just as it is inconsistent with respondents’ view that such walking is never excluded. Whatever the correct explanation for the Secretary’s ambiguous (and apparently ambivalent) statement may be, it is not sufficient to overcome the clear statements in the text of the regulations that support our holding. And it surely is not sufficient to overcome the statute itself, whose meaning is definitively resolved by Steiner . For the foregoing reasons, we hold that any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under §4(a) of the Portal-to-Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA. III Respondent in No. 04–66, Barber Foods, Inc. (Barber), operates a poultry processing plant in Portland, Maine, that employs about 300 production workers. These employees operate six production lines and perform a variety of tasks that require different combinations of protective clothing. They are paid by the hour from the time they punch in to computerized time clocks located at the entrances to the production floor. Petitioners are Barber employees and former employees who brought this action to recover compensation for alleged unrecorded work covered by the FLSA. Specifically, they claimed that Barber’s failure to compensate them for (a) donning and doffing required protective gear and (b) the attendant walking and waiting violated the statute. After extensive discovery, the Magistrate Judge issued a comprehensive opinion analyzing the facts in detail, and recommending the entry of partial summary judgment in favor of Barber. That opinion, which was later adopted by the District Court for Maine, included two critical rulings. First, the Magistrate held that “the donning and doffing of clothing and equipment required by the defendant or by government regulation, as opposed to clothing and equipment which employees choose to wear or use at their option, is an integral part of the plaintiffs’ work [and therefore are] not excluded from compensation under the Portal-to-Portal Act as preliminary or postliminary activities.” App. to Pet. for Cert. in 04–66, pp. 36a–40a. Second, the Magistrate rejected petitioners’ claims for “compensation for the time spent before obtaining their clothing and equipment.” Id. , at 33a. Such time, in the Magistrate’s view, “could [not] reasonably be construed to be an integral part of employees’ work activities any more than walking to the cage from which hairnets and earplugs are dispensed … .” Ibid. Accordingly, Barber was “entitled to summary judgment on any claims based on time spent walking from the plant entrances to an employee’s workstation, locker, time clock or site where clothing and equipment required to be worn on the job is to be obtained and any claims based on time spent waiting to punch in or out for such clothing or equipment.” Id. , at 33a–34a. The Magistrate Judge’s opinion did not specifically address the question whether the walking time between the production line and the place of donning and doffing was encompassed by §4 of the Portal-to-Portal Act, and thus excluded from coverage under the FLSA. Whatever the intended scope of the Magistrate’s grant of partial summary judgment, the questions submitted to the jury after trial asked jurors to consider only whether Barber was required to compensate petitioners for the time they spent actually donning and doffing various gear. Before the case was submitted to the jury, the parties stipulated that four categories of workers—rotating, set-up, meatroom, and shipping and receiving associates—were required to don protective gear at the beginning of their shifts and were required to doff this gear at the end of their shifts. The jury then made factual findings with regard to the amount of time reasonably required for each category of employees to don and doff such items; the jury concluded that such time was de minimis and therefore not compensable. The jury further concluded that two other categories of employees—maintenance and sanitation associates—were not required to don protective gear before starting their shifts.[ Footnote 7 ] Accordingly, the jury ruled for Barber on all counts. On appeal, petitioners argued, among other things, that the District Court had improperly excluded as noncompensable the time employees spend walking to the production floor after donning required safety gear and the time they spend walking from the production floor to the area where they doff such gear. The Court of Appeals rejected petitioners’ argument, concluding that such walking time was a species of preliminary and postliminary activity excluded from FLSA coverage by §§4(a)(1) and (2) of the Portal-to-Portal Act. 360 F. 3d, at 281. As we have explained in our discussion of IBP’s submission, see Part II, supra , that categorical conclusion was incorrect. Petitioners also argued in the Court of Appeals that the waiting time associated with the donning and doffing of clothes was compensable. The Court of Appeals disagreed, holding that the waiting time qualified as a “preliminary or postliminary activity” and thus was excluded from FLSA coverage by the Portal-to-Portal Act. 360 F. 3d, at 282. Our analysis in Part II, supra , demonstrates that the Court of Appeals was incorrect with regard to the predoffing waiting time. Because doffing gear that is “integral and indispensable” to employees’ work is a “principal activity” under the statute, the continuous workday rule mandates that time spent waiting to doff is not affected by the Portal-to-Portal Act and is instead covered by the FLSA. The time spent waiting to don—time that elapses before the principal activity of donning integral and indispensable gear—presents the quite different question whether it should have the effect of advancing the time when the workday begins. Barber argues that such predonning waiting time is explicitly covered by §4(a)(2) of the Portal-to-Portal Act, which, as noted above, excludes “activities which are preliminary to or postliminary to [a] principal activity or activities” from the scope of the FLSA. 29 U. S. C. §254(a)(2). By contrast, petitioners, supported by the United States as amicus curiae, maintain that the predonning waiting time is “integral and indispensable” to the “principal activity” of donning, and is therefore itself a principal activity. However, unlike the donning of certain types of protective gear, which is always essential if the worker is to do his job, the waiting may or may not be necessary in particular situations or for every employee. It is certainly not “integral and indispensable” in the same sense that the donning is. It does, however, always comfortably qualify as a “preliminary” activity. We thus do not agree with petitioners that the predonning waiting time at issue in this case is a “principal activity” under §4(a).[ Footnote 8 ] As Barber points out, the fact that certain preshift activities are necessary for employees to engage in their principal activities does not mean that those preshift activities are “integral and indispensable” to a “principal activity” under Steiner . For example, walking from a time clock near the factory gate to a workstation is certainly necessary for employees to begin their work, but it is indisputable that the Portal-to-Portal Act evinces Congress’ intent to repudiate Anderson ’s holding that such walking time was compensable under the FLSA. We discern no limiting principle that would allow us to conclude that the waiting time in dispute here is a “principal activity” under §4(a), without also leading to the logical (but untenable) conclusion that the walking time at issue in Anderson would be a “principal activity” under §4(a) and would thus be unaffected by the Portal-to-Portal Act. The Government also relies on a regulation promulgated by the Secretary of Labor as supporting petitioners’ view. That regulation, 29 CFR §790.7(h) (2005), states that when an employee “is required by his employer to report at a particular hour at his workbench or other place where he performs his principal activity, if the employee is there at that hour ready and willing to work but for some reason beyond his control there is no work for him to perform until some time has elapsed, waiting for work would be an integral part of the employee’s principal activities.” That regulation would be applicable if Barber required its workers to report to the changing area at a specific time only to find that no protective gear was available until after some time had elapsed, but there is no such evidence in the record in this case. More pertinent, we believe, is the portion of §790.7 that characterizes the time that employees must spend waiting to check in or waiting to receive their paychecks as generally a “preliminary” activity covered by the Portal-to-Portal Act. See §790.7(g). That regulation is fully consistent with the statutory provisions that allow the compensability of such collateral activities to depend on either the agreement of the parties or the custom and practice in the particular industry. In short, we are not persuaded that such waiting—which in this case is two steps removed from the productive activity on the assembly line—is “integral and indispensable” to a “principal activity” that identifies the time when the continuous workday begins. Accordingly, we hold that §4(a)(2) excludes from the scope of the FLSA the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. IV For the reasons stated above, we affirm the judgment of the Court of Appeals for the Ninth Circuit in No. 03–1238. We affirm in part and reverse in part the judgment of the Court of Appeals for the First Circuit in No. 04–66, and we remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The most pertinent definition provides: “ ‘Employ’ includes to suffer or permit to work.” 52 Stat. 1060, 29 U. S. C. §203(g). Footnote 2 Part II of the Portal-to-Portal Act, entitled “existing claims,” states in relevant part: “Sec. 2. Relief From Certain Existing Claims Under the Fair Labor Standards Act of 1938 … — “(a) No employer shall be subject to any liability or punishment under the Fair Labor Standards Act … (in any action or proceeding commenced prior to or on or after the date of the enactment of this Act), on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any activity of an employee engaged in prior to the date of the enactment of this Act, except an activity which was compensable by either— “(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or “(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer.” 61 Stat. 85 (codified at 29 U. S. C. §252(a)). Footnote 3 The regulation provides in full: “Section 4 of the Portal Act does not affect the computation of hours worked within the ‘workday’ proper, roughly described as the period ‘from whistle to whistle,’ and its provisions have nothing to do with the compensability under the Fair Labor Standards Act of any activities engaged in by an employee during that period. Under the provisions of section 4, one of the conditions that must be present before ‘preliminary’ or ‘postliminary’ activities are excluded from hours worked is that they ‘occur either prior to the time on any particular workday at which the employee commences, or subsequent to the time on any particular workday at which he ceases’ the principal activity or activities which he is employed to perform. Accordingly, to the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of that section have no application. Periods of time between the commencement of the employee’s first principal activity and the completion of his last principal activity on any workday must be included in the computation of hours worked to the same extent as would be required if the Portal Act had not been enacted. The principles for determining hours worked within the ‘workday’ proper will continue to be those established under the Fair Labor Standards Act without reference to the Portal Act, which is concerned with this question only as it relates to time spent outside the ‘workday’ in activities of the kind described in section 4.” §790.6(a) (footnotes omitted). Footnote 4 IBP does not contend that this clothes-changing time fully compensated respondents for the preproduction and postproduction time at issue in this case. Footnote 5 The District Court explained: “Walking time is compensable if it occurs after the start of the workday. 29 U. S. C. §254(a). Walking time is excluded under the Portal to Portal Act only if it occurs ‘either prior to the time on any particular work day at which such employee commences or subsequent to the time on any particular work day at which he ceases such principal activity or activities.’ Id. The work day begins with the commencement of an employer’s principal activity or activities and ends with the completion of the employee’s activity… .” App. to Pet. for Cert. in No. 03–1238, pp. 53a–54a. Footnote 6 In fact, as noted above, in Steiner we specifically endorsed the view of the Court of Appeals that the definition of “principal activity or activities” in §4 encompassed activities “ ‘integral and indispensable’ ” to those principal activities. We did not make any distinction between §4(a)(1) and §4(a)(2). 350 U. S., at 253. Footnote 7 The claims brought by these workers are no longer part of this case. Footnote 8 As explained below, our analysis would be different if Barber required its employees to arrive at a particular time in order to begin waiting.

In IBP, Inc. v. Alvarez, the Supreme Court ruled that time spent by employees walking between the changing area and the production area, as well as time spent waiting to put on protective gear, is compensable under the Fair Labor Standards Act (FLSA). The Court held that these activities are considered "work" under the FLSA and must be compensated accordingly. The Court's decision resolved a conflict between two lower courts, with the Ninth Circuit ruling in favor of compensation and the First Circuit ruling against it.

Labor & Employment

Smith v. City of Jackson

https://supreme.justia.com/cases/federal/us/544/228/

OPINION OF THE COURT SMITH V. CITY OF JACKSON 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1160 AZEL P. SMITH, et al., PETITIONERS v. CITY OF JACKSON, MISSISSIPPI, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [March 30, 2005]    Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, and an opinion with respect to Part III, in which Justice Souter, Justice Ginsburg, and Justice Breyer join.    Petitioners, police and public safety officers employed by the city of Jackson, Mississippi (hereinafter City), contend that salary increases received in 1999 violated the Age Discrimination in Employment Act of 1967 (ADEA) because they were less generous to officers over the age of 40 than to younger officers. Their suit raises the question whether the “disparate-impact” theory of recovery announced in Griggs v. Duke Power Co., 401 U. S. 424 (1971), for cases brought under Title VII of the Civil Rights Act of 1964, is cognizable under the ADEA. Despite the age of the ADEA, it is a question that we have not yet addressed. See Hazen Paper Co. v. Biggins, 507 U. S. 604 , 610 (1993); Markham v. Geller , 451 U. S. 945 (1981) (Rehnquist, J., dissenting from denial of certiorari). I    On October 1, 1998, the City adopted a pay plan granting raises to all City employees. The stated purpose of the plan was to “attract and retain qualified people, provide incentive for performance, maintain competitiveness with other public sector agencies and ensure equitable compensation to all employees regardless of age, sex, race and/or disability.”[ Footnote 1 ] On May 1, 1999, a revision of the plan, which was motivated, at least in part, by the City’s desire to bring the starting salaries of police officers up to the regional average, granted raises to all police officers and police dispatchers. Those who had less than five years of tenure received proportionately greater raises when compared to their former pay than those with more seniority. Although some officers over the age of 40 had less than five years of service, most of the older officers had more.    Petitioners are a group of older officers who filed suit under the ADEA claiming both that the City deliberately discriminated against them because of their age (the “disparate-treatment” claim) and that they were “adversely affected” by the plan because of their age (the “disparate-impact” claim). The District Court granted summary judgment to the City on both claims. The Court of Appeals held that the ruling on the former claim was premature because petitioners were entitled to further discovery on the issue of intent, but it affirmed the dismissal of the disparate-impact claim. 351 F. 3d 183 (CA5 2003). Over one judge’s dissent, the majority concluded that disparate-impact claims are categorically unavailable under the ADEA. Both the majority and the dissent assumed that the facts alleged by petitioners would entitle them to relief under the reasoning of Griggs. We granted the officers’ petition for certiorari, 541 U. S. ___ (2004), and now hold that the ADEA does authorize recovery in “disparate-impact” cases comparable to Griggs . Because, however, we conclude that petitioners have not set forth a valid disparate-impact claim, we affirm. II    During the deliberations that preceded the enactment of the Civil Rights Act of 1964, Congress considered and rejected proposed amendments that would have included older workers among the classes protected from employment discrimination.[ Footnote 2 ] General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 587 (2004). Congress did, however, request the Secretary of Labor to “make a full and complete study of the factors which might tend to result in discrimination in employment because of age and of the consequences of such discrimination on the economy and individuals affected.” §715, 78 Stat. 265. The Secretary’s report, submitted in response to Congress’ request, noted that there was little discrimination arising from dislike or intolerance of older people, but that “arbitrary” discrimination did result from certain age limits. Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment 22 (June 1965), reprinted in U. S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act (1981) (hereinafter Wirtz Report). Moreover, the report observed that discriminatory effects resulted from “[i]nstitutional arrangements that indirectly restrict the employment of older workers.” Id ., at 15.    In response to that report Congress directed the Secretary to propose remedial legislation, see Fair Labor Standards Amendments of 1966, Pub. L. 89–601, §606, 80 Stat. 845, and then acted favorably on his proposal. As enacted in 1967, §4(a)(2) of the ADEA, now codified as 29 U. S. C. §623(a)(2), provided that it shall be unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age … .” 81 Stat. 603. Except for substitution of the word “age” for the words “race, color, religion, sex, or national origin,” the language of that provision in the ADEA is identical to that found in §703(a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlier statute.[ Footnote 3 ] Unlike Title VII, however, §4(f)(1) of the ADEA, 81 Stat. 603, contains language that significantly narrows its coverage by permitting any “otherwise prohibited” action “where the differentiation is based on reasonable factors other than age” (hereinafter RFOA provision). III    In determining whether the ADEA authorizes disparate-impact claims, we begin with the premise that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes. Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427 , 428 (1973) (per curiam) . We have consistently applied that presumption to language in the ADEA that was “derived in haec verba from Title VII.” Lorillard v. Pons, 434 U. S. 575 , 584 (1978). [ Footnote 4 ] Our unanimous interpretation of §703(a)(2) of the Title VII in Griggs is therefore a precedent of compelling importance. In Griggs , a case decided four years after the enactment of the ADEA, we considered whether §703 of Title VII prohibited an employer “from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a longstanding practice of giving preference to whites.” 401 U. S., at 425–426. Accepting the Court of Appeals’ conclusion that the employer had adopted the diploma and test requirements without any intent to discriminate, we held that good faith “does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” Id., at 432. We explained that Congress had “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Ibid . We relied on the fact that history is “filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated the commonsense proposition that they are not to become masters of reality.” Id., at 433. And we noted that the Equal Employment Opportunity Commission (EEOC), which had enforcement responsibility, had issued guidelines that accorded with our view. Id. , at 433–434. We thus squarely held that §703(a)(2) of Title VII did not require a showing of discriminatory intent.[ Footnote 5 ] While our opinion in Griggs relied primarily on the purposes of the Act, buttressed by the fact that the EEOC had endorsed the same view, we have subsequently noted that our holding represented the better reading of the statutory text as well. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977 , 991 (1988). Neither §703(a)(2) nor the comparable language in the ADEA simply prohibits actions that “limit, segregate, or classify” persons; rather the language prohibits such actions that “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s” race or age. Ibid . (explaining that in disparate-impact cases, “the employer’s practices may be said to ‘adversely affect [an individual’s status] as an employee’ ” (alteration in original) (quoting 42 U. S. C. §2000e–2(a)(2))). Thus the text focuses on the effects of the action on the employee rather than the motivation for the action of the employer.[ Footnote 6 ] Griggs , which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be cognizable under the ADEA.[ Footnote 7 ] Indeed, for over two decades after our decision in Griggs , the Courts of Appeal uniformly interpreted the ADEA as authorizing recovery on a “disparate-impact” theory in appropriate cases.[ Footnote 8 ] It was only after our decision in Hazen Paper Co. v. Biggins, 507 U. S. 604 (1993), that some of those courts concluded that the ADEA did not authorize a disparate-impact theory of liability.[ Footnote 9 ] Our opinion in Hazen Paper , however, did not address or comment on the issue we decide today. In that case, we held that an employee’s allegation that he was discharged shortly before his pension would have vested did not state a cause of action under a disparate-treatment theory. The motivating factor was not, we held, the employee’s age, but rather his years of service, a factor that the ADEA did not prohibit an employer from considering when terminating an employee. Id ., at 612.[ Footnote 10 ] While we noted that disparate-treatment “captures the essence of what Congress sought to prohibit in the ADEA,” id., at 610, we were careful to explain that we were not deciding “whether a disparate impact theory of liability is available under the ADEA … .” Ibid . In sum, there is nothing in our opinion in Hazen Paper that precludes an interpretation of the ADEA that parallels our holding in Griggs. The Court of Appeals’ categorical rejection of disparate-impact liability, like Justice O’Connor’s, rested primarily on the RFOA provision and the majority’s analysis of legislative history. As we have already explained, we think the history of the enactment of the ADEA, with particular reference to the Wirtz Report, supports the pre- Hazen Paper consensus concerning disparate-impact liability. And Hazen Paper itself contains the response to the concern over the RFOA provision. The RFOA provision provides that it shall not be unlawful for an employer “to take any action otherwise prohibited under subsectio[n] (a) … where the differentiation is based on reasonable factors other than age discrimination … .” 81 Stat. 603. In most disparate-treatment cases, if an employer in fact acted on a factor other than age, the action would not be prohibited under subsection (a) in the first place. See Hazen Paper , 507 U. S., at 609 (“[T]here is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age.”). In those disparate-treatment cases, such as in Hazen Paper itself, the RFOA provision is simply unnecessary to avoid liability under the ADEA, since there was no prohibited action in the first place. The RFOA provision is not, as Justice O’Connor suggests, a “safe harbor from liability,” post , at 5 (emphasis deleted), since there would be no liability under §4(a). See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 254 (1981) (noting, in a Title VII case, that an employer can defeat liability by showing that the employee was rejected for “a legitimate, nondiscriminatory reason” without reference to an RFOA provision). In disparate-impact cases, however, the allegedly “otherwise prohibited” activity is not based on age. Ibid . (“ ‘[C]laims that stress “disparate impact” [by contrast] involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another …’ ” (quoting Teamsters v. United States, 431 U. S. 324 , 335–336, n. 15 (1977))). It is, accordingly, in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was “reasonable.” Rather than support an argument that disparate impact is unavailable under the ADEA, the RFOA provision actually supports the contrary conclusion.[ Footnote 11 ] Finally, we note that both the Department of Labor, which initially drafted the legislation, and the EEOC, which is the agency charged by Congress with responsibility for implementing the statute, 29 U. S. C. §628, have consistently interpreted the ADEA to authorize relief on a disparate-impact theory. The initial regulations, while not mentioning disparate impact by name, nevertheless permitted such claims if the employer relied on a factor that was not related to age. 29 CFR §860.103(f)(1)(i) (1970) (barring physical fitness requirements that were not “reasonably necessary for the specific work to be performed”). See also §1625.7 (2004) (setting forth the standards for a disparate-impact claim). The text of the statute, as interpreted in Griggs , the RFOA provision, and the EEOC regulations all support petitioners’ view. We therefore conclude that it was error for the Court of Appeals to hold that the disparate-impact theory of liability is categorically unavailable under the ADEA. IV Two textual differences between the ADEA and Title VII make it clear that even though both statutes authorize recovery on a disparate-impact theory, the scope of disparate-impact liability under ADEA is narrower than under Title VII. The first is the RFOA provision, which we have already identified. The second is the amendment to Title VII contained in the Civil Rights Act of 1991, 105 Stat. 1071. One of the purposes of that amendment was to modify the Court’s holding in Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989), a case in which we narrowly construed the employer’s exposure to liability on a disparate-impact theory. See Civil Rights Act of 1991, §2, 105 Stat. 1071. While the relevant 1991 amendments expanded the coverage of Title VII, they did not amend the ADEA or speak to the subject of age discrimination. Hence, Wards Cove’ s pre-1991 interpretation of Title VII’s identical language remains applicable to the ADEA. Congress’ decision to limit the coverage of the ADEA by including the RFOA provision is consistent with the fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment. To be sure, Congress recognized that this is not always the case, and that society may perceive those differences to be larger or more consequential than they are in fact. However, as Secretary Wirtz noted in his report, “certain circumstances … unquestionably affect older workers more strongly, as a group, than they do younger workers.” Wirtz Report 28. Thus, it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group. Moreover, intentional discrimination on the basis of age has not occurred at the same levels as discrimination against those protected by Title VII. While the ADEA reflects Congress’ intent to give older workers employment opportunities whenever possible, the RFOA provision reflects this historical difference. Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove , it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is “ ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ” 490 U. S., at 656 (emphasis added) (quoting Watson, 487 U. S., at 994). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could “result in employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances … .’ ” 490 U. S., at 657. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City’s plan was based on reasonable factors other than age. The plan divided each of five basic positions—police officer, master police officer, police sergeant, police lieutenant, and deputy police chief—into a series of steps and half-steps. The wage for each range was based on a survey of comparable communities in the Southeast. Employees were then assigned a step (or half-step) within their position that corresponded to the lowest step that would still give the individual a 2% raise. Most of the officers were in the three lowest ranks; in each of those ranks there were officers under age 40 and officers over 40. In none did their age affect their compensation. The few officers in the two highest ranks are all over 40. Their raises, though higher in dollar amount than the raises given to junior officers, represented a smaller percentage of their salaries, which of course are higher than the salaries paid to their juniors. They are members of the class complaining of the “disparate impact” of the award. Petitioners’ evidence established two principal facts: First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did.[ Footnote 12 ] Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority.[ Footnote 13 ] Because older officers tended to occupy more senior positions, on average they received smaller increases when measured as a percentage of their salary. The basic explanation for the differential was the City’s perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market. Thus, the disparate impact is attributable to the City’s decision to give raises based on seniority and position. Reliance on seniority and rank is unquestionably reasonable given the City’s goal of raising employees’ salaries to match those in surrounding communities. In sum, we hold that the City’s decision to grant a larger raise to lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a “reasonable factor other than age” that responded to the City’s legitimate goal of retaining police officers. Cf. MacPherson v. University of Montevallo , 922 F. 2d 766, 772 (CA11 1991). While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement. Accordingly, while we do not agree with the Court of Appeals’ holding that that the disparate-impact theory of recovery is never available under the ADEA, we affirm its judgment. It is so ordered. The Chief Justice took no part in the decision of this case. Footnote 1 App. 15. Footnote 2 See 110 Cong. Rec. 2596–2599 (1964) (amendment offered by Rep. Dowdy, voted down 123 to 94); id. , at 9911–9913, 13490–13492 (amendment offered by Sen. Smathers, voted down 63 to 28). Footnote 3 Like Title VII with respect to all protected classes except race, the ADEA provides an affirmative defense to liability where age is “a bona fide occupational qualification reasonably necessary to the normal operation of the particular business … ,” §4(f)(1), 81 Stat. 603; Cf. Civil Rights Act of 1964, §703(e), 78 Stat. 256 (“Notwithstanding any other provision of this title, … it shall not be [unlawful to perform any of the prohibited activities in §§703(a)–(d)] on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business enterprise …”). Footnote 4 Oscar Mayer & Co . v. Evans , 441 U. S. 750 , 756 (1979) (interpreting §14(b) of the ADEA in light of §706(c) of Title VII); Western Air Lines, Inc . v. Criswell , 472 U. S. 400 , 416 (1985) (interpreting ADEA’s bona fide occupational qualification exception in light of Title VII’s BFOQ exception); Trans World Airlines, Inc . v. Thurston , 469 U. S. 111 , 121 (1985) (interpreting the ADEA to apply to denial of privileges cases in a similar manner as under Title VII). Footnote 5 The congressional purposes on which we relied in Griggs have a striking parallel to two important points made in the Wirtz Report. Just as the Griggs opinion ruled out discrimination based on racial animus as a problem in that case, the Wirtz Report concluded that there was no significant discrimination of that kind so far as older workers are concerned. Wirtz Report 23. And just as Griggs recognized that the high school diploma requirement, which was unrelated to job performance, had an unfair impact on African-Americans who had received inferior educational opportunities in segregated schools, 401 U. S., at 430, the Wirtz Report identified the identical obstacle to the employment of older workers. “Any formal employment standard which requires, for example, a high school diploma will obviously work against the employment of many older workers—unfairly if, despite his limited schooling, an older worker’s years of experience have given him the relevant equivalent of a high school education.” Wirtz Report 21. Thus, just as the statutory text is identical, there is a remarkable similarity between the congressional goals we cited in Griggs and those present in the Wirtz Report. Footnote 6 In reaching a contrary conclusion, Justice O’Connor ignores key textual differences between §4(a)(1), which does not encompass-disparate-impact liability, and §4(a)(2). Section (a)(1) makes it unlawful for an employer “to fail or refuse to hire … any individual … because of such individual’s age.” (Emphasis added.) The focus of the section is on the employer’s actions with respect to the targeted individual. Paragraph (a)(2), however, makes it unlawful for an employer “to limit … his employees in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” (Emphasis added.) Unlike in paragraph (a)(2), there is thus an incongruity between the employer’s actions—which are focused on his employees generally—and the individual employee who adversely suffers because of those actions. Thus, an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee’s age—the very definition of disparate impact. Justice O’Connor is therefore quite wrong to suggest that the textual differences between the two paragraphs are unimportant. Footnote 7 Justice O’Connor reaches a contrary conclusion based on the text of the statute, the legislative history, and the structure of the statute. As we explain above, n. 6, supra , her textual reasoning is not persuasive. Further, while Congress may have intended to remedy disparate-impact type situations through “noncoercive measures” in part, there is nothing to suggest that it intended such measures to be the sole method of achieving the desired result of remedying practices that had an adverse effect on older workers. Finally, we agree that the differences between age and the classes protected in Title VII are relevant, and that Congress might well have intended to treat the two differently. See infra , at 7 (O’Connor, J., concurring in judgment). However, Congress obviously considered those classes of individuals to be sufficiently similar to warrant enacting identical legislation, at least with respect to employment practices it sought to prohibit. While those differences, coupled with a difference in the text of the statue such as the RFOA provision, may warrant addressing disparate-impact claims in the two statutes differently, see infra , at 11–12, it does not justify departing from the plain text and our settled interpretation of that text. Footnote 8 B. Lindemann & D. Kadue, Age Discrimination in Employment Law 416, and n. 16 (2003) (citing Holt v. Gamewell Corp. , 797 F. 2d 36, 37 (CA1 1986); Maresco v. Evans Chemetics , 964 F. 2d 106, 115 (CA2 1992); Blum v. Witco Chemical Corp. , 829 F. 2d 367, 372 (CA3 1987); Wooden v. Board of Ed. of Jefferson Cty., Ky. , 931 F. 2d 376, 379 (CA6 1991); Monroe v. United Airlines , 736 F. 2d 394, 404, n. 3 (CA7 1984); Dace v. ACF Industries , 722 F. 2d 374, 378 (CA8 1983), modified, 728 F. 2d 976 (1984) (per curiam); Palmer v. United States , 794 F. 2d 534, 536 (CA9 1986); Faulkner v. Super Valu Stores, Inc. , 3 F. 3d 1419 (CA10 1993) (assuming disparate-impact theory); MacPherson v. University of Montevallo , 922 F. 2d 766, 771 (CA11 1991); Arnold v. United States Postal Service , 863 F. 2d 994, 998 (CADC 1988) (assuming disparate-impact theory)). Footnote 9 See, e.g., Mullin v. Raytheon Co ., 164 F. 3d 696, 700 (CA1 1999) (“[T]ectonic plates shifted when the Court decided [Hazen Paper] ”); Gantt v. Wilson Sporting Goods Co ., 143 F. 3d 1042, 1048 (CA6 1998) (“[T]here is now considerable doubt as to whether a claim of age discrimination may exist under a disparate-impact theory” (internal quotation marks and citation omitted)). See also Lindemann & Kadue, at 417–418, n. 23 (collecting cases). In contrast to the First, Seventh, Tenth, and Eleventh Circuits, which have held that there is no disparate-impact theory, the Second, Eighth, and Ninth Circuits continue to recognize such a theory. Id ., at 417, and n. 22. Footnote 10 We did note, however, that the challenged conduct was actionable under §510 of the Employee Retirement Income Security Act of 1974. 507 U. S., at 612. Footnote 11 We note that if Congress intended to prohibit all disparate-impact claims, it certainly could have done so. For instance, in the Equal Pay Act of 1963, 29 U. S. C. §206(d)(1), Congress barred recovery if a pay differential was based “on any other factor”—reasonable or unreasonable—“other than sex.” The fact that Congress provided that employees could use only reasonable factors in defending a suit under the ADEA is therefore instructive. Footnote 12 Exhibit C, Record 1192. Footnote 13 App. to Pet. for Cert. 41a. OPINION OF SCALIA, J. SMITH V. CITY OF JACKSON 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1160 AZEL P. SMITH, et al., PETITIONERS v. CITY OF JACKSON, MISSISSIPPI, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [March 30, 2005]    Justice Scalia, concurring in part and concurring in the judgment.    I concur in the judgment of the Court, and join all except Part III of its opinion. As to that Part, I agree with all of the Court’s reasoning, but would find it a basis, not for independent determination of the disparate-impact question, but for deferral to the reasonable views of the Equal Employment Opportunity Commission (EEOC or Commission) pursuant to Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) . See General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 601–602 (2004) (Scalia, J., dissenting).    This is an absolutely classic case for deference to agency interpretation. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. , confers upon the EEOC authority to issue “such rules and regulations as it may consider necessary or appropriate for carrying out the” ADEA. §628. Pursuant to this authority, the EEOC promulgated, after notice-and-comment rulemaking, see 46 Fed. Reg. 47724, 47727 (1981), a regulation that reads as follows: “When an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a ‘factor other than’ age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity.” 29 CFR §1625.7(d) (2004). The statement of the EEOC which accompanied publication of the agency’s final interpretation of the ADEA said the following regarding this regulation: “Paragraph (d) of §1625.7 has been rewritten to make it clear that employment criteria that are age-neutral on their face but which nevertheless have a disparate impact on members of the protected age group must be justified as a business necessity. See Laugesen v. Anaconda Corp. , 510 F. 2d 307 (6th Cir. 1975); Griggs v. Duke Power Co. , 401 U. S. 424 (1971).” 46 Fed. Reg., at 47725. The regulation affirmed, moreover, what had been the longstanding position of the Department of Labor, the agency that previously administered the ADEA, see ante , at 10; 29 CFR §860.103(f)(1)(i) (1970). And finally, the Commission has appeared in numerous cases in the lower courts, both as a party and as amicus curiae , to defend the position that the ADEA authorizes disparate-impact claims.[ Footnote 1 ] Even under the unduly constrained standards of agency deference recited in United States v. Mead Corp. , 533 U. S. 218 (2001), the EEOC’s reasonable view that the ADEA authorizes disparate-impact claims is deserving of deference. Id. , at 229–231, and n. 12. A fortiori , it is entitled to deference under the pre- Mead formulation of Chevron , to which I con- tinue to adhere. See 533 U. S., at 256–257 (Scalia, J., dissenting).    Justice O’Connor both denies that the EEOC has taken a position on the existence of disparate-impact claims and asserts that, even if it has, its position does not deserve deference. See post , at 18–21 (opinion concurring in judgment). The first claim cannot be squared with the text of the EEOC’s regulation, quoted above. This cannot possibly be read as agnostic on the question whether the ADEA prohibits employer practices that have a disparate impact on the aged. It provides that such practices “can only be justified as a business necessity,” compelling the conclusion that, absent a “business necessity,” such practices are prohibited.[ Footnote 2 ]     Justice O’Connor would not defer to the EEOC regulation, even if it read as it does, because, she says, the regulation “does not purport to interpret the language of §4(a) at all,” but is rather limited to an interpretation of the “reasonable factors other than age” (RFOA) clause of §4(f)(1) of the ADEA, which she says is not at issue. Post , at 19. This argument assumes, however, that the RFOA clause operates independently of the remainder of the ADEA. It does not. Section 4(f)(1) provides, in relevant part: “It shall not be unlawful for an employer, employment agency, or labor organization … to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section … where the differentiation is based on reasonable factors other than age … .” 29 U. S. C. §623(f)(1) (emphasis added). As this text makes clear, the RFOA defense is relevant only as a response to employer actions “otherwise prohibited” by the ADEA. Hence, the unavoidable meaning of the regulation at issue is that the ADEA prohibits employer actions that have an “adverse impact on individuals within the protected age group.” 29 CFR §1625.7(d) (2004). And, of course, the only provision of the ADEA that could conceivably be interpreted to effect such a prohibition is §4(a)(2)—the provision that Justice O'Connor maintains the EEOC “does not purport to interpret … at all.” Post , at 19.[ Footnote 3 ]    Lastly, Justice O’Connor argues that the EEOC’s interpretation of what is “otherwise prohibited” by the ADEA is not entitled to deference because the Court concludes that the same regulation’s interpretation of another term— the term “reasonable factors other than age,” which the regulation takes to include only “business necessity”—is unreasonable. Post , at 21. Her logic seems to be that, because the two interpretations appear in the same paragraph, they should stand or fall together. She cites no case for this proposition, and it makes little sense. If the two simultaneously adopted interpretations were contained in distinct paragraphs, the invalidation of one would not, of course, render the other infirm. (Justice O’Connor does not mean to imply, I assume, that our rejection of the EEOC’s application of the phrase “reasonable factors other than age” to disparate impact claims in paragraph (d) of §1625.7 relieves the lower courts of the obligation to defer to the EEOC’s other applications of the same phrase in paragraph (c) or (e)). I can conceive no basis for a different rule simply because the two simul- taneously adopted interpretations appear in the same paragraph.    The EEOC has express authority to promulgate rules and regulations interpreting the ADEA. It has exercised that authority to recognize disparate-impact claims. And, for the reasons given by the plurality opinion, its position is eminently reasonable. In my view, that is sufficient to resolve this case. Footnote 1 See, e.g. , Brief for EEOC as Amicus Curiae Supporting Plaintiffs-Appellees in Meacham v. Knolls Atomic Power Laboratory , No. 02–4083(L) etc. (CA2), p. 12, available at http://www.eeoc.gov/briefs/ meacha.txt (all internet materials as visited Mar. 24, 2005, and available in the Clerk of Court’s case file) (“The Commission has consistently defended [the interpretation announced in 29 CFR §1625.7(d) (2004)], arguing that a claim of discrimination under a disparate impact theory is cognizable.”); Brief for EEOC as Amicus Curiae Supporting Plaintiffs-Appellants Seeking Reversal in Sitko v. Goodyear Tire & Rubber Co. , No. 02–4083 (CA6), p. 8, available at http://www.eeoc.gov/sitkov.txt (pending); EEOC v. McDonnell Douglas Corp. , 191 F. 3d 948, 950–951 (CA8 1999). Footnote 2 Perhaps Justice O’Connor adopts the narrower position that, while the EEOC has taken the view that the ADEA prohibits actions that have a disparate impact, it has stopped short of recognizing “disparate impact claims .” Post , at 18 (opinion concurring in judgment) (emphasis added). If so, this position is equally misguided. The EEOC need not take the extra step of recognizing that individuals harmed by prohibited actions have a right to sue; the ADEA itself makes that automatic. 29 U. S. C. §626(c) (“Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter …”). Footnote 3 Justice O’Connor argues that the regulation does not necessarily construe subsection (4)(a)(2) to prohibit disparate impact, because disparate treatment also can have the effect which the regulation addresses—viz., “an adverse impact on individuals within the protected age group,” 29 CFR §1625.7(d). See post , at 20. That is true enough. But the question here is not whether disparate treatment claims (when they have a disparate impact) are also covered by the regulation; it is whether disparate impact claims of all sorts are covered; and there is no way to avoid the conclusion (consistently reaffirmed by the agency’s actions over the years) that they are. That is also a complete response to Justice O’Connor’s point that the regulation could not refer to §4(a)(2) because it includes "applicants for employment," who are protected only under §4(a)(1). Perhaps applicants for employment are covered only when (as Justice O’Connor posits) disparate treatment results in disparate impact; or perhaps the agency’s attempt to sweep employment applications into the disparate impact prohibition is mistaken. But whatever in addition it may cover, or may erroneously seek to cover, it is impossible to contend that the regulation does not cover actions that “limit, segregate or classify” employees in a way that produces a disparate impact on those within the protected age group; and the only basis for its interpretation that those actions are prohibited is §(4)(a)(2). O'CONNOR, J., CONCURRING IN JUDGMENT SMITH V. CITY OF JACKSON 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-1160 AZEL P. SMITH, et al., PETITIONERS v. CITY OF JACKSON, MISSISSIPPI, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [March 30, 2005]    Justice O’Connor, with whom Justice Kennedy and Justice Thomas join, concurring in the judgment.    “Disparate treatment … captures the essence of what Congress sought to prohibit in the [Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. ] It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.” Hazen Paper Co. v. Biggins , 507 U. S. 604 , 610 (1993). In the nearly four decades since the ADEA’s enactment, however, we have never read the statute to impose liability upon an employer without proof of discriminatory intent. See ibid.; Markham v. Geller , 451 U. S. 945 (1981) (Rehnquist, J., dissenting from denial of certiorari). I decline to join the Court in doing so today.    I would instead affirm the judgment below on the ground that disparate impact claims are not cognizable under the ADEA. The ADEA’s text, legislative history, and purposes together make clear that Congress did not intend the statute to authorize such claims. Moreover, the significant differences between the ADEA and Title VII of the Civil Rights Act of 1964 counsel against transposing to the former our construction of the latter in Griggs v. Duke Power Co. , 401 U. S. 424 (1971). Finally, the agencies charged with administering the ADEA have never authoritatively construed the statute’s prohibitory language to impose disparate impact liability. Thus, on the precise question of statutory interpretation now before us, there is no reasoned agency reading of the text to which we might defer. I A    Our starting point is the statute’s text. Section 4(a) of the ADEA makes it unlawful for an employer: “(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or] “(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age … .” 29 U. S. C. §623(a).    Neither petitioners nor the plurality contend that the first paragraph, §4(a)(1), authorizes disparate impact claims, and I think it obvious that it does not. That provision plainly requires discriminatory intent, for to take an action against an individual “ because of such individual’s age” is to do so “by reason of” or “on account of” her age. See Webster’s Third New International Dictionary 194 (1961); see also Teamsters v. United States , 431 U. S. 324 , 335–336, n. 15 (1977) (“ ‘Disparate treatment’ … is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their [protected characteristic]. Proof of discriminatory motive is critical” (emphasis added)).    Petitioners look instead to the second paragraph, §4(a)(2), as the basis for their disparate impact claim. But petitioners’ argument founders on the plain language of the statute, the natural reading of which requires proof of discriminatory intent. Section 4(a)(2) uses the phrase “because of … age” in precisely the same manner as does the preceding paragraph—to make plain that an employer is liable only if its adverse action against an individual is motivated by the individual’s age.    Paragraphs (a)(1) and (a)(2) do differ in one informative respect. The employer actions targeted by paragraph (a)(1)— i.e. , refusing to hire, discharging, or discriminating against—are inherently harmful to the targeted individual. The actions referred to in paragraph (a)(2), on the other hand— i.e. , limiting, segregating, or classifying—are facially neutral . Accordingly, paragraph (a)(2) includes additional language which clarifies that, to give rise to liability, the employer’s action must actually injure someone: The decision to limit, segregate, or classify employees must “deprive or tend to deprive [an] individual of employment opportunities or otherwise adversely affect his status as an employee.” That distinction aside, the structures of paragraphs (a)(1) and (a)(2) are otherwise identical. Each paragraph prohibits an employer from taking specified adverse actions against an individual “because of such individual’s age.”    The plurality instead reads paragraph (a)(2) to prohibit employer actions that “adversely affect [an individual’s] status as an employe[e] because of such individual’s age.” Under this reading, “because of … age” refers to the cause of the adverse effect rather than the motive for the employer’s action . See ante , at 6. This reading is unpersuasive for two reasons. First, it ignores the obvious parallel between paragraphs (a)(1) and (a)(2) by giving the phrase “because of such individual’s age” a different meaning in each of the two paragraphs. And second, it ignores the drafters’ use of a comma separating the “because of … age” clause from the preceding language. That comma makes plain that the “because of … age” clause should not be read, as the plurality would have it, to modify only the “adversely affect” phrase. See, e.g. , United States v. Ron Pair Enterprises , Inc., 489 U. S. 235 , 241 (1989) (interpreting statute in light of the drafters’ use of a comma to set aside a particular phrase from the following language); see also B. Garner, A Dictionary of Modern Legal Usage 101 (2d ed. 1995) (“Generally, the word because should not follow a comma”). Rather, the “because of … age” clause is set aside to make clear that it modifies the entirety of the preceding paragraph: An employer may not, because of an individual’s age, limit, segregate, or classify his employees in a way that harms that individual.    The plurality also argues that its reading is supported by the supposed “incongruity” between paragraph (a)(2)’s use of the plural in referring to the employer’s actions (“limit, segregate, or classify his employees ”) and its use of the singular in the “because of such individual’s age” clause. (Emphases added.) Ante , at 7, n. 6. Not so. For the reasons just stated, the “because of . . . age” clause modifies all of the preceding language of paragraph (a)(2). That preceding language is phrased in both the plural (insofar as it refers to the employer’s actions relating to employees ) and the singular (insofar as it requires that such action actually harm an individual ). The use of the singular in the “because of . . . age” clause simply makes clear that paragraph (a)(2) forbids an employer to limit, segregate, or classify his employees if that decision is taken because of even one employee’s age and that individual (alone or together with others) is harmed. B    While §4(a)(2) of the ADEA makes it unlawful to intentionally discriminate because of age, §4(f)(1) clarifies that “[i]t shall not be unlawful for an employer … to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section … where the differentiation is based on reasonable factors other than age … .” 29 U. S. C. §623(f)(1). This “reasonable factors other than age” (RFOA) provision “insure[s] that employers [are] permitted to use neutral criteria” other than age, EEOC v. Wyoming , 460 U. S. 226 , 232–233 (1983), even if this results in a disparate adverse impact on older workers. The provision therefore expresses Congress’ clear intention that employers not be subject to liability absent proof of intentional age-based discrimination. That policy, in my view, cannot easily be reconciled with the plurality’s expansive reading of §4(a)(2).    The plurality however, reasons that the RFOA provision’s language instead confirms that §4(a) authorizes disparate impact claims. If §4(a) prohibited only intentional discrimination, the argument goes, then the RFOA provision would have no effect because any action based on a factor other than age would not be “ ‘otherwise prohibited’ ” under §4(a). See ante , at 9–10. Moreover, the plurality says, the RFOA provision applies only to employer actions based on reasonable factors other than age—so employers may still be held liable for actions based on un reasonable nonage factors. See ante , at 10.    This argument misconstrues the purpose and effect of the RFOA provision. Discriminatory intent is required under §4(a), for the reasons discussed above. The role of the RFOA provision is to afford employers an independent safe harbor from liability. It provides that, where a plaintiff has made out a prima facie case of intentional age discrimination under §4(a)—thus “creat[ing] a presumption that the employer unlawfully discriminated against the employee,” Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 , 254 (1981)—the employer can rebut this case by producing evidence that its action was based on a reasonable nonage factor. Thus, the RFOA provision codifies a safe harbor analogous to the “legitimate, nondiscriminatory reason” (LNR) justification later recognized in Title VII suits. Ibid.; McDonnell Douglas Corp. v. Green , 411 U. S. 792 , 802 (1973).    Assuming the McDonnell Douglas framework applies to ADEA suits, see O’Connor v. Consolidated Coin Caterers Corp. , 517 U. S. 308 , 311 (1996), this “rebuttal” function of the RFOA provision is arguably redundant with the judicially established LNR justification. See ante , at 9–10. But, at most, that merely demonstrates Congress’ abundance of caution in codifying an express statutory exemption from liability in the absence of discriminatory intent. See Fort Stewart Schools v. FLRA , 495 U. S. 641 , 646 (1990) (provisions that, although “technically unnecessary,” are sometimes “inserted out of an abundance of caution—a drafting imprecision venerable enough to have left its mark on legal Latin (ex abundanti cautela) ”). It is noteworthy that even after McDonnell Douglas was decided, lower courts continued to rely on the RFOA exemption, in lieu of the LNR justification, as the basis for rebutting a prima facie case of age discrimination. See, e.g. , Krieg v. Paul Revere Life Ins. Co. , 718 F. 2d 998, 999 (CA11 1983) (per curiam); Schwager v. Sun Oil Co. of Pa. , 591 F. 2d 58, 61 (CA10 1979); Bittar v. Air Canada , 512 F. 2d 582, 582–583 (CA5 1975) (per curiam) .    In any event, the RFOA provision also plays a distinct (and clearly nonredundant) role in “mixed-motive” cases. In such cases, an adverse action taken in substantial part because of an employee’s age may be “otherwise prohibited” by §4(a). See Desert Palace, Inc. v. Costa , 539 U. S. 90 , 93 (2003); Price Waterhouse v. Hopkins , 490 U. S. 228 , 262–266 (1989) (O’Connor, J., concurring in judgment). The RFOA exemption makes clear that such conduct is nevertheless lawful so long as it is “based on” a reasonable factor other than age.    Finally, the RFOA provision’s reference to “reasonable” factors serves only to prevent the employer from gaining the benefit of the statutory safe harbor by offering an irrational justification. Reliance on an unreasonable nonage factor would indicate that the employer’s explanation is, in fact, no more than a pretext for intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc. , 530 U. S. 133 , 147 (2000); see also Hazen Paper , 507 U. S., at 613–614. II    The legislative history of the ADEA confirms what its text plainly indicates—that Congress never intended the statute to authorize disparate impact claims. The drafters of the ADEA and the Congress that enacted it understood that age discrimination was qualitatively different from the kinds of discrimination addressed by Title VII, and that many legitimate employment practices would have a disparate impact on older workers. Accordingly, Congress determined that the disparate impact problem would best be addressed through noncoercive measures, and that the ADEA’s prohibitory provisions should be reserved for combating intentional age-based discrimination. A    Although Congress rejected proposals to address age discrimination in the Civil Rights Act of 1964, §715 of that Act directed the Secretary of Labor to undertake a study of age discrimination in employment and to submit to Congress a report containing “such recommendations for legislation to prevent arbitrary discrimination in employment because of age as he determines advisable,” 78 Stat. 265. See General Dynamics Land Systems, Inc. v. Cline , 540 U. S. 581 , 586–587 (2004); EEOC v. Wyoming , supra , at 229. In response, Secretary Willard Wirtz submitted the report that provided the blueprint for the ADEA. See Report of the Secretary of Labor, The Older American Worker: Age Discrimination in Employment (June 1965), reprinted in U. S. Equal Employment Opportunity Commission, Legislative History of the Age Discrimination in Employment Act 83 (1981) (hereinafter Wirtz Report or Report). Because the ADEA was modeled on the Wirtz Report’s findings and recommendations, the Report provides critical insights into the statute’s meaning. See generally Blumrosen, Interpreting the ADEA: Intent or Impact 14–20, in Age Discrimination in Employment Act: A Compliance Manual for Lawyers and Personnel Practitioners 83–89 (M. Lake ed. 1982); see also General Dynamics , supra , at 587–590 (relying on the Wirtz Report to interpret the ADEA); EEOC v. Wyoming , 460 U. S., at 230–231 (discussing the Report’s role in the drafting of the ADEA).    The Wirtz Report reached two conclusions of central relevance to the question presented by this case. First, the Report emphasized that age discrimination is qualitatively different from the types of discrimination prohibited by Title VII of the Civil Rights Act of 1964 ( i.e. , race, color, religion, sex, and national origin discrimination). Most importantly—in stark contrast to the types of discrimination addressed by Title VII—the Report found no evidence that age discrimination resulted from intolerance or animus towards older workers. Rather, age discrimination was based primarily upon unfounded assumptions about the relationship between an individual’s age and her ability to perform a job. Wirtz Report 2. In addition, whereas ability is nearly always completely unrelated to the characteristics protected by Title VII, the Report found that, in some cases, “there is in fact a relationship between [an individual’s] age and his ability to perform the job.” Ibid. (emphasis deleted).    Second, the Wirtz Report drew a sharp distinction between “ ‘arbitrary discrimination’ ” (which the Report clearly equates with disparate treatment) and circumstances or practices having a disparate impact on older workers. See id. , at 2, 21–22. The Report defined “arbitrary” discrimination as adverse treatment of older workers “because of assumptions about the effect of age on their ability to do a job when there is in fact no basis for these assumptions .” Id ., at 2 (emphasis in original). While the “most obvious kind” of arbitrary discrimination is the setting of unjustified maximum age limits for employment, id. , at 6, naturally the Report’s definition encompasses a broad range of disparate treatment.    The Report distinguished such “arbitrary” ( i.e. , intentional and unfounded) discrimination from two other phenomena. One involves differentiation of employees based on a genuine relationship between age and ability to perform a job. See id. , at 2. In this connection, the Report examined “circumstances which unquestionably affect older workers more strongly, as a group, than they do younger workers,” including questions of health, educational attainment, and technological change. Id. , at 11–14.[ Footnote 1 ] In addition, the Report assessed “institutional arrangements”—such as seniority rules, workers’ compensation laws, and pension plans—which, though intended to benefit older workers, might actually make employers less likely to hire or retain them. Id. , at 2, 15–17.    The Report specifically recommended legislative action to prohibit “arbitrary discrimination,” i.e. , disparate treatment. Id. , at 21–22. In sharp contrast, it recommended that the other two types of “discrimination”—both involving factors or practices having a disparate impact on older workers—be addressed through noncoercive measures: programs to increase the availability of employment; continuing education; and adjustment of pension systems, workers’ compensation, and other institutional arrangements. Id. , at 22–25. These recommendations found direct expression in the ADEA, which was drafted at Congress’ command that the Secretary of Labor make “specific legislative recommendations for implementing the [Wirtz Report’s] conclusions,” Fair Labor Standards Amendments of 1966, §606, 80 Stat. 845. See also General Dynamics , 540 U. S., at 589 (“[T]he ADEA … begins with statements of purpose and findings that mirror the Wirtz Report”). B    The ADEA’s structure confirms Congress’ determination to prohibit only “arbitrary” discrimination ( i.e. , disparate treatment based on unfounded assumptions), while addressing practices with a disparate adverse impact on older workers through noncoercive measures. Section 2—which sets forth the findings and purposes of the statute—draws a clear distinction between “the setting of arbitrary age limits regardless of potential for job performance” and “certain otherwise desirable practices [that] may work to the disadvantage of older persons.” 29 U. S. C. §621(a)(2). In response to these problems, §2 identifies three purposes of the ADEA: “[1] to promote employment of older persons based on their ability rather than age; [2] to prohibit arbitrary age discrimination in employment; [and 3] to help employers and workers find ways of meeting problems arising from the impact of age on employment.” §621(b).    Each of these three purposes corresponds to one of the three substantive statutory sections that follow. Section 3 seeks to “promote employment of older persons” by directing the Secretary of Labor to undertake a program of research and education related to “the needs and abilities of older workers, and their potentials for continued employment and contribution to the economy.” §622(a). Section 4, which contains the ADEA’s core prohibitions, corresponds to the second purpose: to “prohibit arbitrary age discrimination in employment.” Finally, §5 addresses the third statutory purpose by requiring the Secretary of Labor to undertake a study of “institutional and other arrangements giving rise to involuntary retirement” and to submit any resulting findings and legislative recommendations to Congress. §624(a)(1).    Section 4—including §4(a)(2)—must be read in light of the express statutory purpose the provision was intended to effect: the prohibition of “arbitrary age discrimination in employment.” §621(b). As the legislative history makes plain, “arbitrary” age discrimination had a very specific meaning for the ADEA’s drafters. It meant disparate treatment of older workers, predominantly because of unfounded assumptions about the relationship between age and ability. See supra , at 8–10. Again, such intentional discrimination was clearly distinguished from circumstances and practices merely having a disparate impact on older workers, which—as ADEA §§2, 3, and 5 make clear—Congress intended to address through research, education, and possible future legislative action. C    In addition to this affirmative evidence of congressional intent, I find it telling that the legislative history is devoid of any discussion of disparate impact claims or of the complicated issues such claims raise in the ADEA context. See Gold, Disparate Impact Under the Age Discrimination in Employment Act of 1967, 25 Berkeley J. Emp. & Lab. L. 1, 40 (2004). At the time the ADEA was enacted, the predominant focus of antidiscrimination law was on intentional discrimination; the concept of disparate impact liability, by contrast, was quite novel. See, e.g. , Gold, Griggs ’ Folly: An Essay on the Theory, Problems, and Origin of the Adverse Impact Definition of Employment Discrimination and a Recommendation for Reform, 7 Indus. Rel. L. J. 429, 518–520 (1985); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59, 69–71 (1972). Had Congress intended to inaugurate disparate impact liability in the ADEA, one would expect to find some indication of that intent in the text and the legislative history. There is none. D    Congress’ decision not to authorize disparate impact claims is understandable in light of the questionable utility of such claims in the age-discrimination context. No one would argue that older workers have suffered disadvantages as a result of entrenched historical patterns of discrimination, like racial minorities have. See Massachusetts Bd. of Retirement v. Murgia , 427 U. S. 307 , 313–314 (1976) (per curiam); see also Wirtz Report 5–6. Accordingly, disparate impact liability under the ADEA cannot be justified, and is not necessary, as a means of redressing the cumulative results of past discrimination. Cf. Griggs, 401 U. S., at 430 (reasoning that disparate impact liability is necessary under Title VII to prevent perpetuation of the results of past racial discrimination).    Moreover, the Wirtz Report correctly concluded that—unlike the classifications protected by Title VII—there often is a correlation between an individual’s age and her ability to perform a job. Wirtz Report 2, 11–15. That is to be expected, for “physical ability generally declines with age,” Murgia , supra , at 315, and in some cases, so does mental capacity, see Gregory v. Ashcroft , 501 U. S. 452 , 472 (1991). Perhaps more importantly, advances in technology and increasing access to formal education often leave older workers at a competitive disadvantage vis-ŕ-vis younger workers. Wirtz Report 11–15. Beyond these performance-affecting factors, there is also the fact that many employment benefits, such as salary, vacation time, and so forth, increase as an employee gains experience and seniority. See, e.g. , Finnegan v. Trans World Airlines, Inc. , 967 F. 2d 1161, 1164 (CA7 1992) (“[V]irtually all elements of a standard compensation package are positively correlated with age”). Accordingly, many employer decisions that are intended to cut costs or respond to market forces will likely have a disproportionate effect on older workers. Given the myriad ways in which legitimate business practices can have a disparate impact on older workers, it is hardly surprising that Congress declined to subject employers to civil liability based solely on such effects. III    The plurality and Justice Scalia offer two principal arguments in favor of their reading of the statute: that the relevant provision of the ADEA should be read in pari materia with the parallel provision of Title VII, and that we should give interpretive weight or deference to agency statements relating to disparate impact liability. I find neither argument persuasive. A    The language of the ADEA’s prohibitory provisions was modeled on, and is nearly identical to, parallel provisions in Title VII. See McKennon v. Nashville Banner Publishing Co. , 513 U. S. 352 , 357 (1995); Lorillard v. Pons , 434 U. S. 575 , 584 (1978). Because Griggs , supra, held that Title VII’s §703(a)(2) permits disparate impact claims, the plurality concludes that we should read §4(a)(2) of the ADEA similarly. Ante , at 4–9.    Obviously, this argument would be a great deal more convincing had Griggs been decided before the ADEA was enacted. In that case, we could safely assume that Congress had notice (and therefore intended) that the language at issue here would be read to authorize disparate impact claims. See, e.g. , Department of Energy v. Ohio , 503 U. S. 607 , 626 (1992); Holmes v. Securities Investor Protection Corporation , 503 U. S. 258 , 268 (1992). But Griggs was decided four years after the ADEA’s enactment, and there is no reason to suppose that Congress in 1967 could have foreseen the interpretation of Title VII that was to come. See Fogerty v. Fantasy, Inc. , 510 U. S. 517 , 523, n. 9 (1994); see also supra , at 10–11 (discussing novelty of disparate impact theory at the time of the ADEA’s enactment). To be sure, where two statutes use similar language we generally take this as “a strong indication that [they] should be interpreted pari passu .” Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427 , 428 (1973) (per curiam) . But this is not a rigid or absolute rule, and it “ ‘readily yields’ ” to other indicia of congressional intent. General Dynamics , 540 U. S., at 595 (quoting Atlantic Cleaners & Dyers, Inc. v. United States , 286 U. S. 427 , 433 (1932)). Indeed, “ ‘the meaning [of the same words] well may vary to meet the purposes of the law.’ ” United States v. Cleveland Indians Baseball Co. , 532 U. S. 200 , 213 (2001) (alteration in original) (quoting Atlantic Cleaners & Dyers , supra , at 433). Accordingly, we have not hesitated to give a different reading to the same language—whether appearing in separate statutes or in separate provisions of the same statute—if there is strong evidence that Congress did not intend the language to be used uniformly. See, e.g. , General Dynamics , supra , at 595–597 (“age” has different meaning where used in different parts of the ADEA); Cleveland Indians , supra , at 213 (“wages paid” has different meanings in different provisions of Title 26 U. S. C.); Robinson v. Shell Oil Co. , 519 U. S. 337 , 343–344 (1997) (“employee” has different meanings in different parts of Title VII); Fogerty , supra , at 522–525 (Copyright Act’s attorney’s fees provision has different meaning than the analogous provision in Title VII, despite their “virtually identical language”). Such is the case here. First, there are significant textual differences between Title VII and the ADEA that indicate differences in congressional intent. Most importantly, whereas the ADEA’s RFOA provision protects employers from liability for any actions not motivated by age, see supra , at 4–7, Title VII lacks any similar provision. In addition, the ADEA’s structure demonstrates Congress’ intent to combat intentional discrimination through §4’s prohibitions while addressing employment practices having a disparate impact on older workers through independent noncoercive mechanisms. See supra , at 8–11. There is no analogy in the structure of Title VII. Furthermore, as the Congresses that adopted both Title VII and the ADEA clearly recognized, the two statutes were intended to address qualitatively different kinds of discrimination. See supra , at 7–8. Disparate impact liability may have a legitimate role in combating the types of discrimination addressed by Title VII, but the nature of aging and of age discrimination makes such liability inappropriate for the ADEA. See supra , at 12–13. Finally, nothing in the Court’s decision in Griggs itself provides any reason to extend its holding to the ADEA. As the plurality tacitly acknowledges, ante , at 6, the decision in Griggs was not based on any analysis of Title VII’s actual language. Rather, the ratio decidendi was the statute’s perceived purpose , i.e. , “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” 401 U. S., at 429–430. In other words, the Court in Griggs reasoned that disparate impact liability was necessary to achieve Title VII’s ostensible goal of eliminating the cumulative effects of historical racial discrimination. However, that rationale finds no parallel in the ADEA context, see Murgia , 427 U. S., at 313–314, and it therefore should not control our decision here. Even venerable canons of construction must bow, in an appropriate case, to compelling evidence of congressional intent. In my judgment, the significant differences between Title VII and the ADEA are more than sufficient to overcome the default presumption that similar language is to be read similarly. See Fogerty , supra , at 523–524 (concluding that the “normal indication” that similar language should be read similarly is “overborne” by differences between the legislative history and purposes of two statutes). B The plurality asserts that the agencies charged with the ADEA’s administration “have consistently interpreted the [statute] to authorize relief on a disparate-impact theory.” Ante , at 10. In support of this claim, the plurality describes a 1968 interpretive bulletin issued by the Department of Labor as “permitt[ing]” disparate impact claims. Ibid. (citing 29 CFR §860.103(f)(1)(i) (1970)). And the plurality cites, without comment, an Equal Employment Opportunities Commission (EEOC) policy statement construing the RFOA provision. Ante , at 11 (citing 29 CFR §1625.7 (2004)) . It is unclear what interpretive value the plurality means to assign to these agency statements. But Justice Scalia, at least, thinks that the EEOC statement is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 (1984), and that “that is sufficient to resolve this case.” Ante , at 5 (opinion concurring in part and concurring in judgment). I disagree and, for the reasons that follow, would give no weight to the statements in question. The 1968 Labor Department bulletin to which the plurality alludes was intended to “provide ‘a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it.’ ” 29 CFR §860.1 (1970) (quoting Skidmore v. Swift & Co. , 323 U. S. 134 , 138 (1944)). In discussing the RFOA provision, the bulletin states that “physical fitness requirements” and “[e]valuation factors such as quantity or quality of production, or educational level” can qualify as reasonable nonage factors, so long as they have a valid relationship to job qualifications and are uniformly applied. §§860.103(f)(1), (2). But the bulletin does not construe the ADEA’s prohibitory provisions, nor does it state or imply that §4(a) authorizes disparate impact claims. Rather, it establishes “a nonexclusive objective test for employers to use in determining whether they could be certain of qualifying for the” RFOA exemption. Public Employees Retirement System of Ohio v. Betts , 492 U. S. 158 , 172 (1989) (discussing 1968 bulletin’s interpretation of the §4(f)(2) exemption). Moreover, the very same bulletin states unequivocally that “[t]he clear purpose [of the ADEA] is to insure that age, within the limits prescribed by the Act, is not a determining factor in making any decision regarding the hiring, dismissal, promotion or any other term condition or privilege of employment of an individual.” §860.103(c) (emphasis added). That language is all about discriminatory intent. The EEOC statement cited by the plurality and relied upon by Justice Scalia is equally unhelpful. This “interpretative rule or policy statement,” promulgated in 1981, superseded the 1968 Labor Department bulletin after responsibility for enforcing the ADEA was transferred from Labor to the EEOC. See 46 Fed. Reg. 47724 (1981). It states, in relevant part: “[W]hen an employment practice, including a test, is claimed as a basis for different treatment of employees or applicants for employment on the grounds that it is a ‘factor other than’ age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity.” 29 CFR §1625.7(d) (2004). Like the 1968 bulletin it replaces, this statement merely spells out the agency’s view, for purposes of its enforcement policy, of what an employer must do to be certain of gaining the safety of the RFOA haven. It says nothing about whether disparate impact claims are authorized by the ADEA. For Justice Scalia, “[t]his is an absolutely classic case for deference to agency interpretation.” Ante , at 1 (opinion concurring in part and concurring in judgment). I disagree. Under Chevron , we will defer to a reasonable agency interpretation of ambiguous statutory language, see 467 U. S., at 843–844, provided that the interpretation has the requisite “force of law,” Christensen v. Harris County , 529 U. S.576, 587 (2000). The rationale for such deference is that Congress has explicitly or implicitly delegated to the agency responsible for administering a statute the authority to choose among permissible constructions of ambiguous statutory text. See Chevron , supra , at 844. The question now before us is not what it takes to qualify for the RFOA exemption, but rather whether §4(a)(2) of the ADEA authorizes disparate impact claims. But the EEOC statement does not purport to interpret the language of §4(a) at all. Quite simply, the agency has not actually exercised its delegated authority to resolve any ambiguity in the relevant provision’s text, much less done so in a reasonable or persuasive manner. As to the specific question presented, therefore, the regulation is not entitled to any deference. See John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank , 510 U. S. 86 , 106–109, and n. 17 (1993); see also SEC v. Sloan , 436 U. S. 103 , 117–118 (1978); Adamo Wrecking Co. v. United States , 434 U. S. 275 , 287–289, and n. 5 (1978).[ Footnote 2 ] Justice Scalia’s attempt to link the EEOC’s RFOA regulation to §4(a)(2) is premised on a dubious chain of inferences that, in my view, highlights the hazards of his approach. Because the RFOA provision is “relevant only as a response to employer actions ‘otherwise prohibited’ by the ADEA,” he reasons, the “unavoidable meaning” of the EEOC statement is that the agency “interprets the ADEA to prohibit employer actions that have an ‘adverse impact on individuals within the protected age group.’ ” Ante , at 4 (opinion concurring in part and concurring in judgment) (quoting 29 CFR §1625.7(d) (2004)). But, of course, disparate treatment clearly has an “adverse impact on individuals within the protected age group,” ibid. , and Justice Scalia’s reading of the EEOC’s rule is hardly “unavoidable.” The regulation says only that if an employer wants to rely on a practice—say, a physical fitness test—as the basis for an exemption from liability, and that test adversely affects older workers, the employer can be sure of qualifying for the exemption only if the test is sufficiently job related. Such a limitation makes sense in disparate treatment cases. A test that harms older workers and is unrelated to the job may be a pretext for—or even a means of effectuating—intentional discrimination. See supra , at 6–7. Justice Scalia completes his analytical chain by inferring that the EEOC regulation must be read to interpret §4(a)(2) to allow disparate impact claims because that is the only provision of the ADEA that could “conceivably” be so interpreted. Ante , at 4 (opinion concurring in part and concurring judgment). But the support for that inference is doubtful, to say the least. The regulation specifically refers to employment practices claimed as a basis for “different treatment of employees or applicants for employment ,” 29 CFR §1625.7(d) (2004) (emphasis added). Section 4(a)(2), of course, does not apply to “applicants for employment” at all—it is only §4(a)(1) that protects this group. See 29 U. S. C. §623(a). That suggests that the EEOC must have read the RFOA to provide a defense against claims under §4(a)(1)—which unquestionably permits only disparate treatment claims, see supra , at 2. This discussion serves to illustrate why it makes little sense to attribute to the agency a construction of the relevant statutory text that the agency itself has not actually articulated so that we can then “defer” to that reading. Such an approach is particularly troubling where applied to a question as weighty as whether a statute does or does not subject employers to liability absent discriminatory intent. This is not, in my view, what Chevron contemplated. As an interpretation of the RFOA provision , moreover, the EEOC regulation is both unreasonable on its face and directly at odds with the Court’s holding in today’s case. It says that the RFOA exemption is available only if the employer’s practice is justified by a “business necessity.” But the Court has rejected that reading of the RFOA provision, and rightly so: There may be many “reasonable” means by which an employer can advance its goals, and a given nonage factor can certainly be “reasonable” without being necessary. Ante , at 14; see also Western Air Lines, Inc. v. Criswell , 472 U. S. 400 , 419 (1985) (distinguishing “ ‘reasonable necessity’ ” standard from “ ‘reasonableness’ ”). Of course, it is elementary that “no deference is due to agency interpretations at odds with the plain language of the statute itself.” Betts , 492 U. S., at 171. The agency clearly misread the RFOA provision it was attempting to construe. That error is not necessarily dispositive of the disparate impact question. But I think it highlights the improvidence of giving weight (let alone deferring) to the regulation’s purported assumption that an entirely different provision of the statute, which is not even the subject of the regulation, authorizes disparate impact claims. In my view, we should simply acknowledge that this regulation is of no help in answering the question presented. IV Although I would not read the ADEA to authorize disparate impact claims, I agree with the Court that, if such claims are allowed, they are strictly circumscribed by the RFOA exemption. See ante , at 13–14. That exemption requires only that the challenged employment practice be based on a “reasonable” nonage factor—that is, one that is rationally related to some legitimate business objective. I also agree with the Court, ante , at 11, that, if disparate impact claims are to be permitted under the ADEA, they are governed by the standards set forth in our decision in Wards Cove Packing Co. v. Atonio , 490 U. S. 642 (1989). That means, as the Court holds, ante , at 12, that “a plaintiff must demonstrate that it is the application of a specific or particular employment practice that has created the disparate impact under attack,” Wards Cove , supra , at 657 (emphasis added); see also Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 994 (1988) (opinion of O’Connor, J.). It also means that once the employer has produced evidence that its action was based on a reasonable nonage factor, the plaintiff bears the burden of disproving this assertion. See Wards Cove , supra , at 659–660; see also Watson , supra , at 997 (opinion of O’Connor, J.). Even if petitioners’ disparate impact claim were cognizable under the ADEA, that claim clearly would fail in light of these requirements. Footnote 1 It is in this connection that the Report refers to formal employment standards requiring a high school diploma. See Wirtz Report 3. The Wirtz Report did say that such a requirement would be “unfair” if an older worker’s years of experience had given him an equivalent education. Ibid. But the plurality is mistaken to find in this statement a congressional “goal” of eliminating job requirements with a disparate impact on older workers. See ante , at 6, n. 5. Rather, the Wirtz Report discussed the diploma requirement in the context of a broader discussion of the effects of “wholly impersonal forces—most of them part of what is properly, if sometimes too casually, called ‘progress.’ ” Wirtz Report 3. These forces included “the pace of changing technology, changing jobs, changing educational requirements, and changing personnel practices,” which “increase[d] the need for special efforts if older workers’ employment prospects are to improve significantly.” Ibid. (emphasis added); see also id. , at 11–15 (discussing the educational attainments of older workers, together with health and technological change, in a section entitled “The Necessary Recognition of Forces of Circumstance”). The Report recommended that such forces be addressed through noncoercive instead of prohibitory measures, and it specifically focused on the need for educational opportunities for older workers. See id. , at 23–25. Footnote 2 Because the EEOC regulation does not actually interpret the text at issue, we need not address the degree of deference to which the regulation would otherwise be entitled. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581 , 600 (2004) (declining to address whether EEOC’s regulations interpreting the ADEA are entitled to Chevron deference).

The Supreme Court ruled that the "disparate-impact" theory of recovery, which allows plaintiffs to challenge employment practices that have a disproportionately negative effect on a protected group, applies to age discrimination claims under the Age Discrimination in Employment Act (ADEA). The Court found that a group of older police officers could bring a disparate-impact claim against the city of Jackson, Mississippi, for salary increases that disproportionately benefited younger officers. However, the Court also set a high bar for such claims, requiring plaintiffs to identify a specific employment practice that caused the disparate impact and giving employers a defense if they could show that the practice was based on a reasonable non-age factor.

Labor & Employment

Garcetti v. Ceballos

https://supreme.justia.com/cases/federal/us/547/410/

OPINION OF THE COURT GARCETTI V. CEBALLOS 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-473 GIL GARCETTI, et al., PETITIONERS v. RICHARD CEBALLOS on writ of certiorari to the united states court of appeals for the ninth circuit [May 30, 2006]    Justice Kennedy delivered the opinion of the Court.    It is well settled that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U. S. 138 , 142 (1983). The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties. I    Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney’s Office. During the period relevant to this case, Ceballos was a calendar deputy in the office’s Pomona branch, and in this capacity he exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases.    After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway. Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway’s composition in some places made it difficult or impossible to leave visible tire tracks.    Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff’s Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum. The memo explained Ceballos’ concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with another memo, this one describing a second telephone conversation between Ceballos and the warrant affiant.    Based on Ceballos’ statements, a meeting was held to discuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff’s department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case.    Despite Ceballos’ concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.    Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied based on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C. §1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo of March 2.    Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such as staffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo’s contents. It held in the alternative that even if Ceballos’ speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established.    The Court of Appeals for the Ninth Circuit reversed, holding that “Ceballos’s allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment.” 361 F. 3d 1168, 1173 (2004). In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and Connick , 461 U. S. 138 . Connick instructs courts to begin by considering whether the expressions in question were made by the speaker “as a citizen upon matters of public concern.” See id. , at 146–147. The Court of Appeals determined that Ceballos’ memo, which recited what he thought to be governmental misconduct, was “inherently a matter of public concern.” 361 F. 3d, at 1174. The court did not, however, consider whether the speech was made in Ceballos’ capacity as a citizen. Rather, it relied on Circuit precedent rejecting the idea that “a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.” Id. , at 1174–1175 (citing cases including Roth v. Veteran’s Admin. of Govt. of United States , 856 F. 2d 1401 (CA9 1988)).    Having concluded that Ceballos’ memo satisfied the public-concern requirement, the Court of Appeals proceeded to balance Ceballos’ interest in his speech against his supervisors’ interest in responding to it. See Pickering , supra , at 568. The court struck the balance in Ceballos’ favor, noting that petitioners “failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office” as a result of the memo. See 361 F. 3d, at 1180. The court further concluded that Ceballos’ First Amendment rights were clearly established and that petitioners’ actions were not objectively reasonable. See id. , at 1181–1182.    Judge O’Scannlain specially concurred. Agreeing that the panel’s decision was compelled by Circuit precedent, he nevertheless concluded Circuit law should be revisited and overruled. See id. , at 1185. Judge O’Scannlain emphasized the distinction “between speech offered by a public employee acting as an employee carrying out his or her ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.” Id. , at 1187. In his view, “when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right.” Id. , at 1189.    We granted certiorari, 543 U. S. 1186 (2005), and we now reverse. II    As the Court’s decisions have noted, for many years “the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Connick, 461 U. S., at 143. That dogma has been qualified in important respects. See id. , at 144–145. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g. , Pickering, supra , at 568; Connick , supra , at 147; Rankin v. McPherson, 483 U. S. 378 , 384 (1987); United States v. Treasury Employees, 513 U. S. 454 , 466 (1995). Pickering provides a useful starting point in explaining the Court’s doctrine. There the relevant speech was a teacher’s letter to a local newspaper addressing issues including the funding policies of his school board. 391 U. S., at 566. “The problem in any case,” the Court stated, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. , at 568. The Court found the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Id. , at 572–573 (footnote omitted). Thus, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Id. , at 573. Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id. , at 568. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. See Connick , supra , at 147. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering , 391 U. S., at 568. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.    To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of “the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors … to furnish grounds for dismissal.” Id. , at 569. The Court’s overarching objectives, though, are evident.    When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g. , Waters v. Churchill, 511 U. S. 661 , 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”). Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick , supra , at 143 (“[G]overnment offices could not function if every employment decision became a constitutional matter”). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.    At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593 , 597 (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g. , Connick , supra , at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).    The Court’s employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion. Pickering again provides an instructive example. The Court characterized its holding as rejecting the attempt of school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” 391 U. S., at 573. It also noted that teachers are “the members of a community most likely to have informed and definite opinions” about school expenditures. Id. , at 572. The Court’s approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed. The Court’s more recent cases have expressed similar concerns. See, e.g. , San Diego v. Roe, 543 U. S. 77 , 82 (2004) (per curiam) (“Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it” (citation omitted)); cf. Treasury Employees, 513 U. S., at 470 (“The large-scale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said”).    The Court’s decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e.g. , Rankin , 483 U. S., at 384 (recognizing “the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment”). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to “constitutionalize the employee grievance.” Connick , 461 U. S., at 154. III    With these principles in mind we turn to the instant case. Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e.g. , Givhan v. Western Line Consol. School Dist., 439 U. S. 410 , 414 (1979). Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like “any member of the general public,” Pickering , 391 U. S., at 573, to hold that all speech within the office is automatically exposed to restriction.    The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker’s job. See, e.g. , ibid.; Givhan , supra , at 414. As the Court noted in Pickering: “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U. S., at 572. The same is true of many other categories of public employees.    The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’ ”). That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.    Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 833 (1995) (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes”). Contrast, for example, the expressions made by the speaker in Pickering , whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.    Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.    This result is consistent with our precedents’ attention to the potential societal value of employee speech. See supra , at 7–8. Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.    Our holding likewise is supported by the emphasis of our precedents on affording government employers sufficient discretion to manage their operations. Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission. Ceballos’ memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff’s department. If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.    Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.    The Court of Appeals based its holding in part on what it perceived as a doctrinal anomaly. The court suggested it would be inconsistent to compel public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties. See 361 F. 3d, at 1176. This objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering , 391 U. S. 563 , or discussing politics with a co-worker, see Rankin , 483 U. S. 378 . When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.    The Court of Appeals’ concern also is unfounded as a practical matter. The perceived anomaly, it should be noted, is limited in scope: It relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints (such as those at issue in cases like Pickering and Connick ) that are made outside the duties of employment. If, moreover, a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.    Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail.    Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. See post , at 4, n. 2 (Souter, J., dissenting). The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.    Second, Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. See post , at 12–13. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. IV    Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick , public employers should, “as a matter of good judgment,” be “receptive to constructive criticism offered by their employees.” 461 U. S., at 149. The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing. See, e.g. , 5 U. S. C. §2302(b)(8); Cal. Govt. Code Ann. §8547.8 (West 2005); Cal. Lab. Code Ann. §1102.5 (West Supp. 2006). Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. See, e.g. , Cal. Rule Prof. Conduct 5–110 (2005) (“A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause”); Brady v. Maryland, 373 U. S. 83 (1963). These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.    We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.    The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. SOUTER, J., DISSENTING GARCETTI V. CEBALLOS 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-473 GIL GARCETTI, et al., PETITIONERS v. RICHARD CEBALLOS on writ of certiorari to the united states court of appeals for the ninth circuit [May 30, 2006]    Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.    The Court holds that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ante , at 9. I respectfully dissent. I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection. I    Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment. See, e.g. , Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357 , 377 (1997). At the other extreme, a statement by a government employee complaining about nothing beyond treatment under personnel rules raises no greater claim to constitutional protection against retaliatory response than the remarks of a private employee. See Connick v. Myers, 461 U. S. 138 , 147 (1983). In between these points lies a public employee’s speech unwelcome to the government but on a significant public issue. Such an employee speaking as a citizen, that is, with a citizen’s interest, is protected from reprisal unless the statements are too damaging to the government’s capacity to conduct public business to be justified by any individual or public benefit thought to flow from the statements. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 , 568 (1968). Entitlement to protection is thus not absolute.    This significant, albeit qualified, protection of public employees who irritate the government is understood to flow from the First Amendment, in part, because a government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good reason for categorically discounting a speaker’s interest in commenting on a matter of public concern just because the government employs him. Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and information that a public employee may disclose. “Government employees are often in the best position to know what ails the agencies for which they work.” Waters v. Churchill, 511 U. S. 661 , 674 (1994).    The reason that protection of employee speech is qualified is that it can distract co-workers and supervisors from their tasks at hand and thwart the implementation of legitimate policy, the risks of which grow greater the closer the employee’s speech gets to commenting on his own workplace and responsibilities. It is one thing for an office clerk to say there is waste in government and quite another to charge that his own department pays full-time salaries to part-time workers. Even so, we have regarded eligibility for protection by Pickering balancing as the proper approach when an employee speaks critically about the administration of his own government employer. In Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), we followed Pickering when a teacher was fired for complaining to a superior about the racial composition of the school’s administrative, cafeteria, and library staffs, 439 U. S., at 413–414, and the same point was clear in Madison Joint School Dist. No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167 (1976). That case was decided, in part, with reference to the Pickering framework, and the Court there held that a schoolteacher speaking out on behalf of himself and others at a public school board meeting could not be penalized for criticizing pending collective-bargaining negotiations affecting professional employment. Madison noted that the teacher “addressed the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government.” 429 U. S., at 174–175. In each case, the Court realized that a public employee can wear a citizen’s hat when speaking on subjects closely tied to the employee’s own job, and Givhan stands for the same conclusion even when the speech is not addressed to the public at large. Cf. Pegram v. Herdrich, 530 U. S. 211 , 225 (2000) (recognizing that, factually, a trustee under the Employee Retirement Income Security Act of 1974 can both act as ERISA fiduciary and act on behalf of the employer).    The difference between a case like Givhan and this one is that the subject of Ceballos’s speech fell within the scope of his job responsibilities, whereas choosing personnel was not what the teacher was hired to do. The effect of the majority’s constitutional line between these two cases, then, is that a Givhan schoolteacher is protected when complaining to the principal about hiring policy, but a school personnel officer would not be if he protested that the principal disapproved of hiring minority job applicants. This is an odd place to draw a distinction,[ Footnote 1 ] and while necessary judicial line-drawing sometimes looks arbitrary, any distinction obliges a court to justify its choice. Here, there is no adequate justification for the majority’s line categorically denying Pickering protection to any speech uttered “pursuant to … official duties,” ante , at 9.    As all agree, the qualified speech protection embodied in Pickering balancing resolves the tension between individual and public interests in the speech, on the one hand, and the government’s interest in operating efficiently without distraction or embarrassment by talkative or headline-grabbing employees. The need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties.[ Footnote 2 ]    As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? (Still, the majority indicates he could be fired without First Amendment recourse for fair but unfavorable comment when the teacher under review is the superintendent’s daughter.) Would anyone deny that a prosecutor like Richard Ceballos may claim the interest of any citizen in speaking out against a rogue law enforcement officer, simply because his job requires him to express a judgment about the officer’s performance? (But the majority says the First Amendment gives Ceballos no protection, even if his judgment in this case was sound and appropriately expressed.)    Indeed, the very idea of categorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s “object … to unite [m]y avocation and my vocation;”[ Footnote 3 ] these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract.[ Footnote 4 ] There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.    Nor is there any reason to raise the counterintuitive question whether the public interest in hearing informed employees evaporates when they speak as required on some subject at the core of their jobs. Two Terms ago, we recalled the public value that the Pickering Court perceived in the speech of public employees as a class: “Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” San Diego v. Roe, 543 U. S. 77 , 82 (2004) (per curiam) (citation omitted). This is not a whit less true when an employee’s job duties require him to speak about such things: when, for example, a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him, or when a law enforcement officer expressly balks at a superior’s order to violate constitutional rights he is sworn to protect. (The majority, however, places all these speakers beyond the reach of First Amendment protection against retaliation.)    Nothing, then, accountable on the individual and public side of the Pickering balance changes when an employee speaks “pursuant” to public duties. On the side of the government employer, however, something is different, and to this extent, I agree with the majority of the Court. The majority is rightly concerned that the employee who speaks out on matters subject to comment in doing his own work has the greater leverage to create office uproars and fracture the government’s authority to set policy to be carried out coherently through the ranks. “Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” ante , at 11. Up to a point, then, the majority makes good points: government needs civility in the workplace, consistency in policy, and honesty and competence in public service.    But why do the majority’s concerns, which we all share, require categorical exclusion of First Amendment protection against any official retaliation for things said on the job? Is it not possible to respect the unchallenged individual and public interests in the speech through a Pickering balance without drawing the strange line I mentioned before, supra , at 3–4? This is, to be sure, a matter of judgment, but the judgment has to account for the undoubted value of speech to those, and by those, whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths. And it has to account for the need actually to disrupt government if its officials are corrupt or dangerously incompetent. See n. 4, supra . It is thus no adequate justification for the suppression of potentially valuable information simply to recognize that the government has a huge interest in managing its employees and preventing the occasionally irresponsible one from turning his job into a bully pulpit. Even there, the lesson of Pickering (and the object of most constitutional adjudication) is still to the point: when constitutionally significant interests clash, resist the demand for winner-take-all; try to make adjustments that serve all of the values at stake.    Two reasons in particular make me think an adjustment using the basic Pickering balancing scheme is perfectly feasible here. First, the extent of the government’s legitimate authority over subjects of speech required by a public job can be recognized in advance by setting in effect a minimum heft for comments with any claim to outweigh it. Thus, the risks to the government are great enough for us to hold from the outset that an employee commenting on subjects in the course of duties should not prevail on balance unless he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it. The examples I have already given indicate the eligible subject matter, and it is fair to say that only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor. If promulgation of this standard should fail to discourage meritless actions premised on 42 U. S. C. §1983 (or Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)) before they get filed, the standard itself would sift them out at the summary-judgment stage.[ Footnote 5 ]    My second reason for adapting Pickering to the circumstances at hand is the experience in Circuits that have recognized claims like Ceballos’s here. First Amendment protection less circumscribed than what I would recognize has been available in the Ninth Circuit for over 17 years, and neither there nor in other Circuits that accept claims like this one has there been a debilitating flood of litigation. There has indeed been some: as represented by Ceballos’s lawyer at oral argument, each year over the last five years, approximately 70 cases in the different Courts of Appeals and approximately 100 in the various District Courts. Tr. of Oral Arg. 58–59. But even these figures reflect a readiness to litigate that might well have been cooled by my view about the importance required before Pickering treatment is in order.    For that matter, the majority’s position comes with no guarantee against factbound litigation over whether a public employee’s statements were made “pursuant to … official duties,” ante , at 9. In fact, the majority invites such litigation by describing the enquiry as a “practical one,” ante , at 13, apparently based on the totality of employment circumstances.[ Footnote 6 ] See n. 2, supra . Are prosecutors’ discretionary statements about cases addressed to the press on the courthouse steps made “pursuant to their official duties”? Are government nuclear scientists’ complaints to their supervisors about a colleague’s improper handling of radioactive materials made “pursuant” to duties? II    The majority seeks support in two lines of argument extraneous to Pickering doctrine. The one turns on a fallacious reading of cases on government speech, the other on a mistaken assessment of protection available under whistle-blower statutes. A    The majority accepts the fallacy propounded by the county petitioners and the Federal Government as amicus that any statement made within the scope of public employment is (or should be treated as) the government’s own speech, see ante , at 10, and should thus be differentiated as a matter of law from the personal statements the First Amendment protects, see Broadrick v. Oklahoma , 413 U. S. 601 , 610 (1973). The majority invokes the interpretation set out in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), of Rust v. Sullivan, 500 U. S. 173 (1991), which held there was no infringement of the speech rights of Title X funds recipients and their staffs when the Government forbade any on-the-job counseling in favor of abortion as a method of family planning, id. , at 192–200. We have read Rust to mean that “when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.” Rosenberger, supra , at 833.    The key to understanding the difference between this case and Rust lies in the terms of the respective employees’ jobs and, in particular, the extent to which those terms require espousal of a substantive position prescribed by the government in advance. Some public employees are hired to “promote a particular policy” by broadcasting a particular message set by the government, but not everyone working for the government, after all, is hired to speak from a government manifesto. See Legal Services Corporation v. Velazquez, 531 U. S. 533 , 542 (2001). There is no claim or indication that Ceballos was hired to perform such a speaking assignment. He was paid to enforce the law by constitutional action: to exercise the county government’s prosecutorial power by acting honestly, competently, and constitutionally. The only sense in which his position apparently required him to hew to a substantive message was at the relatively abstract point of favoring respect for law and its evenhanded enforcement, subjects that are not at the level of controversy in this case and were not in Rust. Unlike the doctors in Rust , Ceballos was not paid to advance one specific policy among those legitimately available, defined by a specific message or limited by a particular message forbidden. The county government’s interest in his speech cannot therefore be equated with the terms of a specific, prescribed, or forbidden substantive position comparable to the Federal Government’s interest in Rust , and Rust is no authority for the notion that government may exercise plenary control over every comment made by a public employee in doing his job.    It is not, of course, that the district attorney lacked interest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a statement that created needless tension among law enforcement agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones made in the course of doing his work. But these interests on the government’s part are entirely distinct from any claim that Ceballos’s speech was government speech with a preset or proscribed content as exemplified in Rust . Nor did the county petitioners here even make such a claim in their answer to Ceballos’s complaint, see n. 13, infra .    The fallacy of the majority’s reliance on Rosenberger ’s understanding of Rust doctrine , moreover, portends a bloated notion of controllable government speech going well beyond the circumstances of this case. Consider the breadth of the new formulation: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Ante , at 10. This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write “pursuant to official duties.” See Grutter v. Bollinger, 539 U. S. 306 , 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition”); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 , 603 (1967) (“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’ ” (quoting Shelton v. Tucker, 364 U. S. 479 , 487 (1960))); Sweezy v. New Hampshire, 354 U. S. 234 , 250 (1957) (a governmental enquiry into the contents of a scholar’s lectures at a state university “unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression—areas in which government should be extremely reticent to tread”). B    The majority’s second argument for its disputed limitation of Pickering doctrine is that the First Amendment has little or no work to do here owing to an assertedly comprehensive complement of state and national statutes protecting government whistle-blowers from vindictive bosses. See ante , at 13–14. But even if I close my eyes to the tenet that “ ‘[t]he applicability of a provision of the Constitution has never depended on the vagaries of state or federal law,’ ” Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668 , 680 (1996), the majority’s counsel to rest easy fails on its own terms.[ Footnote 7 ]    To begin with, speech addressing official wrongdoing may well fall outside protected whistle-blowing, defined in the classic sense of exposing an official’s fault to a third party or to the public; the teacher in Givhan , for example, who raised the issue of unconstitutional hiring bias, would not have qualified as that sort of whistle-blower, for she was fired after a private conversation with the school principal. In any event, the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief. See D. Westman & N. Modesitt, Whistleblowing: Law of Retaliatory Discharge 67–75, 281–307 (2d ed. 2004). Some state statutes protect all government workers, including the employees of municipalities and other subdivisions;[ Footnote 8 ] others stop at state employees.[ Footnote 9 ] Some limit protection to employees who tell their bosses before they speak out;[ Footnote 10 ] others forbid bosses from imposing any requirement to warn.[ Footnote 11 ] As for the federal Whistleblower Protection Act of 1989, 5 U. S. C. §1213 et seq. , current case law requires an employee complaining of retaliation to show “ ‘irrefragable proof ’ ” that the person criticized was not acting in good faith and in compliance with the law, see Lachance v. White, 174 F. 3d 1378, 1381 (CA Fed. 1999), cert. denied, 528 U. S. 1153 (2000). And federal employees have been held to have no protection for disclosures made to immediate supervisors, see Willis v. Department of Agriculture, 141 F. 3d 1139, 1143 (CA Fed. 1998); Horton v. Department of Navy, 66 F. 3d 279, 282 (CA Fed. 1995), cert. denied, 516 U. S. 1176 (1996), or for statements of facts publicly known already, see Francisco v. Office of Personnel Management, 295 F. 3d 1310, 1314 (CA Fed. 2002). Most significantly, federal employees have been held to be unprotected for statements made in connection with normal employment duties, Huffman v. Office of Personnel Management , 263 F. 3d 1341, 1352 (CA Fed. 2001), the very speech that the majority says will be covered by “the powerful network of legislative enactments … available to those who seek to expose wrongdoing,” ante , at 13–14.[ Footnote 12 ] My point is not to disparage particular statutes or speak here to the merits of interpretations by other federal courts, but merely to show the current understanding of statutory protection: individuals doing the same sorts of governmental jobs and saying the same sorts of things addressed to civic concerns will get different protection depending on the local, state, or federal jurisdictions that happened to employ them. III    The Court remands because the Court of Appeals considered only the disposition memorandum and because Ceballos charges retaliation for some speech apparently outside the ambit of utterances “pursuant to official duties.” When the Court of Appeals takes up this case once again, it should consider some of the following facts that escape emphasis in the majority opinion owing to its focus.[ Footnote 13 ] Ceballos says he sought his position out of a personal commitment to perform civic work. After showing his superior, petitioner Frank Sunstedt, the disposition memorandum at issue in this case, Ceballos complied with Sunstedt’s direction to tone down some accusatory rhetoric out of concern that the memorandum would be unnecessarily incendiary when shown to the Sheriff’s Department. After meeting with members of that department, Ceballos told his immediate supervisor, petitioner Carol Najera, that he thought Brady v. Maryland, 373 U. S. 83 (1963), obliged him to give the defense his internal memorandum as exculpatory evidence. He says that Najera responded by ordering him to write a new memorandum containing nothing but the deputy sheriff’s statements, but that he balked at that. Instead, he proposed to turn over the existing memorandum with his own conclusions redacted as work product, and this is what he did. The issue over revealing his conclusions arose again in preparing for the suppression hearing. Ceballos maintains that Sunstedt ordered Najera, representing the prosecution, to give the trial judge a full picture of the circumstances, but that Najera told Ceballos he would suffer retaliation if he testified that the affidavit contained intentional fabrications. In any event, Ceballos’s testimony generally stopped short of his own conclusions. After the hearing, the trial judge denied the motion to suppress, explaining that he found grounds independent of the challenged material sufficient to show probable cause for the warrant.    Ceballos says that over the next six months his supervisors retaliated against him[ Footnote 14 ] not only for his written reports, see ante , at 3, but also for his spoken statements to them and his hearing testimony in the pending criminal case. While an internal grievance filed by Ceballos challenging these actions was pending, Ceballos spoke at a meeting of the Mexican-American Bar Association about misconduct of the Sheriff’s Department in the criminal case, the lack of any policy at the District Attorney’s Office for handling allegations of police misconduct, and the retaliatory acts he ascribed to his supervisors. Two days later, the office dismissed Ceballos’s grievance, a result he attributes in part to his Bar Association speech.    Ceballos’s action against petitioners under 42 U. S. C. §1983 claims that the individuals retaliated against him for exercising his First Amendment rights in submitting the memorandum, discussing the matter with Najera and Sunstedt, testifying truthfully at the hearing, and speaking at the bar meeting.[ Footnote 15 ] As I mentioned, the Court of Appeals saw no need to address the protection afforded to Ceballos’s statements other than the disposition memorandum, which it thought was protected under the Pickering test. Upon remand, it will be open to the Court of Appeals to consider the application of Pickering to any retaliation shown for other statements; not all of those statements would have been made pursuant to official duties in any obvious sense, and the claim relating to truthful testimony in court must surely be analyzed independently to protect the integrity of the judicial process. Footnote 1 It seems stranger still in light of the majority’s concession of some First Amendment protection when a public employee repeats statements made pursuant to his duties but in a separate, public forum or in a letter to a newspaper. Ante, at 12. Footnote 2 I do not say the value of speech “pursuant to … duties” will always be greater, because I am pessimistic enough to expect that one response to the Court’s holding will be moves by government employers to expand stated job descriptions to include more official duties and so exclude even some currently protectable speech from First Amendment purview. Now that the government can freely penalize the school personnel officer for criticizing the principal because speech on the subject falls within the personnel officer’s job responsibilities, the government may well try to limit the English teacher’s options by the simple expedient of defining teachers’ job responsibilities expansively, investing them with a general obligation to ensure sound administration of the school. Hence today’s rule presents the regrettable prospect that protection under Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968), may be diminished by expansive statements of employment duties.    The majority’s response, that the enquiry to determine duties is a “practical one,” ante , at 13, does not alleviate this concern. It sets out a standard that will not discourage government employers from setting duties expansively, but will engender litigation to decide which stated duties were actual and which were merely formal. Footnote 3 R. Frost, Two Tramps in Mud Time, Collected Poems, Prose, & Plays 251, 252 (R. Poirier & M. Richardson eds. 1995). Footnote 4 Not to put too fine a point on it, the Human Resources Division of the Los Angeles County District Attorney’s Office, Ceballos’s employer, is telling anyone who will listen that its work “provides the personal satisfaction and fulfillment that comes with knowing you are contributing essential services to the citizens of Los Angeles County.” Career Opportunities, http://da.co.la.ca.us/hr/default.htm (all Internet materials as visited May 25, 2006, and available in Clerk of Court’s case file).    The United States expresses the same interest in identifying the individual ideals of a citizen with its employees’ obligations to the Government. See Brief as Amicus Curiae 25 (stating that public employees are motivated to perform their duties “to serve the public”). Right now, for example, the U. S. Food and Drug Administration is appealing to physicians, scientists, and statisticians to work in the Center for Drug Evaluation and Research, with the message that they “can give back to [their] community, state, and country by making a difference in the lives of Americans everywhere.” Career Opportunities at CDER: You Can Make a Difference, http://www.fda.gov/cder/career/default.htm. Indeed, the Congress of the United States, by concurrent resolution, has previously expressly endorsed respect for a citizen’s obligations as the prime responsibility of Government employees: “Any person in Government Service should: … [p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department,” and shall “[e]xpose corruption wherever discovered,” Code of Ethics for Government Service, H. Con. Res. 175, 85th Cong., 2d Sess., 72 Stat. B12. Display of this Code in Government buildings was once required by law, 94 Stat. 855; this obligation has been repealed, Office of Government Ethics Authorization Act of 1996, Pub. L. 104–179, §4, 110 Stat. 1566. Footnote 5 As I also said, a public employer is entitled (and obliged) to impose high standards of honesty, accuracy, and judgment on employees who speak in doing their work. These criteria are not, however, likely to discourage meritless litigation or provide a handle for summary judgment. The employee who has spoken out, for example, is unlikely to blame himself for prior bad judgment before he sues for retaliation. Footnote 6 According to the majority’s logic, the litigation it encourages would have the unfortunate result of “demand[ing] permanent judicial intervention in the conduct of governmental operations,” ante , at 11. Footnote 7 Even though this Court has recognized that 42 U. S. C. §1983 “does not authorize a suit for every alleged violation of federal law,” Livadas v. Bradshaw, 512 U. S. 107 , 132 (1994), the rule is that “§1983 remains a generally and presumptively available remedy for claimed violations of federal law,” id. , at 133. Individual enforcement under §1983 is rendered unavailable for alleged violations of federal law when the underlying statutory provision is part of a federal statutory scheme clearly incompatible with individual enforcement under §1983. See Rancho Palos Verdes v. Abrams, 544 U. S. 113 , 119–120 (2005). Footnote 8 Del. Code Ann., Tit. 29, §5115 (2003); Fla. Stat. §112.3187 (2003); Haw. Rev. Stat. §378–61 (1993); Ky. Rev. Stat. Ann. §61.101 (West 2005); Mass. Gen. Laws Ann., ch. 149, §185 (West 2004); Nev. Rev. Stat. §281.611 (2003); N. H. Rev. Stat. Ann. §275–E:1 (Supp. 2005); Ohio Rev. Code Ann. §4113.51 (Lexis 2001); Tenn. Code Ann. §50–1–304 (2006 Cum. Supp.). Footnote 9 Ala. Code §36–26A–1 et seq. (2001); Colo. Rev. Stat. §24–50.5–101 et seq. (2004); Iowa Code Ann. §70A.28 et seq. (1999); Kan. Stat. Ann. §75–2973 (2003 Cum. Supp.); Mo. Rev. Stat. §105.055 (2004 Cum. Supp.); N. C. Gen. Stat. Ann. §126–84 (Lexis 2003); 2 Okla. Stat., Tit. 74, §840–2.5 et seq. (West 2005 Supp.); Wash. Rev. Code §42.40.010 (2000); Wyo. Stat. Ann. §9–11–102 (2003). Footnote 10 Idaho Code §6–2104(1)(a) (Lexis 2004); Me. Rev. Stat. Ann., Tit. 26, §833(2) (1988); Mass. Gen. Laws Ann., ch. 149, §185(c)(1) (West 2004); N. H. Rev. Stat. Ann. §275–E:2(II) (1999); N. J. Stat. Ann. §34:19–4 (West 2000); N. Y. Civ. Serv. Law Ann. §75–b(2)(b) (West 1999); Wyo. Stat. Ann. §9–11–103(b) (2003). Footnote 11 Kan. Stat. Ann. §75–2973(d)(2) (Cum. Supp. 2003); Ky. Rev. Stat. Ann. §61.102(1) (West 2005); Mo. Rev. Stat. §105.055(2) (2004 Cum. Supp.); 2 Okla. Stat., Tit. 74, §840–2.5(B)(4) (West 2005 Supp.); Ore. Rev. Stat. §659A.203(1)(c) (2003). Footnote 12 See n. 4, supra . Footnote 13 This case comes to the Court on the motions of petitioners for summary judgment, and as such, “[t]he evidence of [Ceballos] is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U. S. 242 , 255 (1986). Footnote 14 Sunstedt demoted Ceballos to a trial deputy; his only murder case was reassigned to a junior colleague with no experience in homicide matters, and no new murder cases were assigned to him; then-District Attorney Gil Garcetti, relying in part on Sunstedt’s recommendation, denied Ceballos a promotion; finally, Sunstedt and Najera transferred him to the Office’s El Monte Branch, requiring longer commuting. Before transferring Ceballos, Najera offered him a choice between transferring and remaining at the Pomona Branch prosecuting misdemeanors instead of felonies. When Ceballos refused to choose, Najera transferred him. Footnote 15 The county petitioners’ position on these claims is difficult to follow or, at least, puzzling. In their motion for summary judgment, they denied that any of their actions was responsive to Ceballos’s criticism of the sheriff’s affidavit. E.g., App. 159–160, 170–172 (maintaining that Ceballos was transferred to the El Monte Branch because of the decreased workload in the Pomona Branch and because he was next in a rotation to go there to serve as a “filing deputy”); id. , at 160, 172–173 (contending that Ceballos’s murder case was reassigned to a junior colleague to give that attorney murder trial experience before he was transferred to the Juvenile Division of the District Attorney’s Office); id. , at 161–162, 173–174 (arguing that Ceballos was denied a promotion by Garcetti despite Sunstedt’s stellar review of Ceballos, when Garcetti was unaware of the matter in People v. Cuskey , the criminal case for which Ceballos wrote the pertinent disposition memorandum). Their reply to Ceballos’s opposition to summary judgment, however, shows that petitioners argued for a Pickering assessment (for want of a holding that Ceballos was categorically disentitled to any First Amendment protection) giving great weight in their favor to workplace disharmony and distrust caused by Ceballos’s actions. E.g., App. 477–478. 547 U. S. ____ (2006) GARCETTI V. CEBALLOS 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-473 GIL GARCETTI, et al., PETITIONERS v. RICHARD CEBALLOS on writ of certiorari to the united states court of appeals for the ninth circuit [May 30, 2006]    Justice Stevens, dissenting.    The proper answer to the question “whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties,” ante, at 1, is “Sometimes,” not “Never.” Of course a supervisor may take corrective action when such speech is “inflammatory or misguided,” ante, at 11. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?*    As Justice Souter explains, public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong. Over a quarter of a century has passed since then-Justice Rehnquist, writing for a unanimous Court, rejected “the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Givhan v. Western Line Consol. School Dist., 439 U. S. 410 , 414 (1979). We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school’s racist employment practices to the principal. See id., at 413–416. Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial. That is equally true today, for it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.    While today’s novel conclusion to the contrary may not be “inflammatory,” for the reasons stated in Justice Souter’s dissenting opinion it is surely “misguided.” * See, e.g., Branton v. Dallas , 272 F. 3d 730 (CA5 2001) (police internal investigator demoted by police chief after bringing the false testimony of a fellow officer to the attention of a city official); Miller v. Jones , 444 F. 3d 929, 936 (CA7 2006) (police officer demoted after opposing the police chief’s attempt to “us[e] his official position to coerce a financially independent organization into a potentially ruinous merger”); Delgado v. Jones, 282 F. 3d 511 (CA7 2002) (police officer sanctioned for reporting criminal activity that implicated a local political figure who was a good friend of the police chief); Herts v. Smith , 345 F. 3d 581 (CA8 2003) (school district official’s contract was not renewed after she gave frank testimony about the district’s desegregation efforts); Kincade v. Blue Springs , 64 F. 3d 389 (CA8 1995) (engineer fired after reporting to his supervisors that contractors were failing to complete dam-related projects and that the resulting dam might be structurally unstable); Fox v. District of Columbia , 83 F. 3d 1491, 1494 (CADC 1996) (D. C. Lottery Board security officer fired after informing the police about a theft made possible by “rather drastic managerial ineptitude”). BREYER, J., DISSENTING GARCETTI V. CEBALLOS 547 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 04-473 GIL GARCETTI, et al., PETITIONERS v. RICHARD CEBALLOS on writ of certiorari to the united states court of appeals for the ninth circuit [May 30, 2006]    Justice Breyer, dissenting.    This case asks whether the First Amendment protects public employees when they engage in speech that both (1) involves matters of public concern and (2) takes place in the ordinary course of performing the duties of a government job. I write separately to explain why I cannot fully accept either the Court’s or Justice Souter’s answer to the question presented. I    I begin with what I believe is common ground:    (1) Because virtually all human interaction takes place through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges must apply different protective presumptions in different contexts, scrutinizing government’s speech-related restrictions differently depending upon the general category of activity. Compare, e.g., Burson v. Freeman , 504 U. S. 191 (1992) (plurality opinion), (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U. S. 557 (1980) (commercial speech), and Rust v. Sullivan , 500 U. S. 173 (1991) (government speech).    (2) Where the speech of government employees is at issue, the First Amendment offers protection only where the offer of protection itself will not unduly interfere with legitimate governmental interests, such as the interest in efficient administration. That is because the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public’s democratically determined will.    (3) Consequently, where a government employee speaks “as an employee upon matters only of personal interest,” the First Amendment does not offer protection. Connick v. Myers , 461 U. S. 138 , 147 (1983). Where the employee speaks “as a citizen … upon matters of public concern,” the First Amendment offers protection but only where the speech survives a screening test. Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 , 568 (1968). That test, called, in legal shorthand, “ Pickering balancing,” requires a judge to “balance … the interests” of the employee “in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Ibid . See also Connick , supra , at 142.    (4) Our prior cases do not decide what screening test a judge should apply in the circumstances before us, namely when the government employee both speaks upon a matter of public concern and does so in the course of his ordinary duties as a government employee. II    The majority answers the question by holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Ante , at 9. In a word, the majority says, “never.” That word, in my view, is too absolute.    Like the majority, I understand the need to “affor[d] government employers sufficient discretion to manage their operations.” Ante , at 11. And I agree that the Constitution does not seek to “displac[e] … managerial discretion by judicial supervision.” Ibid . Nonetheless, there may well be circumstances with special demand for constitutional protection of the speech at issue, where governmental justifications may be limited, and where administrable standards seem readily available—to the point where the majority’s fears of department management by lawsuit are misplaced. In such an instance, I believe that courts should apply the Pickering standard, even though the government employee speaks upon matters of public concern in the course of his ordinary duties.    This is such a case. The respondent, a government lawyer, complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v. Maryland , 373 U. S. 83 (1963). The facts present two special circumstances that together justify First Amendment review.    First, the speech at issue is professional speech—the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government’s own interest in forbidding that speech is diminished. Cf. Legal Services Corporation v. Velazquez , 531 U. S. 533 , 544 (2001) (“Restricting LSC [Legal Services Corporation] attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys”). See also Polk County v. Dodson , 454 U. S. 312 , 321 (1981) (“[A] public defender is not amenable to administrative direction in the same sense as other employees of the State”). See generally Post, Subsidized Speech, 106 Yale L. J. 151, 172 (1996) (“[P]rofessionals must always qualify their loyalty and commitment to the vertical hierarchy of an organization by their horizontal commitment to general professional norms and standards”). The objective specificity and public availability of the profession’s canons also help to diminish the risk that the courts will improperly interfere with the government’s necessary authority to manage its work.    Second, the Constitution itself here imposes speech obligations upon the government’s professional employee. A prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government’s possession. Kyles v. Whitley, 514 U. S. 419 , 437 (1995); Brady , supra. So, for example, might a prison doctor have a similar constitutionally related professional obligation to communicate with superiors about seriously unsafe or unsanitary conditions in the cellblock. Cf. Farmer v. Brennan , 511 U. S. 825 , 832 (1994). There may well be other examples.    Where professional and special constitutional obligations are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances. Thus I would apply the Pickering balancing test here. III    While I agree with much of Justice Souter’s analysis, I believe that the constitutional standard he enunciates fails to give sufficient weight to the serious managerial and administrative concerns that the majority describes. The standard would instruct courts to apply Pickering balancing in all cases, but says that the government should prevail unless the employee (1) “speaks on a matter of unusual importance,” and (2) “satisfies high standards of responsibility in the way he does it.” Ante, at 8 (dissenting opinion). Justice Souter adds that “only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee’s favor.” Id ., at 9.    There are, however, far too many issues of public concern, even if defined as “matters of unusual importance,” for the screen to screen out very much. Government administration typically involves matters of public concern. Why else would government be involved? And “public issues,” indeed, matters of “unusual importance,” are often daily bread-and-butter concerns for the police, the intelligence agencies, the military, and many whose jobs involve protecting the public’s health, safety, and the environment. This aspect of Justice Souter’s “adjustment” of “the basic Pickering balancing scheme” is similar to the Court’s present insistence that speech be of “legitimate news interest”, ibid., when the employee speaks only as a private citizen. See San Diego v. Roe , 543 U. S. 77 , 83–84 (2004) (per curiam). It gives no extra weight to the government’s augmented need to direct speech that is an ordinary part of the employee’s job-related duties.    Moreover, the speech of vast numbers of public employees deals with wrongdoing, health, safety, and honesty: for example, police officers, firefighters, environmental protection agents, building inspectors, hospital workers, bank regulators, and so on. Indeed, this categorization could encompass speech by an employee performing almost any public function, except perhaps setting electricity rates. Nor do these categories bear any obvious relation to the constitutional importance of protecting the job-related speech at issue.    The underlying problem with this breadth of coverage is that the standard (despite predictions that the government is likely to prevail in the balance unless the speech concerns “official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety,” ante , at 9), does not avoid the judicial need to undertake the balance in the first place. And this form of judicial activity—the ability of a dissatisfied employee to file a complaint, engage in discovery, and insist that the court undertake a balancing of interests—itself may interfere unreasonably with both the managerial function (the ability of the employer to control the way in which an employee performs his basic job) and with the use of other grievance-resolution mechanisms, such as arbitration, civil service review boards, and whistle-blower remedies, for which employees and employers may have bargained or which legislatures may have enacted.    At the same time, the list of categories substantially overlaps areas where the law already provides nonconstitutional protection through whistle-blower statutes and the like. See ante , at 13 (majority opinion); ante , at 13–15 (Souter, J., dissenting). That overlap diminishes the need for a constitutional forum and also means that adoption of the test would authorize federal Constitution-based legal actions that threaten to upset the legislatively struck (or administratively struck) balance that those statutes (or administrative procedures) embody. IV    I conclude that the First Amendment sometimes does authorize judicial actions based upon a government employee’s speech that both (1) involves a matter of public concern and also (2) takes place in the course of ordinary job-related duties. But it does so only in the presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public’s affairs. In my view, these conditions are met in this case and Pickering balancing is consequently appropriate.    With respect, I dissent.

In *Garcetti v. Ceballos*, the Supreme Court ruled that the First Amendment does not protect a government employee from discipline based on speech made as part of their official job duties. The Court's decision focused on the balance between an employee's right to free speech and the government's interest in managing its operations efficiently. Justice Kennedy, writing for the majority, emphasized that restricting speech made during the course of performing job duties does not infringe on an employee's rights as a citizen.

Labor & Employment

Burlington Northern & Santa Fe Railway Co. v. White

https://supreme.justia.com/cases/federal/us/548/53/

OPINION OF THE COURT BURLINGTON N. & S. F. R. CO. V. WHITE 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-259 BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, PETITIONER v. SHEILA WHITE on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2006]    Justice Breyer delivered the opinion of the Court.    Title VII of the Civil Rights Act of 1964 forbids employment discrimination against “any individual” based on that individual’s “race, color, religion, sex, or national origin.” Pub. L. 88–352, §704, 78 Stat. 257, as amended, 42 U. S. C. §2000e–2(a). A separate section of the Act—its anti-retaliation provision—forbids an employer from “discriminat[ing] against” an employee or job applicant because that individual “opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title VII proceeding or investigation. §2000e–3(a).    The Courts of Appeals have come to different conclusions about the scope of the Act’s anti-retaliation provision, particularly the reach of its phrase “discriminate against.” Does that provision confine actionable retaliation to activity that affects the terms and conditions of employment? And how harmful must the adverse actions be to fall within its scope?    We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. I A    This case arises out of actions that supervisors at petitioner Burlington Northern & Santa Fe Railway Company took against respondent Sheila White, the only woman working in the Maintenance of Way department at Burlington’s Tennessee Yard. In June 1997, Burlington’s roadmaster, Marvin Brown, interviewed White and expressed interest in her previous experience operating forklifts. Burlington hired White as a “track laborer,” a job that involves removing and replacing track components, transporting track material, cutting brush, and clearing litter and cargo spillage from the right-of-way. Soon after White arrived on the job, a co-worker who had previously operated the forklift chose to assume other responsibilities. Brown immediately assigned White to operate the forklift. While she also performed some of the other track laborer tasks, operating the forklift was White’s primary responsibility.    In September 1997, White complained to Burlington officials that her immediate supervisor, Bill Joiner, had repeatedly told her that women should not be working in the Maintenance of Way department. Joiner, White said, had also made insulting and inappropriate remarks to her in front of her male colleagues. After an internal investigation, Burlington suspended Joiner for 10 days and ordered him to attend a sexual-harassment training session.    On September 26, Brown told White about Joiner’s discipline. At the same time, he told White that he was removing her from forklift duty and assigning her to perform only standard track laborer tasks. Brown explained that the reassignment reflected co-worker’s complaints that, in fairness, a “ ‘more senior man’ ” should have the “less arduous and cleaner job” of forklift operator. 364 F. 3d 789, 792 (CA6 2004) (case below).    On October 10, White filed a complaint with the Equal Employment Opportunity Commission (EEOC or Commission). She claimed that the reassignment of her duties amounted to unlawful gender-based discrimination and retaliation for her having earlier complained about Joiner. In early December, White filed a second retaliation charge with the Commission, claiming that Brown had placed her under surveillance and was monitoring her daily activities. That charge was mailed to Brown on December 8.    A few days later, White and her immediate supervisor, Percy Sharkey, disagreed about which truck should transport White from one location to another. The specific facts of the disagreement are in dispute, but the upshot is that Sharkey told Brown later that afternoon that White had been insubordinate. Brown immediately suspended White without pay. White invoked internal grievance procedures. Those procedures led Burlington to conclude that White had not been insubordinate. Burlington reinstated White to her position and awarded her backpay for the 37 days she was suspended. White filed an additional retaliation charge with the EEOC based on the suspension. B    After exhausting administrative remedies, White filed this Title VII action against Burlington in federal court. As relevant here, she claimed that Burlington’s actions—(1) changing her job responsibilities, and (2) suspending her for 37 days without pay—amounted to unlawful retaliation in violation of Title VII. §2000e–3(a). A jury found in White’s favor on both of these claims. It awarded her $43,500 in compensatory damages, including $3,250 in medical expenses. The District Court denied Burlington’s post-trial motion for judgment as a matter of law. See Fed. Rule Civ. Proc. 50(b).    Initially, a divided Sixth Circuit panel reversed the judgment and found in Burlington’s favor on the retaliation claims. 310 F. 3d 443 (2002). The full Court of Appeals vacated the panel’s decision, however, and heard the matter en banc. The court then affirmed the District Court’s judgment in White’s favor on both retaliation claims. While all members of the en banc court voted to uphold the District Court’s judgment, they differed as to the proper standard to apply. Compare 364 F. 3d, at 795–800, with id ., at 809 (Clay, J., concurring). II    Title VII’s anti-retaliation provision forbids employer actions that “discriminate against” an employee (or job applicant) because he has “opposed” a practice that Title VII forbids or has “made a charge, testified, assisted, or participated in” a Title VII “investigation, proceeding, or hearing.” §2000e–3(a). No one doubts that the term “discriminate against” refers to distinctions or differences in treatment that injure protected individuals. See Jackson v. Birmingham Bd. of Ed., 544 U. S. 167 , 174 (2005); Price Waterhouse v. Hopkins, 490 U. S. 228 , 244 (1989) (plurality opinion); see also 4 Oxford English Dictionary 758 (2d ed. 1989) (def. 3b). But different Circuits have come to different conclusions about whether the challenged action has to be employment or workplace related and about how harmful that action must be to constitute retaliation.    Some Circuits have insisted upon a close relationship between the retaliatory action and employment. The Sixth Circuit majority in this case, for example, said that a plaintiff must show an “adverse employment action,” which it defined as a “materially adverse change in the terms and conditions” of employment. 364 F. 3d, at 795 (internal quotation marks omitted). The Sixth Circuit has thus joined those Courts of Appeals that apply the same standard for retaliation that they apply to a substantive discrimination offense, holding that the challenged action must “resul[t] in an adverse effect on the ‘terms, conditions, or benefits’ of employment.” Von Gunten v. Maryland , 243 F. 3d 858, 866 (CA4 2001); see Robinson v. Pittsburgh , 120 F. 3d 1286, 1300 (CA3 1997). The Fifth and the Eighth Circuits have adopted a more restrictive approach. They employ an “ultimate employment decisio[n]” standard, which limits actionable retaliatory conduct to acts “ ‘such as hiring, granting leave, discharging, promoting, and compensating.’ ” Mattern v. Eastman Kodak Co ., 104 F. 3d 702, 707 (CA5 1997); see Manning v. Metropolitan Life Ins. Co. , 127 F. 3d 686, 692 (CA8 1997).    Other Circuits have not so limited the scope of the provision. The Seventh and the District of Columbia Circuits have said that the plaintiff must show that the “employer’s challenged action would have been material to a reasonable employee,” which in contexts like the present one means that it would likely have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Washington v. Illinois Dept. of Revenue , 420 F. 3d 658, 662 (CA7 2005); see Rochon v. Gonzales , 438 F. 3d 1211, 1217–1218 (CADC 2006). And the Ninth Circuit, following EEOC guidance, has said that the plaintiff must simply establish “ ‘adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.’ ” Ray v. Henderson , 217 F. 3d 1234, 1242–1243 (CA9 2000). The concurring judges below would have applied this last mentioned standard. 364 F. 3d, at 809 (opinion of Clay, J.).    We granted certiorari to resolve this disagreement. To do so requires us to decide whether Title VII’s anti-retaliation provision forbids only those employer actions and resulting harms that are related to employment or the workplace. And we must characterize how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope. A    Petitioner and the Solicitor General both argue that the Sixth Circuit is correct to require a link between the challenged retaliatory action and the terms, conditions, or status of employment. They note that Title VII’s substantive anti-discrimination provision protects an individual only from employment-related discrimination. They add that the anti-retaliation provision should be read in pari materia with the anti-discrimination provision. And they conclude that the employer actions prohibited by the anti-retaliation provision should similarly be limited to conduct that “affects the employee’s ‘compensation, terms, conditions, or privileges of employment.’ ” Brief for United States as Amicus Curiae 13 (quoting §2000e–2(a)(1)); see Brief for Petitioner 13 (same).    We cannot agree. The language of the substantive provision differs from that of the anti-retaliation provision in important ways. Section 703(a) sets forth Title VII’s core anti-discrimination provision in the following terms:    “It shall be an unlawful employment practice for an employer—    “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment , because of such individual’s race, color, religion, sex, or national origin; or    “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee , because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a) (emphasis added).    Section 704(a) sets forth Title VII’s anti-retaliation provision in the following terms: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” §2000e–3(a) (emphasis added).    The underscored words in the substantive provision—“hire,” “discharge,” “compensation, terms, conditions, or privileges of employment,” “employment opportunities,” and “status as an employee”—explicitly limit the scope of that provision to actions that affect employment or alter the conditions of the workplace. No such limiting words appear in the anti-retaliation provision. Given these linguistic differences, the question here is not whether identical or similar words should be read in pari materia to mean the same thing. See, e.g. , Pasquantino v. United States, 544 U. S. 349 , 355, n. 2 (2005); McFarland v. Scott, 512 U. S. 849 , 858 (1994); Sullivan v. Everhart, 494 U. S. 83 , 92 (1990). Rather, the question is whether Congress intended its different words to make a legal difference. We normally presume that, where words differ as they differ here, “ ‘Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Russello v. United States, 464 U. S. 16 , 23 (1983).    There is strong reason to believe that Congress intended the differences that its language suggests, for the two provisions differ not only in language but in purpose as well. The anti-discrimination provision seeks a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status. See McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 800–801 (1973). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the Act’s basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e. , their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e. , their conduct.    To secure the first objective, Congress did not need to prohibit anything other than employment-related discrimination. The substantive provision’s basic objective of “equality of employment opportunities” and the elimination of practices that tend to bring about “stratified job environments,” id ., at 800, would be achieved were all employment-related discrimination miraculously eliminated.    But one cannot secure the second objective by focusing only upon employer actions and harm that concern employment and the workplace. Were all such actions and harms eliminated, the anti-retaliation provision’s objective would not be achieved. An employer can effectively retaliate against an employee by taking actions not directly related to his employment or by causing him harm outside the workplace. See, e.g. , Rochon v. Gonzales , 438 F. 3d, at 1213 (FBI retaliation against employee “took the form of the FBI’s refusal, contrary to policy, to investigate death threats a federal prisoner made against [the agent] and his wife”); Berry v. Stevinson Chevrolet , 74 F. 3d 980, 984, 986 (CA10 1996) (finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination). A provision limited to employment-related actions would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s “primary purpose,” namely, “[m]aintaining unfettered access to statutory remedial mechanisms.” Robinson v. Shell Oil Co., 519 U. S. 337 , 346 (1997).    Thus, purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment. Cf. Wachovia Bank, N. A. v. Schmidt, 546 U. S. ___ (2006) (slip op., at 14) (rejecting statutory construction that would “trea[t] venue and subject-matter jurisdiction prescriptions as in pari materia ” because doing so would “overloo[k] the discrete offices of those concepts”).    Our precedent does not compel a contrary conclusion. Indeed, we have found no case in this Court that offers petitioner or the United States significant support. Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 (1998), as petitioner notes, speaks of a Title VII requirement that violations involve “tangible employment action” such as “hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id ., at 761. But Ellerth does so only to “identify a class of [hostile work environment] cases” in which an employer should be held vicariously liable (without an affirmative defense) for the acts of supervisors. Id ., at 760; see also Pennsylvania State Police v. Suders, 542 U. S. 129 , 143 (2004) (explaining holdings in Ellerth and Faragher v. Boca Raton, 524 U. S. 775 (1998), as dividing hostile work environment claims into two categories, one in which the employer is strictly liable because a tangible employment action is taken and one in which the employer can make an affirmative defense). Ellerth did not discuss the scope of the general anti-discrimination provision. See 524 U. S., at 761 (using “concept of a tangible employment action [that] appears in numerous cases in the Courts of Appeals” only “for resolution of the vicarious liability issue”). And Ellerth did not mention Title VII’s anti-retaliation provision at all. At most, Ellerth sets forth a standard that petitioner and the Solicitor General believe the anti-retaliation provision ought to contain. But it does not compel acceptance of their view.    Nor can we find significant support for their view in the EEOC’s interpretations of the provision. We concede that the EEOC stated in its 1991 and 1988 Compliance Manuals that the anti-retaliation provision is limited to “adverse employment-related action.” 2 EEOC Compliance Manual §614.1(d), p. 614–5 (1991) (hereinafter EEOC 1991 Manual); EEOC Compliance Manual §614.1(d), p. 614–5 (1988) (hereinafter EEOC 1988 Manual). But in those same manuals the EEOC lists the “[e]ssential [e]lements” of a retaliation claim along with language suggesting a broader interpretation. EEOC 1991 Manual §614.3(d), pp. 614–8 to 614–9 (complainant must show “that (s)he was in some manner subjected to adverse treatment by the respondent because of the protest or opposition”); EEOC 1988 Manual §614.3(d), pp. 614–8 to 614–9 (same).    Moreover, both before and after publication of the 1991 and 1988 manuals, the EEOC similarly expressed a broad interpretation of the anti-retaliation provision. Compare EEOC Interpretive Manual, Reference Manual to Title VII Law for Compliance Personnel §491.2 (1972) (hereinafter 1972 Reference Manual) (§704(a) “is intended to provide ‘exceptionally broad protection’ for protestors of discriminatory employment practices”), with 2 EEOC Compliance Manual §8, p. 8–13 (1998) (hereinafter EEOC 1998 Manual), available at http://www.eeoc.gov/policy/docs/ retal.html (as visited June 20, 2006, and available in Clerk of Court’s case file) (§704(a) “prohibit[s] any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity”). And the EEOC 1998 Manual, which offers the Commission’s only direct statement on the question of whether the anti-retaliation provision is limited to the same employment-related activity covered by the anti-discrimination provision, answers that question in the negative—directly contrary to petitioner’s reading of the Act. Ibid .    Finally, we do not accept the petitioner’s and Solicitor General’s view that it is “anomalous” to read the statute to provide broader protection for victims of retaliation than for those whom Title VII primarily seeks to protect, namely, victims of race-based, ethnic-based, religion-based, or gender-based discrimination. Brief for Petitioner 17; Brief for United States as Amicus Curiae 14–15. Congress has provided similar kinds of protection from retaliation in comparable statutes without any judicial suggestion that those provisions are limited to the conduct prohibited by the primary substantive provisions. The National Labor Relations Act, to which this Court has “drawn analogies … in other Title VII contexts,” Hishon v. King & Spalding, 467 U. S. 69 , 76, n. 8 (1984), provides an illustrative example. Compare 29 U. S. C. §158(a)(3) (substantive provision prohibiting employer “discrimination in regard to … any term or condition of employment to encourage or discourage membership in any labor organization”) with §158(a)(4) (retaliation provision making it unlawful for an employer to “discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter”); see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U. S. 731 , 740 (1983) (construing anti-retaliation provision to “prohibi[t] a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities,” including the retaliatory filing of a lawsuit against an employee); NLRB v. Scrivener, 405 U. S. 117 , 121–122 (1972) (purpose of the anti-retaliation provision is to ensure that employees are “ ‘completely free from coercion against reporting’ ” unlawful practices).    In any event, as we have explained, differences in the purpose of the two provisions remove any perceived “anomaly,” for they justify this difference of interpretation. See supra , at 8–9. Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses. “Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288 , 292 (1960). Interpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act’s primary objective depends.    For these reasons, we conclude that Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm. We therefore reject the standards applied in the Courts of Appeals that have treated the anti-retaliation provision as forbidding the same conduct prohibited by the anti-discrimination provision and that have limited actionable retaliation to so-called “ultimate employment decisions.” See supra , at 5. B    The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Appeals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. We agree with the formulation set forth by the Seventh and the District of Columbia Circuits. In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Rochon , 438 F. 3d, at 1219 (quoting Washington , 420 F. 3d, at 662).    We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 80 (1998); see Faragher , 524 U. S., at 788 (judicial standards for sexual harassment must “filter out complaints attacking ‘the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing’ ”). An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 669 (3d ed. 1996) (noting that “courts have held that personality conflicts at work that generate antipathy” and “ ‘snubbing’ by supervisors and co-workers” are not actionable under §704(a)). The anti-retaliation provision seeks to prevent employer interference with “unfettered access” to Title VII’s remedial mechanisms. Robinson , 519 U. S., at 346. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers. Ibid . And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence. See 2 EEOC 1998 Manual §8, p. 8–13.    We refer to reactions of a reasonable employee because we believe that the provision’s standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g. , Suders, 542 U. S., at 141 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U. S. 17 , 21 (1993) (hostile work environment doctrine).    We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Oncale , supra , at 81–82. A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children. Cf., e.g. , Washington, supra, at 662 (finding flex-time schedule critical to employee with disabled child). A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. See 2 EEOC 1998 Manual §8, p. 8–14. Hence, a legal standard that speaks in general terms rather than specific prohibited acts is preferable, for an “act that would be immaterial in some situations is material in others.” Washington , supra , at 661.    Finally, we note that contrary to the claim of the concurrence, this standard does not require a reviewing court or jury to consider “the nature of the discrimination that led to the filing of the charge.” Post , at 6 (Alito, J., concurring in judgment). Rather, the standard is tied to the challenged retaliatory act, not the underlying conduct that forms the basis of the Title VII complaint. By focusing on the materiality of the challenged action and the perspective of a reasonable person in the plaintiff’s position, we believe this standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination. III    Applying this standard to the facts of this case, we believe that there was a sufficient evidentiary basis to support the jury’s verdict on White’s retaliation claim. See Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133 , 150–151 (2000). The jury found that two of Burlington’s actions amounted to retaliation: the reassignment of White from forklift duty to standard track laborer tasks and the 37-day suspension without pay.    Burlington does not question the jury’s determination that the motivation for these acts was retaliatory. But it does question the statutory significance of the harm these acts caused. The District Court instructed the jury to determine whether respondent “suffered a materially adverse change in the terms or conditions of her employment,” App. 63, and the Sixth Circuit upheld the jury’s finding based on that same stringent interpretation of the anti-retaliation provision (the interpretation that limits §704 to the same employment-related conduct forbidden by §703). Our holding today makes clear that the jury was not required to find that the challenged actions were related to the terms or conditions of employment. And insofar as the jury also found that the actions were “materially adverse,” its findings are adequately supported.    First, Burlington argues that a reassignment of duties cannot constitute retaliatory discrimination where, as here, both the former and present duties fall within the same job description. Brief for Petitioner 24–25. We do not see why that is so. Almost every job category involves some responsibilities and duties that are less desirable than others. Common sense suggests that one good way to discourage an employee such as White from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable. That is presumably why the EEOC has consistently found “[r]etaliatory work assignments” to be a classic and “widely recognized” example of “forbidden retaliation.” 2 EEOC 1991 Manual §614.7, pp. 614–31 to 614–32; see also 1972 Reference Manual §495.2 (noting Commission decision involving an employer’s ordering an employee “to do an unpleasant work assignment in retaliation” for filing racial discrimination complaint); EEOC Dec. No. 74–77, 1974 WL 3847, *4 (Jan. 18, 1974) (“Employers have been enjoined” under Title VII “from imposing unpleasant work assignments upon an employee for filing charges”).    To be sure, reassignment of job duties is not automatically actionable. Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and “should be judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the circumstances.’ ” Oncale , 523 U. S., at 81. But here, the jury had before it considerable evidence that the track labor duties were “by all accounts more arduous and dirtier”; that the “forklift operator position required more qualifications, which is an indication of prestige”; and that “the forklift operator position was objectively considered a better job and the male employees resented White for occupying it.” 364 F. 3d, at 803 (internal quotation marks omitted). Based on this record, a jury could reasonably conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee.    Second, Burlington argues that the 37-day suspension without pay lacked statutory significance because Burlington ultimately reinstated White with backpay. Burlington says that “it defies reason to believe that Congress would have considered a rescinded investigatory suspension with full back pay” to be unlawful, particularly because Title VII, throughout much of its history, provided no relief in an equitable action for victims in White’s position. Brief for Petitioner 36.    We do not find Burlington’s last mentioned reference to the nature of Title VII’s remedies convincing. After all, throughout its history, Title VII has provided for injunctions to “bar like discrimination in the future,” Albemarle Paper Co. v. Moody, 422 U. S. 405 , 418 (1975) (internal quotation marks omitted), an important form of relief. Pub. L. 88–352, §706(g), 78 Stat. 261, as amended, 42 U. S. C. §2000e–5(g). And we have no reason to believe that a court could not have issued an injunction where an employer suspended an employee for retaliatory purposes, even if that employer later provided backpay. In any event, Congress amended Title VII in 1991 to permit victims of intentional discrimination to recover compensatory (as White received here) and punitive damages, concluding that the additional remedies were necessary to “ ‘help make victims whole.’ ” West v. Gibson, 527 U. S. 212 , 219 (1999) (quoting H. R. Rep. No. 102–40, pt. 1, pp. 64–65 (1991)); see 42 U. S. C. §§1981a(a)(1), (b). We would undermine the significance of that congressional judgment were we to conclude that employers could avoid liability in these circumstances.    Neither do we find convincing any claim of insufficient evidence. White did receive backpay. But White and her family had to live for 37 days without income. They did not know during that time whether or when White could return to work. Many reasonable employees would find a month without a paycheck to be a serious hardship. And White described to the jury the physical and emotional hardship that 37 days of having “no income, no money” in fact caused. 1 Tr. 154 (“That was the worst Christmas I had out of my life. No income, no money, and that made all of us feel bad. … I got very depressed”). Indeed, she obtained medical treatment for her emotional distress. A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay. Cf. Mitchell, 361 U. S., at 292 (“[I]t needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions”). Thus, the jury’s conclusion that the 37-day suspension without pay was materially adverse was a reasonable one. IV    For these reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. ALITO, J., CONCURRING IN JUDGMENT BURLINGTON N. & S. F. R. CO. V. WHITE 548 U. S. ____ (2006) SUPREME COURT OF THE UNITED STATES NO. 05-259 BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, PETITIONER v. SHEILA WHITE on writ of certiorari to the united states court of appeals for the sixth circuit [June 22, 2006]    Justice Alito, concurring in the judgment.    I concur in the judgment, but I disagree with the majority’s interpretation of the antiretaliation provision of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, §704(a), as amended, 42 U. S. C. §2000e–3(a). The majority’s interpretation has no basis in the statutory language and will, I fear, lead to practical problems. I    Two provisions of Title VII are important here. Section 703(a) prohibits a broad range of discriminatory employment practices.[ Footnote 1 ] Among other things, §703(a) makes it unlawful for an employer “ to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1) (emphasis added).    A complementary and closely related provision, §704(a), makes it unlawful to “discriminate against” an employee for retaliatory purposes. Section 704(a) states in pertinent part:    “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. §2000e–3(a) (emphasis added).    In this case, we must ascertain the meaning of the term “discriminate” in §704(a). Two possible interpretations are suggested by the language of §§703(a) and 704(a).    The first is the interpretation that immediately springs to mind if §704(a) is read by itself— i.e. , that the term “discriminate” in §704(a) means what the term literally means, to treat differently. Respondent staunchly defends this interpretation, which the majority does not embrace, but this interpretation presents problems that are at least sufficient to raise doubts about its correctness. Respondent’s interpretation makes §703(a) narrower in scope than §704(a) and thus implies that the persons whom Title VII is principally designed to protect—victims of discrimination based on race, color, sex, national origin, or religion—receive less protection than victims of retaliation. In addition, respondent’s interpretation “makes a federal case” out of any small difference in the way an employee who has engaged in protected conduct is treated. On respondent’s view, a retaliation claim must go to the jury if the employee creates a genuine issue on such questions as whether the employee was given any more or less work than others, was subjected to any more or less supervision, or was treated in a somewhat less friendly manner because of his protected activity. There is reason to doubt that Congress meant to burden the federal courts with claims involving relatively trivial differences in treatment. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75 , 81 (1998); Faragher v. Boca Raton, 524 U. S. 775 , 786–788 (1998).    The other plausible interpretation, and the one I favor, reads §§703(a) and 704(a) together. Under this reading, “discriminat[ion]” under §704(a) means the discriminatory acts reached by §703(a)—chiefly, discrimination “with respect to … compensation, terms, conditions, or privileges of employment.” This is not, admittedly, the most straightforward reading of the bare language of §704(a), but it is a reasonable reading that harmonizes §§703(a) and 704(a). It also provides an objective standard that permits insignificant claims to be weeded out at the summary judgment stage, while providing ample protection for employees who are subjected to real retaliation.    The Courts of Appeals that have interpreted §704(a) in this way state that it requires a materially adverse employment action. See, e.g. , Von Gunten v. Maryland , 243 F. 3d 858, 865 (CA4 2001); Gupta v. Florida Bd. of Regents , 212 F. 3d 571, 587 (CA11 2000), cert. denied, 531 U. S. 1076 (2001); Robinson v. Pittsburgh , 120 F. 3d 1286, 1300 (CA3 1997). In Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 761–762 (1998), we “import[ed]” this test for use in a different context—to define the term “tangible employment action,” a concept we used to limit an employer’s liability for harassment carried out by its supervisors. We explained that “[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id ., at 761. II    The majority does not adopt either of the two interpretations noted above. In Part II–A of its opinion, the majority criticizes the interpretation that harmonizes §§703(a) and 704(a) as not sufficiently faithful to the language of §704(a). Although we found the materially adverse employment action test worthy of “import[ation]” in Ellerth , the majority now argues that this test is too narrow because it permits employers to take retaliatory measures outside the workplace. Ante , at 8–9 (citing Rochon v. Gonzales , 438 F. 3d 1211, 1213 (CADC 2006); Berry v. Stevinson Chevrolet , 74 F. 3d 980, 984, 986 (CA10 1996)). But the majority’s concern is misplaced.    First, an employer who wishes to retaliate against an employee for engaging in protected conduct is much more likely to do so on the job. There are far more opportunities for retaliation in that setting, and many forms of retaliation off the job constitute crimes and are therefore especially risky.    Second, the materially adverse employment action test is not limited to on-the-job retaliation, as Rochon , one of the cases cited by the majority, illustrates. There, a Federal Bureau of Investigation agent claimed that the Bureau had retaliated against him by failing to provide the off-duty security that would otherwise have been furnished. See 438 F. 3d, at 1213–1214. But, for an FBI agent whose life may be threatened during off-duty hours, providing security easily qualifies as a term, condition, or privilege of employment. Certainly, if the FBI had a policy of denying protection to agents of a particular race, such discrimination would be actionable under §703(a).    But in Part II–B, rather than adopting the more literal interpretation based on the language of §704(a) alone, the majority instead puts that language aside and adopts a third interpretation—one that has no grounding in the statutory language. According to the majority, §704(a) does not reach all retaliatory differences in treatment but only those retaliatory acts that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Ante , at 13 (internal quotation marks omitted).    I see no sound basis for this test. The language of §704(a), which employs the unadorned term “discriminate,” does not support this test. The unstated premise of the majority’s reasoning seems to be that §704(a)’s only purpose is to prevent employers from taking those actions that are likely to stop employees from complaining about discrimination, but this unstated premise is unfounded. While surely one of the purposes of §704(a) is to prevent employers from engaging in retaliatory measures that dissuade employees from engaging in protected conduct, there is no reason to suppose that this is §704(a)’s only purpose. Indeed, the majority itself identifies another purpose of the antiretaliation provision: “to prevent harm to individuals” who assert their rights. Ante , at 8. Under the majority’s test, however, employer conduct that causes harm to an employee is permitted so long as the employer conduct is not so severe as to dissuade a reasonable employee from making or supporting a charge of discrimination. III    The practical consequences of the test that the majority adopts strongly suggest that this test is not what Congress intended.    First, the majority’s test leads logically to perverse results. Under the majority’s test, §704(a) reaches retaliation that well might dissuade an employee from making or supporting “a charge of discrimination.” Ante , at 13 (internal quotation marks omitted). I take it that the phrase “ a charge of discrimination” means the particular charge that the employee in question filed,[ Footnote 2 ] and if that is the proper interpretation, the nature of the discrimination that led to the filing of the charge must be taken into account in applying §704(a). Specifically, the majority’s interpretation logically implies that the degree of protection afforded to a victim of retaliation is inversely proportional to the severity of the original act of discrimination that prompted the retaliation. A reasonable employee who is subjected to the most severe discrimination will not easily be dissuaded from filing a charge by the threat of retaliation; the costs of filing the charge, including possible retaliation, will have to be great to outweigh the benefits, such as preventing the continuation of the discrimination in the future and obtaining damages and other relief for past discrimination. Because the possibility of relatively severe retaliation will not easily dissuade this employee, the employer will be able to engage in relatively severe retaliation without incurring liability under §704(a). On the other hand, an employee who is subjected to a much milder form of discrimination will be much more easily dissuaded. For this employee, the costs of complaining, including possible retaliation, will not have to be great to outweigh the lesser benefits that might be obtained by filing a charge. These topsy-turvy results make no sense.    Second, the majority’s conception of a reasonable worker is unclear. Although the majority first states that its test is whether a “reasonable worker” might well be dissuaded, ante , at 13 (internal quotation marks omitted), it later suggests that at least some individual characteristics of the actual retaliation victim must be taken into account. The majority comments that “the significance of any given act of retaliation will often depend upon the particular circumstances,” and provides the following illustration: “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.” Ante , at 14.    This illustration suggests that the majority’s test is not whether an act of retaliation well might dissuade the average reasonable worker, putting aside all individual characteristics, but, rather, whether the act well might dissuade a reasonable worker who shares at least some individual characteristics with the actual victim. The majority’s illustration introduces three individual characteristics: age, gender, and family responsibilities. How many more individual characteristics a court or jury may or must consider is unclear.    Finally, the majority’s interpretation contains a loose and unfamiliar causation standard. As noted, the majority’s test asks whether an employer’s retaliatory act “ well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Ante , at 13 (internal quotation marks omitted; emphasis added). Especially in an area of the law in which standards of causation are already complex, the introduction of this new and unclear standard is unwelcome.    For these reasons, I would not adopt the majority’s test but would hold that §704(a) reaches only those discriminatory practices covered by §703(a). IV    Applying this interpretation, I would affirm the decision of the Court of Appeals. The actions taken against respondent—her assignment to new and substantially less desirable duties and her suspension without pay—fall within the definition of an “adverse employment action.”    With respect to respondent’s reassignment, Ellerth specifically identified a “reassignment with significantly different responsibilities” as a “tangible employment action.” 524 U. S., at 761. Here, as the Court of Appeals stated, “[i]n essence, … the reassignment was a demotion.” 364 F. 3d 789, 803 (CA6 2004). The “new position was by all accounts more arduous and ‘dirtier,’ ” ibid ., and petitioner’s sole stated rationale for the reassignment was that respondent’s prior duties were better suited for someone with greater seniority. This was virtually an admission that respondent was demoted when those responsibilities were taken away from her.    I would hold that respondent’s suspension without pay likewise satisfied the materially adverse employment action test. Accordingly, although I would hold that a plaintiff asserting a §704(a) retaliation claim must show the same type of materially adverse employment action that is required for a §703(a) discrimination claim, I would hold that petitioner met that standard in this case, and I, therefore, concur in the judgment. Footnote 1 Section 703(a) states in pertinent part:    “It shall be an unlawful employment practice for an employer—    “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or    “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) (emphasis added). Footnote 2 The alternative interpretation—that “a charge” does not mean the specific charge filed by the employee but an average or generic charge—would be unworkable. Without gauging the severity of the initial alleged discrimination, a jury cannot possibly compare the costs and benefits of filing a charge and, thus, cannot possibly decide whether the employer’s alleged retaliatory conduct is severe enough to dissuade the filing of a charge. A jury will have no way of assessing the severity of the average alleged act of discrimination that leads to the filing of a charge, and, therefore, if “a charge” means an average or generic charge, the majority’s test will leave juries hopelessly at sea.

The Supreme Court ruled that the anti-retaliation provision of Title VII of the Civil Rights Act of 1964 protects individuals from employer retaliation that occurs outside the workplace and is not limited to actions related to employment. The Court defined retaliation as any action that a reasonable employee would find materially adverse, meaning it could dissuade them from making or supporting a charge of discrimination. In this case, the Court found that the employer's actions, including demoting the employee and suspending her without pay, fell within the scope of retaliation and were therefore unlawful.

Labor & Employment

Ricci v. DeStefano

https://supreme.justia.com/cases/federal/us/557/557/

OPINION OF THE COURT RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS 07–1428 v. JOHN De STEFANO et al. FRANK RICCI, et al., PETITIONERS 08–328 v. JOHN De STEFANO et al. on writs of certiorari to the united states court of appeals for the second circuit [June 29, 2009]    Justice Kennedy delivered the opinion of the Court.    In the fire department of New Haven, Connecticut—as in emergency-service agencies throughout the Nation—firefighters prize their promotion to and within the officer ranks. An agency’s officers command respect within the department and in the whole community; and, of course, added responsibilities command increased salary and benefits. Aware of the intense competition for promotions, New Haven, like many cities, relies on objective examinations to identify the best qualified candidates.    In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost.    When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.    Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. , and the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary judgment for the defendants, and the Court of Appeals affirmed.    We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause. I    This litigation comes to us after the parties’ cross-motions for summary judgment, so we set out the facts in some detail. As the District Court noted, although “the parties strenuously dispute the relevance and legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed.” 554 F. Supp. 2d 142, 145 (Conn. 2006). A    When the City of New Haven undertook to fill vacant lieutenant and captain positions in its fire department (Department), the promotion and hiring process was governed by the city charter, in addition to federal and state law. The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain valid for two years.    The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses.    After reviewing bids from various consultants, the City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates.    With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’ job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as required by CSB rules, and was written below a 10th-grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.    IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job-analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.    IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria.    Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.    Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics. Ibid. B The City’s contract with IOS contemplated that, after the examinations, IOS would prepare a technical report that described the examination processes and methodologies and analyzed the results. But in January 2004, rather than requesting the technical report, City officials, including the City’s counsel, Thomas Ude, convened a meeting with IOS Vice President Chad Legel. (Legel was the leader of the IOS team that developed and administered the tests.) Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates. Legel defended the examinations’ validity, stating that any numerical disparity between white and minority candidates was likely due to various external factors and was in line with results of the Department’s previous promotional examinations. Several days after the meeting, Ude sent a letter to the CSB purporting to outline its duties with respect to the examination results. Ude stated that under federal law, “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntar[y] remedies—even … race-conscious remedies.” App. to Pet. for Cert. in No. 07–1428, p. 443a; see also 554 F. Supp. 2d, at 145 (issue of disparate impact “appears to have been raised by … Ude”). 1 The CSB first met to consider certifying the results on January 22, 2004. Tina Burgett, director of the City’s Department of Human Resources, opened the meeting by telling the CSB that “there is a significant disparate impact on these two exams.” App. to Pet. for Cert. in No. 07–1428, at 466a. She distributed lists showing the candidates’ races and scores (written, oral, and composite) but not their names. Ude also described the test results as reflecting “a very significant disparate impact,” id. , at 477a, and he outlined possible grounds for the CSB’s refusing to certify the results.    Although they did not know whether they had passed or failed, some firefighter-candidates spoke at the first CSB meeting in favor of certifying the test results. Michael Blatchley stated that “[e]very one” of the questions on the written examination “came from the [study] material. … [I]f you read the materials and you studied the material, you would have done well on the test.” App. in No. 06–4996–cv (CA2), pp. A772–A773 (hereinafter CA2 App.). Frank Ricci stated that the test questions were based on the Department’s own rules and procedures and on “nationally recognized” materials that represented the “accepted standard[s]” for firefighting. Id. , at A785–A786. Ricci stated that he had “several learning disabilities,” including dyslexia; that he had spent more than $1,000 to purchase the materials and pay his neighbor to read them on tape so he could “give it [his] best shot”; and that he had studied “8 to 13 hours a day to prepare” for the test. Id. , at A786, A789. “I don’t even know if I made it,” Ricci told the CSB, “[b]ut the people who passed should be promoted. When your life’s on the line, second best may not be good enough.” Id. , at A787–A788.    Other firefighters spoke against certifying the test results. They described the test questions as outdated or not relevant to firefighting practices in New Haven. Gary Tinney stated that source materials “came out of New York. . . . Their makeup of their city and everything is totally different than ours.” Id. , at A774–A775; see also id. , at A779, A780–A781. And they criticized the test materials, a full set of which cost about $500, for being too expensive and too long. 2    At a second CSB meeting, on February 5, the president of the New Haven firefighters’ union asked the CSB to perform a validation study to determine whether the tests were job-related. Petitioners’ counsel in this action argued that the CSB should certify the results. A representative of the International Association of Black Professional Firefighters, Donald Day from neighboring Bridgeport, Connecticut, “beseech[ed]” the CSB “to throw away that test,” which he described as “inherently unfair” because of the racial distribution of the results. Id. , at A830–A831. Another Bridgeport-based representative of the association, Ronald Mackey, stated that a validation study was necessary. He suggested that the City could “adjust” the test results to “meet the criteria of having a certain amount of minorities get elevated to the rank of Lieutenant and Captain.” Id. , at A838. At the end of this meeting, the CSB members agreed to ask IOS to send a representative to explain how it had developed and administered the examinations. They also discussed asking a panel of experts to review the examinations and advise the CSB whether to certify the results. 3    At a third meeting, on February 11, Legel addressed the CSB on behalf of IOS. Legel stated that IOS had previously prepared entry-level firefighter examinations for the City but not a promotional examination. He explained that IOS had developed examinations for departments in communities with demographics similar to New Haven’s, including Orange County, Florida; Lansing, Michigan; and San Jose, California.    Legel explained the exam-development process to the CSB. He began by describing the job analyses IOS performed of the captain and lieutenant positions—the interviews, ride-alongs, and questionnaires IOS designed to “generate a list of tasks, knowledge, skills and abilities that are considered essential to performance” of the jobs. Id. , at A931–A932. He outlined how IOS prepared the written and oral examinations, based on the job-analysis results, to test most heavily those qualities that the results indicated were “critica[l]” or “essentia[l].” Id. , at A931. And he noted that IOS took the material for each test question directly from the approved source materials. Legel told the CSB that third-party reviewers had scrutinized the examinations to ensure that the written test was drawn from the source material and that the oral test accurately tested real-world situations that captains and lieutenants would face. Legel confirmed that IOS had selected oral-examination panelists so that each three-member assessment panel included one white, one black, and one Hispanic member.    Near the end of his remarks, Legel “implor[ed] anyone that had … concerns to review the content of the exam. In my professional opinion, it’s facially neutral. There’s nothing in those examinations … that should cause somebody to think that one group would perform differently than another group.” Id. , at A961. 4    At the next meeting, on March 11, the CSB heard from three witnesses it had selected to “tell us a little bit about their views of the testing, the process, [and] the methodology.” Id. , at A1020. The first, Christopher Hornick, spoke to the CSB by telephone. Hornick is an industrial/organizational psychologist from Texas who operates a consulting business that “direct[ly]” competes with IOS. Id. , at A1029. Hornick, who had not “stud[ied] the test at length or in detail” and had not “seen the job analysis data,” told the CSB that the scores indicated a “relatively high adverse impact.” Id. , at A1028, A1030, A1043. He stated that “[n]ormally, whites outperform ethnic minorities on the majority of standardized testing procedures,” but that he was “a little surprised” by the disparity in the candidates’ scores—although “[s]ome of it is fairly typical of what we’ve seen in other areas of the countr[y] and other tests.” Id. , at A1028–A1029. Hornick stated that the “adverse impact on the written exam was somewhat higher but generally in the range that we’ve seen professionally.” Id. , at A1030–A1031.    When asked to explain the New Haven test results, Hornick opined in the telephone conversation that the collective-bargaining agreement’s requirement of using written and oral examinations with a 60/40 composite score might account for the statistical disparity. He also stated that “[b]y not having anyone from within the [D]epartment review” the tests before they were administered—a limitation the City had imposed to protect the security of the exam questions—“you inevitably get things in there” that are based on the source materials but are not relevant to New Haven. Id. , at A1034–A1035. Hornick suggested that testing candidates at an “assessment center” rather than using written and oral examinations “might serve [the City’s] needs better.” Id. , at A1039–A1040. Hornick stated that assessment centers, where candidates face real-world situations and respond just as they would in the field, allow candidates “to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test.” Ibid. Hornick made clear that he was “not suggesting that [IOS] somehow created a test that had adverse impacts that it should not have had.” Id. , at A1038. He described the IOS examinations as “reasonably good test[s].” Id. , at A1041. He stated that the CSB’s best option might be to “certify the list as it exists” and work to change the process for future tests, including by “[r]ewriting the Civil Service Rules.” Ibid. Hornick concluded his telephonic remarks by telling the CSB that “for the future,” his company “certainly would like to help you if we can.” Id. , at A1046.    The second witness was Vincent Lewis, a fire program specialist for the Department of Homeland Security and a retired fire captain from Michigan. Lewis, who is black, had looked “extensively” at the lieutenant exam and “a little less extensively” at the captain exam. He stated that the candidates “should know that material.” Id. , at A1048, A1052. In Lewis’s view, the “questions were relevant for both exams,” and the New Haven candidates had an advantage because the study materials identified the particular book chapters from which the questions were taken. In other departments, by contrast, “you had to know basically the … entire book.” Id. , at A1053. Lewis concluded that any disparate impact likely was due to a pattern that “usually whites outperform some of the minorities on testing,” or that “more whites … take the exam.” Id. , at A1054.    The final witness was Janet Helms, a professor at Boston College whose “primary area of expertise” is “not with firefighters per se” but in “race and culture as they influence performance on tests and other assessment procedures.” Id. , at A1060. Helms expressly declined the CSB’s offer to review the examinations. At the outset, she noted that “regardless of what kind of written test we give in this country … we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case.” Id. , at A1061. Helms nevertheless offered several “ideas about what might be possible factors” to explain statistical differences in the results. Id. , at A1062. She concluded that because 67 percent of the respondents to the job-analysis questionnaires were white, the test questions might have favored white candidates, because “most of the literature on firefighters shows that the different groups perform the job differently.” Id. , at A1063. Helms closed by stating that no matter what test the City had administered, it would have revealed “a disparity between blacks and whites, Hispanics and whites,” particularly on a written test. Id. , at A1072. 5    At the final CSB meeting, on March 18, Ude (the City’s counsel) argued against certifying the examination results. Discussing the City’s obligations under federal law, Ude advised the CSB that a finding of adverse impact “is the beginning, not the end, of a review of testing procedures” to determine whether they violated the disparate-impact provision of Title VII. Ude focused the CSB on determining “whether there are other ways to test for … those positions that are equally valid with less adverse impact.” Id. , at A1101. Ude described Hornick as having said that the written examination “had one of the most severe adverse impacts that he had seen” and that “there are much better alternatives to identifying [firefighting] skills.” Ibid. Ude offered his “opinion that promotions … as a result of these tests would not be consistent with federal law, would not be consistent with the purposes of our Civil Service Rules or our Charter[,] nor is it in the best interests of the firefighters … who took the exams.” Id. , at A1103–A1104. He stated that previous Department exams “have not had this kind of result,” and that previous results had not been “challenged as having adverse impact, whereas we are assured that these will be.” Id. , at A1107, A1108.    CSB Chairman Segaloff asked Ude several questions about the Title VII disparate-impact standard.    “CHAIRPERSON SEGALOFF: [M]y understanding is the group … that is making to throw the exam out has the burden of showing that there is out there an exam that is reasonably probable or likely to have less of an adverse impact. It’s not our burden to show that there’s an exam out there that can be better. We’ve got an exam. We’ve got a result… .    “MR. UDE: Mr. Chair, I point out that Dr. Hornick said that. He said that there are other tests out there that would have less adverse impact and that [would] be more valid.    “CHAIRPERSON SEGALOFF: You think that’s enough for us to throw this test upside-down … because Dr. Hornick said it?    “MR. UDE: I think that by itself would be sufficient. Yes. I also would point out that … it is the employer’s burden to justify the use of the examination.” Id. , at A1108–A1109.    Karen DuBois-Walton, the City’s chief administrative officer, spoke on behalf of Mayor John DeStefano and argued against certifying the results. DuBois-Walton stated that the results, when considered under the rule of three and applied to then-existing captain and lieutenant vacancies, created a situation in which black and Hispanic candidates were disproportionately excluded from opportunity. DuBois-Walton also relied on Hornick’s testimony, asserting that Hornick “made it extremely clear that … there are more appropriate ways to assess one’s ability to serve” as a captain or lieutenant. Id. , at A1120.    Burgett (the human resources director) asked the CSB to discard the examination results. She, too, relied on Hornick’s statement to show the existence of alternative testing methods, describing Hornick as having “started to point out that alternative testing does exist” and as having “begun to suggest that there are some different ways of doing written examinations.” Id. , at A1125, A1128.    Other witnesses addressed the CSB. They included the president of the New Haven firefighters’ union, who supported certification. He reminded the CSB that Hornick “also concluded that the tests were reasonable and fair and under the current structure to certify them.” Id. , at A1137. Firefighter Frank Ricci again argued for certification; he stated that although “assessment centers in some cases show less adverse impact,” id. , at A1140, they were not available alternatives for the current round of promotions. It would take several years, Ricci explained, for the Department to develop an assessment-center protocol and the accompanying training materials. Id. , at A1141. Lieutenant Matthew Marcarelli, who had taken the captain’s exam, spoke in favor of certification.    At the close of witness testimony, the CSB voted on a motion to certify the examinations. With one member recused, the CSB deadlocked 2 to 2, resulting in a decision not to certify the results. Explaining his vote to certify the results, Chairman Segaloff stated that “nobody convinced me that we can feel comfortable that, in fact, there’s some likelihood that there’s going to be an exam designed that’s going to be less discriminatory.” Id. , at A1159–A1160. C    The CSB’s decision not to certify the examination results led to this lawsuit. The plaintiffs—who are the petitioners here—are 17 white firefighters and 1 Hispanic firefighter who passed the examinations but were denied a chance at promotions when the CSB refused to certify the test results. They include the named plaintiff, Frank Ricci, who addressed the CSB at multiple meetings.    Petitioners sued the City, Mayor DeStefano, DuBois-Walton, Ude, Burgett, and the two CSB members who voted against certification. Petitioners also named as a defendant Boise Kimber, a New Haven resident who voiced strong opposition to certifying the results. Those individuals are respondents in this Court. Petitioners filed suit under Rev. Stat. §§1979 and 1980, 42 U. S. C. §§1983 and 1985, alleging that respondents, by arguing or voting against certifying the results, violated and conspired to violate the Equal Protection Clause of the Fourteenth Amendment. Petitioners also filed timely charges of discrimination with the Equal Employment Opportunity Commission (EEOC); upon the EEOC’s issuing right-to-sue letters, petitioners amended their complaint to assert that the City violated the disparate-treatment prohibition contained in Title VII of the Civil Rights Act of 1964, as amended. See 42 U. S. C. §§2000e–2(a) . The parties filed cross-motions for summary judgment. Respondents asserted they had a good-faith belief that they would have violated the disparate-impact prohibition in Title VII, §2000e–2(k), had they certified the examination results. It follows, they maintained, that they cannot be held liable under Title VII’s disparate-treatment provision for attempting to comply with Title VII’s disparate-impact bar. Petitioners countered that respondents’ good-faith belief was not a valid defense to allegations of disparate treatment and unconstitutional discrimination.    The District Court granted summary judgment for respondents. 554 F. Supp. 2d 142. It described petitioners’ argument as “boil[ing] down to the assertion that if [respondents] cannot prove that the disparities on the Lieutenant and Captain exams were due to a particular flaw inherent in those exams, then they should have certified the results because there was no other alternative in place.” Id. , at 156. The District Court concluded that, “[n]otwithstanding the shortcomings in the evidence on existing, effective alternatives, it is not the case that [respondents] must certify a test where they cannot pinpoint its deficiency explaining its disparate impact … simply because they have not yet formulated a better selection method.” Ibid. It also ruled that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact … does not, as a matter of law, constitute discriminatory intent” under Title VII. Id. , at 160. The District Court rejected petitioners’ equal protection claim on the theory that respondents had not acted because of “discriminatory animus” toward petitioners. Id. , at 162. It concluded that respondents’ actions were not “based on race” because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.” Id. , at 161.    After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning. 530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes. 530 F. 3d 88.    This action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue. Depending on the resolution of the statutory claim, a fundamental constitutional question could also arise. We found it prudent and appropriate to grant certiorari. 555 U. S. ___ (2009). We now reverse. II    Petitioners raise a statutory claim, under the disparate-treatment prohibition of Title VII, and a constitutional claim, under the Equal Protection Clause of the Fourteenth Amendment. A decision for petitioners on their statutory claim would provide the relief sought, so we consider it first. See Atkins v. Parker , 472 U. S. 115 , 123 (1985); Escambia County v. McMillan , 466 U. S. 48 , 51 (1984) (per curiam) (“[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case”). A    Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq. , as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).    As enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. It makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1); see also 78 Stat. 255. Disparate-treatment cases present “the most easily understood type of discrimination,” Teamsters v. United States , 431 U. S. 324 , 335, n. 15 (1977), and occur where an employer has “treated [a] particular person less favorably than others because of” a protected trait. Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 985–986 (1988). A disparate-treatment plaintiff must establish “that the defendant had a discriminatory intent or motive” for taking a job-related action. Id. , at 986.    The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co. , 401 U. S. 424 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” Id. , at 431. The Griggs Court stated that the “touchstone” for disparate-impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.” Ibid.; see also id ., at 432 (employer’s burden to demonstrate that practice has “a manifest relationship to the employment in question”); Albemarle Paper Co. v. Moody , 422 U. S. 405 , 425 (1975). Under those precedents, if an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination. Ibid. (allowing complaining party to show “that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest”).    Twenty years after Griggs , the Civil Rights Act of 1991, 105 Stat. 1071, was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. That provision is now in force along with the disparate-treatment section already noted. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). B    Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparate-treatment provision. The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate-impact provisions.” Brief for Respondents 12.    Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race— i.e. , how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 554 F. Supp. 2d, at 152; see also ibid. (respondents’ “own arguments … show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See §2000e–2(a)(1).    The District Court did not adhere to this principle, however. It held that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact … does not, as a matter of law, constitute discriminatory intent.” 554 F. Supp. 2d, at 160. And the Government makes a similar argument in this Court. It contends that the “structure of Title VII belies any claim that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” Brief for United States as Amicus Curiae 11. But both of those statements turn upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective. Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.    We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.    With these principles in mind, we turn to the parties’ proposed means of reconciling the statutory provisions. Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability—even if the employer knows its practice violates the disparate-impact provision. See Brief for Petitioners 43. Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both types of discrimination. We must interpret the statute to give effect to both provisions where possible. See, e.g. , United States v. Atlantic Research Corp. , 551 U. S. 128 , 137 (2007) (rejecting an interpretation that would render a statutory provision “a dead letter”). We cannot accept petitioners’ broad and inflexible formulation.    Petitioners next suggest that an employer in fact must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit. Again, this is overly simplistic and too restrictive of Title VII’s purpose. The rule petitioners offer would run counter to what we have recognized as Congress’s intent that “voluntary compliance” be “the preferred means of achieving the objectives of Title VII.” Firefighters v. Cleveland , 478 U. S. 501 , 515 (1986); see also Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 290 (1986) (O’Connor, J., concurring in part and concurring in judgment). Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.    At the opposite end of the spectrum, respondents and the Government assert that an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct. But the original, foundational prohibition of Title VII bars employers from taking adverse action “because of … race.” §2000e–2(a)(1). And when Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision in subsection (k). Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics … could put undue pressure on employers to adopt inappropriate prophylactic measures.” Watson , 487 U. S., at 992 (plurality opinion). Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. §2000e–2(j). The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” Griggs , 401 U. S., at 434.    In searching for a standard that strikes a more appropriate balance, we note that this Court has considered cases similar to this one, albeit in the context of the Equal Protection Clause of the Fourteenth Amendment. The Court has held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “ ‘strong basis in evidence’ ” that the remedial actions were necessary. Richmond v. J. A. Croson Co. , 488 U. S. 469 , 500 (1989) (quoting Wygant , supra , at 277 (plurality opinion)). This suit does not call on us to consider whether the statutory constraints under Title VII must be parallel in all respects to those under the Constitution. That does not mean the constitutional authorities are irrelevant, however. Our cases discussing constitutional principles can provide helpful guidance in this statutory context. See Watson , supra , at 993 (plurality opinion).    Writing for a plurality in Wygant and announcing the strong-basis-in-evidence standard, Justice Powell recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. The plurality stated that those “related constitutional duties are not always harmonious,” and that “reconciling them requires … employers to act with extraordinary care.” Ibid. The plurality required a strong basis in evidence because “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The Court applied the same standard in Croson , observing that “an amorphous claim that there has been past discrimination … cannot justify the use of an unyielding racial quota.” 488 U. S., at 499.    The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of “practices that are fair in form, but discriminatory in operation.” Griggs , supra , at 431. But it has also prohibited employers from taking adverse employment actions “because of” race. §2000e–2(a)(1). Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. See Firefighters , supra, at 515. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.    Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employment-related test scores on the basis of race. See §2000e–2( l ). Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.    If an employer cannot rescore a test based on the candidates’ race, §2000e–2( l ), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT&T Corp. v. Hulteen , 556 U. S. ___, ___ (2009) (slip op., at 8).    For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.    Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.    Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.    Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end. We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. C    The City argues that, even under the strong-basis-in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.    On this basis, we conclude that petitioners have met their obligation to demonstrate that there is “no genuine issue as to any material fact” and that they are “entitled to judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris , 550 U. S. 372 , 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp. , 475 U. S. 574 , 587 (1986) (internal quotation marks omitted). In this Court, the City’s only defense is that it acted to comply with Title VII’s disparate-impact provision. To succeed on their motion, then, petitioners must demonstrate that there can be no genuine dispute that there was no strong basis in evidence for the City to conclude it would face disparate-impact liability if it certified the examination results. See Celotex Corp. v. Catrett , 477 U. S. 317 , 324 (1986) (where the nonmoving party “will bear the burden of proof at trial on a dispositive issue,” the nonmoving party bears the burden of production under Rule 56 to “designate specific facts showing that there is a genuine issue for trial” (internal quotation marks omitted)).    The racial adverse impact here was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates. On the lieutenant exam, the pass rate for white candidates was 58.1 percent; for black candidates, 31.6 percent; and for Hispanic candidates, 20 percent. The pass rates of minorities, which were approximately one-half the pass rates for white candidates, fall well below the 80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII. See 29 CFR §1607.4(D) (2008) (selection rate that is less than 80 percent “of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact”); Watson , 487 U. S., at 995–996, n. 3 (plurality opinion) (EEOC’s 80-percent standard is “a rule of thumb for the courts”). Based on how the passing candidates ranked and an application of the “rule of three,” certifying the examinations would have meant that the City could not have considered black candidates for any of the then-vacant lieutenant or captain positions.    Based on the degree of adverse impact reflected in the results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal , 457 U. S. 440 , 446 (1982), and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects. We address each of the two points in turn, based on the record developed by the parties through discovery—a record that concentrates in substantial part on the statements various witnesses made to the CSB. 1    There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” Scott , supra , at 380. The CSB heard statements from Chad Legel (the IOS vice president) as well as city officials outlining the detailed steps IOS took to develop and administer the examinations. IOS devised the written examinations, which were the focus of the CSB’s inquiry, after painstaking analyses of the captain and lieutenant positions—analyses in which IOS made sure that minorities were overrepresented. And IOS drew the questions from source material approved by the Department. Of the outside witnesses who appeared before the CSB, only one, Vincent Lewis, had reviewed the examinations in any detail, and he was the only one with any firefighting experience. Lewis stated that the “questions were relevant for both exams.” CA2 App. A1053. The only other witness who had seen any part of the examinations, Christopher Hornick (a competitor of IOS’s), criticized the fact that no one within the Department had reviewed the tests—a condition imposed by the City to protect the integrity of the exams in light of past alleged security breaches. But Hornick stated that the exams “appea[r] to be . . reasonably good” and recommended that the CSB certify the results. Id. , at A1041.    Arguing that the examinations were not job-related, respondents note some candidates’ complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in New Haven. But Legel told the CSB that IOS had addressed those concerns—that it entertained “a handful” of challenges to the validity of particular examination questions, that it “reviewed those challenges and provided feedback [to the City] as to what we thought the best course of action was,” and that he could remember at least one question IOS had thrown out (“offer[ing] credit to everybody for that particular question”). Id. , at A955–A957. For his part, Hornick said he “suspect[ed] that some of the criticisms … [leveled] by candidates” were not valid. Id. , at A1035.    The City, moreover, turned a blind eye to evidence that supported the exams’ validity. Although the City’s contract with IOS contemplated that IOS would prepare a technical report consistent with EEOC guidelines for examination-validity studies, the City made no request for its report. After the January 2004 meeting between Legel and some of the city-official respondents, in which Legel defended the examinations, the City sought no further information from IOS, save its appearance at a CSB meeting to explain how it developed and administered the examinations. IOS stood ready to provide respondents with detailed information to establish the validity of the exams, but respondents did not accept that offer. 2    Respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. Respondents raise three arguments to the contrary, but each argument fails. First, respondents refer to testimony before the CSB that a different composite-score calculation—weighting the written and oral examination scores 30/70—would have allowed the City to consider two black candidates for then-open lieutenant positions and one black candidate for then-open captain positions. (The City used a 60/40 weighting as required by its contract with the New Haven firefighters’ union.) But respondents have produced no evidence to show that the 60/40 weighting was indeed arbitrary. In fact, because that formula was the result of a union-negotiated collective-bargaining agreement, we presume the parties negotiated that weighting for a rational reason. Nor does the record contain any evidence that the 30/70 weighting would be an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions. Changing the weighting formula, moreover, could well have violated Title VII’s prohibition of altering test scores on the basis of race. See §2000e–2( l ). On this record, there is no basis to conclude that a 30/70 weighting was an equally valid alternative the City could have adopted.    Second, respondents argue that the City could have adopted a different interpretation of the “rule of three” that would have produced less discriminatory results. The rule, in the New Haven city charter, requires the City to promote only from “those applicants with the three highest scores” on a promotional examination. New Haven, Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992). A state court has interpreted the charter to prohibit so-called “banding”—the City’s previous practice of rounding scores to the nearest whole number and considering all candidates with the same whole-number score as being of one rank. Banding allowed the City to consider three ranks of candidates (with the possibility of multiple candidates filling each rank) for purposes of the rule of three. See Kelly v. New Haven , No. CV000444614, 2004 WL 114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents claim that employing banding here would have made four black and one Hispanic candidates eligible for then-open lieutenant and captain positions.    A state court’s prohibition of banding, as a matter of municipal law under the charter, may not eliminate banding as a valid alternative under Title VII. See 42 U. S. C. §2000e–7. We need not resolve that point, however. Here, banding was not a valid alternative for this reason: Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’s prohibition of adjusting test results on the basis of race. §2000e–2( l ); see also Chicago Firefighters Local 2 v. Chicago , 249 F. 3d 649, 656 (CA7 2001) (Posner, J.) (“We have no doubt that if banding were adopted in order to make lower black scores seem higher, it would indeed be … forbidden”). As a matter of law, banding was not an alternative available to the City when it was considering whether to certify the examination results.    Third, and finally, respondents refer to statements by Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. Hornick stated his “belie[f]” that an “assessment center process,” which would have evaluated candidates’ behavior in typical job tasks, “would have demonstrated less adverse impact.” CA2 App. A1039. But Hornick’s brief mention of alternative testing methods, standing alone, does not raise a genuine issue of material fact that assessment centers were available to the City at the time of the examinations and that they would have produced less adverse impact. Other statements to the CSB indicated that the Department could not have used assessment centers for the 2003 examinations. Supra, at 14. And although respondents later argued to the CSB that Hornick had pushed the City to reject the test results, supra , at 15–17, the truth is that the essence of Hornick’s remarks supported its certifying the test results. See Scott , 550 U. S., at 380. Hornick stated that adverse impact in standardized testing “has been in existence since the beginning of testing,” CA2 App. A1037, and that the disparity in New Haven’s test results was “somewhat higher but generally in the range that we’ve seen professionally.” Id. , at A1030–A1031. He told the CSB he was “not suggesting” that IOS “somehow created a test that had adverse impacts that it should not have had.” Id. , at A1038. And he suggested that the CSB should “certify the list as it exists.” Id. , at A1041.    Especially when it is noted that the strong-basis-in-evidence standard applies, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. And there is no doubt respondents fall short of the mark by relying entirely on isolated statements by Hornick. Hornick had not “stud[ied] the test at length or in detail.” Id. , at A1030. And as he told the CSB, he is a “direct competitor” of IOS’s. Id. , at A1029. The remainder of his remarks showed that Hornick’s primary concern—somewhat to the frustration of CSB members—was marketing his services for the future, not commenting on the results of the tests the City had already administered. See, e.g. , id. , at A1026, A1027, A1032, A1036, A1040, A1041. Hornick’s hinting had its intended effect: The City has since hired him as a consultant. As for the other outside witnesses who spoke to the CSB, Vincent Lewis (the retired fire captain) thought the CSB should certify the test results. And Janet Helms (the Boston College professor) declined to review the examinations and told the CSB that, as a society, “we need to develop a new way of assessing people.” Id. , at A1073. That task was beyond the reach of the CSB, which was concerned with the adequacy of the test results before it. 3    On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. *  *  *    The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair.    The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.    Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.    Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. SCALIA, J., CONCURRING RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS 07–1428 v. JOHN De STEFANO et al. FRANK RICCI, et al., PETITIONERS 08–328 v. JOHN De STEFANO et al. on writs of certiorari to the united states court of appeals for the second circuit [June 29, 2009]    Justice Scalia, concurring.    I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. See generally Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493 (2003).    The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. See ante , at 20–21. But if the Federal Government is prohibited from discriminating on the basis of race, Bolling v. Sharpe , 347 U. S. 497 , 500 (1954), then surely it is also prohibited from enacting laws mandating that third parties— e.g. , employers, whether private, State, or municipal—discriminate on the basis of race. See Buchanan v. Warley , 245 U. S. 60 , 78–82 (1917). As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory. See ante , at 19; Personnel Administrator of Mass. v. Feeney , 442 U. S. 256 , 279 (1979).    To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. Nor would it matter that Title VII requires consideration of race on a wholesale, rather than retail, level. “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson , 515 U. S. 900 , 911 (1995) (internal quotation marks omitted). And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 227 (1995).    It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination—to “smoke out,” as it were, disparate treatment. See Primus, supra , at 498–499, 520–521. Disparate impact is sometimes (though not always, see Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 992 (1988) (plurality opinion)) a signal of something illicit, so a regulator might allow statistical disparities to play some role in the evidentiary process. Cf. McDonnell Douglas Corp. v. Green , 411 U. S. 792 , 802–803 (1973). But arguably the disparate-impact provisions sweep too broadly to be fairly characterized in such a fashion—since they fail to provide an affirmative defense for good-faith ( i.e. , nonracially motivated) conduct, or perhaps even for good faith plus hiring standards that are entirely reasonable. See post , at 15–16, and n. 1 (Ginsburg, J., dissenting) (describing the demanding nature of the “business necessity” defense). This is a question that this Court will have to consider in due course. It is one thing to free plaintiffs from proving an employer’s illicit intent, but quite another to preclude the employer from proving that its motives were pure and its actions reasonable.    The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them. ALITO, J., CONCURRING RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS 07–1428 v. JOHN De STEFANO et al. FRANK RICCI, et al., PETITIONERS 08–328 v. JOHN De STEFANO et al. on writs of certiorari to the united states court of appeals for the second circuit [June 29, 2009]    Justice Alito, with whom Justice Scalia and Justice Thomas join, concurring.    I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of Ginsburg, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable. I    When an employer in a disparate-treatment case under Title VII of the Civil Rights Act of 1964 claims that an employment decision, such as the refusal to promote, was based on a legitimate reason, two questions—one objective and one subjective—must be decided. The first, objective question is whether the reason given by the employer is one that is legitimate under Title VII. See St. Mary’s Honor Center v. Hicks , 509 U. S. 502 , 506–507 (1993). If the reason provided by the employer is not legitimate on its face, the employer is liable. Id. , at 509. The second, subjective question concerns the employer’s intent. If an employer offers a facially legitimate reason for its decision but it turns out that this explanation was just a pretext for discrimination, the employer is again liable. See id. , at 510–512.    The question on which the opinion of the Court and the dissenting opinion disagree concerns the objective component of the determination that must be made when an employer justifies an employment decision, like the one made in this litigation, on the ground that a contrary decision would have created a risk of disparate-impact liability. The Court holds—and I entirely agree—that concern about disparate-impact liability is a legitimate reason for a decision of the type involved here only if there was a “substantial basis in evidence to find the tests inadequate.” Ante , at 26. The Court ably demonstrates that in this litigation no reasonable jury could find that the city of New Haven (City) possessed such evidence and therefore summary judgment for petitioners is required. Because the Court correctly holds that respondents cannot satisfy this objective component, the Court has no need to discuss the question of the respondents’ actual intent. As the Court puts it, “[e]ven if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, substantial basis in evidence to find the tests inadequate.” Ibid .    The dissent advocates a different objective component of the governing standard. According to the dissent, the objective component should be whether the evidence provided “good cause” for the decision, post , at 19, and the dissent argues—incorrectly, in my view—that no reasonable juror could fail to find that such evidence was present here. But even if the dissent were correct on this point, I assume that the dissent would not countenance summary judgment for respondents if respondents’ professed concern about disparate-impact litigation was simply a pretext. Therefore, the decision below, which sustained the entry of summary judgment for respondents, cannot be affirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test—concern about disparate-impact liability—was a pretext and that the City’s real reason was illegitimate, namely, the desire to placate a politically important racial constituency. II A    As initially described by the dissent, see post , at 2–12, the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative. But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam) .    This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “ ‘kingmaker.’ ” App. to Pet. for Cert. in No. 07–1428, p. 906a; see also id. , at 909a. On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” Id. , at 931a.    Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. See id. , at 126a, 907a. “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” Id. , at 126a. According to the Mayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.” Id. , at 908a (internal quotation marks and alteration omitted).    In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” Id. , at 127a; see also id. , at 928a–929a. In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “ ‘they just have too many vowels in their name[s].’ ” Thanawala, New Haven Fire Panel Chairman Steps Down Over Racial Slur, Hartford Courant, June 13, 2002, p. B2. After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–1428, at 929a, but he remained on the BFC and retained “a direct line to the mayor,” id. , at 816a.    Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’ ” Id. , at 221a, 812a. Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. Id. , at 815a–816a. As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor. Id. , at 229a. B    On January 12, 2004, Tina Burgett (the director of the City’s Department of Human Resources) sent an e-mail to Dubois-Walton to coordinate the City’s response to the test results. Burgett wanted to clarify that the City’s executive officials would meet “sans the Chief, and that once we had a better fix on the next steps we would meet with the Mayor (possibly) and then the two Chiefs.” Id. , at 446a. The “two Chiefs” are Fire Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American). Both chiefs believed that the test results should be certified. Id. , at 228a, 817a. Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.” Id. , at 228a.[ Footnote 1 ]    The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s corporate counsel. Id. , at 179a. “Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.” Ibid. But according to Legel, Dubois-Walton was “argumentative” and apparently had already made up her mind that the tests were “ ‘discriminatory.’ ” Id. , at 179a–180a. Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” Id. , at 181a. “Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.” Id. , at 180a.    On January 22, 2004, the Civil Service Board (CSB or Board) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times. See id. , at 187a, 467a–468a; see also App. in No. 06–4996–cv (CA2), pp. A703–A705. Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private. App. to Pet. for Cert. in No. 07–1428, at 188a.    Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, Burgett, and Ude. Id. , at 190a. The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results (but nevertheless wanted to conceal that fact from the public): “I wanted to make sure we are all on the same page for this meeting tomorrow… . [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.” Ibid. On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results: “I look at this [Board] tonight. I look at three whites and one Hispanic and no blacks… . I would hope that you would not put yourself in this type of position, a political ramification that may come back upon you as you sit on this [Board] and decide the future of a department and the future of those who are being promoted. .     .     .     .     . “(APPLAUSE).” Id. , at 492a (emphasis added). One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” Id. , at 496a. The offended CSB member eventually voted not to certify the test results. Id. , at 586a–587a.    One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. Id. , at 129a. After some firefighters applauded in support of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’ ” Id. , at 225a.    Tinney also has strong ties to the Mayor’s office. See, e.g. , id. , at 129a–130a, 816a–817a. After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Id. , at 830a–831a, 836a. Tinney alleged that the white firefighters had cheated on their exams—an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. Id. , at 837a–838a; see also App. 164 (statement of CSB Chairman, noting the allegations of cheating). The allegation turned out to be baseless. App. to Pet. for Cert. in No. 07–1428, at 836a.    Dubois-Walton never retracted the cheating allegation, but she and other executive officials testified several times before the CSB. In accordance with directions from the Mayor’s office to make the CSB meetings appear deliberative, see id. , at 190a, executive officials remained publicly uncommitted about certification—while simultaneously “work[ing] as a team” behind closed doors with the secretary of the CSB to devise a political message that would convince the CSB to vote against certification, see id. , at 447a. At the public CSB meeting on March 11, 2004, for example, Corporation Counsel Ude bristled at one board member’s suggestion that City officials were recommending against certifying the test results. See id. , at 215a (“Attorney Ude took offense, stating, ‘Frankly, because I would never make a recommendation—I would not have made a recommendation like that’ ”). But within days of making that public statement, Ude privately told other members of the Mayor’s team “the ONLY way we get to a decision not to certify is” to focus on something other than “a big discussion re: adverse impact” law. Id. , at 458a–459a.    As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr. Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” id. , at 549a; see also id. , at 203a, 553a, but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test. For example, Hornick “noted in the literature that [Burgett] sent that the test was not customized to the New Haven Fire Department.” Id. , at 551a. The Chairman of the CSB immediately corrected Hornick. Id. , at 552a (“Actually, it was, Dr. Hornick”). Hornick also relied on newspaper accounts—again, sent to him by Burgett—pertaining to the controversy surrounding the certification decision. See id. , at 204a, 557a. Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered, see id. , at 560a–561a, the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt] quoting him as a person that we should rely upon more than anybody else [to conclude that there] is a better way—a better mousetrap.”[ Footnote 2 ] App. in No. 06–4996–cv (CA2), at A1128. Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test. App. to Pet. for Cert. in No. 07–1428, at 854a; see also id. , at 562a–563a (Hornick’s plea for future business from the City on the basis of his criticisms of Legel’s tests).    At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test results— even if the CSB ultimately voted to certify them. Id. , at 819a–820a. Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative press releases. Id. , at 457a. The first would be issued if the CSB voted not to certify the test results; the second would be issued (and would explain the Mayor’s invocation of his executive authority) if the CSB voted to certify the test results. Id. , at 217a–218a, 590a–591a, 819a–820a. Half an hour after Dubois-Walton circulated the alternative drafts, Burgett replied: “[W]ell, that seems to say it all. Let’s hope draft #2 hits the shredder tomorrow nite.” Id. , at 457a.    Soon after the CSB voted against certification, Mayor DeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.” Id. , at 230a. C    Taking into account all the evidence in the summary judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuade the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency. It is noteworthy that the Solicitor General—whose position on the principal legal issue in this case is largely aligned with the dissent—concludes that “[n]either the district court nor the court of appeals … adequately considered whether, viewing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained whether respondents’ claimed purpose to comply with Title VII was a pretext for intentional racial discrimination … .” Brief for United States as Amicus Curiae 6; see also id., at 32–33. III    I will not comment at length on the dissent’s criticism of my analysis, but two points require a response.    The first concerns the dissent’s statement that I “equat[e] political considerations with unlawful discrimination.” Post , at 36. The dissent misrepresents my position: I draw no such equation. Of course “there are many ways in which a politician can attempt to win over a constituency—including a racial constituency—without engaging in unlawful discrimination.” Post , at 36–37. But—as I assume the dissent would agree—there are some things that a public official cannot do, and one of those is engaging in intentional racial discrimination when making employment decisions.    The second point concerns the dissent’s main argument—that efforts by the Mayor and his staff to scuttle the test results are irrelevant because the ultimate decision was made by the CSB. According to the dissent, “[t]he relevant decision was made by the CSB,” post , at 34, and there is “scant cause to suspect” that anything done by the opponents of certification, including the Mayor and his staff, “prevented the CSB from evenhandedly assessing the reliability of the exams and rendering an independent, good-faith decision on certification,” post , at 36.    Adoption of the dissent’s argument would implicitly decide an important question of Title VII law that this Court has never resolved—the circumstances in which an employer may be held liable based on the discriminatory intent of subordinate employees who influence but do not make the ultimate employment decision. There is a large body of court of appeals case law on this issue, and these cases disagree about the proper standard. See EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles , 450 F. 3d 476, 484–488 (CA10 2006) (citing cases and describing the approaches taken in different Circuits). One standard is whether the subordinate “exerted influenc[e] over the titular decisionmaker.” Russell v. McKinney Hosp. Venture , 235 F. 3d 219, 227 (CA5 2000); see also Poland v. Chertoff , 494 F. 3d 1174, 1182 (CA9 2007) (A subordinate’s bias is imputed to the employer where the subordinate “influenced or was involved in the decision or decisionmaking process”). Another is whether the discriminatory input “caused the adverse employment action.” See BCI Coca-Cola Bottling Co. of Los Angeles , supra , at 487.    In the present cases, a reasonable jury could certainly find that these standards were met. The dissent makes much of the fact that members of the CSB swore under oath that their votes were based on the good-faith belief that certification of the results would have violated federal law. See post , at 34. But the good faith of the CSB members would not preclude a finding that the presentations engineered by the Mayor and his staff influenced or caused the CSB decision.    The least employee-friendly standard asks only whether “the actual decisionmaker” acted with discriminatory intent, see Hill v. Lockheed Martin Logistics Management, Inc ., 354 F. 3d 277, 291 (CA4 2004) (en banc), and it is telling that, even under this standard, summary judgment for respondents would not be proper. This is so because a reasonable jury could certainly find that in New Haven, the Mayor—not the CSB—wielded the final decisionmaking power. After all, the Mayor claimed that authority and was poised to use it in the event that the CSB decided to accept the test results. See supra , at 9. If the Mayor had the authority to overrule a CSB decision accepting the test results, the Mayor also presumably had the authority to overrule the CSB’s decision rejecting the test results. In light of the Mayor’s conduct, it would be quite wrong to throw out petitioners’ case on the ground that the CSB was the ultimate decisionmaker. *  *  *    Petitioners are firefighters who seek only a fair chance to move up the ranks in their chosen profession. In order to qualify for promotion, they made personal sacrifices. Petitioner Frank Ricci, who is dyslexic, found it necessary to “hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials.” App. to Pet. for Cert. in No. 07–1428, at 169a. He “studied an average of eight to thirteen hours a day … , even listening to audio tapes while driving his car.” Ibid. Petitioner Benjamin Vargas, who is Hispanic, had to “give up a part-time job,” and his wife had to “take leave from her own job in order to take care of their three young children while Vargas studied.” Id. , at 176a. “Vargas devoted countless hours to study … , missed two of his children’s birthdays and over two weeks of vacation time,” and “incurred significant financial expense” during the three-month study period. Id. , at 176a–177a.    Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.    The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post , at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them. Footnote 1 Although the dissent disputes it, see post , at 33–34, n. 17, the record certainly permits the inference that petitioners’ allegation is true. See App. to Pet. for Cert. in No. 07–1428, pp. 846a–851a (deposition of Dubois-Walton). Footnote 2 The City’s heavy reliance on Hornick’s testimony makes the two chiefs’ silence all the more striking. See supra , at 5. While Hornick knew little or nothing about the tests he criticized, the two chiefs were involved “during the lengthy process that led to the devising of the administration of these exams,” App. to Pet. for Cert. in No. 07–1428, at 847a, including “collaborating with City officials on the extensive job analyses that were done,” “selection of the oral panelists,” and selection of “the proper content and subject matter of the exams,” id. , at 847a–848a. GINSBURG, J., DISSENTING RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS 07–1428 v. JOHN De STEFANO et al. FRANK RICCI, et al., PETITIONERS 08–328 v. JOHN De STEFANO et al. on writs of certiorari to the united states court of appeals for the second circuit [June 29, 2009]    Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.    In assessing claims of race discrimination, “[c]ontext matters.” Grutter v. Bollinger , 539 U. S. 306 , 327 (2003). In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.    The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante , at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante , at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.[ Footnote 1 ]    By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co. , 401 U. S. 424 (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power. I A    The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92–238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage. 118 Cong. Rec. 1817 (1972). Such flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment … greater … than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” Ibid . See also National Commission on Fire Prevention and Control, America Burning 5 (1973) (“Racial minorities are under-represented in the fire departments in nearly every community in which they live.”).    The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs , 66 F. R. D. 457, 460 (Conn. 1975).    Following a lawsuit and settlement agreement, see ibid. , the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American. See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed. B    By order of its charter, New Haven must use competitive examinations to fill vacancies in fire officer and other civil-service positions. Such examinations, the City’s civil service rules specify, “shall be practical in nature, shall relate to matters which fairly measure the relative fitness and capacity of the applicants to discharge the duties of the position which they seek, and shall take into account character, training, experience, physical and mental fitness.” Id ., at A331. The City may choose among a variety of testing methods, including written and oral exams and “[p]erformance tests to demonstrate skill and ability in performing actual work.” Id. , at A332.    New Haven, the record indicates, did not closely consider what sort of “practical” examination would “fairly measure the relative fitness and capacity of the applicants to discharge the duties” of a fire officer. Instead, the City simply adhered to the testing regime outlined in its two-decades-old contract with the local firefighters’ union: a written exam, which would account for 60 percent of an applicant’s total score, and an oral exam, which would account for the remaining 40 percent. Id., at A1045. In soliciting bids from exam development companies, New Haven made clear that it would entertain only “proposals that include a written component that will be weighted at 60%, and an oral component that will be weighted at 40%.” Id., at A342. Chad Legel, a representative of the winning bidder, Industrial/Organizational Solutions, Inc. (IOS), testified during his deposition that the City never asked whether alternative methods might better measure the qualities of a successful fire officer, including leadership skills and command presence. See id., at A522 (“I was under contract and had responsibility only to create the oral interview and the written exam.”).    Pursuant to New Haven’s specifications, IOS developed and administered the oral and written exams. The results showed significant racial disparities. On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. On the captain exam, both African-American and Hispanic candidates passed at about half the rate of their Caucasian counterparts. See App. 225–226. More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. The highest scoring African-American candidate ranked 13th; the top Hispanic candidate was 26th. As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans. The highest scoring African-American candidate ranked 15th. See id., at 218–219.    These stark disparities, the Court acknowledges, sufficed to state a prima facie case under Title VII’s disparate-impact provision. See ante , at 27 (“The pass rates of minorities . . . f[e]ll well below the 80-percent standard set by the [Equal Employment Opportunity Commission (EEOC)] to implement the disparate-impact provision of Title VII.”). New Haven thus had cause for concern about the prospect of Title VII litigation and liability. City officials referred the matter to the New Haven Civil Service Board (CSB), the entity responsible for certifying the results of employment exams.    Between January and March 2004, the CSB held five public meetings to consider the proper course. At the first meeting, New Haven’s Corporation Counsel, Thomas Ude, described the legal standard governing Title VII disparate-impact claims. Statistical imbalances alone, Ude correctly recognized, do not give rise to liability. Instead, presented with a disparity, an employer “has the opportunity and the burden of proving that the test is job-related and consistent with business necessity.” CA2 App. A724. A Title VII plaintiff may attempt to rebut an employer’s showing of job-relatedness and necessity by identifying alternative selection methods that would have been at least as valid but with “less of an adverse or disparate or discriminatory effect.” Ibid . See also id ., at A738. Accordingly, the CSB Commissioners understood, their principal task was to decide whether they were confident about the reliability of the exams: Had the exams fairly measured the qualities of a successful fire officer despite their disparate results? Might an alternative examination process have identified the most qualified candidates without creating such significant racial imbalances?    Seeking a range of input on these questions, the CSB heard from test takers, the test designer, subject-matter experts, City officials, union leaders, and community members. Several candidates for promotion, who did not yet know their exam results, spoke at the CSB’s first two meetings. Some candidates favored certification. The exams, they emphasized, had closely tracked the assigned study materials. Having invested substantial time and money to prepare themselves for the test, they felt it would be unfair to scrap the results. See, e.g. , id., at A772–A773, A785–A789.    Other firefighters had a different view. A number of the exam questions, they pointed out, were not germane to New Haven’s practices and procedures. See, e.g. , id., at A774–A784. At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were “first-generation firefighters” without such support networks. See id., at A857–A861, A886–A887.    A representative of the Northeast Region of the International Association of Black Professional Firefighters, Donald Day, also spoke at the second meeting. Statistical disparities, he told the CSB, had been present in the Department’s previous promotional exams. On earlier tests, however, a few minority candidates had fared well enough to earn promotions. Id., at A828. See also App. 218–219. Day contrasted New Haven’s experience with that of nearby Bridgeport, where minority firefighters held one-third of lieutenant and captain positions. Bridgeport, Day observed, had once used a testing process similar to New Haven’s, with a written exam accounting for 70 percent of an applicant’s score, an oral exam for 25 percent, and seniority for the remaining five percent. CA2 App. A830. Bridgeport recognized, however, that the oral component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job. Id., at A832. Accordingly, that city “changed the relative weights” to give primacy to the oral exam. Ibid . Since that time, Day reported, Bridgeport had seen minorities “fairly represented” in its exam results. Ibid .    The CSB’s third meeting featured IOS representative Legel, the leader of the team that had designed and administered the exams for New Haven. Several City officials also participated in the discussion. Legel described the exam development process in detail. The City, he recounted, had set the “parameters” for the exams, specifically, the requirement of written and oral components with a 60/40 weighting. Id., at A923, A974. For security reasons, Department officials had not been permitted to check the content of the questions prior to their administration. Instead, IOS retained a senior fire officer from Georgia to review the exams “for content and fidelity to the source material.” Id., at A936. Legel defended the exams as “facially neutral,” and stated that he “would stand by the[ir] validity.” Id., at A962. City officials did not dispute the neutrality of IOS’s work. But, they cautioned, even if individual exam questions had no intrinsic bias, the selection process as a whole may nevertheless have been deficient. The officials urged the CSB to consult with experts about the “larger picture.” Id., at A1012.    At its fourth meeting, CSB solicited the views of three individuals with testing-related expertise. Dr. Christopher Hornick, an industrial/organizational psychology consultant with 25 years’ experience with police and firefighter testing, described the exam results as having “relatively high adverse impact.” Id., at A1028. Most of the tests he had developed, Hornick stated, exhibited “significantly and dramatically less adverse impact.” Id., at A1029. Hornick downplayed the notion of “facial neutrality.” It was more important, he advised the CSB, to consider “the broader issue of how your procedures and your rules and the types of tests that you are using are contributing to the adverse impact.” Id., at A1038.    Specifically, Hornick questioned New Haven’s union-prompted 60/40 written/oral examination structure, noting the availability of “different types of testing procedures that are much more valid in terms of identifying the best potential supervisors in [the] fire department.” Id., at A1032. He suggested, for example, “an assessment center process, which is essentially an opportunity for candidates … to demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option on a written test.” Id., at A1039–A1040. Such selection processes, Hornick said, better “identif[y] the best possible people” and “demonstrate dramatically less adverse impacts.” Ibid . Hornick added: “I’ve spoken to at least 10,000, maybe 15,000 firefighters in group settings in my consulting practice and I have never one time ever had anyone in the fire service say to me, ‘Well, the person who answers—gets the highest score on a written job knowledge, multiple-guess test makes the best company officer.’ We know that it’s not as valid as other procedures that exist.” Id., at A1033. See also id., at A1042–A1043 (“I think a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way.”).    Hornick described the written test itself as “reasonably good,” id., at A1041, but he criticized the decision not to allow Department officials to check the content. According to Hornick, this “inevitably” led to “test[ing] for processes and procedures that don’t necessarily match up into the department.” Id., at A1034–A1035. He preferred “experts from within the department who have signed confidentiality agreements … to make sure that the terminology and equipment that’s being identified from standardized reading sources apply to the department.” Id., at A1035.    Asked whether he thought the City should certify the results, Hornick hedged: “There is adverse impact in the test. That will be identified in any proceeding that you have. You will have industrial psychology experts, if it goes to court, on both sides. And it will not be a pretty or comfortable position for anyone to be in.” Id., at A1040–A1041. Perhaps, he suggested, New Haven might certify the results but immediately begin exploring “alternative ways to deal with these issues” in the future. Id., at A1041.    The two other witnesses made relatively brief appearances. Vincent Lewis, a specialist with the Department of Homeland Security and former fire officer in Michigan, believed the exams had generally tested relevant material, although he noted a relatively heavy emphasis on questions pertaining to being an “apparatus driver.” He suggested that this may have disadvantaged test takers “who had not had the training or had not had an opportunity to drive the apparatus.” Id., at A1051. He also urged the CSB to consider whether candidates had, in fact, enjoyed equal access to the study materials. Ibid . Cf. supra , at 7.    Janet Helms, a professor of counseling psychology at Boston College, observed that two-thirds of the incumbent fire officers who submitted job analyses to IOS during the exam design phase were Caucasian. Members of different racial groups, Helms told the CSB, sometimes do their jobs in different ways, “often because the experiences that are open to white male firefighters are not open to members of these other under-represented groups.” CA2 App. A1063–A1064. The heavy reliance on job analyses from white firefighters, she suggested, may thus have introduced an element of bias. Id., at A1063.    The CSB’s fifth and final meeting began with statements from City officials recommending against certification. Ude, New Haven’s counsel, repeated the applicable disparate-impact standard: “[A] finding of adverse impact is the beginning, not the end, of a review of testing procedures. Where a procedure demonstrates adverse impact, you look to how closely it is related to the job that you’re looking to fill and you also look at whether there are other ways to test for those qualities, those traits, those positions that are equally valid with less adverse impact.” Id., at A1100–A1101. New Haven, Ude and other officials asserted, would be vulnerable to Title VII liability under this standard. Even if the exams were “facially neutral,” significant doubts had been raised about whether they properly assessed the key attributes of a successful fire officer. Id., at A1103. See also id ., at A1125 (“Upon close reading of the exams, the questions themselves would appear to test a candidate’s ability to memorize textbooks but not necessarily to identify solutions to real problems on the fire ground.”). Moreover, City officials reminded the CSB, Hornick and others had identified better, less discriminatory selection methods–such as assessment centers or exams with a more heavily weighted oral component. Id., at A1108–A1109, A1129–A1130.    After giving members of the public a final chance to weigh in, the CSB voted on certification, dividing 2 to 2. By rule, the result was noncertification. Voting no, Commissioner Webber stated, “I originally was going to vote to certify. … But I’ve heard enough testimony here to give me great doubts about the test itself and … some of the procedures. And I believe we can do better.” Id., at A1157. Commissioner Tirado likewise concluded that the “flawed” testing process counseled against certification. Id., at A1158. Chairman Segaloff and Commissioner Caplan voted to certify. According to Segaloff, the testimony had not “compelled [him] to say this exam was not job-related,” and he was unconvinced that alternative selection processes would be “less discriminatory.” Id., at A1159–A1160. Both Segalhoff and Caplan, however, urged the City to undertake civil service reform. Id., at A1150–A1154. C    Following the CSB’s vote, petitioners—17 white firefighters and one Hispanic firefighter, all of whom had high marks on the exams—filed suit in the United States District Court for the District of Connecticut. They named as defendants—respondents here—the City, several City officials, a local political activist, and the two CSB members who voted against certifying the results. By opposing certification, petitioners alleged, respondents had discriminated against them in violation of Title VII’s disparate-treatment provision and the Fourteenth Amendment’s Equal Protection Clause. The decision not to certify, respondents answered, was a lawful effort to comply with Title VII’s disparate-impact provision and thus could not have run afoul of Title VII’s prohibition of disparate treatment. Characterizing respondents’ stated rationale as a mere pretext, petitioners insisted that New Haven would have had a solid defense to any disparate-impact suit.    In a decision summarily affirmed by the Court of Appeals, the District Court granted summary judgment for respondents. 554 F. Supp. 2d 142 (Conn. 2006), aff’d, 530 F. 3d 87 (CA2 2008) (per curiam) . Under Second Circuit precedent, the District Court explained, “the intent to remedy the disparate impact” of a promotional exam “is not equivalent to an intent to discriminate against non-minority applicants.” 554 F. Supp. 2d, at 157 (quoting Hayden v. County of Nassau , 180 F. 3d 42, 51 (CA2 1999)). Rejecting petitioners’ pretext argument, the court observed that the exam results were sufficiently skewed “to make out a prima facie case of discrimination” under Title VII’s disparate-impact provision. 554 F. Supp. 2d, at 158. Had New Haven gone forward with certification and been sued by aggrieved minority test takers, the City would have been forced to defend tests that were presumptively invalid. And, as the CSB testimony of Hornick and others indicated, overcoming that presumption would have been no easy task. Id ., at 153–156. Given Title VII’s preference for voluntary compliance, the court held, New Haven could lawfully discard the disputed exams even if the City had not definitively “pinpoint[ed]” the source of the disparity and “ha[d] not yet formulated a better selection method.” Id ., at 156.    Respondents were no doubt conscious of race during their decisionmaking process, the court acknowledged, but this did not mean they had engaged in racially disparate treatment. The conclusion they had reached and the action thereupon taken were race-neutral in this sense: “[A]ll the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.” Id ., at 158. New Haven’s action, which gave no individual a preference, “was ‘simply not analogous to a quota system or a minority set-aside where candidates, on the basis of their race, are not treated uniformly.’ ” Id ., at 157 (quoting Hayden , 180 F. 3d, at 50). For these and other reasons, the court also rejected petitioners’ equal protection claim. II A    Title VII became effective in July 1965. Employers responded to the law by eliminating rules and practices that explicitly barred racial minorities from “white” jobs. But removing overtly race-based job classifications did not usher in genuinely equal opportunity. More subtle—and sometimes unconscious—forms of discrimination replaced once undisguised restrictions.    In Griggs v. Duke Power Co. , 401 U. S. 424 (1971), this Court responded to that reality and supplied important guidance on Title VII’s mission and scope. Congress, the landmark decision recognized, aimed beyond “disparate treatment”; it targeted “disparate impact” as well. Title VII’s original text, it was plain to the Court, “proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Id ., at 431.[ Footnote 2 ] Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a mere afterthought. Cf. ante , at 21. Griggs addressed Duke Power Company’s policy that applicants for positions, save in the company’s labor department, be high school graduates and score satisfactorily on two professionally prepared aptitude tests. “[T]here was no showing of a discriminatory purpose in the adoption of the diploma and test requirements.” 401 U. S., at 428. The policy, however, “operated to render ineligible a markedly disproportionate number of [African-Americans].” Id ., at 429. At the time of the litigation, in North Carolina, where the Duke Power plant was located, 34 percent of white males, but only 12 percent of African-American males, had high school diplomas. Id ., at 430, n. 6. African-Americans also failed the aptitude tests at a significantly higher rate than whites. Ibid . Neither requirement had been “shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” Id ., at 431.    The Court unanimously held that the company’s diploma and test requirements violated Title VII. “[T]o achieve equality of employment opportunities,” the Court comprehended, Congress “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Id ., at 429, 432. That meant “unnecessary barriers to employment” must fall, even if “neutral on their face” and “neutral in terms of intent.” Id ., at 430, 431. “The touchstone” for determining whether a test or qualification meets Title VII’s measure, the Court said, is not “good intent or the absence of discriminatory intent”; it is “business necessity.” Id ., at 431, 432. Matching procedure to substance, the Griggs Court observed, Congress “placed on the employer the burden of showing that any given requirement … ha[s] a manifest relationship to the employment in question.” Id ., at 432.    In Albemarle Paper Co. v. Moody , 422 U. S. 405 (1975), the Court, again without dissent, elaborated on Griggs . When an employment test “select[s] applicants for hire or promotion in a racial pattern significantly different from the pool of applicants,” the Court reiterated, the employer must demonstrate a “manifest relationship” between test and job. 422 U. S., at 425. Such a showing, the Court cautioned, does not necessarily mean the employer prevails: “[I]t remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” Ibid .    Federal trial and appellate courts applied Griggs and Albemarle to disallow a host of hiring and promotion practices that “operate[d] as ‘built in headwinds’ for minority groups.” Griggs , 401 U. S., at 432. Practices discriminatory in effect, courts repeatedly emphasized, could be maintained only upon an employer’s showing of “an overriding and compelling business purpose.” Chrisner v. Complete Auto Transit, Inc. , 645 F. 2d 1251, 1261, n. 9 (CA6 1981).[ Footnote 3 ] That a practice served “legitimate management functions” did not, it was generally understood, suffice to establish business necessity. Williams v. Colorado Springs, Colo., School Dist. , 641 F. 2d 835, 840–841 (CA10 1981) (internal quotation marks omitted). Among selection methods cast aside for lack of a “manifest relationship” to job performance were a number of written hiring and promotional examinations for firefighters.[ Footnote 4 ]    Moving in a different direction, in Wards Cove Packing Co. v. Atonio , 490 U. S. 642 (1989), a bare majority of this Court significantly modified the Griggs-Albemarle delineation of Title VII’s disparate-impact proscription. As to business necessity for a practice that disproportionately excludes members of minority groups, Wards Cove held, the employer bears only the burden of production, not the burden of persuasion. 490 U. S., at 659–660. And in place of the instruction that the challenged practice “must have a manifest relationship to the employment in question,” Griggs , 401 U. S., at 432, Wards Cove said that the practice would be permissible as long as it “serve[d], in a significant way, the legitimate employment goals of the employer.” 490 U. S., at 659.    In response to Wards Cove and “a number of [other] recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” Congress enacted the Civil Rights Act of 1991. H. R. Rep. No. 102–40, pt. 2, p. 2 (1991). Among the 1991 alterations, Congress formally codified the disparate-impact component of Title VII. In so amending the statute, Congress made plain its intention to restore “the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v. Duke Power Co. … and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio.” §3(2), 105 Stat. 1071. Once a complaining party demonstrates that an employment practice causes a disparate impact, amended Title VII states, the burden is on the employer “to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U. S. C. §2000e–2(k)(1)(A)(i). If the employer carries that substantial burden, the complainant may respond by identifying “an alternative employment practice” which the employer “refuses to adopt.” §2000e–2(k)(1)(A)(ii), (C). B     Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove ) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Cf. ante , at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity. See McDonnell Douglas Corp. v. Green , 411 U. S. 792 , 800 (1973).    Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”—something Title VII’s disparate-treatment provision, see §2000e–2(a)(1), generally forbids. Ante , at 20. This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking.    “[O]ur task in interpreting separate provisions of a single Act is to give the Act the most harmonious, comprehensive meaning possible in light of the legislative policy and purpose.” Weinberger v. Hynson, Westcott & Dunning, Inc. , 412 U. S. 609 , 631–632 (1973) (internal quotation marks omitted). A particular phrase need not “extend to the outer limits of its definitional possibilities” if an incongruity would result. Dolan v. Postal Service , 546 U. S. 481 , 486 (2006). Here, Title VII’s disparate-treatment and disparate-impact proscriptions must be read as complementary.    In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity.[ Footnote 5 ] In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Cf. Faragher v. Boca Raton , 524 U. S. 775 , 806 (1998) (observing that it accords with “clear statutory policy” for employers “to prevent violations” and “make reasonable efforts to discharge their duty” under Title VII).    EEOC’s interpretative guidelines are corroborative. “[B]y the enactment of title VII,” the guidelines state, “Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement.” 29 CFR §1608.1(a) (2008). Recognizing EEOC’s “enforcement responsibility” under Title VII, we have previously accorded the Commission’s position respectful consideration. See, e.g. , Albemarle , 422 U. S., at 431; Griggs , 401 U. S., at 434. Yet the Court today does not so much as mention EEOC’s counsel.    Our precedents defining the contours of Title VII’s disparate-treatment prohibition further confirm the absence of any intra-statutory discord. In Johnson v. Transportation Agency, Santa Clara Cty. , 480 U. S. 616 (1987), we upheld a municipal employer’s voluntary affirmative-action plan against a disparate-treatment challenge. Pursuant to the plan, the employer selected a woman for a road-dispatcher position, a job category traditionally regarded as “male.” A male applicant who had a slightly higher interview score brought suit under Title VII. This Court rejected his claim and approved the plan, which allowed consideration of gender as “one of numerous factors.” Id ., at 638. Such consideration, we said, is “fully consistent with Title VII” because plans of that order can aid “in eliminating the vestiges of discrimination in the workplace.” Id ., at 642.    This litigation does not involve affirmative action. But if the voluntary affirmative action at issue in Johnson does not discriminate within the meaning of Title VII, neither does an employer’s reasonable effort to comply with Title VII’s disparate-impact provision by refrain- ing from action of doubtful consistency with business necessity. C    To “reconcile” the supposed “conflict” between disparate treatment and disparate impact, the Court offers an enigmatic standard. Ante , at 20. Employers may attempt to comply with Title VII’s disparate-impact provision, the Court declares, only where there is a “strong basis in evidence” documenting the necessity of their action. Ante , at 22. The Court’s standard, drawn from inapposite equal protection precedents, is not elaborated. One is left to wonder what cases would meet the standard and why the Court is so sure this case does not. 1    In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney , 442 U. S. 256 , 272 (1979); Washington v. Davis , 426 U. S. 229 , 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, cf. ante , at 25; ante , p. 1 (Scalia, J., concurring), this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority … participation”—something this Court’s equal protection precedents also encourage. See Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 238 (1995) (quoting Richmond v. J. A. Croson Co. , 488 U. S. 469 , 507 (1989)). “The very radicalism of holding disparate impact doctrine unconstitutional as a matter of equal protection,” moreover, “suggests that only a very uncompromising court would issue such a decision.” Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493, 585 (2003).    The cases from which the Court draws its strong-basis-in-evidence standard are particularly inapt; they concern the constitutionality of absolute racial preferences. See Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 277 (1986) (plurality opinion) (invalidating a school district’s plan to lay off nonminority teachers while retaining minority teachers with less seniority); Croson , 488 U. S., at 499–500 (rejecting a set-aside program for minority contractors that operated as “an unyielding racial quota”). An employer’s effort to avoid Title VII liability by repudiating a suspect selection method scarcely resembles those cases. Race was not merely a relevant consideration in Wygant and Croson; it was the decisive factor. Observance of Title VII’s disparate-impact provision, in contrast, calls for no racial preference, absolute or otherwise. The very purpose of the provision is to ensure that individuals are hired and promoted based on qualifications manifestly necessary to successful performance of the job in question, qualifications that do not screen out members of any race.[ Footnote 6 ] 2    The Court’s decision in this litigation underplays a dominant Title VII theme. This Court has repeatedly emphasized that the statute “should not be read to thwart” efforts at voluntary compliance. Johnson , 480 U. S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” Firefighters v. Cleveland , 478 U. S. 501 , 515 (1986). See also Kolstad v. American Dental Assn. , 527 U. S. 526 , 545 (1999) (“Dissuading employers from [taking voluntary action] to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII.”); 29 CFR §1608.1(c). The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture.    As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was “not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.” Ante , at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself . Cf. ante , at 24. There is indeed a sharp conflict here, but it is not the false one the Court describes between Title VII’s core provisions. It is, instead, the discordance of the Court’s opinion with the voluntary compliance ideal. Cf. Wygant , 476 U. S., at 290 (O’Connor, J., concurring in part and concurring in judgment) (“The imposition of a requirement that public employers make findings that they have engaged in illegal discrimina- tion before they [act] would severely undermine public employers’ incentive to meet voluntarily their civil rights obligations.”).[ Footnote 7 ] 3    The Court’s additional justifications for announcing a strong-basis-in-evidence standard are unimpressive. First, discarding the results of tests, the Court suggests, calls for a heightened standard because it “upset[s] an employee’s legitimate expectation.” Ante , at 25. This rationale puts the cart before the horse. The legitimacy of an employee’s expectation depends on the legitimacy of the selection method. If an employer reasonably concludes that an exam fails to identify the most qualified individuals and needlessly shuts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, however unreliable it may be. Indeed, the statute’s prime objective is to prevent exclusionary practices from “operat[ing] to ‘freeze’ the status quo.” Griggs , 401 U. S., at 430.    Second, the Court suggests, anything less than a strong-basis-in-evidence standard risks creating “a de facto quota system, in which … an employer could discard test results … with the intent of obtaining the employer’s preferred racial balance.” Ante , at 22. Under a reasonableness standard, however, an employer could not cast aside a selection method based on a statistical disparity alone.[ Footnote 8 ] The employer must have good cause to believe that the method screens out qualified applicants and would be difficult to justify as grounded in business necessity. Should an employer repeatedly reject test results, it would be fair, I agree, to infer that the employer is simply seeking a racially balanced outcome and is not genuinely endeavoring to comply with Title VII. D    The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance. See, e.g. , Johnson v. California , 543 U. S. 499 , 515 (2005); Pullman-Standard v. Swint , 456 U. S. 273 , 291 (1982). I see no good reason why the Court fails to follow that course in this case. Indeed, the sole basis for the Court’s peremptory ruling is the demonstrably false pretension that respondents showed “nothing more” than “a significant statistical disparity.” Ante , at 27–28; see supra , at 24, n. 8. [ Footnote 9 ] III A Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.[ Footnote 10 ] The City, all agree, “was faced with a prima facie case of disparate-impact liability,” ante , at 27: The pass rate for minority candidates was half the rate for nonminority candidates, and virtually no minority candidates would have been eligible for promotion had the exam results been certified. Alerted to this stark disparity, the CSB heard expert and lay testimony, presented at public hearings, in an endeavor to ascertain whether the exams were fair and consistent with business necessity. Its investigation revealed grave cause for concern about the exam process itself and the City’s failure to consider alternative selection devices. Chief among the City’s problems was the very nature of the tests for promotion. In choosing to use written and oral exams with a 60/40 weighting, the City simply adhered to the union’s preference and apparently gave no consideration to whether the weighting was likely to identify the most qualified fire-officer candidates.[ Footnote 11 ] There is strong reason to think it was not. Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432. These qualities are not well measured by written tests. Testifying before the CSB, Christopher Hornick, an exam-design expert with more than two decades of relevant experience, was emphatic on this point: Leadership skills, command presence, and the like “could have been identified and evaluated in a much more appropriate way.” Id ., at A1042–A1043. Hornick’s commonsense observation is mirrored in case law and in Title VII’s administrative guidelines. Courts have long criticized written firefighter promotion exams for being “more probative of the test-taker’s ability to recall what a particular text stated on a given topic than of his firefighting or supervisory knowledge and abilities.” Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv. , 625 F. Supp. 527, 539 (NJ 1985). A fire officer’s job, courts have observed, “involves complex behaviors, good interpersonal skills, the ability to make decisions under tremendous pressure, and a host of other abilities—none of which is easily measured by a written, multiple choice test.” Firefighters Inst. for Racial Equality v. St. Louis , 616 F. 2d 350, 359 (CA8 1980).[ Footnote 12 ] Interpreting the Uniform Guidelines, EEOC and other federal agencies responsible for enforcing equal opportunity employment laws have similarly recognized that, as measures of “interpersonal relations” or “ability to function under danger ( e.g. , firefighters),” “[p]encil-and-paper tests … generally are not close enough approximations of work behaviors to show content validity.” 44 Fed. Reg. 12007 (1979). See also 29 CFR §1607.15(C)(4).[ Footnote 13 ] Given these unfavorable appraisals, it is unsurprising that most municipal employers do not evaluate their fire-officer candidates as New Haven does. Although comprehensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assessment centers (“simulations of the real world of work”) as part of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 (1996). That figure represented a marked increase over the previous decade, see ibid. , so the percentage today may well be even higher. Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Id ., at 309. Testimony before the CSB indicated that these alternative methods were both more reliable and notably less discriminatory in operation. According to Donald Day of the International Association of Black Professional Firefighters, nearby Bridgeport saw less skewed results after switching to a selection process that placed primary weight on an oral exam. CA2 App. A830–A832; see supra , at 7–8. And Hornick described assessment centers as “demonstrat[ing] dramatically less adverse impacts” than written exams. CA2 App. A1040.[ Footnote 14 ] Considering the prevalence of these proven alternatives, New Haven was poorly positioned to argue that promotions based on its outmoded and exclusionary selection process qualified as a business necessity. Cf. Robinson v. Lorillard Corp. , 444 F. 2d 791, 798, n. 7 (CA4 1971) (“It should go without saying that a practice is hardly ‘necessary’ if an alternative practice better effectuates its intended purpose or is equally effective but less discriminatory.”).[ Footnote 15 ] Ignoring the conceptual and other defects in New Haven’s selection process, the Court describes the exams as “painstaking[ly]” developed to test “relevant” material and on that basis finds no substantial risk of disparate-impact liability. See ante , at 28. Perhaps such reasoning would have sufficed under Wards Cove , which permitted exclusionary practices as long as they advanced an employer’s “legitimate” goals. 490 U. S., at 659. But Congress repudiated Wards Cove and reinstated the “business necessity” rule attended by a “manifest relationship” requirement. See Griggs , 401 U. S., at 431–432. See also supra , at 17. Like the chess player who tries to win by sweeping the opponent’s pieces off the table, the Court simply shuts from its sight the formidable obstacles New Haven would have faced in defending against a disparate-impact suit. See Lanning v. Southeastern Pa. Transp. Auth. , 181 F. 3d 478, 489 (CA3 1999) (“Judicial application of a standard focusing solely on whether the qualities measured by an … exam bear some relationship to the job in question would impermissibly write out the business necessity prong of the Act’s chosen standard.”). That IOS representative Chad Legel and his team may have been diligent in designing the exams says little about the exams’ suitability for selecting fire officers. IOS worked within the City’s constraints. Legel never discussed with the City the propriety of the 60/40 weighting and “was not asked to consider the possibility of an assessment center.” CA2 App. A522. See also id ., at A467. The IOS exams, Legel admitted, had not even attempted to assess “command presence”: “[Y]ou would probably be better off with an assessment center if you cared to measure that.” Id ., at A521. Cf. Boston Chapter, NAACP v. Beecher , 504 F. 2d 1017, 1021–1022 (CA1 1974) (“A test fashioned from materials pertaining to the job … superficially may seem job-related. But what is at issue is whether it demonstrably selects people who will perform better the required on-the-job behaviors.”). In addition to the highly questionable character of the exams and the neglect of available alternatives, the City had other reasons to worry about its vulnerability to disparate-impact liability. Under the City’s ground rules, IOS was not allowed to show the exams to anyone in the New Haven Fire Department prior to their administration. This “precluded [IOS] from being able to engage in [its] normal subject matter expert review process”—something Legel described as “very critical.” CA2 App. A477, A506. As a result, some of the exam questions were confusing or irrelevant, and the exams may have over-tested some subject-matter areas while missing others. See, e.g. , id ., at A1034–A1035, A1051. Testimony before the CSB also raised questions concerning unequal access to study materials, see id ., at A857–A861, and the potential bias introduced by relying principally on job analyses from nonminority fire officers to develop the exams, see id ., at A1063–A1064.[ Footnote 16 ] See also supra , at 7, 10. The Court criticizes New Haven for failing to obtain a “technical report” from IOS, which, the Court maintains, would have provided “detailed information to establish the validity of the exams.” Ante , at 29. The record does not substantiate this assertion. As Legel testified during his deposition, the technical report merely summarized “the steps that [IOS] took methodologically speaking,” and would not have established the exams’ reliability. CA2 App. A461. See also id ., at A462 (the report “doesn’t say anything that other documents that already existed wouldn’t say”). In sum, the record solidly establishes that the City had good cause to fear disparate-impact liability. Moreover, the Court supplies no tenable explanation why the evidence of the tests’ multiple deficiencies does not create at least a triable issue under a strong-basis-in-evidence standard. B Concurring in the Court’s opinion, Justice Alito asserts that summary judgment for respondents would be improper even if the City had good cause for its noncertification decision. A reasonable jury, he maintains, could have found that respondents were not actually motivated by concern about disparate-impact litigation, but instead sought only “to placate a politically important [African-American] constituency.” Ante , at 3. As earlier noted, I would not oppose a remand for further proceedings fair to both sides. See supra , at 26, n. 10. It is the Court that has chosen to short-circuit this litigation based on its pretension that the City has shown, and can show, nothing more than a statistical disparity. See supra , at 24, n. 8, 25. Justice Alito compounds the Court’s error. Offering a truncated synopsis of the many hours of deliberations undertaken by the CSB, Justice Alito finds evidence suggesting that respondents’ stated desire to comply with Title VII was insincere, a mere “pretext” for discrimination against white firefighters. Ante , at 2–3. In support of his assertion, Justice Alito recounts at length the alleged machinations of Rev. Boise Kimber (a local political activist), Mayor John DeStefano, and certain members of the mayor’s staff. See ante , at 3–10. Most of the allegations Justice Alito repeats are drawn from petitioners’ statement of facts they deem undisputed, a statement displaying an adversarial zeal not uncommonly found in such presentations.[ Footnote 17 ] What cannot credibly be denied, however, is that the decision against certification of the exams was made neither by Kimber nor by the mayor and his staff. The relevant decision was made by the CSB, an unelected, politically insulated body. It is striking that Justice Alito’s concurrence says hardly a word about the CSB itself, perhaps because there is scant evidence that its motivation was anything other than to comply with Title VII’s disparate-impact provision. Notably, petitioners did not even seek to take depositions of the two commissioners who voted against certification. Both submitted uncontested affidavits declaring unequivocally that their votes were “based solely on [their] good faith belief that certification” would have discriminated against minority candidates in violation of federal law. CA2 App. A1605, A1611. Justice Alito discounts these sworn statements, suggesting that the CSB’s deliberations were tainted by the preferences of Kimber and City officials, whether or not the CSB itself was aware of the taint. Kimber and City officials, Justice Alito speculates, decided early on to oppose certification and then “engineered” a skewed presentation to the CSB to achieve their preferred outcome. Ante , at 12. As an initial matter, Justice Alito exaggerates the influence of these actors. The CSB, the record reveals, designed and conducted an inclusive decisionmaking process, in which it heard from numerous individuals on both sides of the certification question. See, e.g. , CA2 App. A1090. Kimber and others no doubt used strong words to urge the CSB not to certify the exam results, but the CSB received “pressure” from supporters of certification as well as opponents. Cf. ante , at 6. Petitioners, for example, engaged counsel to speak on their behalf before the CSB. Their counsel did not mince words: “[I]f you discard these results,” she warned, “you will get sued. You will force the taxpayers of the city of New Haven into protracted litigation.” CA2 App. A816. See also id ., at A788. The local firefighters union—an organization required by law to represent all the City’s firefighters—was similarly outspoken in favor of certification. Discarding the test results, the union’s president told the CSB, would be “totally ridiculous.” Id. , at A806. He insisted, inaccurately, that the City was not at risk of disparate-impact liability because the exams were administered pursuant to “a collective bargaining agreement.” Id ., at A1137. Cf. supra , at 26–27, n. 11. Never mentioned by Justice Alito in his attempt to show testing expert Christopher Hornick’s alliance with the City, ante , at 8–9, the CSB solicited Hornick’s testimony at the union’s suggestion, not the City’s. CA2 App. A1128. Hornick’s cogent testimony raised substantial doubts about the exams’ reliability. See supra , at 8–10.[ Footnote 18 ] There is scant cause to suspect that maneuvering or overheated rhetoric, from either side, prevented the CSB from evenhandedly assessing the reliability of the exams and rendering an independent, good-faith decision on certification. Justice Alito acknowledges that the CSB had little patience for Kimber’s antics. Ante , at 6–7.[ Footnote 19 ] As to petitioners, Chairman Segaloff—who voted to certify the exam results—dismissed the threats made by their counsel as unhelpful and needlessly “inflammatory.” CA2 App. A821. Regarding the views expressed by City officials, the CSB made clear that they were entitled to no special weight. Id. , at A1080.[ Footnote 20 ] In any event, Justice Alito’s analysis contains a more fundamental flaw: It equates political considerations with unlawful discrimination. As Justice Alito sees it, if the mayor and his staff were motivated by their desire “to placate a … racial constituency,” ante , at 3, then they engaged in unlawful discrimination against petitioners. But Justice Alito fails to ask a vital question: “[P]lacate” how? That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency—including a racial constituency—without engaging in unlawful discrimination. As courts have recognized, “[p]oliticians routinely respond to bad press … , but it is not a violation of Title VII to take advantage of a situation to gain political favor.” Henry v. Jones , 507 F. 3d 558, 567 (CA7 2007). The real issue, then, is not whether the mayor and his staff were politically motivated; it is whether their attempt to score political points was legitimate ( i.e. , nondiscriminatory). Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. Justice Alito, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate-impact liability qualifies as a presumptively improper race-based employment decision. See ante , at 2. I reject that construction of Title VII. See supra , at 18–20. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment. Applying this understanding of Title VII, supported by Griggs and the long line of decisions following Griggs , see supra , at 16–17, and nn. 3–4, the District Court found no genuine dispute of material fact. That court noted, particularly, the guidance furnished by Second Circuit precedent. See supra , at 12. Petitioners’ allegations that City officials took account of politics, the District Court determined, simply “d[id] not suffice” to create an inference of unlawful discrimination. 554 F. Supp. 2d, at 160, n. 12. The noncertification decision, even if undertaken “in a political context,” reflected a legitimate “intent not to implement a promotional process based on testing results that had an adverse impact.” Id ., at 158, 160. Indeed, the District Court perceived “a total absence of any evidence of discriminatory animus towards [petitioners].” Id ., at 158. See also id. , at 162 (“Nothing in the record in this case suggests that the City defendants or CSB acted ‘because of’ discriminatory animus toward [petitioners] or other non-minority applicants for promotion.”). Perhaps the District Court could have been more expansive in its discussion of these issues, but its conclusions appear entirely consistent with the record before it.[ Footnote 21 ] It is indeed regrettable that the City’s noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Griggs that groups long denied equal opportunity would not be held back by tests “fair in form, but discriminatory in operation.” 401 U. S., at 431. *  *  * This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.” See ante , at 27–28. Footnote 1 Never mind the flawed tests New Haven used and the better selection methods used elsewhere, Justice Alito’s concurring opinion urges. Overriding all else, racial politics, fired up by a strident African-American pastor, were at work in New Haven. See ante , at 4–9. Even a detached and disinterested observer, however, would have every reason to ask: Why did such racially skewed results occur in New Haven, when better tests likely would have produced less disproportionate results? Footnote 2 The Court’s disparate-impact analysis rested on two provisions of Title VII: §703(a)(2), which made it unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin”; and §703(h), which permitted employers “to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.” Griggs v. Duke Power Co. , 401 U. S. 424 , 426, n. 1 (1971) (quoting 78 Stat. 255, 42 U. S. C. §2000e–2(a)(2), (h) (1964 ed.)). See also 401 U. S., at 433–436 (explaining that §703(h) authorizes only tests that are “demonstrably a reasonable measure of job performance”). Footnote 3 See also Dothard v. Rawlinson , 433 U. S. 321 , 332, n. 14 (1977) (“a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge”); Williams v. Colorado Springs, Colo., School Dist., 641 F. 2d 835, 840–841 (CA10 1981) (“The term ‘necessity’ connotes that the exclusionary practice must be shown to be of great importance to job performance.”); Kirby v. Colony Furniture Co. , 613 F. 2d 696, 705, n. 6 (CA8 1980) (“the proper standard for determining whether ‘business necessity’ justifies a practice which has a racially discriminatory result is not whether it is justified by routine business considerations but whether there is a compelling need for the employer to maintain that practice and whether the employer can prove there is no alternative to the challenged practice”); Pettway v. American Cast Iron Pipe Co. , 494 F. 2d 211, 244, n. 87 (CA5 1974) (“this doctrine of business necessity … connotes an irresistible demand” (internal quotation marks omitted)); United States v. Bethlehem Steel Corp. , 446 F. 2d 652, 662 (CA2 1971) (an exclusionary practice “must not only directly foster safety and efficiency of a plant, but also be essential to those goals”); Robinson v. Lorillard Corp. , 444 F. 2d 791, 798 (CA4 1971) (“The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.”). Footnote 4 See, e.g. , Nash v. Jacksonville , 837 F. 2d 1534 (CA11 1988), vacated, 490 U. S. 1103 (1989), opinion reinstated, 905 F. 2d 355 (CA11 1990); Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv. , 832 F. 2d 811 (CA3 (1987); Guardians Assn. of N. Y. City Police Dept. v. Civil Serv. Comm’n , 630 F. 2d 79 (CA2 1980); Ensley Branch of NAACP v. Seibels , 616 F. 2d 812 (CA5 1980); Firefighters Inst. for Racial Equality v. St. Louis , 616 F. 2d 350 (CA8 1980); Boston Chapter, NAACP v. Beecher , 504 F. 2d 1017 (CA1 1974). Footnote 5 What was the “business necessity” for the tests New Haven used? How could one justify, e.g. , the 60/40 written/oral ratio, see supra , at 4–5, 7–8, under that standard? Neither the Court nor the concurring opinions attempt to defend the ratio. Footnote 6 Even in Title VII cases involving race-conscious (or gender-conscious) affirmative-action plans, the Court has never proposed a strong-basis-in-evidence standard. In Johnson v. Transportation Agency, Santa Clara Cty. , 480 U. S. 616 (1987), the Court simply examined the municipal employer’s action for reasonableness: “Given the obvious imbalance in the Skilled Craft category, and given the Agency’s commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency … to consider as one factor the sex of [applicants] in making its decision.” Id ., at 637. See also Firefighters v. Cleveland , 478 U. S. 501 , 516 (1986) (“Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action.”). Footnote 7 Notably, prior decisions applying a strong-basis-in-evidence standard have not imposed a burden as heavy as the one the Court imposes today. In Croson , the Court found no strong basis in evidence because the City had offered “nothing approaching a prima facie case.” Richmond v. J. A. Croson Co. , 488 U. S. 469 , 500 (1989). The Court did not suggest that anything beyond a prima facie case would have been required. In the context of race-based electoral districting, the Court has indicated that a “strong basis” exists when the “threshold conditions” for liability are present. Bush v. Vera , 517 U. S. 952 , 978 (1996) (plurality opinion). Footnote 8 Infecting the Court’s entire analysis is its insistence that the City rejected the test results “in sole reliance upon race-based statistics.” Ante , at 24. See also ante , at 20, 27–28. But as the part of the story the Court leaves out, see supra , at 2–12, so plainly shows—the long history of rank discrimination against African-Americans in the firefighting profession, the multiple flaws in New Haven’s test for promotions—“sole reliance” on statistics certainly is not descriptive of the CSB’s decision. Footnote 9 The Court’s refusal to remand for further proceedings also deprives respondents of an opportunity to invoke 42 U. S. C. §2000e–12(b) as a shield to liability. Section 2000e–12(b) provides: “In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the [EEOC] … . Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect … .” Specifically, given the chance, respondents might have called attention to the EEOC guidelines set out in 29 CFR §§1608.3 and 1608.4 (2008). The guidelines recognize that employers may “take affirmative action based on an analysis which reveals facts constituting actual or potential adverse impact.” §1608.3(a). If “affirmative action” is in order, so is the lesser step of discarding a dubious selection device. Footnote 10 The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party. Footnote 11 This alone would have posed a substantial problem for New Haven in a disparate-impact suit, particularly in light of the disparate results the City’s scheme had produced in the past. See supra , at 7. Under the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines), employers must conduct “an investigation of suitable alternative selection procedures.” 29 CFR §1607.3(B). See also Officers for Justice v. Civil Serv. Comm’n , 979 F. 2d 721, 728 (CA9 1992) (“before utilizing a procedure that has an adverse impact on minorities, the City has an obligation pursuant to the Uniform Guidelines to explore alternative procedures and to implement them if they have less adverse impact and are substantially equally valid”). It is no answer to “presume” that the two-decades-old 60/40 formula was adopted for a “rational reason” because it “was the result of a union-negotiated collective bargaining agreement.” Cf. ante , at 30. That the parties may have been “rational” says nothing about whether their agreed-upon selection process was consistent with business necessity. It is not at all unusual for agreements negotiated between employers and unions to run afoul of Title VII. See, e.g. , Peters v. Missouri-Pacific R. Co. , 483 F. 2d 490, 497 (CA5 1973) (an employment practice “is not shielded [from the requirements of Title VII] by the facts that it is the product of collective bargaining and meets the standards of fair representation”). Footnote 12 See also Nash , 837 F. 2d, at 1538 (“the examination did not test the one aspect of job performance that differentiated the job of firefighter engineer from fire lieutenant (combat): supervisory skills”); Firefighters Inst. for Racial Equality v. St. Louis , 549 F. 2d 506, 512 (CA8 1977) (“there is no good pen and paper test for evaluating supervisory skills”); Boston Chapter, NAACP , 504 F. 2d, at 1023 (“[T]here is a difference between memorizing … fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch or catch.”). Footnote 13 Cf. Gillespie v. Wisconsin , 771 F. 2d 1035, 1043 (CA7 1985) (courts must evaluate “the degree to which the nature of the examination procedure approximates the job conditions”). In addition to “content validity,” the Uniform Guidelines discuss “construct validity” and “criterion validity” as means by which an employer might establish the reliability of a selection method. See 29 CFR §1607.14(B)–(D). Content validity, however, is the only type of validity addressed by the parties and “the only feasible type of validation in these circumstances.” Brief for Industrial-Organizational Psychologists as Amicus Curiae 7, n. 2 (hereinafter I-O Psychologists Brief). Footnote 14 See also G. Thornton & D. Rupp, Assessment Centers in Human Resource Management 15 (2006) (“Assessment centers predict future success, do not cause adverse impact, and are seen as fair by participants.”); W. Cascio & H. Aguinis, Applied Psychology in Human Resource Management 372 (6th ed. 2005) (“research has demonstrated that adverse impact is less of a problem in an [assessment center] as compared to an aptitude test”). Cf. Firefighters Inst. for Racial Equality , 549 F. 2d, at 513 (recommending assessment centers as an alternative to written exams). Footnote 15 Finding the evidence concerning these alternatives insufficiently developed to “create a genuine issue of fact,” ante , at 32, the Court effectively confirms that an employer cannot prevail under its strong-basis-in-evidence standard unless the employer decisively proves a disparate-impact violation against itself. The Court’s specific arguments are unavailing. First, the Court suggests, changing the oral/written weighting may have violated Title VII’s prohibition on altering test scores. Ante , at 31. No one is arguing, however, that the results of the exams given should have been altered. Rather, the argument is that the City could have availed itself of a better option when it initially decided what selection process to use. Second, with respect to assessment centers, the Court identifies “statements to the CSB indicat[ing] that the Department could not have used [them] for the 2003 examinations.” Ante , at 31–32. The Court comes up with only a single statement on this subject—an offhand remark made by petitioner Ricci, who hardly qualifies as an expert in testing methods. See ante , at 14. Given the large number of municipalities that regularly use assessment centers, it is impossible to fathom why the City, with proper planning, could not have done so as well. Footnote 16 The I-O Psychologists Brief identifies still other, more technical flaws in the exams that may well have precluded the City from prevailing in a disparate-impact suit. Notably, the exams were never shown to be suitably precise to allow strict rank ordering of candidates. A difference of one or two points on a multiple-choice exam should not be decisive of an applicant’s promotion chances if that difference bears little relationship to the applicant’s qualifications for the job. Relatedly, it appears that the line between a passing and failing score did not accurately differentiate between qualified and unqualified candidates. A number of fire-officer promotional exams have been invalidated on these bases. See, e.g. , Guardians Assn. , 630 F. 2d, at 105 (“When a cutoff score unrelated to job performance produces disparate racial results, Title VII is violated.”); Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv. , 625 F. Supp. 527, 538 (NJ 1985) (“[T]he tests here at issue are not appropriate for ranking candidates.”). Footnote 17 Some of petitioners’ so-called facts find little support in the record, and many others can scarcely be deemed material. Petitioners allege, for example, that City officials prevented New Haven’s fire chief and assistant chief from sharing their views about the exams with the CSB. App. to Pet. for Cert. in No. 07–1428, p. 228a. None of the materials petitioners cite, however, “suggests” that this proposition is accurate. Cf. ante , at 5. In her deposition testimony, City official Karen Dubois-Walton specifically denied that she or her colleagues directed the chief and assistant chief not to appear. App. to Pet. for Cert. in No. 07–1428, p. 850a. Moreover, contrary to the insinuations of petitioners and Justice Alito, the statements made by City officials before the CSB did not emphasize allegations of cheating by test takers. Cf. ante , at 7–8. In her deposition, Dubois-Walton acknowledged sharing the cheating allegations not with the CSB, but with a different City commission. App. to Pet. for Cert. in No. 07–1428, p. 837a. Justice Alito also reports that the City’s attorney advised the mayor’s team that the way to convince the CSB not to certify was “to focus on something other than ‘a big discussion re: adverse impact’ law.” Ante , at 8 (quoting App. to Pet. for Cert. in No. 07–1428, p. 458a). This is a misleading abbreviation of the attorney’s advice. Focusing on the exams’ defects and on disparate-impact law is precisely what he recommended. See id ., at 458a–459a. Footnote 18 City officials, Justice Alito reports, sent Hornick newspaper accounts and other material about the exams prior to his testimony. Ante , at 8. Some of these materials, Justice Alito intimates, may have given Hornick an inaccurate portrait of the exams. But Hornick’s testimony before the CSB, viewed in full, indicates that Hornick had an accurate understanding of the exam process. Much of Hornick’s analysis focused on the 60/40 weighting of the written and oral exams, something that neither the Court nor the concurrences even attempt to defend. It is, moreover, entirely misleading to say that the City later hired union-proposed Hornick as a “rewar[d]” for his testimony. Cf. Ante , at 9. Footnote 19 To be clear, the Board of Fire Commissioners on which Kimber served is an entity separate from the CSB. Kimber was not a member of the CSB. Kimber, Justice Alito states, requested a private meeting with the CSB. Ante , at 6. There is not a shred of evidence that a private meeting with Kimber or anyone else took place. Footnote 20 Justice Alito points to evidence that the mayor had decided not to make promotions based on the exams even if the CSB voted to certify the results, going so far as to prepare a press release to that effect. Ante , at 9. If anything, this evidence reinforces the conclusion that the CSB—which made the noncertification decision—remained independent and above the political fray. The mayor and his staff needed a contingency plan precisely because they did not control the CSB. Footnote 21 The District Court, Justice Alito writes, “all but conceded that a jury could find that the City’s asserted justification was pretextual” by “admitt[ing] that ‘a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.’ ” Ante , at 3, 13 (quoting 554 F. Supp. 2d, at 162). The District Court drew the quoted passage from petitioners’ lower court brief, and used it in reference to a First Amendment claim not before this Court. In any event, it is not apparent why these alleged political maneuvers suggest an intent to discriminate against petitioners. That City officials may have wanted to please political supporters is entirely consistent with their stated desire to avoid a disparate-impact violation. Cf. Ashcroft v. Iqbal , 556 U. S. ___, ___ (2009) (slip op., at 18) (allegations that senior Government officials condoned the arrest and detention of thousands of Arab Muslim men following the September 11 attacks failed to establish even a “plausible inference” of unlawful discrimination sufficient to survive a motion to dismiss).

In Ricci v. DeStefano, the Supreme Court ruled that New Haven's decision to discard the results of a promotional exam for firefighters due to concerns about racial disparities was a violation of Title VII of the Civil Rights Act. The Court found that the city's actions constituted intentional discrimination against white and Hispanic firefighters who had performed well on the exam. The Court held that while avoiding disparate impact is a legitimate goal, it does not justify discarding the results of a fairly administered exam.

Labor & Employment

Meacham v. Knolls Atomic Power Laboratory

https://supreme.justia.com/cases/federal/us/554/84/

OPINION OF THE COURT MEACHAM V. KNOLLS ATOMIC POWER LABORATORY 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-1505 CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [June 19, 2008]    Justice Souter delivered the opinion of the Court.    A provision of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. , creates an exemption for employer actions “otherwise prohibited” by the ADEA but “based on reasonable factors other than age” (RFOA). §623(f)(1). The question is whether an employer facing a disparate-impact claim and planning to defend on the basis of RFOA must not only produce evidence raising the defense, but also persuade the factfinder of its merit. We hold that the employer must do both. I    The National Government pays private companies to do some of the work maintaining the Nation’s fleet of nuclear-powered warships. One such contractor is respondent KAPL, Inc. (Knolls), the operator of the Government’s Knolls Atomic Power Laboratory, which has a history dating back to the first nuclear-powered submarines in the 1940s and 1950s. The United States Navy and the Department of Energy jointly fund Knolls’s operations, decide what projects it should pursue, and set its annual staffing limits. In recent years, Knolls has been charged with designing prototype naval nuclear reactors and with training Navy personnel to run them. The demands for naval nuclear reactors changed with the end of the Cold War, and for fiscal year 1996 Knolls was ordered to reduce its work force. Even after a hundred or so employees chose to take the company’s ensuing buyout offer, Knolls was left with thirty-some jobs to cut.[ Footnote 1 ] Petitioners (Meacham, for short) are among those laid off in the resulting “involuntary reduction in force.” In order to select those for layoff, Knolls told its managers to score their subordinates on three scales, “performance,” “flexibility,” and “critical skills.”[ Footnote 2 ] The scores were summed, along with points for years of service, and the totals determined who should be let go. Of the 31 salaried employees laid off, 30 were at least 40 years old.[ Footnote 3 ] Twenty-eight of them sued, raising both disparate-treatment (discriminatory intent) and disparate-impact (discriminatory result) claims under the ADEA and state law, alleging that Knolls “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees.” Meacham v. Knolls Atomic Power Laboratory , 381 F. 3d 56, 61 (CA2 2004) (Meacham I) . To show a disparate impact, the workers relied on a statistical expert’s testimony to the effect that results so skewed according to age could rarely occur by chance;[ Footnote 4 ] and that the scores for “flexibility” and “criticality,” over which managers had the most discretionary judgment, had the firmest statistical ties to the outcomes. Id. , at 65. The jury found for Meacham on the disparate-impact claim (but not on the disparate-treatment claim). The Court of Appeals affirmed, after examining the verdict through the lens of the so-called “burden shifting” scheme of inference spelled out in Wards Cove Packing Co. v. Atonio , 490 U. S. 642 (1989). See Meacham I , supra, at 74–76.[ Footnote 5 ] After Knolls sought certiorari, we vacated the judgment and remanded for further proceedings in light of Smith v. City of Jackson , 544 U. S. 228 (2005) , decided while Knolls’s petition was pending. See 544 U. S. 957 (2005). On remand, the same Court of Appeals panel ruled in favor of Knolls, over a dissent. 461 F. 3d 134 (CA2 2006) (case below) (Meacham II) . The majority found its prior ruling “untenable” because it had applied the Wards Cove “business necessity” standard rather than a “reasonableness” test, contrary to City of Jackson ; and on the latter standard, Meacham, the employee, had not carried the burden of persuasion. 461 F.3d, at 140–141, 144.[ Footnote 6 ] In dissent, Judge Pooler took issue with the majority for confusing business justifications under Wards Cove with the statutory RFOA exemption, which she read to be an affirmative defense with the burden of persuasion falling on defendants. 461 F.3d, at 147, 149–152.[ Footnote 7 ] Meacham sought certiorari, noting conflicting decisions assigning the burden of persuasion on the reasonableness of the factor other than age; the Court of Appeals in this case placed it on the employee (to show the non-age factor unreasonable), but the Ninth Circuit in Criswell v. Western Airlines, Inc. , 709 F. 2d 544, 552 (1983), had assigned it to the employer (to show the factor was a reasonable one). In fact it was in Criswell that we first took up this question, only to find it not well posed in that case. Western Air Lines, Inc. v. Criswell , 472 U. S. 400 , 408, n. 10 (1985). We granted certiorari, 552 U. S. ___ (2007), and now vacate the judgment of the Second Circuit and remand.[ Footnote 8 ] II A The ADEA’s general prohibitions against age discrimination, 29 U. S. C. §§623(a)–(c), (e), are subject to a separate provision, §623(f), creating exemptions for employer practices “otherwise prohibited under subsections (a), (b), (c), or (e).” The RFOA exemption is listed in §623(f) alongside one for bona fide occupational qualifications (BFOQ): “It shall not be unlawful for an employer … to take any action otherwise prohibited under subsections (a), (b), (c), or (e) … where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age … .” §623(f)(1). Given how the statute reads, with exemptions laid out apart from the prohibitions (and expressly referring to the prohibited conduct as such), it is no surprise that we have already spoken of the BFOQ and RFOA provisions as being among the ADEA’s “five affirmative defenses,” Trans World Airlines, Inc. v. Thurston , 469 U. S. 111 , 122 (1985). After looking at the statutory text, most lawyers would accept that characterization as a matter of course, thanks to the familiar principle that “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it.” Javierre v. Central Altagracia , 217 U. S. 502 , 508 (1910) (opinion for the Court by Holmes, J.); see also FTC v. Morton Salt Co ., 334 U. S. 37 , 44–45 (1948) (“[T]he burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits …”); United States v. First City Nat. Bank of Houston , 386 U. S. 361 , 366 (1967) (citing Morton Salt , supra , at 44–45). That longstanding convention is part of the backdrop against which the Congress writes laws, and we respect it unless we have compelling reasons to think that Congress meant to put the burden of persuasion on the other side. See Schaffer v. Weast , 546 U. S. 49 , 57–58 (2005) (“Absent some reason to believe that Congress intended otherwise, therefore, we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief”). We have never been given any reason for a heterodox take on the RFOA clause’s nearest neighbor, and our prior cases recognize that the BFOQ clause establishes an affirmative defense against claims of disparate treatment. See, e.g. , City of Jackson , supra , at 233, n. 3; Western Air Lines, Inc. , supra , at 414–419, and nn. 24, 29. We have likewise given the affirmative defense construction to the exemption in the Equal Pay Act of 1963 for pay differentials based on “any other factor other than sex,” Corning Glass Works v. Brennan , 417 U. S. 188 , 196 (1974) (internal quotation marks omitted); and there, we took account of the particular weight given to the interpretive convention already noted, when enforcing the Fair Labor Standards Act of 1938 (FLSA), id. , at 196–197 (“[T]he general rule [is] that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof”). This focus makes the principle of construction the more instructive in ADEA cases: “[i]n enacting the ADEA, Congress exhibited both a detailed knowledge of the FLSA provisions and their judicial interpretation and a willingness to depart from those provisions regarded as undesirable or inappropriate for incorporation,” Lorillard v. Pons , 434 U. S. 575 , 581 (1978). And we have remarked and relied on the “significant indication of Congress’ intent in its directive that the ADEA be enforced in accordance with the ‘powers, remedies, and procedures’ of the FLSA.” Id. , at 580 (quoting 29 U. S. C. §626(b); emphasis deleted); see also Fogerty v. Fantasy, Inc. , 510 U. S. 517 , 528 (1994) (applying reasoning of Lorillard ); Thurston , supra , at 126 (same). As against this interpretive background, there is no hint in the text that Congress meant §623(f)(1) to march out of step with either the general or specifically FLSA default rules placing the burden of proving an exemption on the party claiming it. With these principles and prior cases in mind, we find it impossible to look at the text and structure of the ADEA and imagine that the RFOA clause works differently from the BFOQ clause next to it. Both exempt otherwise illegal conduct by reference to a further item of proof, thereby creating a defense for which the burden of persuasion falls on the “one who claims its benefits,” Morton Salt Co. , supra , at 44–45, the “party seeking relief,” Schaffer , supra , at 57–58, and here, “the employer,” Corning Glass Works , supra , at 196. If there were any doubt, the stress of the idiom “otherwise prohibited,” prefacing the BFOQ and RFOA conditions, would dispel it.[ Footnote 9 ] The implication of affirmative defense is underscored by contrasting §623(f)(1) with the section of the ADEA at issue in Public Employees Retirement System of Ohio v. Betts , 492 U. S. 158 (1989), and by the way Congress responded to our decision there. In Betts , we said the issue was whether a provision in a former version of §623(f)(2), one about employee benefit plans, merely “redefine[d] the elements of a plaintiff’s prima facie case,” or instead “establish[ed] a defense” to what “otherwise would be a violation of the Act.” Id. , at 181.[ Footnote 10 ] Although the provision contained no “otherwise prohibited” kind of language, we said that it “appears on first reading to describe an affirmative defense.” Ibid . We nonetheless thought that this more natural view (which we had taken in Thurston ) was overridden by evidence of legislative history, by the peculiarity of a pretext-revealing condition in the phrasing of the provision (that a benefit plan “not [be] a subterfuge to evade the purposes” of the ADEA), and by the parallel with a prior case construing an “analogous provision of Title VII” (analogous because it also contained a pretext-revealing condition). 492 U. S., at 181. A year later, however, Congress responded to Betts by enacting the Older Workers Benefit Protection Act, Pub. L. 101–433, 104 Stat. 978, avowedly to “restore the original congressional intent” that the ADEA’s benefits provision be read as an affirmative defense, id. , §101. What is instructive on the question at hand is that, in clarifying that §623(f)(2) specifies affirmative defenses, Congress not only set the burden in so many words but also added the phrase “otherwise prohibited” as a part of the preface (just as in the text of §623(f)(1)).[ Footnote 11 ] Congress thus confirmed the natural implication that we find in the “otherwise prohibited” language in §623(f)(1): it refers to an excuse or justification for behavior that, standing alone, violates the statute’s prohibition. The amendment in the aftermath of Betts shows that Congress understands the phrase the same way we naturally read it, as a clear signal that a defense to what is “otherwise prohibited” is an affirmative defense, entirely the responsibility of the party raising it. B Knolls ventures that, regardless, the RFOA provision should be read as mere elaboration on an element of liability. Because it bars liability where action is taken for reasons “other than age,” the argument goes, the provision must be directed not at justifying age discrimination by proof of some extenuating fact but at negating the premise of liability under §623(a)(2), “because of age.” The answer to this argument, however, is City of Jackson , where we confirmed that the prohibition in §623(a)(2) extends to practices with a disparate impact, inferring this result in part from the presence of the RFOA provision at issue here.[ Footnote 12 ] We drew on the recognized distinction between disparate-treatment and disparate-impact forms of liability, and explained that “the very definition of disparate impact” was that “an employer who classifies his employees without respect to age may still be liable under the terms of this paragraph if such classification adversely affects the employee because of that employee’s age.” 544 U. S., at 236, n. 6 (plurality opinion); id. , at 243 (Scalia, J., concurring in part and concurring in judgment) (expressing agreement with “all of the Court’s reasoning” in the plurality opinion, but finding it a basis for deference to the EEOC rather than for independent judicial decision). We emphasized that these were the kinds of employer activities, “otherwise prohibited” by §623(a)(2), that were mainly what the statute meant to test against the RFOA condition: because “[i]n disparate-impact cases … the allegedly ‘otherwise prohibited’ activity is not based on age,” it is “in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a non- age factor that was ‘reasonable.’ ” Id ., at 239 (plurality opinion). Thus, in City of Jackson , we made it clear that in the typical disparate-impact case, the employer’s practice is “without respect to age” and its adverse impact (though “because of age”) is “attributable to a nonage factor”; so action based on a “factor other than age” is the very premise for disparate-impact liability in the first place, not a negation of it or a defense to it. The RFOA defense in a disparate-impact case, then, is not focused on the asserted fact that a non-age factor was at work; we assume it was. The focus of the defense is that the factor relied upon was a “reasonable” one for the employer to be using. Reasonableness is a justification categorically distinct from the factual condition “because of age” and not necessarily correlated with it in any particular way: a reasonable factor may lean more heavily on older workers, as against younger ones, and an unreasonable factor might do just the opposite.[ Footnote 13 ] III The Court of Appeals majority rejected the affirmative defense reading and arrived at its position on the burden of proof question by a different route: because it read our decision in City of Jackson as ruling out the so-called “business necessity” enquiry in ADEA cases, the court concluded that the RFOA defense “replaces” it and therefore must conform to its burden of persuasion resting on the complaining party. But the court’s premise (that City of Jackson modified the “business necessity” enquiry) is mistaken; this alone would be reason enough to reject its approach. And although we are now satisfied that the business necessity test should have no place in ADEA disparate-impact cases, we agree with the Government that this conclusion does not stand in the way of our holding that the RFOA exemption is an affirmative defense. See Brief for United States as Amicus Curiae 25–27. To begin with, when the Court of Appeals further inferred from the City of Jackson reference to Wards Cove that the Wards Cove burden of persuasion (on the employee, for the business necessity enquiry) also applied to the RFOA defense, it gave short shrift to the reasons set out in Part II–A, supra, for reading RFOA as an affirmative defense (with the burden on the employer). But we think that even on its own terms, City of Jackson falls short of supporting the Court of Appeals’s conclusion. Although City of Jackson contains the statement that “ Wards Cove ’s pre-1991 interpretation of Title VII’s identical language remains applicable to the ADEA,” 544 U. S., at 240, City of Jackson made only two specific references to aspects of the Wards Cove interpretation of Title VII that might have “remain[ed] applicable” in ADEA cases. One was to the existence of disparate-impact liability, which City of Jackson explained was narrower in ADEA cases than under Title VII. The other was to a plaintiff-employee’s burden of identifying which particular practices allegedly cause an observed disparate impact, which is the employee’s burden under both the ADEA and the pre-1991 Title VII. See 544 U. S., at 241. Neither of these references, of course, is at odds with the view of RFOA as an affirmative defense. If, indeed, City of Jackson ’s reference to Wards Cove could be read literally to include other aspects of the latter case, beyond what mattered in City of Jackson itself, the untoward consequences of the broader reading would rule it out. One such consequence is embraced by Meacham, who argues both that the Court of Appeals was wrong to place the burden of persuasion for the RFOA defense on the employee, and that the court was right in thinking that City of Jackson adopted the Wards Cove burden of persuasion on what Meacham views as one element of an ADEA impact claim. For Meacham takes the position that an impact plaintiff like himself has to negate business necessity in order to show that the employer’s actions were “otherwise prohibited”; only then does the RFOA (with the burden of persuasion on the employer) have a role to play. To apply both tests, however, would force the parties to develop (and the court or jury to follow) two overlapping enquiries: first, whether the employment practice at issue (based on a factor other than age) is supported by a business justification; and second, whether that factor is a reasonable one. Depending on how the first enquiry proceeds, a plaintiff might directly contest the force of the employer’s rationale, or else try to show that the employer invoked it as a pretext by pointing (for example) to alternative practices with less of a disparate impact. See Wards Cove , 490 U. S., at 658 (“first, a consideration of the justifications an employer offers for his use of these practices; and second, the availability of alternative practices to achieve the same business ends, with less racial impact”); see also id ., at 658–661. But even if the plaintiff succeeded at one or the other, in Meacham’s scheme the employer could still avoid liability by proving reasonableness. Here is what is so strange: as the Government says, “[i]f disparate-impact plaintiffs have already established that a challenged practice is a pretext for intentional age discrimination, it makes little sense then to ask whether the discriminatory practice is based on reasonable factors other than age .” Brief for United States as Amicus Curiae 26 (emphasis in original). Conversely, proving the reasonableness defense would eliminate much of the point a plaintiff would have had for showing alternatives in the first place: why make the effort to show alternative practices with a less discriminatory effect (and besides, how would that prove pretext?), when everyone knows that the choice of a practice relying on a “reasonable” non-age factor is good enough to avoid liability?[ Footnote 14 ] At the very least, developing the reasonableness defense would be substantially redundant with the direct contest over the force of the business justification, especially when both enquiries deal with the same, narrowly specified practice. It is not very fair to take the remark about Wards Cove in City of Jackson as requiring such a wasteful and confusing structure of proof. Nor is there any good way to read the same line from City of Jackson as implying that the burden of proving any business-related defense falls on the plaintiff; most obviously, this would entail no longer taking the BFOQ clause to be an affirmative defense, which City of Jackson confirmed that it is, see 544 U. S., at 233, n. 3. What is more, City of Jackson could not have had the RFOA clause in mind as “identical” to anything in Title VII (for which a Wards Cove ’s reading might be adopted), for that statute has no like-worded defense. And as Wards Cove did not purport to construe any statutory defenses under Title VII, only an over-reading of City of Jackson would find lurking in it an assumption that Wards Cove has anything to say about statutory defenses in the ADEA (never mind one that Title VII does not have). IV As mentioned, where City of Jackson did get help from our prior reading of Title VII was in relying on Wards Cove to repeat that a plaintiff falls short by merely alleging a disparate impact, or “point[ing] to a generalized policy that leads to such an impact.” City of Jackson , 544 U. S., at 241. The plaintiff is obliged to do more: to “isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.” Ibid. (quoting Wards Cove , supra , at 656; emphasis in original; internal quotation marks omitted). The aim of this requirement, as City of Jackson said, is to avoid the “result [of] employers being potentially liable for ‘the myriad of innocent causes that may lead to statistical imbalances.’ ” 544 U. S., at 241 (quoting Wards Cove , supra , at 657; some internal quotation marks omitted). And as the outcome in that case shows, the requirement has bite: one sufficient reason for rejecting the employees’ challenge was that they “ha[d] done little more than point out that the pay plan at issue [was] relatively less generous to older workers than to younger workers,” and “ha[d] not identified any specific test, requirement, or practice within the pay plan that ha[d] an adverse impact on older workers.” City of Jackson , supra, at 241. Identifying a specific practice is not a trivial burden, and it ought to allay some of the concern raised by Knolls’s amici , who fear that recognizing an employer’s burden of persuasion on an RFOA defense to impact claims will encourage strike suits or nudge plaintiffs with marginal cases into court, in turn inducing employers to alter business practices in order to avoid being sued. See, e.g. , Brief for General Electric Co. as Amicus Curiae 18–31. It is also to the point that the only thing at stake in this case is the gap between production and persuasion; nobody is saying that even the burden of production should be placed on the plaintiff. Cf. Schaffer , 546 U. S., at 56 (burden of persuasion answers “which party loses if the evidence is closely balanced”); id ., at 58 (“In truth, however, very few cases will be in evidentiary equipoise”). And the more plainly reasonable the employer’s “factor other than age” is, the shorter the step for that employer from producing evidence raising the defense, to persuading the factfinder that the defense is meritorious. It will be mainly in cases where the reasonableness of the non-age factor is obscure for some reason, that the employer will have more evidence to reveal and more convincing to do in going from production to persuasion. That said, there is no denying that putting employers to the work of persuading factfinders that their choices are reasonable makes it harder and costlier to defend than if employers merely bore the burden of production; nor do we doubt that this will sometimes affect the way employers do business with their employees. But at the end of the day, amici ’s concerns have to be directed at Congress, which set the balance where it is, by both creating the RFOA exemption and writing it in the orthodox format of an affirmative defense. We have to read it the way Congress wrote it. *  *  * As we have said before, Congress took account of the distinctive nature of age discrimination, and the need to preserve a fair degree of leeway for employment decisions with effects that correlate with age, when it put the RFOA clause into the ADEA, “significantly narrow[ing] its coverage.” City of Jackson , 544 U. S., at 233. And as the outcome for the employer in City of Jackson shows, “it is not surprising that certain employment criteria that are routinely used may be reasonable despite their adverse impact on older workers as a group.” Id ., at 241. In this case, we realize that the Court of Appeals showed no hesitation in finding that Knolls prevailed on the RFOA defense, though the court expressed its conclusion in terms of Meacham’s failure to meet the burden of persuasion. Whether the outcome should be any different when the burden is properly placed on the employer is best left to that court in the first instance. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Breyer took no part in the consideration or decision of this case. Footnote 1 The Naval Reactors program had lowered Knolls’s staffing limit by 108 people; as Knolls also had to hire 35 new employees for work existing personnel could not do, a total of 143 jobs would have to go. Footnote 2 The “performance” score was based on the worker’s two most recent appraisals. The “flexibility” instruction read: “Rate the employee’s flexibility within the Laboratory. Can his or her documented skills be used in other assignments that will add value to current or future Lab work? Is the employee retrainable for other Lab assignments?” The “critical skills” instruction read: “How critical are the employee’s skills to continuing work in the Lab? Is the individual’s skill a key technical resource for the [Naval Reactors] program? Is the skill readily accessible within the Lab or generally available from the external market?” App. 94–95 (emphasis in original). Footnote 3 For comparison: after the voluntary buyouts, 1,203 out of 2,063 salaried workers (or 58%) were at least 40 years old; and of the 245 who were at risk of involuntary layoff, and therefore included in the rankings scheme, 179 (or 73%) were 40 or over. Meacham v. Knolls Atomic Power Laboratory , 185 F. Supp. 2d 193, 203 (NDNY 2002). Footnote 4 The expert cut the data in different ways, showing the chances to be 1 in 348,000 (based on a population of all 2,063 salaried workers); 1 in 1,260 (based on a population of the 245 workers at risk of layoff); or 1 in 6,639 (when the analysis was broken down by sections of the company). Meacham I , 381 F. 3d, at 64–65. Footnote 5 Taking the Wards Cove steps in turn, the Court of Appeals concluded that the “jury could have found that the degree of subjective decision making allowed in the [layoff procedure] created the disparity,” 381 F. 3d, at 74; that the employer had answered with evidence of a “facially legitimate business justification,” a need “to reduce its workforce while still retaining employees with skills critical to the performance of [Knolls’s] functions,” ibid . (internal quotation marks omitted); and that petitioners would prevail nonetheless because “[a]t least one suitable alternative is clear from the record,” that Knolls “could have designed [a procedure] with more safeguards against subjectivity, in particular, tests for criticality and flexibility that are less vulnerable to managerial bias,” id. , at 75. Footnote 6 Distinguishing the two tests mattered, the Court of Appeals explained, because even though “[t]here may have been other reasonable ways for [Knolls] to achieve its goals (as we held in [Meacham I] ), … the one selected was not unreasonable.” Meacham II , 461 F. 3d, at 146 (citation and internal quotation marks omitted). The burden of persuasion for either test was said to fall on the plaintiff, however, because “the employer is not to bear the ultimate burden of persuasion with respect to the legitimacy of its business justification.” Id. , at 142 (citing Wards Cove , 490 U. S., at 659–660; internal quotation marks omitted). The majority took note of the textual signs that the RFOA was an affirmative defense, but set them aside because “ City of Jackson … emphasized that there are reasonable and permissible employment criteria that correlate with age,” thereby leaving it to plaintiffs to prove that a criterion is not reasonable. 461 F.3d, at 142–143. Footnote 7 In Judge Pooler’s view, a jury “could permissibly find that defendants had not established a RFOA based on the unmonitored subjectivity of [Knolls’s] plan as implemented.” Id. , at 153 (dissenting opinion). Footnote 8 Petitioners also sought certiorari as to “[w]hether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a ‘reasonable factor other than age’ as a matter of law.” Pet. for Cert. i. We denied certiorari on this question and express no views on it here. Footnote 9 We do not need to seek further relief from doubt by looking to the Equal Employment Opportunity Commission (EEOC) regulations on burdens of proof in ADEA cases. The parties focus on two of them, but we think neither clearly answers the question here. One of them the Government has disavowed as overtaken by our decision in Smith v. City of Jackson , 544 U. S. 228 (2005), Brief for United States as Amicus Curiae 16, n. 1 (noting that 29 CFR §1625.7(d) (2007) “takes a position that does not survive” City of Jackson ), for the regulation seems to require a showing of business necessity as a part of the RFOA defense. Compare 29 CFR §1625.7(d) (“When an employment practice, including a test, is claimed as a basis for different treatment … on the grounds that it is a ‘factor other than’ age, and such a practice has an adverse impact on individuals within the protected age group, it can only be justified as a business necessity”), with City of Jackson , supra , at 243 (“Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement”). And the second regulation would take a bit of stretching to cover disparate-impact cases, for its text speaks in terms of disparate treatment. See 29 CFR §1625.7(e) (concerning use of the RFOA defense against an “individual claim of discriminatory treatment”). The EEOC has lately proposed rulemaking that would revise both of these regulations, eliminating any reference to “business necessity” and placing the burden of proof on the employer “[w]henever the exception of ‘a reasonable factor other than age’ is raised.” 73 Fed. Reg. 16807–16809 (Mar. 31, 2008) (proposed 29 CFR §1625.7(e)). Footnote 10 The provision read: “It shall not be unlawful for an employer … to observe the terms of … any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter … because of the age of such individual.” 29 U. S. C. §623(f)(2) (1982 ed.). Footnote 11 Congress surely could not have meant this phrase to contradict its express allocation of the burden, in the same amendment. But that would be the upshot of Knolls’s suggestion that the only way to read the word “otherwise” as not redundant in the phrase “otherwise prohibited under subsection (a), (b), (c), or (e)” is to say that the word must refer only to §623(f)(1) itself, implying that §623(f)(1) must be a liability-creating provision for which the burden falls on the plaintiff. Brief for Respondents 33, and n. 7. Besides, this argument proves too much, for it implies that even the BFOQ exemption is not an affirmative defense. Footnote 12 In doing so, we expressly rejected the so-called “safe harbor” view of the RFOA provision. See City of Jackson , 544 U. S., at 238–239 (plurality opinion); id. , at 252–253 (O’Connor, J., concurring in judgment) (describing “safe harbor” view). Footnote 13 The factual causation that §623(a)(2) describes as practices that “deprive or tend to deprive … or otherwise adversely affect [employees] … because of … age” is typically shown by looking to data revealing the impact of a given practice on actual employees. See, e.g. , City of Jackson , 544 U. S., at 241 (opinion of the Court); cf. Wards Cove Packing Co. v. Atonio , 490 U. S. 642 , 657, 658–659 (1989) (under Title VII, “specific causation” is shown, and a “prima facie case” is “establish[ed],” when plaintiff identifies a specific employment practice linked to a statistical disparity); Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 995 (1988) (plurality opinion) (in Title VII cases, “statistical disparities must be sufficiently substantial that they raise … an inference of causation”). This enquiry would be muddled if the value, “reasonableness,” were to become a factor artificially boosting or discounting the factual strength of the causal link, or the extent of the measured impact. It would open the door to incoherent undershooting, for example, if defendants were heard to say that an impact is “somewhat less correlated with age, seeing as the factor is a reasonable one”; and it would be overshooting to make them show that the impact is “not correlated with age, and the factor is reasonable, besides.” Footnote 14 See City of Jackson , 544 U. S., at 243 (“While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement”). 554 U. S. ____ (2008) 554 U. S. ____ (2008) 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-1505 CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [June 19, 2008]    Justice Scalia, concurring in the judgment.    I do not join the majority opinion because the Court answers for itself two questions that Congress has left to the sound judgment of the Equal Employment Opportunity Commission. As represented by the Solicitor General of the United States in a brief signed by the Commission’s General Counsel, the Commission takes the position that the reasonable-factor-other-than-age provision is an affirmative defense on which the employer bears the burden of proof, and that, in disparate-impact suits brought under the Age Discrimination in Employment Act of 1967 (ADEA), that provision replaces the business-necessity test of Wards Cove Packing Co. v. Atonio , 490 U. S. 642 (1989).    Neither position was contrived just for this case. Indeed, the Commission has arguably held its view on the burden-of-proof point for nearly 30 years. See 44 Fed. Reg. 68858, 68861 (1979). Although its regulation applied only to cases involving “discriminatory treatment,” 29 CFR §1625.7(e) (2007), even if that covers only disparate treatment, see ante , at 7–8, n. 9, the logic of its extension to disparate-impact claims is obvious and unavoidable. See Brief for United States as Amicus Curiae 16, n. 1. At the very least, the regulation does not contradict the Commission’s current position: It does not say that the employer bears the burden of proof only in discriminatory-treatment cases.    The Commission’s view on the business-necessity test is newly minted, but that does not undermine it. The Commission has never expressed the contrary view that the factfinder must consider both business necessity and reasonableness when an employer applies a factor that has a disparate impact on older workers. In fact, before Smith v. City of Jackson , 544 U. S. 228 (2005), the Commission had not even considered the relationship between the two standards, because it used to treat the two as identical . See 29 CFR §1625.7(d). After City of Jackson rejected that equation, see 544 U. S., at 243, the Commission decided that the business-necessity standard plays no role in ADEA disparate-impact claims, see Brief for United States as Amicus Curiae 25–27, and has even proposed new rules setting forth that position, see 73 Fed. Reg. 16807–16809 (2008).    Because administration of the ADEA has been placed in the hands of the Commission, and because the agency’s positions on the questions before us are unquestionably reasonable (as the Court’s opinion ably shows), I defer to the agency’s views. See Raymond B. Yates, M. D., P. C. Profit Sharing Plan v. Hendon , 541 U. S. 1 , 24–25 (2004) (Scalia, J., concurring in judgment). I therefore concur in the Court’s judgment to vacate the judgment of the Court of Appeals. 554 U. S. ____ (2008) 554 U. S. ____ (2008) 554 U. S. ____ (2008) SUPREME COURT OF THE UNITED STATES NO. 06-1505 CLIFFORD B. MEACHAM, et al., PETITIONERS v. KNOLLS ATOMIC POWER LABORATORY, aka KAPL, INC., et al. on writ of certiorari to the united states court of appeals for the second circuit [June 19, 2008]    Justice Thomas, concurring in part and dissenting in part.    I write separately to note that I continue to believe that disparate-impact claims are not cognizable under the Age Discrimination in Employment Act of 1967, 29 U. S. C. §621 et seq . See Smith v. City of Jackson , 544 U. S. 228 , 247–268 (2005) (O’Connor, J., joined by Kennedy and Thomas, JJ., concurring in judgment). Moreover, I disagree with the Court’s statement that the “reasonable factors other than age” (RFOA) exception, §623(f)(1), is principally relevant in disparate-impact cases. Compare City of Jackson , supra , at 251–253 (opinion concurring in judgment), with ante , at 10–11 (citing City of Jackson , supra , at 239 (plurality opinion)). I therefore join only Parts I and II–A of the Court’s opinion because I agree that the RFOA exception is an affirmative defense—when it arises in disparate-treatment cases. Here, although the Court of Appeals erred in placing the burden of proof on petitioners, I would nonetheless affirm because the only claims at issue are disparate-impact claims.

In Meacham v. Knolls Atomic Power Laboratory, the Supreme Court held that an employer defending against a disparate-impact claim under the Age Discrimination in Employment Act (ADEA) must prove that its actions were based on reasonable factors other than age. The Court placed the burden of proof on the employer, requiring them to persuade the factfinder of the merit of their defense. This case involved a reduction in workforce by Knolls, which resulted in the layoff of primarily older workers. The Court's decision affirmed the role of the Equal Employment Opportunity Commission in administering the ADEA and interpreting its provisions. Justice Thomas concurred in part and dissented in part, disagreeing with the cognizability of disparate-impact claims under the ADEA.

Labor & Employment

Ontario v. Quon

https://supreme.justia.com/cases/federal/us/560/746/

OPINION OF THE COURT ONTARIO V. QUON 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1332 CITY OF ONTARIO, CALIFORNIA, et al., PETITIONERS v. JEFF QUON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 17, 2010]    Justice Kennedy delivered the opinion of the Court.    This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio , 367 U. S. 643 (1961). Though the case touches issues of far- reaching significance, the Court concludes it can be resolved by settled principles determining when a search is reasonable. I A    The City of Ontario (City) is a political subdivision of the State of California. The case arose out of incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police Department (OPD). He was a police sergeant and member of OPD’s Special Weapons and Tactics (SWAT) Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners here. As will be discussed, two respondents share the last name Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant events mostly revolve around him.    In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City’s service contract with Arch Wireless, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee. The City issued pagers to Quon and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations.    Before acquiring the pagers, the City announced a “Computer Usage, Internet and E-Mail Policy” (Computer Policy) that applied to all employees. Among other provisions, it specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” App. to Pet. for Cert. 152a. In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy.    The Computer Policy did not apply, on its face, to text messaging. Text messages share similarities with e-mails, but the two differ in an important way. In this case, for instance, an e-mail sent on a City computer was transmitted through the City’s own data servers, but a text message sent on one of the City’s pagers was transmitted using wireless radio frequencies from an individual pager to a receiving station owned by Arch Wireless. It was routed through Arch Wireless’ computer network, where it remained until the recipient’s pager or cellular telephone was ready to receive the message, at which point Arch Wireless transmitted the message from the transmitting station nearest to the recipient. After delivery, Arch Wireless retained a copy on its computer servers. The message did not pass through computers owned by the City.    Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City’s contract with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that [text] messages would fall under the City’s policy as public information and [would be] eligible for auditing.” App. 30. Duke’s comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel.    Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were “considered e-mail and could be audited.” Id., at 40. Duke said, however, that “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.” Ibid. Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees.    Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become “ ‘tired of being a bill collector.’ ” Id., at 91. Scharf decided to determine whether the existing character limit was too low—that is, whether officers such as Quon were having to pay fees for sending work-related messages—or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance.    At Duke’s request, an administrative assistant employed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired transcripts. Duke reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related, and some were sexually explicit. Duke reported his findings to Scharf, who, along with Quon’s immediate supervisor, reviewed the transcripts himself. After his review, Scharf referred the matter to OPD’s internal affairs division for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty.    The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon’s work schedule to redact the transcripts in order to eliminate any messages Quon sent while off duty. He then reviewed the content of the messages Quon sent during work hours. McMahon’s report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report concluded that Quon had violated OPD rules. Quon was allegedly disciplined. B    Raising claims under Rev. Stat. §1979, 42 U. S. C. §1983; 18 U. S. C. §2701 et seq. , popularly known as the Stored Communications Act (SCA); and California law, Quon filed suit against petitioners in the United States District Court for the Central District of California. Arch Wireless and an individual not relevant here were also named as defendants. Quon was joined in his suit by another plaintiff who is not a party before this Court and by the other respondents, each of whom exchanged text messages with Quon during August and September 2002: Jerilyn Quon, Jeff Quon’s then-wife, from whom he was separated; April Florio, an OPD employee with whom Jeff Quon was romantically involved; and Steve Trujillo, another member of the OPD SWAT Team. Among the allegations in the complaint was that petitioners violated respondents’ Fourth Amendment rights and the SCA by obtaining and reviewing the transcript of Jeff Quon’s pager messages and that Arch Wireless had violated the SCA by turning over the transcript to the City.    The parties filed cross-motions for summary judgment. The District Court granted Arch Wireless’ motion for summary judgment on the SCA claim but denied petitioners’ motion for summary judgment on the Fourth Amendment claims. Quon v. Arch Wireless Operating Co., 445 F. Supp. 2d 1116 (CD Cal. 2006). Relying on the plurality opinion in O’Connor v. Ortega , 480 U. S. 709 , 711 (1987), the District Court determined that Quon had a reasonable expectation of privacy in the content of his text messages. Whether the audit of the text messages was nonetheless reasonable, the District Court concluded, turned on Chief Scharf’s intent: “[I]f the purpose for the audit was to determine if Quon was using his pager to ‘play games’ and ‘waste time,’ then the audit was not constitutionally reasonable”; but if the audit’s purpose “was to determine the efficacy of the existing character limits to ensure that officers were not paying hidden work-related costs, … no constitutional violation occurred.” 445 F. Supp. 2d, at 1146.    The District Court held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor.    The United States Court of Appeals for the Ninth Circuit reversed in part. 529 F. 3d 892 (2008). The panel agreed with the District Court that Jeff Quon had a reasonable expectation of privacy in his text messages but disagreed with the District Court about whether the search was reasonable. Even though the search was conducted for “a legitimate work-related rationale,” the Court of Appeals concluded, it “was not reasonable in scope.” Id., at 908. The panel disagreed with the District Court’s observation that “there were no less-intrusive means” that Chief Scharf could have used “to verify the efficacy of the 25,000 character limit … without intruding on [respondents’] Fourth Amendment rights.” Id., at 908–909. The opinion pointed to a “host of simple ways” that the chief could have used instead of the audit, such as warning Quon at the beginning of the month that his future messages would be audited, or asking Quon himself to redact the transcript of his messages. Id., at 909. The Court of Appeals further concluded that Arch Wireless had violated the SCA by turning over the transcript to the City.    The Ninth Circuit denied a petition for rehearing en banc. Quon v. Arch Wireless Operating Co., 554 F. 3d 769 (2009). Judge Ikuta, joined by six other Circuit Judges, dissented. Id., at 774–779. Judge Wardlaw concurred in the denial of rehearing, defending the panel’s opinion against the dissent. Id., at 769–774.    This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging the Court of Appeals’ holding that they violated the Fourth Amendment. 558 U. S. ___ (2009). The petition for certiorari filed by Arch Wireless challenging the Ninth Circuit’s ruling that Arch Wireless violated the SCA was denied. USA Mobility Wireless, Inc. v. Quon, 558 U. S. ___ (2009). II    The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated … .” It is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations. Camara v. Municipal Court of City and County of San Francisco , 387 U. S. 523 , 530 (1967). “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,” without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives’ Assn. , 489 U. S. 602 , 613–614 (1989). The Fourth Amendment applies as well when the Government acts in its capacity as an employer. Treasury Employees v. Von Raab , 489 U. S. 656 , 665 (1989).    The Court discussed this principle in O’Connor. There a physician employed by a state hospital alleged that hospital officials investigating workplace misconduct had violated his Fourth Amendment rights by searching his office and seizing personal items from his desk and filing cabinet. All Members of the Court agreed with the general principle that “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” 480 U. S., at 717 (plurality opinion); see also id., at 731 (Scalia, J., concurring in judgment); id., at 737 (Blackmun, J., dissenting). A majority of the Court further agreed that “ ‘special needs, beyond the normal need for law enforcement,’ ” make the warrant and probable-cause requirement impracticable for government employers. Id., at 725 (plurality opinion) (quoting New Jersey v. T. L. O. , 469 U. S. 325 , 351 (1985) (Blackmun, J., concurring in judgment); 480 U. S. , at 732 (opinion of Scalia, J.) (quoting same).    The O’Connor Court did disagree on the proper analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable,” id., at 718, a court must consider “[t]he operational realities of the workplace” in order to determine whether an employee’s Fourth Amendment rights are implicated, id., at 717. On this view, “the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” Id., at 718. Next, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725–726.    Justice Scalia, concurring in the judgment, outlined a different approach. His opinion would have dispensed with an inquiry into “operational realities” and would conclude “that the offices of government employees … are covered by Fourth Amendment protections as a general matter.” Id., at 731. But he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the Fourth Amendment.” Id., at 732.    Later, in the Von Raab decision, the Court explained that “operational realities” could diminish an employee’s privacy expectations, and that this diminution could be taken into consideration when assessing the reasonableness of a workplace search. 489 U. S., at 671. In the two decades since O’Connor , however, the threshold test for determining the scope of an employee’s Fourth Amendment rights has not been clarified further. Here, though they disagree on whether Quon had a reasonable expectation of privacy, both petitioners and respondents start from the premise that the O’Connor plurality controls. See Brief for Petitioners 22–28; Brief for Respondents 25–32. It is not necessary to resolve whether that premise is correct. The case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy. The two O’Connor approaches—the plurality’s and Justice Scalia’s—therefore lead to the same result here. III A    Before turning to the reasonableness of the search, it is instructive to note the parties’ disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City’s Computer Policy stated that “[u]sers should have no expectation of privacy or confidentiality when using” City computers. App. to Pet. for Cert. 152a. Chief Scharf’s memo and Duke’s statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke’s later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon reasonably could expect that the contents of his messages would remain private.    At this point, were we to assume that inquiry into “operational realities” were called for, compare O’Connor , 480 U. S., at 717 (plurality opinion), with id., at 730–731 (opinion of Scalia, J.); see also id., at 737–738 (Blackmun, J., dissenting), it would be necessary to ask whether Duke’s statements could be taken as announcing a change in OPD policy, and if so, whether he had, in fact or appearance, the authority to make such a change and to guarantee the privacy of text messaging. It would also be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws. See Brief for Petitioners 35–40 (citing Cal. Public Records Act, Cal. Govt. Code Ann. §6250 et seq. (West 2008)). These matters would all bear on the legitimacy of an employee’s privacy expectation.    The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States , 277 U. S. 438 (1928), overruled by Katz v. United States , 389 U. S. 347 , 353 (1967). In Katz , the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.    Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. See Brief for Electronic Frontier Foundation et al. 16–20. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. See Brief for New York Intellectual Property Law Association 22 (citing Del. Code Ann., Tit. 19, §705 (2005); Conn. Gen. Stat. Ann. §31–48d (West 2003)). At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.    Even if the Court were certain that the O’Connor plurality’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U. S., at 715. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.    A broad holding concerning employees’ privacy expectations vis-À-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere. B    Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra, at 357. The Court has held that the “ ‘special needs’ ” of the workplace justify one such exception. O’Connor , 480 U. S., at 725 (plurality opinion); id., at 732 (Scalia, J., concurring in judgment); Von Raab, 489 U. S., at 666–667.    Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “ ‘justified at its inception’ ” and if “ ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’ ” the circumstances giving rise to the search. 480 U. S., at 725–726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.    The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F. 3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.    As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “ ‘excessively intrusive.’ ” O’Connor, supra, at 726 (plurality opinion) . Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.    Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab , supra, at 671; cf. Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 654–657 (1995). Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.    From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.    The Court of Appeals erred in finding the search unreasonable. It pointed to a “host of simple ways to verify the efficacy of the 25,000 character limit … without intruding on [respondents’] Fourth Amendment rights.” 529 F. 3d, at 909. The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communications, and that the contents of all his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.” Ibid. This approach was inconsistent with controlling precedents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Vernonia , supra, at 663; see also, e.g. , Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U. S. 822 , 837 (2002); Illinois v. Lafayette , 462 U. S. 640 , 647 (1983). That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,” United States v. Martinez-Fuerte , 428 U. S. 543 , 557, n. 12 (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished,” Skinner , 489 U. S., at 629, n. 9 (internal quotation marks and brackets omitted). The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable.    Respondents argue that the search was per se unreasonable in light of the Court of Appeals’ conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon’s text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore , 553 U. S. 164 , 168 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood , 486 U. S. 35 , 43 (1988) (rejecting argument that if state law forbade police search of individual’s garbage the search would violate the Fourth Amendment). Furthermore, respondents do not maintain that any OPD employee either violated the law him- or herself or knew or should have known that Arch Wireless, by turning over the transcript, would have violated the law. The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts.    Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U. S., at 726. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of Justice Scalia’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights. C    Finally, the Court must consider whether the search violated the Fourth Amendment rights of Jerilyn Quon, Florio, and Trujillo, the respondents who sent text messages to Jeff Quon. Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” Brief for Respondents 60 (some capitalization omitted; boldface deleted). They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents. See id., at 65–66. In light of this litigating position and the Court’s conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail. *  *  *    Because the search was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 560 U. S. ____ (2010) ONTARIO V. QUON 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1332 CITY OF ONTARIO, CALIFORNIA, et al., PETITIONERS v. JEFF QUON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 17, 2010]    Justice Stevens, concurring.    Although I join the Court’s opinion in full, I write separately to highlight that the Court has sensibly declined to resolve whether the plurality opinion in O’Connor v. Ortega , 480 U. S. 709 (1987), provides the correct approach to determining an employee’s reasonable expectation of privacy. See ante , at 9. Justice Blackmun, writing for the four dissenting Justices in O’Connor , agreed with Justice Scalia that an employee enjoys a reasonable expectation of privacy in his office. 480 U. S., at 737. But he advocated a third approach to the reasonable expectation of privacy inquiry, separate from those proposed by the O’Connor plurality and by Justice Scalia, see ante , at 8. Recognizing that it is particularly important to safeguard “a public employee’s expectation of privacy in the workplace” in light of the “reality of work in modern time,” 480 U. S., at 739, which lacks “tidy distinctions” between workplace and private activities, ibid. , Justice Blackmun argued that “the precise extent of an employee’s expectation of privacy often turns on the nature of the search,” id., at 738. And he emphasized that courts should determine this expectation in light of the specific facts of each particular search, rather than by announcing a categorical standard. See id. , at 741.    For the reasons stated at page 13 of the Court’s opinion, it is clear that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should have understood that all of his work-related actions—including all of his communications on his official pager—were likely to be subject to public and legal scrutiny. He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages. Whether one applies the reasoning from Justice O’Connor’s opinion, Justice Scalia’s concurrence, or Justice Blackmun’s dissent* in O’Connor , the result is the same: The judgment of the Court of Appeals in this case must be reversed. * I do not contend that Justice Blackmun’s opinion is controlling under Marks v. United States , 430 U. S. 188 , 193 (1977), but neither is his approach to evaluating a reasonable expectation of privacy foreclosed by O’Connor . Indeed, his approach to that inquiry led to the conclusion, shared by Justice Scalia but not adopted by the O’Connor plurality, that an employee had a reasonable expectation of privacy in his office. See O’Connor v. Ortega , 480 U. S. 709 , 718 (1987) (plurality opinion). But Justice Blackmun would have applied the Fourth Amendment’s warrant and probable-cause requirements to workplace investigatory searches, id. , at 732 (dissenting opinion), whereas a majority of the Court rejected that view, see id. , at 722, 725 (plurality opinion); id. , at 732 (Scalia, J., concurring in judgment). It was that analysis—regarding the proper standard for evaluating a search when an employee has a reasonable expectation of privacy—that produced the opposite result in the case. This case does not implicate that debate because it does not involve an investigatory search. The jury concluded that the purpose of the audit was to determine whether the character limits were sufficient for work-related messages. See ante , at 6. OPINION OF SCALIA, J. ONTARIO V. QUON 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1332 CITY OF ONTARIO, CALIFORNIA, et al., PETITIONERS v. JEFF QUON et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 17, 2010]    Justice Scalia, concurring in part and concurring in the judgment.    I join the Court’s opinion except for Part III–A. I continue to believe that the “operational realities” rubric for determining the Fourth Amendment’s application to public employees invented by the plurality in O’Connor v. Ortega , 480 U. S. 709 , 717 (1987), is standardless and unsupported. Id. , at 729–732 (Scalia, J., concurring in judgment). In this case, the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees’ employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers. See id. , at 731.    Here, however, there is no need to answer that threshold question. Even accepting at face value Quon’s and his co-plaintiffs’ claims that the Fourth Amendment applies to their messages, the city’s search was reasonable, and thus did not violate the Amendment. See id. , at 726 (plurality opinion); id. , at 732 (Scalia, J., concurring in judgment). Since it is unnecessary to decide whether the Fourth Amendment applies, it is unnecessary to resolve which approach in O’Connor controls: the plurality’s or mine.* That should end the matter.    The Court concedes as much, ante , at 9, 12–17, yet it inexplicably interrupts its analysis with a recitation of the parties’ arguments concerning, and an excursus on the complexity and consequences of answering, that admittedly irrelevant threshold question, ante , at 9–12. That discussion is unnecessary. (To whom do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?) It also seems to me exaggerated. Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication, ante , at 10, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.    Worse still, the digression is self-defeating. Despite the Court’s insistence that it is agnostic about the proper test, lower courts will likely read the Court’s self-described “instructive” expatiation on how the O’Connor plurality’s approach would apply here (if it applied), ante , at 9–11, as a heavy-handed hint about how they should proceed. Litigants will do likewise, using the threshold question whether the Fourth Amendment is even implicated as a basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees’ use of electronic media. In short, in saying why it is not saying more, the Court says much more than it should.    The Court’s inadvertent boosting of the O’Connor plurality’s standard is all the more ironic because, in fleshing out its fears that applying that test to new technologies will be too hard, the Court underscores the unworkability of that standard. Any rule that requires evaluating whether a given gadget is a “necessary instrumen[t] for self-expression, even self-identification,” on top of assessing the degree to which “the law’s treatment of [workplace norms has] evolve[d],” ante , at 11, is (to put it mildly) unlikely to yield objective answers.    I concur in the Court’s judgment. * Despite his disclaimer, ante , at 2, n. (concurring opinion), Justice Stevens’ concurrence implies, ante , at 1–2, that it is also an open question whether the approach advocated by Justice Blackmun in his dissent in O’Connor is the proper standard. There is room for reasonable debate as to which of the two approaches advocated by Justices whose votes supported the judgment in O’Connor —the plurality’s and mine—is controlling under Marks v. United States , 430 U. S. 188 , 193 (1977). But unless O’Connor is overruled, it is assuredly false that a test that would have produced the opposite result in that case is still in the running.

The Supreme Court ruled that the City of Ontario's search of an employee's text messages was reasonable due to a valid work-related purpose and the employee's reduced expectation of privacy based on the employer's computer usage policy. The Court did not establish a new standard for electronic privacy but applied existing Fourth Amendment principles to the case.

Labor & Employment

Gross v. FBL Financial Services, Inc.

https://supreme.justia.com/cases/federal/us/557/167/

OPINION OF THE COURT GROSS V. FBL FINANCIAL SERVICES, INC. 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-441 JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. on writ of certiorari to the united states court of appeals for the eighth circuit [June 18, 2009]    Justice Thomas delivered the opinion of the Court.    The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq . Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. I    Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern.    In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.” 29 U. S. C. §623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that Gross’ new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion).    At the close of trial, and over FBL’s objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. App. 9–10. The jury was further instructed that Gross’ age would qualify as a “ ‘motivating factor,’ if [it] played a part or a role in [FBL]’s decision to demote [him].” Id. , at 10. The jury was also instructed regarding FBL’s burden of proof. According to the District Court, the “verdict must be for [FBL] … if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id. , at 8.    FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse v. Hopkins , 490 U. S. 228 (1989). See 526 F. 3d 356, 358 (2008). In Price Waterhouse , this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq ., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations— i.e. , a “mixed-motives” case. 490 U. S., at 232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id. , at 231–258, Justices White and O’Connor separately concurred in the judgment, see id. , at 258–261 (opinion of White, J.); id. , at 261–279 (opinion of O’Connor, J.), and three Justices dissented, see id. , at 279–295 (opinion of Kennedy, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or a “ ‘substantial’ ” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id. , at 258 (plurality opinion); id. , at 259–260 (opinion of White, J.); id. , at 276 (opinion of O’Connor, J.). Justice O’Connor further found that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision.” Id. , at 276.    In accordance with Circuit precedent, the Court of Appeals identified Justice O’Connor’s opinion as controlling. See 526 F. 3d, at 359 (citing Erickson v. Farmland Industries, Inc. , 271 F. 3d 718, 724 (CA8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present “[d]irect evidence … sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “direct evidence” is only that evidence that “show[s] a specific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer “ ‘to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.’ ” Ibid. (quoting Price Waterhouse , supra , at 276 (opinion of O’Connor, J.)).    The Court of Appeals thus concluded that the District Court’s jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor—not just “direct evidence” related to FBL’s alleged consideration of age. See 526 F. 3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed only to determine whether Gross had carried his burden of “prov[ing] that age was the determining factor in FBL’s employment action.” See ibid. We granted certiorari, 555 U. S. ___ (2008), and now vacate the decision of the Court of Appeals. II    The parties have asked us to decide whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.[ Footnote 1 ] We hold that it does not. A    Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA.    In Price Waterhouse , a plurality of the Court and two Justices concurring in the judgment determined that once a “plaintiff in a Title VII case proves that [the plaintiff’s membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account.” 490 U. S., at 258; see also id. , at 259–260 (opinion of White, J.); id. , at 276 (opinion of O’Connor, J.). But as we explained in Desert Palace, Inc. v. Costa , 539 U. S. 90 , 94–95 (2003), Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was “a motivating factor” for an adverse employment decision. See 42 U. S. C. §2000e–2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (emphasis added)); §2000e–5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of §2000e–2(m)).    This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki , 552 U. S. ___, ___ (2008) (slip op., at 2). Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id. , §302, at 1088.    We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co. , 499 U. S. 244 , 256 (1991). Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the implication was inserted.” Lindh v. Murphy , 521 U. S. 320 , 330 (1997). As a result, the Court’s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse .[ Footnote 2 ] B    Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixed-motives age discrimination claim. It does not. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. , 541 U. S. 246 , 252 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added).    The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean “By reason of , on account of ” (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins , 507 U. S. 604 , 610 (1993) (explaining that the claim “cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome ” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co. , 553 U. S. ___, ___ (2008) (slip op., at 14) (recognizing that the phrase, “by reason of,” requires at least a showing of “but for” causation (internal quotation marks omitted)); Safeco Ins. Co. of America v. Burr , 551 U. S. 47 , 63–64, and n. 14 (2007) (observing that “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition” and that the statutory phrase, “based on,” has the same meaning as the phrase, “because of” (internal quotation marks omitted)); cf. W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).[ Footnote 3 ]    It follows, then, that under §623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the “but-for” cause of the employer’s adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. See Kentucky Retirement Systems v. EEOC , 554 U. S. ___, ___–___, ___–___ (2008) (slip op., at 2–4, 11–13); Reeves v. Sanderson Plumbing Products, Inc. , 530 U. S. 133 , 141, 143 (2000). And nothing in the statute’s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is “silent on the allocation of the burden of persuasion,” we “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast , 546 U. S. 49 , 56 (2005); see also Meacham v. Knolls Atomic Power Laboratory , 554 U. S. ___, ___ (2008) (slip op., at 6) (“Absent some reason to believe that Congress intended otherwise, … we will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief” (internal quotation marks omitted)). We have no warrant to depart from the general rule in this setting.    Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision. See Reeves , supra , at 141–143, 147.[ Footnote 4 ] III    Finally, we reject petitioner’s contention that our interpretation of the ADEA is controlled by Price Waterhouse , which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.[ Footnote 5 ] In any event, it is far from clear that the Court would have the same approach were it to consider the question today in the first instance. Cf. 14 Penn Plaza LLC v. Pyett , 556 U. S. ___, ___ (2009) (slip op., at 21) (declining to “introduc[e] a qualification into the ADEA that is not found in its text”); Meacham , supra , at ___ (slip op., at 16) (explaining that the ADEA must be “read … the way Congress wrote it”).    Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury, courts have found it particularly difficult to craft an instruction to explain its burden-shifting framework. See, e.g. , Tyler v. Bethlehem Steel Corp. , 958 F. 2d 1176, 1179 (CA2 1992) (referring to “the murky water of shifting burdens in discrimination cases”); Visser v. Packer Engineering Associates, Inc. , 924 F. 2d 655, 661 (CA7 1991) (en banc) (Flaum, J., dissenting) (“The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally”). Thus, even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. Cf. Continental T. V., Inc. v. GTE Sylvania Inc. , 433 U. S. 36 , 47 (1977) (reevaluating precedent that was subject to criticism and “continuing controversy and confusion”); Payne v. Tennessee , 501 U. S. 808 , 839–844 (1991) (Souter, J., concurring).[ Footnote 6 ] IV    We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Although the parties did not specifically frame the question to include this threshold inquiry, “[t]he statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” This Court’s Rule 14.1; see also City of Sherrill v. Oneida Indian Nation of N. Y. , 544 U. S. 197 , 214, n. 8 (2005) (“ ‘Questions not explicitly mentioned but essential to the analysis of the decisions below or to the correct disposition of the other issues have been treated as subsidiary issues fairly comprised by the question presented’ ” (quoting R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002))); Ballard v. Commissioner , 544 U. S. 40 , 46–47, and n. 2 (2005) (evaluating “a question anterior” to the “questions the parties raised”). Footnote 2 Justice Stevens argues that the Court must incorporate its past interpretations of Title VII into the ADEA because “the substantive provisions of the ADEA were derived in haec verba from Title VII,” post , at 4 (dissenting opinion) (internal quotation marks omitted), and because the Court has frequently applied its interpretations of Title VII to the ADEA, see post, at 4–6. But the Court’s approach to interpreting the ADEA in light of Title VII has not been uniform. In General Dynamics Land Systems, Inc. v. Cline , 540 U. S. 581 (2004), for example, the Court declined to interpret the phrase “because of … age” in 29 U. S. C. §623(a) to bar discrimination against people of all ages, even though the Court had previously interpreted “because of … race [or] sex” in Title VII to bar discrimination against people of all races and both sexes, see 540 U. S., at 584, 592, n. 5. And the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context. See Reeves v . Sanderson Plumbing Products, Inc. , 530 U. S. 133 , 142 (2000); O’Connor v. Consolidated Coin Caterers Corp. , 517 U. S. 308 , 311 (1996). In this instance, it is the textual differences between Title VII and the ADEA that prevent us from applying Price Waterhouse and Desert Palace to federal age discrimination claims. Footnote 3 Justice Breyer contends that there is “nothing unfair or impractical” about hinging liability on whether “forbidden motive … play[ed] a role in the employer’s decision.” Post , at 2–3 (dissenting opinion). But that is a decision for Congress to make. See Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. , 554 U. S. ___, ___ (2008) (slip op., at 18). Congress amended Title VII to allow for employer liability when discrimination “was a motivating factor for any employment practice, even though other factors also motivated the practice,” 42 U. S. C. §2000e–2(m) (emphasis added), but did not similarly amend the ADEA, see supra , at 5–6. We must give effect to Congress’ choice. See 14 Penn Plaza LLC v. Pyett , 556 U. S. ___, ___ (2009) (slip op., at 21). Footnote 4 Because we hold that ADEA plaintiffs retain the burden of persuasion to prove all disparate-treatment claims, we do not need to address whether plaintiffs must present direct, rather than circumstantial, evidence to obtain a burden-shifting instruction. There is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the “but-for” cause of their employer’s adverse action, see 29 U. S. C. §623(a), and we will imply none. “Congress has been unequivocal when imposing heightened proof requirements” in other statutory contexts, including in other subsections within Title 29, when it has seen fit. See Desert Palace, Inc. v. Costa, 539 U. S. 90 , 99 (2003); see also, e.g. , 25 U. S. C. §2504(b)(2)(B) (imposing “clear and convincing evidence” standard); 29 U. S. C. §722(a)(2)(A) (same). Footnote 5 Justice Stevens also contends that we must apply Price Waterhouse under the reasoning of Smith v. City of Jackson , 544 U. S. 228 (2005). See post , at 7. In Smith , the Court applied to the ADEA its pre-1991 interpretation of Title VII with respect to disparate-impact claims despite Congress’ 1991 amendment adding disparate-impact claims to Title VII but not the ADEA. 544 U. S., at 240. But the amendments made by Congress in this same legislation, which added the “motivating factor” language to Title VII, undermine Justice Stevens’ argument. Congress not only explicitly added “motivating factor” liability to Title VII, see supra , at 5–6, but it also partially abrogated Price Waterhouse ’s holding by eliminating an employer’s complete affirmative defense to “motivating factor” claims, see 42 U. S. C. §2000e–5(g)(2)(B). If such “motivating factor” claims were already part of Title VII, the addition of §2000e–5(g)(2)(B) alone would have been sufficient. Congress’ careful tailoring of the “motivating factor” claim in Title VII, as well as the absence of a provision parallel to §2000e–2(m) in the ADEA, confirms that we cannot transfer the Price Waterhouse burden-shifting framework into the ADEA. Footnote 6 Gross points out that the Court has also applied a burden-shifting framework to certain claims brought in contexts other than pursuant to Title VII. See Brief for Petitioner 54–55 (citing, inter alia , NLRB v. Transportation Management Corp. , 462 U. S. 393 , 401–403 (1983) (claims brought under the National Labor Relations Act (NLRA)); Mt. Healthy City Bd. of Ed. v. Doyle , 429 U. S. 274 , 287 (1977) (constitutional claims)). These cases, however, do not require the Court to adopt his contra statutory position.  The case involving the NLRA did not require the Court to decide in the first instance whether burden shifting should apply as the Court instead deferred to the National Labor Relation Board’s determination that such a framework was appropriate. See NLRB , supra , at 400–403. And the constitutional cases such as Mt. Healthy have no bearing on the correct interpretation of ADEA claims, which are governed by statutory text. STEVENS, J., DISSENTING GROSS V. FBL FINANCIAL SERVICES, INC. 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-441 JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. on writ of certiorari to the united states court of appeals for the eighth circuit [June 18, 2009]    Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.    The Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. , makes it unlawful for an employer to discriminate against any employee “because of” that individual’s age, §623(a). The most natural reading of this statutory text prohibits adverse employment actions motivated in whole or in part by the age of the employee. The “but-for” causation standard endorsed by the Court today was advanced in Justice Kennedy’s dissenting opinion in Price Waterhouse v. Hopkins , 490 U. S. 228 , 279 (1989), a case construing identical language in Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–2(a)(1). Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. I    The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide.[ Footnote 1 ] Instead, the question arose for the first time in respondent’s brief, which asked us to “overrule Price Waterhouse with respect to its application to the ADEA.” Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: “ ‘We would normally expect notice of an intent to make so far-reaching an argument in the respondent’s opposition to a petition for certiorari, cf. this Court’s Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.’ ” Alabama v. Shelton , 535 U. S. 654 , 660, n. 3 (2002) (quoting South Central Bell Telephone Co. v. Alabama , 526 U. S. 160 , 171 (1999)). Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae . Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.[ Footnote 2 ]    Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress’ intent. The ADEA provides that “[i]t shall be unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added). As we recognized in Price Waterhouse when we construed the identical “because of” language of Title VII, see 42 U. S. C. §2000e–2(a)(1) (making it unlawful for an employer “to fail or refuse to hire or to discharge any individual … with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (emphasis added)), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee.    In Price Waterhouse , we concluded that the words “ ‘because of’ such individual’s … sex … mean that gender must be irrelevant to employment decisions.” 490 U. S., at 240 (plurality opinion); see also id. , at 260 (White, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision.[ Footnote 3 ] We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff’s sex into account. Id. , at 244–245 (plurality opinion). But this affirmative defense did not alter the meaning of “because of.” As we made clear, when “an employer considers both gender and legitimate factors at the time of making a decision, that decision was ‘because of’ sex.” Id. , at 241; see also id. , at 260 (White, J., concurring in judgment). We readily rejected the dissent’s contrary assertion. “To construe the words ‘ because of ’ as colloquial shorthand for ‘but-for’ causation,” we said, “is to misunderstand them.” Id. , at 240 (plurality opinion).[ Footnote 4 ]    Today, however, the Court interprets the words “because of” in the ADEA “as colloquial shorthand for ‘but-for’ causation.” Ibid. That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII’s language apply “with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII.’ ” Trans World Airlines, Inc. v. Thurston , 469 U. S. 111 , 121 (1985) (quoting Lorillard v. Pons , 434 U. S. 575 , 584 (1978)). See generally Northcross v. Board of Ed. of Memphis City Schools , 412 U. S. 427 , 428 (1973) (per curiam) . For this reason, Justice Kennedy’s dissent in Price Waterhouse assumed the plurality’s mixed-motives framework extended to the ADEA, see 490 U. S., at 292, and the Courts of Appeals to have considered the issue unanimously have applied Price Waterhouse to ADEA claims.[ Footnote 5 ]    The Court nonetheless suggests that applying Price Waterhouse would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper Co. v. Biggins , 507 U. S. 604 , 610 (1993), that “[a disparate-treatment] claim ‘cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome .’ ” Ante , at 8. The italicized phrase is at best inconclusive as to the meaning of the ADEA’s “because of” language, however, as other passages in Hazen Paper Co. demonstrate. We also stated, for instance, that the ADEA “requires the employer to ignore an employee’s age,” id. , at 612 (emphasis added), and noted that “[w]hen the employer’s decision is wholly motivated by factors other than age,” there is no violation, id ., at 611 (emphasis altered). So too, we indicated the “possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee’s age and by his pension status,” id. , at 613—a classic mixed-motives scenario.    Moreover, both Hazen Paper Co . and Reeves v. Sanderson Plumbing Products, Inc. , 530 U. S. 133 (2000), on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixed-motives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas Corp. v. Green , 411 U. S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine , 450 U. S. 248 (1981). See, e.g ., Reeves , 530 U. S., at 141–143; Hazen Paper Co. , 507 U. S., at 610. This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II    The conclusion that “because of ” an individual’s age means that age was a motivating factor in an employment decision is bolstered by Congress’ reaction to Price Waterhouse in the 1991 Civil Rights Act. As part of its response to “a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” H. R. Rep. No. 102–40, pt. 2, p. 2 (1991) (hereinafter H. R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that an employer’s same-decision showing would limit only a plaintiff’s remedies. See §2000e–5(g)(2)(B). Importantly, however, Congress ratified Price Waterhouse ’s interpretation of the plaintiff’s burden of proof, rejecting the dissent’s suggestion in that case that but-for causation was the proper standard. See §2000e–2(m) (“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice”).    Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA.[ Footnote 6 ] But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price Waterhouse ’s construction of “because of” remains the governing law for ADEA claims.    Our recent decision in Smith v. City of Jackson , 544 U. S. 228 , 240 (2005), is precisely on point, as we considered in that case the effect of Congress’ failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that “the relevant 1991 amendments expanded the coverage of Title VII [but] did not amend the ADEA or speak to the subject of age discrimination,” we held that “ Wards Cove ’s pre-1991 interpretation of Title VII’s identical language remains applicable to the ADEA.” 544 U. S., at 240 (discussing Wards Cove Packing Co. v. Atonio , 490 U. S. 642 (1989)); see also Meacham v. Knolls Atomic Power Laboratory , 554 U. S. ___, ___ (2008) (slip op., at 15). If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies.    Curiously, the Court reaches the opposite conclusion, relying on Congress’ partial ratification of Price Waterhouse to argue against that case’s precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price Waterhouse likewise must not apply because Congress effectively codified Price Waterhouse ’s holding in the amendments. Ante , at 5–6. This does not follow. To the contrary, the fact that Congress endorsed this Court’s interpretation of the “because of” language in Price Waterhouse (even as it rejected the employer’s affirmative defense to liability) provides all the more reason to adhere to that decision’s motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g. , H. R. Rep., pt. 2, at 17 (“When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions”); id. , at 2 (stating that the Act “reaffirm[ed] that any reliance on prejudice in making employment decisions is illegal”); see also H. R. Rep., pt. 1, at 45; S. Rep. No. 101–315, pp. 6, 22 (1990).    The 1991 amendments to Title VII also provide the answer to the majority’s argument that the mixed-motives approach has proved unworkable. Ante , at 10–11. Because Congress has codified a mixed-motives framework for Title VII cases—the vast majority of antidiscrimination lawsuits—the Court’s concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today’s decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims.    The Court’s resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard 20 years ago, and Congress’ response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up—whether a mixed-motives jury instruction is ever proper in an ADEA case—is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert Palace, Inc. v. Costa , 539 U. S. 90 (2003). I would accordingly hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. The source of the direct-evidence debate is Justice O’Connor’s opinion concurring in the judgment in Price Waterhouse . Writing only for herself, Justice O’Connor argued that a plaintiff should be required to introduce “direct evidence” that her sex motivated the decision before the plurality’s mixed-motives framework would apply. 490 U. S., at 276.[ Footnote 7 ] Many courts have treated Justice O’Connor’s opinion in Price Waterhouse as controlling for both Title VII and ADEA mixed-motives cases in light of our statement in Marks v. United States , 430 U. S. 188 , 193 (1977), that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes for a single rationale: Justice White agreed with the plurality as to the motivating-factor test, see supra , at 3, n. 3; he disagreed only as to the type of evidence an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective evidence, he wrote separately to express his view that an employer’s credible testimony could suffice. 490 U. S., at 261. Because Justice White provided a fifth vote for the “rationale explaining the result” of the Price Waterhouse decision, Marks , 430 U. S., at 193, his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct evidence. Any questions raised by Price Waterhouse as to a direct evidence requirement were settled by this Court’s unanimous decision in Desert Palace , in which we held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing the language of §2000e–2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct evidence and that “Congress has been unequivocal when imposing heightened proof requirements.” 539 U. S., at 99. The statute’s silence with respect to direct evidence, we held, meant that “we should not depart from the ‘[c]onventional rul[e] of civil litigation … [that] requires a plaintiff to prove his case by a preponderance of the evidence’, … using ‘direct or circumstantial evidence.’ ” Ibid. (quoting Price Waterhouse , 490 U. S., at 253 (plurality opinion), and Postal Service Bd. of Governors v. Aikens , 460 U. S. 711 (1983)). We also recognized the Court’s consistent acknowledgment of the utility of circumstantial evidence in discrimination cases. Our analysis in Desert Palace applies with equal force to the ADEA. Cf. ante , at 9–10, n. 4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct evidence requirement, and we have specifically recognized the utility of circumstantial evidence in ADEA cases. See Reeves , 530 U. S., at 147 (cited by Desert Palace , 539 U. S., at 99–100). Moreover, in Hazen Paper Co. , we held that an award of liquidated damages for a “willful” violation of the ADEA did not require proof of the employer’s motivation through direct evidence, 507 U. S., at 615, and we have similarly rejected the imposition of special evidentiary rules in other ADEA cases. See, e.g. , Swierkiewicz v. Sorema N. A. , 534 U. S. 506 (2002); O’Connor v. Consolidated Coin Caterers Corp. , 517 U. S. 308 (1996). Desert Palace thus confirms the answer provided by the plurality and Justice White in Price Waterhouse: An ADEA plaintiff need not present direct evidence of discrimination to obtain a mixed-motives instruction. IV The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price Waterhouse and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent. Footnote 1 “The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motives jury instruction in a suit brought under the [ADEA].” Ante , at 1. Footnote 2 The United States filed an amicus curiae brief supporting petitioner on the question presented. At oral argument, the Government urged that the Court should not reach the issue it takes up today. See Tr. of Oral Arg. 20–21, 28–29. Footnote 3 Although Justice White stated that the plaintiff had to show that her sex was a “substantial” factor, while the plurality used the term “motivating” factor, these standards are interchangeable, as evidenced by Justice White’s quotation of Mt. Healthy City Bd. of Ed. v. Doyle , 429 U. S. 274 , 287 (1977): “ ‘[T]he burden was properly placed upon [the plaintiff to show that the illegitimate criterion] was a “substantial factor”—or, to put it in other words , that it was a “motivating factor” ’ ” in the adverse decision. Price Waterhouse , 490 U. S., at 259 (emphasis added); see also id. , at 249 (plurality opinion) (using “substantial” and “motivating” interchangeably). Footnote 4 We were no doubt aware that dictionaries define “because of” as “by reason of” or “on account of.” Ante , at 7–8. Contrary to the majority’s bald assertion, however, this does not establish that the term denotes but-for causation. The dictionaries the Court cites do not, for instance, define “because of” as “ solely by reason of” or “ exclusively on account of.” In Price Waterhouse , we recognized that the words “because of” do not mean “ solely because of,” and we held that the inquiry “commanded by the words” of the statute was whether gender was a motivating factor in the employment decision. 490 U. S., at 241 (plurality opinion). Footnote 5 See Febres v. Challenger Caribbean Corp ., 214 F. 3d 57 (CA1 2000); Ostrowski v. Atlantic Mut. Ins. Cos. , 968 F. 2d 171 (CA2 1992); Starceski v. Westinghouse Elec. Corp. , 54 F. 3d 1089 (CA3 1995); EEOC v. Warfield-Rohr Casket Co ., 364 F. 3d 160 (CA4 2004); Rachid v. Jack In The Box, Inc ., 376 F. 3d 305 (CA5 2004); Wexler v. White’s Fine Furniture, Inc. , 317 F. 3d 564 (CA6 2003); Visser v. Packer Eng. Assocs., Inc. , 924 F. 2d 655 (CA7 1991) (en banc); Hutson v. McDonnell Douglas Corp. , 63 F. 3d 771 (CA8 1995); Lewis v. YMCA , 208 F. 3d 1303 (CA11 2000) (per curiam); see also Gonzagowski v. Widnall , 115 F. 3d 744, 749 (CA10 1997). Footnote 6 There is, however, some evidence that Congress intended the 1991 mixed-motives amendments to apply to the ADEA as well. See H. R. Rep., pt. 2, at 4 (noting that a “number of other laws banning discrimination, including … the Age Discrimination in Employment Act (ADEA), 29 U. S. C. §621, et seq., are modeled after and have been interpreted in a manner consistent with Title VII,” and that “these other laws modeled after Title VII [should] be interpreted consistently in a manner consistent with Title VII as amended by this Act,” including the mixed-motives provisions). Footnote 7 While Justice O’Connor did not define precisely what she meant by “direct evidence,” we contrasted such evidence with circumstantial evidence in Desert Palace, Inc. v. Costa , 539 U. S. 90 (2003). That Justice O’Connor might have intended a different definition does not affect my conclusion, as I do not believe a plaintiff is required to introduce any special type of evidence to obtain a mixed-motives instruction. BREYER, J., DISSENTING GROSS V. FBL FINANCIAL SERVICES, INC. 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 08-441 JACK GROSS, PETITIONER v. FBL FINANCIAL SERVICES, INC. on writ of certiorari to the united states court of appeals for the eighth circuit [June 18, 2009]    Justice Breyer, with whom Justice Souter and Justice Ginsburg join, dissenting.    I agree with Justice Stevens that mixed-motive instructions are appropriate in the Age Discrimination in Employment Act context. And I join his opinion. The Court rejects this conclusion on the ground that the words “because of” require a plaintiff to prove that age was the “but-for” cause of his employer’s adverse employment action. Ante , at 7. But the majority does not explain why this is so. The words “because of” do not inherently require a showing of “but-for” causation, and I see no reason to read them to require such a showing.    It is one thing to require a typical tort plaintiff to show “but-for” causation. In that context, reasonably objective scientific or commonsense theories of physical causation make the concept of “but-for” causation comparatively easy to understand and relatively easy to apply. But it is an entirely different matter to determine a “but-for” relation when we consider, not physical forces, but the mind-related characterizations that constitute motive. Sometimes we speak of determining or discovering motives, but more often we ascribe motives, after an event, to an individual in light of the individual’s thoughts and other circumstances present at the time of decision. In a case where we characterize an employer’s actions as having been taken out of multiple motives, say, both because the employee was old and because he wore loud clothing, to apply “but-for” causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different. The answer to this hypothetical inquiry will often be far from obvious, and, since the employee likely knows less than does the employer about what the employer was thinking at the time, the employer will often be in a stronger position than the employee to provide the answer.    All that a plaintiff can know for certain in such a context is that the forbidden motive did play a role in the employer’s decision. And the fact that a jury has found that age did play a role in the decision justifies the use of the word “because,” i.e ., the employer dismissed the employee because of his age (and other things). See Price Waterhouse v. Hopkins , 490 U. S. 228 , 239–242 (1989) (plurality opinion). I therefore would see nothing wrong in concluding that the plaintiff has established a violation of the statute.    But the law need not automatically assess liability in these circumstances. In Price Waterhouse , the plurality recognized an affirmative defense where the defendant could show that the employee would have been dismissed regardless. The law permits the employer this defense, not because the forbidden motive, age, had no role in the actual decision, but because the employer can show that he would have dismissed the employee anyway in the hypothetical circumstance in which his age-related motive was absent. And it makes sense that this would be an affirmative defense, rather than part of the showing of a violation, precisely because the defendant is in a better position than the plaintiff to establish how he would have acted in this hypothetical situation. See id. , at 242; cf. ante , at 6 (Stevens, J., dissenting) (describing the Title VII framework). I can see nothing unfair or impractical about allocating the burdens of proof in this way.    The instruction that the District Court gave seems appropriate and lawful. It says, in pertinent part:    “Your verdict must be for plaintiff if all the following elements have been proved by the preponderance of the evidence: .     .     .     .     . “[The] plaintiff’s age was a motivating factor in defendant’s decision to demote plaintiff.    “However, your verdict must be for defendant … if it has been proved by the preponderance of the evidence that defendant would have demoted plaintiff regardless of his age. .     .     .     .     .    “As used in these instructions, plaintiff’s age was ‘a motivating factor,’ if plaintiff’s age played a part or a role in the defendant’s decision to demote plaintiff. However, plaintiff’s age need not have been the only reason for defendant’s decision to demote plaintiff.” App. 9–10.    For these reasons as well as for those set forth by Justice Stevens, I respectfully dissent.

In Gross v. FBL Financial Services, Inc., the Supreme Court considered whether a mixed-motives jury instruction is appropriate in an age discrimination case under the Age Discrimination in Employment Act (ADEA). The Court held that a mixed-motives instruction is never proper in an ADEA case and vacated the lower court's decision. The Court reasoned that the ADEA's statutory language requires a plaintiff to prove that age was the "but-for" cause of the adverse employment action, not just a motivating factor. This means that a plaintiff must show that age was the determining factor in the employer's decision, not just one of multiple factors.

Labor & Employment

14 Penn Plaza, LLC v. Pyett

https://supreme.justia.com/cases/federal/us/556/247/

OPINION OF THE COURT 14 PENN PLAZA LLC V. PYETT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-581 14 PENN PLAZA LLC, et al., PETITIONERS v. STEVEN PYETT et al. on writ of certiorari to the united states court of appeals for the second circuit [April 1, 2009]    Justice Thomas delivered the opinion of the Court.    The question presented by this case is whether a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq ., is enforceable. The United States Court of Appeals for the Second Circuit held that this Court’s decision in Alexander v. Gardner-Denver Co. , 415 U. S. 36 (1974), forbids enforcement of such arbitration provisions. We disagree and reverse the judgment of the Court of Appeals. I    Respondents are members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. See 29 U. S. C. §159(a). In this role, the Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment.” Ibid. Since the 1930’s, the Union has engaged in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multiemployer bargaining association for the New York City real-estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures: “§30 NO DISCRIMINATION. There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, … or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.” App. to Pet. for Cert. 48a.[ Footnote 1 ]    Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where, prior to August 2003, respondents worked as night lobby watchmen and in other similar capacities. Respondents were directly employed by petitioner Temco Service Industries, Inc. (Temco), a maintenance service and cleaning contractor. In August 2003, with the Union’s consent, 14 Penn Plaza engaged Spartan Security, a unionized security services contractor and affiliate of Temco, to provide licensed security guards to staff the lobby and entrances of its building. Because this rendered respondents’ lobby services unnecessary, Temco reassigned them to jobs as night porters and light duty cleaners in other locations in the building. Respondents contend that these reassignments led to a loss in income, caused them emotional distress, and were otherwise less desirable than their former positions.    At respondents’ request, the Union filed grievances challenging the reassignments. The grievances alleged that petitioners: (1) violated the CBA’s ban on workplace discrimination by reassigning respondents on account of their age; (2) violated seniority rules by failing to promote one of the respondents to a handyman position; and (3) failed to equitably rotate overtime. After failing to obtain relief on any of these claims through the grievance process, the Union requested arbitration under the CBA.    After the initial arbitration hearing, the Union withdrew the first set of respondents’ grievances—the age-discrimination claims—from arbitration. Because it had consented to the contract for new security personnel at 14 Penn Plaza, the Union believed that it could not legitimately object to respondents’ reassignments as discriminatory. But the Union continued to arbitrate the seniority and overtime claims, and, after several hearings, the claims were denied.    In May 2004, while the arbitration was ongoing but after the Union withdrew the age-discrimination claims, respondents filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their rights under the ADEA. Approximately one month later, the EEOC issued a Dismissal and Notice of Rights, which explained that the agency’s “ ‘review of the evidence … fail[ed] to indicate that a violation ha[d] occurred,’ ” and notified each respondent of his right to sue. Pyett v. Pennsylvania Building Co. , 498 F. 3d 88, 91 (CA2 2007).    Respondents thereafter filed suit against petitioners in the United States District Court for the Southern District of New York, alleging that their reassignment violated the ADEA and state and local laws prohibiting age discrimination.[ Footnote 2 ] Petitioners filed a motion to compel arbitration of respondents’ claims pursuant to §3 and §4 of the Federal Arbitration Act (FAA), 9 U. S. C. §§3, 4.[ Footnote 3 ] The District Court denied the motion because under Second Circuit precedent, “even a clear and unmistakable union-negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforceable.” App. to Pet. for Cert. 21a. Respondents immediately appealed the ruling under §16 of the FAA, which authorizes an interlocutory appeal of “an order … refusing a stay of any action under section 3 of this title” or “denying a petition under section 4 of this title to order arbitration to proceed.” 9 U. S. C. §§16(a)(1)(A)–(B).    The Court of Appeals affirmed. 498 F. 3d 88. According to the Court of Appeals, it could not compel arbitration of the dispute because Gardner-Denver , which “remains good law,” held “that a collective bargaining agreement could not waive covered workers’ rights to a judicial forum for causes of action created by Congress.” 498 F. 3d, at 92, 91, n. 3 (citing Gardner-Denver , 415 U. S., at 49–51). The Court of Appeals observed that the Gardner-Denver decision was in tension with this Court’s more recent decision in Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20 (1991), which “held that an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimination claim.” 498 F. 3d, at 91, n. 3 (citing Gilmer , supra, at 33–35; emphasis in original). The Court of Appeals also noted that this Court previously declined to resolve this tension in Wright v. Universal Maritime Service Corp. , 525 U. S. 70 , 82 (1998), where the waiver at issue was not “clear and unmistakable.” 498 F. 3d, at 91, n. 3.    The Court of Appeals attempted to reconcile Gardner-Denver and Gilmer by holding that arbitration provisions in a collective-bargaining agreement, “which purport to waive employees’ rights to a federal forum with respect to statutory claims, are unenforceable.” 498 F. 3d, at 93–94. As a result, an individual employee would be free to choose compulsory arbitration under Gilmer , but a labor union could not collectively bargain for arbitration on behalf of its members. We granted certiorari, 552 U. S. ___ (2008), to address the issue left unresolved in Wright , which continues to divide the Courts of Appeals,[ Footnote 4 ] and now reverse. II A    The NLRA governs federal labor-relations law. As permitted by that statute, respondents designated the Union as their “exclusive representativ[e] … for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.” 29 U. S. C. §159(a). As the employees’ exclusive bargaining representative, the Union “enjoys broad authority … in the negotiation and administration of [the] collective bargaining contract.” Communications Workers v. Beck , 487 U. S. 735 , 739 (1988) (internal quotation marks omitted). But this broad authority “is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.” Humphrey v. Moore , 375 U. S. 335 , 342 (1964). The employer has a corresponding duty under the NLRA to bargain in good faith “with the representatives of his employees” on wages, hours, and conditions of employment. 29 U. S. C. §158(a)(5); see also §158(d).    In this instance, the Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a “conditio[n] of employment” that is subject to mandatory bargaining under §159(a). See Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB , 501 U. S. 190 , 199 (1991) (“[A]rrangements for arbitration of disputes are a term or condition of employment and a mandatory subject of bargaining”); Steelworkers v. Warrior & Gulf Nav. Co. , 363 U. S. 574 , 578 (1960) (“[A]rbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself”); Textile Workers v. Lincoln Mills of Ala. , 353 U. S. 448 , 455 (1957) (“Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike”). The decision to fashion a CBA to require arbitration of employment-discrimination claims is no different from the many other decisions made by parties in designing grievance machinery.[ Footnote 5 ]    Respondents, however, contend that the arbitration clause here is outside the permissible scope of the collective-bargaining process because it affects the “employees’ individual, non-economic statutory rights.” Brief for Respondents 22; see also post , at 5–6 (Souter, J., dissenting). We disagree. Parties generally favor arbitration precisely because of the economics of dispute resolution. See Circuit City Stores, Inc. v. Adams , 532 U. S. 105 , 123 (2001) (“Arbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts”). As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other concessions from the employer. Courts generally may not interfere in this bargained-for exchange. “Judicial nullification of contractual concessions … is contrary to what the Court has recognized as one of the fundamental policies of the National Labor Relations Act—freedom of contract.” NLRB v. Magnavox Co. , 415 U. S. 322 , 328 (1974) (Stewart, J., concurring in part and dissenting in part) (internal quotation marks and brackets omitted).    As a result, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U. S. 614 , 628 (1985). It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See Gilmer , 500 U. S., at 26–33.    In Gilmer , the Court explained that “[a]lthough all statutory claims may not be appropriate for arbitration, ‘having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” Id ., at 26 (quoting Mitsubishi Motors Corp. , supra, at 628). And “if Congress intended the substantive protection afforded by the ADEA to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” 500 U. S., at 29 (internal quotation marks and brackets omitted). The Court determined that “nothing in the text of the ADEA or its legislative history explicitly precludes arbitration.” Id. , at 26–27. The Court also concluded that arbitrating ADEA disputes would not undermine the statute’s “remedial and deterrent function.” Id. , at 28 (internal quotation marks omitted). In the end, the employee’s “generalized attacks” on “the adequacy of arbitration procedures” were “insufficient to preclude arbitration of statutory claims,” id., at 30, because there was no evidence that “Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act,” id., at 35.    The Gilmer Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative. This Court has required only that an agreement to arbitrate statutory antidiscrimination claims be “explicitly stated” in the collective-bargaining agreement. Wright , 525 U. S., at 80 (internal quotation marks omitted). The CBA under review here meets that obligation. Respondents incorrectly counter that an individual employee must personally “waive” a “[substantive] right” to proceed in court for a waiver to be “knowing and voluntary” under the ADEA. 29 U. S. C. §626(f)(1). As explained below, however, the agreement to arbitrate ADEA claims is not the waiver of a “substantive right” as that term is employed in the ADEA. Wright , supra, at 80; see infra , at 15–16. Indeed, if the “right” referred to in §626(f)(1) included the prospective waiver of the right to bring an ADEA claim in court, even a waiver signed by an individual employee would be invalid as the statute also prevents individuals from “waiv[ing] rights or claims that may arise after the date the waiver is executed.” §626(f)(1)(C).[ Footnote 6 ]    Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accordingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely negotiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal. Congress has chosen to allow arbitration of ADEA claims. The Judiciary must respect that choice. B    The CBA’s arbitration provision is also fully enforceable under the Gardner-Denver line of cases. Respondents interpret Gardner-Denver and its progeny to hold that “a union cannot waive an employee’s right to a judicial forum under the federal antidiscrimination statutes” because “allowing the union to waive this right would substitute the union’s interests for the employee’s antidiscrimination rights.” Brief for Respondents 12. The “combination of union control over the process and inherent conflict of interest with respect to discrimination claims,” they argue, “provided the foundation for the Court’s holding [in Gardner-Denver ] that arbitration under a collective-bargaining agreement could not preclude an individual employee’s right to bring a lawsuit in court to vindicate a statutory discrimination claim.” Id. , at 15. We disagree. 1    The holding of Gardner-Denver is not as broad as respondents suggest. The employee in that case was covered by a collective-bargaining agreement that prohibited “discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry” and that guaranteed that “[n]o employee will be discharged … except for just cause.” 415 U. S., at 39 (internal quotation marks omitted). The agreement also included a “multistep grievance procedure” that culminated in compulsory arbitration for any “differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement” and “any trouble aris[ing] in the plant.” Id ., at 40–41 (internal quotation marks omitted).    The employee was discharged for allegedly producing too many defective parts while working for the respondent as a drill operator. He filed a grievance with his union claiming that he was “ ‘unjustly discharged’ ” in violation of the “ ‘just cause’ ” provision within the CBA. Then at the final prearbitration step of the grievance process, the employee added a claim that he was discharged because of his race. Id. , at 38–42.    The arbitrator ultimately ruled that the employee had been “ ‘discharged for just cause,’ ” but “made no reference to [the] claim of racial discrimination.” Id ., at 42. After obtaining a right-to-sue letter from the EEOC, the employee filed a claim in Federal District Court, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court issued a decision, affirmed by the Court of Appeals, which granted summary judgment to the employer because it concluded that “the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to [the employee].” Id. , at 43. In the District Court’s view, “having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective-bargaining agreement,” the employee was “bound by the arbitral decision” and precluded from suing his employer on any other grounds, such as a statutory claim under Title VII. Ibid .    This Court reversed the judgment on the narrow ground that the arbitration was not preclusive because the collective-bargaining agreement did not cover statutory claims. As a result, the lower courts erred in relying on the “doctrine of election of remedies” to bar the employee’s Title VII claim. Id. , at 49. “That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent” with each other, did not apply to the employee’s dual pursuit of arbitration and a Title VII discrimination claim in district court. The employee’s collective-bargaining agreement did not mandate arbitration of statutory antidiscrimination claims. Id. , at 49–50. “As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties.” Id. , at 53. Because the collective-bargaining agreement gave the arbitrator “authority to resolve only questions of contractual rights,” his decision could not prevent the employee from bringing the Title VII claim in federal court “regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII.” Id. , at 53–54; see also id. , at 50.    The Court also explained that the employee had not waived his right to pursue his Title VII claim in federal court by participating in an arbitration that was premised on the same underlying facts as the Title VII claim. See id., at 52. Thus, whether the legal theory of preclusion advanced by the employer rested on “the doctrines of election of remedies” or was recast “as resting instead on the doctrine of equitable estoppel and on themes of res judicata and collateral estoppel,” id. , at 49, n. 10 (internal quotation marks omitted), it could not prevail in light of the collective-bargaining agreement’s failure to address arbitration of Title VII claims. See id. , at 46, n. 6 (“[W]e hold that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is dispositive of a statutory claim under Title VII” (emphasis added)).    The Court’s decisions following Gardner-Denver have not broadened its holding to make it applicable to the facts of this case. In Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 (1981), the Court considered “whether an employee may bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act, … after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union’s collective-bargaining agreement.” Id. , at 729–730. The Court held that the unsuccessful arbitration did not preclude the federal lawsuit. Like the collective-bargaining agreement in Gardner-Denver , the arbitration provision under review in Barrentine did not expressly reference the statutory claim at issue. See 450 U. S., at 731, n. 5. The Court thus reiterated that an “arbitrator’s power is both derived from, and limited by, the collective-bargaining agreement” and “[h]is task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties.” Id. , at 744. McDonald v. West Branch , 466 U. S. 284 (1984), was decided along similar lines. The question presented in that case was “whether a federal court may accord preclusive effect to an unappealed arbitration award in a case brought under [42 U. S. C. §1983].” Id. , at 285. The Court declined to fashion such a rule, again explaining that “because an arbitrator’s authority derives solely from the contract, Barrentine , supra, at 744, an arbitrator may not have authority to enforce §1983” when that provision is left unaddressed by the arbitration agreement. Id. , at 290. Accordingly, as in both Gardner-Denver and Barrentine , the Court’s decision in McDonald hinged on the scope of the collective-bargaining agreement and the arbitrator’s parallel mandate.    The facts underlying Gardner-Denver , Barrentine , and McDonald reveal the narrow scope of the legal rule arising from that trilogy of decisions. Summarizing those opinions in Gilmer , this Court made clear that the Gardner-Denver line of cases “did not involve the issue of the enforceability of an agreement to arbitrate statutory claims.” 500 U. S., at 35. Those decisions instead “involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions.” Ibid.; see also Wright , 525 U. S., at 76; Livadas v. Bradshaw , 512 U. S. 107 , 127, n. 21 (1994).[ Footnote 7 ] Gardner-Denver and its progeny thus do not control the outcome where, as is the case here, the collective-bargaining agreement’s arbitration provision expressly covers both statutory and contractual discrimination claims.[ Footnote 8 ] 2    We recognize that apart from their narrow holdings, the Gardner-Denver line of cases included broad dicta that was highly critical of the use of arbitration for the vindication of statutory antidiscrimination rights. That skepticism, however, rested on a misconceived view of arbitration that this Court has since abandoned.    First, the Court in Gardner-Denver erroneously assumed that an agreement to submit statutory discrimination claims to arbitration was tantamount to a waiver of those rights. See 415 U. S., at 51. (“[T]here can be no prospective waiver of an employee’s rights under Title VII” (emphasis added)). For this reason, the Court stated, “the rights conferred [by Title VII] can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII.” Ibid.; see also id. , at 56 (“we have long recognized that ‘the choice of forums inevitably affects the scope of the substantive right to be vindicated’ ” (quoting U. S. Bulk Carriers, Inc. v. Arguelles , 400 U. S. 351 , 359–360 (1971) (Harlan, J., concurring))).    The Court was correct in concluding that federal antidiscrimination rights may not be prospectively waived, see 29 U. S. C. §626(f)(1)(C); see supra, at 9, but it confused an agreement to arbitrate those statutory claims with a prospective waiver of the substantive right. The decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance. See Gilmer , supra, at 26 (“ ‘[B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum’ ” (quoting Mitsubishi Motors Corp. , 473 U. S., at 628)). This “Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law.” Circuit City Stores, Inc. , 532 U. S., at 123. The suggestion in Gardner-Denver that the decision to arbitrate statutory discrimination claims was tantamount to a substantive waiver of those rights, therefore, reveals a distorted understanding of the compromise made when an employee agrees to compulsory arbitration.    In this respect, Gardner-Denver is a direct descendant of the Court’s decision in Wilko v. Swan , 346 U. S. 427 (1953), which held that an agreement to arbitrate claims under the Securities Act of 1933 was unenforceable. See id. , at 438. The Court subsequently overruled Wilko and, in so doing, characterized the decision as “pervaded by … ‘the old judicial hostility to arbitration.’ ” Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U. S. 477 , 480 (1989). The Court added: “To the extent that Wilko rested on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” Id. , at 481; see also Mitsubishi Motors Corp. , supra, at 626–627 (“[W]e are well past the time when judicial suspicion of the desirability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution”). The timeworn “mistrust of the arbitral process” harbored by the Court in Gardner-Denver thus weighs against reliance on anything more than its core holding. Shearson/American Express Inc. v. McMahon , 482 U. S. 220 , 231–232 (1987); see also Gilmer , 500 U. S., at 34, n. 5 (reiterating that Gardner-Denver ’s view of arbitration “has been undermined by [the Court’s] recent arbitration decisions”). Indeed, in light of the “radical change, over two decades, in the Court’s receptivity to arbitration,” Wright , 525 U. S., at 77, reliance on any judicial decision similarly littered with Wilko ’s overt hostility to the enforcement of arbitration agreements would be ill advised. [ Footnote 9 ] Second, Gardner-Denver mistakenly suggested that certain features of arbitration made it a forum “well suited to the resolution of contractual disputes,” but “a comparatively inappropriate forum for the final resolution of rights created by Title VII.” 415 U. S., at 56. According to the Court, the “factfinding process in arbitration” is “not equivalent to judicial factfinding” and the “informality of arbitral procedure … makes arbitration a less appropriate forum for final resolution of Title VII issues than the federal courts.” Id ., at 57, 58. The Court also questioned the competence of arbitrators to decide federal statutory claims. See id ., at 57 (“[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land”); Barrentine , 450 U. S., at 743 (“Although an arbitrator may be competent to resolve many preliminary factual questions, such as whether the employee ‘punched in’ when he said he did, he may lack competence to decide the ultimate legal issue whether an employee’s right to a minimum wage or to overtime pay under the statute has been violated”). In the Court’s view, “the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.” Gardner-Denver , supra, at 57; see also McDonald , 466 U. S., at 290 (“An arbitrator may not … have the expertise required to resolve the complex legal questions that arise in §1983 actions”). These misconceptions have been corrected. For example, the Court has “recognized that arbitral tribunals are readily capable of handling the factual and legal complexities of antitrust claims, notwithstanding the absence of judicial instruction and supervision” and that “there is no reason to assume at the outset that arbitrators will not follow the law.” McMahon , supra, at 232; Mitsubishi Motors Corp. , 473 U. S., at 634 (“We decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious, and impartial arbitrators”). An arbitrator’s capacity to resolve complex questions of fact and law extends with equal force to discrimination claims brought under the ADEA. Moreover, the recognition that arbitration procedures are more streamlined than federal litigation is not a basis for finding the forum somehow inadequate; the relative informality of arbitration is one of the chief reasons that parties select arbitration. Parties “trad[e] the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” Id. , at 628. In any event, “[i]t is unlikely … that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims.” Gilmer , 500 U. S., at 31. At bottom, objections centered on the nature of arbitration do not offer a credible basis for discrediting the choice of that forum to resolve statutory antidiscrimination claims.[ Footnote 10 ] Third, the Court in Gardner-Denver raised in a footnote a “further concern” regarding “the union’s exclusive control over the manner and extent to which an individual grievance is presented.” 415 U. S., at 58, n. 19. The Court suggested that in arbitration, as in the collective-bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit. Ibid.; see also McDonald , supra , at 291 (“The union’s interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the employee’s grievance less vigorously, or make different strategic choices, than would the employee”); see also Barrentine , supra, at 742; post , at 8, n. 4 (Souter, J., dissenting). We cannot rely on this judicial policy concern as a source of authority for introducing a qualification into the ADEA that is not found in its text. Absent a constitutional barrier, “it is not for us to substitute our view of … policy for the legislation which has been passed by Congress.” Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. , 554 U. S. ___, ___ (2008) (slip op., at 18) (internal quotation marks omitted). Congress is fully equipped “to identify any category of claims as to which agreements to arbitrate will be held unenforceable.” Mitsubishi Motors Corp. , supra , at 627. Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the Gardner-Denver dicta, and seized on by respondents here, there is “no reason to color the lens through which the arbitration clause is read” simply because of an alleged conflict of interest between a union and its members. Mitsubishi Motors Corp., supra, at 628. This is a “battl[e] that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co. , 534 U. S. 438 , 462 (2002). The conflict-of-interest argument also proves too much. Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective-bargain agreements and implement them on a daily basis. But this attribute of organized labor does not justify singling out an arbitration provision for disfavored treatment. This “principle of majority rule” to which respondents object is in fact the central premise of the NLRA. Emporium Capwell Co. v. Western Addition Community Organization , 420 U. S. 50 , 62 (1975). “In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, in full awareness that the superior strength of some individuals or groups might be subordinated to the interest of the majority.” Ibid. (footnote omitted); see also Ford Motor Co. v. Huffman , 345 U. S. 330 , 338 (1953) (“The complete satisfaction of all who are represented is hardly to be expected”); Pennsylvania R. Co. v. Rychlik , 352 U. S. 480 , 498 (1957) (Frankfurter, J., concurring). It was Congress’ verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system necessarily demands. Respondents’ argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA. In any event, Congress has accounted for this conflict of interest in several ways. As indicated above, the NLRA has been interpreted to impose a “duty of fair representation” on labor unions, which a union breaches “when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith.” Marquez v. Screen Actors , 525 U. S. 33 , 44 (1998). This duty extends to “challenges leveled not only at a union’s contract administration and enforcement efforts but at its negotiation activities as well.” Beck , 487 U. S., at 743 (citation omitted). Thus, a union is subject to liability under the NLRA if it illegally discriminates against older workers in either the formation or governance of the collective-bargaining agreement, such as by deciding not to pursue a grievance on behalf of one of its members for discriminatory reasons. See Vaca v. Sipes , 386 U. S. 171 , 177 (1967) (describing the duty of fair representation as the “statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct” (emphasis added)). Respondents in fact brought a fair representation suit against the Union based on its withdrawal of support for their age-discrimination claims. See n. 2, supra . Given this avenue that Congress has made available to redress a union’s violation of its duty to its members, it is particularly inappropriate to ask this Court to impose an artificial limitation on the collective-bargaining process. In addition, a union is subject to liability under the ADEA if the union itself discriminates against its members on the basis of age. See 29 U. S. C. §623(d); see also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1575–1581 (4th ed. 2007) (explaining that a labor union may be held jointly liable with an employer under federal antidiscrimination laws for discriminating in the formation of a collective-bargaining agreement, knowingly acquiescing in the employer’s discrimination, or inducing the employer to discriminate); cf. Goodman v. Lukens Steel Co. , 482 U. S. 656 , 669 (1987). Union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board, which may then seek judicial intervention under this Court’s precedent. See EEOC v. Waffle House, Inc. , 534 U. S. 279 , 295–296 (2002). In sum, Congress has provided remedies for the situation where a labor union is less than vigorous in defense of its members’ claims of discrimination under the ADEA. III Finally, respondents offer a series of arguments contending that the particular CBA at issue here does not clearly and unmistakably require them to arbitrate their ADEA claims. See Brief for Respondents 44–47. But respondents did not raise these contract-based arguments in the District Court or the Court of Appeals. To the contrary, respondents acknowledged on appeal that the CBA provision requiring arbitration of their federal antidiscrimination statutory claims “is sufficiently explicit” in precluding their federal lawsuit. Brief for Plaintiffs-Appellees in No. 06–3047–cv(L) etc. (CA2), p. 9. In light of respondents’ litigating position, both lower courts assumed that the CBA’s arbitration clause clearly applied to respondents and proceeded to decide the question left unresolved in Wright . We granted review of the question presented on that understanding. “Without cross-petitioning for certiorari, a prevailing party may, of course, ‘defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.’ ” Granfinanciera, S. A. v. Nordberg , 492 U. S. 33 , 38–39 (1989) (quoting Washington v. Confederated Bands and Tribes of Yakima Nation , 439 U. S. 463 , 476, n. 20 (1979)). But this Court will affirm on grounds that have “ ‘not been raised below … “only in exceptional cases.” ’ ” Nordberg, supra, at 39 (quoting Heckler v. Campbell , 461 U. S. 458 , 468–469, n. 12 (1983)). This is not an “exceptional case.” As a result, we find that respondents’ alternative arguments for affirmance have been forfeited. See, e.g. , Rita v. United States , 551 U. S. 338 , 360 (2007); Sprietsma v. Mercury Marine , 537 U. S. 51 , 56, n. 4 (2002). We will not resurrect them on respondents’ behalf. Respondents also argue that the CBA operates as a substantive waiver of their ADEA rights because it not only precludes a federal lawsuit, but also allows the Union to block arbitration of these claims. Brief for Respondents 28–30. Petitioners contest this characterization of the CBA, see Reply Brief for Petitioners 23–27, and offer record evidence suggesting that the Union has allowed respondents to continue with the arbitration even though the Union has declined to participate, see App. to Pet. for Cert. 42a. But not only does this question require resolution of contested factual allegations, it was not fully briefed to this or any court and is not fairly encompassed within the question presented, see this Court’s Rule 14.1(a). Thus, although a substantive waiver of federally protected civil rights will not be upheld, see Mitsubishi Motors Corp ., 473 U. S., at 637, and n. 19; Gilmer , 500 U. S., at 29, we are not positioned to resolve in the first instance whether the CBA allows the Union to prevent respondents from “effectively vindicating” their “federal statutory rights in the arbitral forum,” Green Tree Financial Corp. - Ala. v. Randolph , 531 U. S. 79 , 90 (2000). Resolution of this question at this juncture would be particularly inappropriate in light of our hesitation to invalidate arbitration agreements on the basis of speculation. See id ., at 91. IV We hold that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Article V establishes the grievance process, which applies to all claims regardless of whether they are subject to arbitration under the CBA. Article VI establishes the procedures for arbitration and postarbitration judicial review, and, in particular, provides that the arbitrator “shall … decide all differences arising between the parties as to interpretation, application or performance of any part of this Agreement and such other issues as the parties are expressly required to arbitrate before him under the terms of this Agreement.” App. to Pet. for Cert. 43a–47a. Footnote 2 Respondents also filed a “hybrid” lawsuit against the Union and petitioners under §301 of the Labor Management Relations Act, 1947, 29 U. S. C. §185, see also DelCostello v. Teamsters , 462 U. S. 151 , 164–165 (1983), alleging that the Union breached its “duty of fair representation” under the NLRA by withdrawing support for the age-discrimination claims during the arbitration and that petitioners breached the CBA by reassigning respondents. Respondents later voluntarily dismissed this suit with prejudice. Footnote 3 Petitioners also filed a motion to dismiss the complaint for failure to state a claim. The District Court denied the motion, holding that respondents had sufficiently alleged an ADEA claim by claiming that they “were over the age of 40, … they were reassigned to positions which led to substantial losses in income, and … their replacements were both younger and had less seniority at the building.” App. to Pet. for Cert. 20a (footnote omitted). Petitioners have not appealed that ruling. Footnote 4 Compare , e.g. , Rogers v. New York Univ. , 220 F. 3d 73, 75 (CA2 2000) (per curiam); O’Brien v. Agawam, 350 F. 3d 279, 285 (CA1 2003); Mitchell v. Chapman, 343 F. 3d 811, 824 (CA6 2003); Tice v. American Airlines, Inc. , 288 F. 3d 313, 317 (CA7 2002), with , e.g. , Eastern Associated Coal Corp. v. Massey, 373 F. 3d 530, 533 (CA4 2004). Footnote 5 Justice Souter claims that this understanding is “impossible to square with our conclusion in [ Alexander v.] Gardner-Denver [ Co. , 415 U. S. 36 (1974)] that ‘Title VII … stands on plainly different ground’ from ‘statutory rights related to collective activity’: ‘it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.’ ” Post , at 5 (dissenting opinion) (quoting Gardner-Denver , 415 U. S. , at 51). As explained below, however, Justice Souter repeats the key analytical mistake made in Gardner-Denver ’s dicta by equating the decision to arbitrate Title VII and ADEA claims to a decision to forgo these substantive guarantees against workplace discrimination. See infra , at 15–17. The right to a judicial forum is not the nonwaivable “substantive” right protected by the ADEA. See infra , at 9, 24. Thus, although Title VII and ADEA rights may well stand on “different ground” than statutory rights that protect “majoritarian processes,” Gardner-Denver , supra , at 51, the voluntary decision to collectively bargain for arbitration does not deny those statutory antidiscrimination rights the full protection they are due. Footnote 6 Respondents’ contention that §118 of the Civil Rights Act of 1991, Pub. L. 102–166, 105 Stat. 1081, note following 42 U. S. C. §1981 (2000 ed.), precludes the enforcement of this arbitration agreement also is misplaced. See Brief for Respondents 31–32; see also post , at 8–9 (Souter, J., dissenting). Section 118 expresses Congress’ support for alternative dispute resolution: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including … arbitration, is encouraged to resolve disputes arising under” the ADEA. 105 Stat. 1081, note following 42 U. S.C. §1981. Respondents argue that the legislative history actually signals Congress’ intent to preclude arbitration waivers in the collective-bargaining context. In particular, respondents point to a House Report that, in spite of the statute’s plain language, interprets §118 to support their position. See H. R. Rep. No. 102–40, pt. 1, p. 97 (1991) (“[A]ny agreement to submit disputed issues to arbitration … in the context of a collective bargaining agreement … does not preclude the affected person from seeking relief under the enforcement provisions of Title VII. This view is consistent with the Supreme Court’s interpretation of Title VII in Alexander v. Gardner-Denver Co. , 415 U. S. 36 (1974)”). But the legislative history mischaracterizes the holding of Gardner-Denver , which does not prohibit collective bargaining for arbitration of ADEA claims. See infra, at 11–14. Moreover, reading the legislative history in the manner suggested by respondents would create a direct conflict with the statutory text, which encourages the use of arbitration for dispute resolution without imposing any constraints on collective bargaining. In such a contest, the text must prevail. See Ratzlaf v. United States , 510 U. S. 135 , 147–148 (1994) (“[W]e do not resort to legislative history to cloud a statutory text that is clear”). Footnote 7 Justice Souter’s reliance on Wright v. Universal Maritime Service Corp. , 525 U. S. 70 (1998), to support its view of Gardner-Denver is misplaced. See post , at 5, 7. Wright identified the “tension” between the two lines of cases represented by Gardner-Denver and Gilmer , but found “it unnecessary to resolve the question of the validity of a union-negotiated waiver, since it [was] apparent … on the facts and arguments presented … that no such waiver [had] occurred.” 525 U. S., at 76–77. And although his dissent describes Wright ’s characterization of Gardner-Denver as “raising a ‘seemingly absolute prohibition of union waiver of employees’ federal forum rights,’ ” post , at 7 (quoting Wright , 525 U. S. , at 80), it wrenches the statement out of context: “Although [the right to a judicial forum] is not a substantive right, see Gilmer , 500 U. S., at 26, and whether or not Gardner-Denver ’s seemingly absolute prohibition of union waiver of employees’ federal forum rights survives Gilmer , Gardner-Denver at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be protected against less-than-explicit union waiver in a CBA,” id., at 80 (emphasis added). Wright therefore neither endorsed Gardner-Denver ’s broad language nor suggested a particular result in this case. Footnote 8 Because today’s decision does not contradict the holding of Gardner-Denver , we need not resolve the stare decisis concerns raised by the dissenting opinions. See post , at 4, 9 (opinion of Souter, J.); post , at 2–4 (opinion of Stevens, J.). But given the development of this Court’s arbitration jurisprudence in the intervening years, see infra , at 16–19, Gardner-Denver would appear to be a strong candidate for overruling if the dissents’ broad view of its holding, see post , at 6–7 (opinion of Souter, J.), were correct. See Patterson v. McLean Credit Union , 491 U. S. 164 , 173 (1989) (explaining that it is appropriate to overrule a decision where there “has been [an] intervening development of the law” such that the earlier “decision [is] irreconcilable with competing legal doctrines and policies”). Footnote 9 Justice Stevens suggests that the Court is displacing its “earlier determination of the relevant provisions’ meaning” based on a “preference for arbitration.” Post , at 2. But his criticism lacks any basis. We are not revisiting a settled issue or disregarding an earlier determination; the Court is simply deciding the question identified in Wright as unresolved. See supra , at 5–6; see also infra , at 23–24. And, contrary to Justice Stevens’ accusation, it is the Court’s fidelity to the ADEA’s text—not an alleged preference for arbitration—that dictates the answer to the question presented. As Gilmer explained, nothing in the text of Title VII or the ADEA precludes contractual arbitration, see supra , at 8–9, and Justice Stevens has never suggested otherwise. Rather, he has always contended that permitting the “compulsory arbitration” of employment discrimination claims conflicts with his perception of “the congressional purpose animating the ADEA.” Gilmer , 500 U. S., at 41 (Stevens, J., dissenting); see also id. , at 42 (“Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts” (internal quotation marks omitted)). The Gilmer Court did not adopt Justice Stevens’ personal view of the purposes underlying the ADEA, for good reason: That view is not embodied within the statute’s text. Accordingly, it is not the statutory text that Justice Stevens has sought to vindicate—it is instead his own “preference” for mandatory judicial review, which he disguises as a search for congressional purpose. This Court is not empowered to incorporate such a preference into the text of a federal statute. See infra , at 20–21. It is for this reason, and not because of a “policy favoring arbitration,” see post , at 1, 3 (Stevens, J., dissenting), that the Court overturned Wilko v. Swan , 346 U. S. 427 (1953). And it is why we disavow the antiarbitration dicta of Gardner-Denver and its progeny today. Footnote 10 Moreover, an arbitrator’s decision as to whether a unionized employee has been discriminated against on the basis of age in violation of the ADEA remains subject to judicial review under the FAA. 9 U. S. C. §10(a). “[A]lthough judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute.” Shearson/American Express Inc. v. McMahon , 482 U. S. 220 , 232 (1987). STEVENS, J., DISSENTING 14 PENN PLAZA LLC V. PYETT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-581 14 PENN PLAZA LLC, et al., PETITIONERS v. STEVEN PYETT et al. on writ of certiorari to the united states court of appeals for the second circuit [April 1, 2009]    Justice Stevens, dissenting.    Justice Souter’s dissenting opinion, which I join in full, explains why our decision in Alexander v. Gardner-Denver Co. , 415 U. S. 36 (1974), answers the question presented in this case. My concern regarding the Court’s subversion of precedent to the policy favoring arbitration prompts these additional remarks.    Notwithstanding the absence of change in any relevant statutory provision, the Court has recently retreated from, and in some cases reversed, prior decisions based on its changed view of the merits of arbitration. Previously, the Court approached with caution questions involving a union’s waiver of an employee’s right to raise statutory claims in a federal judicial forum. After searching the text and purposes of Title VII of the Civil Rights Act of 1964, the Court in Gardner-Denver held that a clause of a collective-bargaining agreement (CBA) requiring arbitration of discrimination claims could not waive an employee’s right to a judicial forum for statutory claims. See 415 U. S., at 51. The Court’s decision rested on several features of the statute, including the individual nature of the rights it confers, the broad remedial powers it grants federal courts, and its expressed preference for overlapping remedies. See id. , at 44–48. The Court also noted the problem of entrusting a union with certain arbitration decisions given the potential conflict between the collective interest and the interests of an individual employee seeking to assert his rights. See id. , at 58, n. 19. That concern later provided a basis for our decisions in Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 , 742 (1981), and McDonald v. West Branch , 466 U. S. 284 , 291 (1984), which similarly held that a CBA may not commit enforcement of certain rights-creating statutes exclusively to a union-controlled arbitration process. Congress has taken no action signaling disagreement with those decisions.    The statutes construed by the Court in the foregoing cases and in Wilko v. Swan , 346 U. S. 427 (1953), have not since been amended in any relevant respect. But the Court has in a number of cases replaced our predecessors’ statutory analysis with judicial reasoning espousing a policy favoring arbitration and thereby reached divergent results. I dissented in those cases to express concern that my colleagues were making policy choices not made by Congress. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U. S. 614 , 640 (1985); Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U. S. 477 , 486 (1989); Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20 , 36 (1991); and Circuit City Stores, Inc. v. Adams , 532 U. S. 105 , 124 (2001).    Today the majority’s preference for arbitration again leads it to disregard our precedent. Although it purports to ascertain the relationship between the Age Discrimination in Employment Act of 1967 (ADEA), the National Labor Relations Act, and the Federal Arbitration Act, the Court ignores our earlier determination of the relevant provisions’ meaning. The Court concludes that “[i]t was Congress’ verdict that the benefits of organized labor outweigh the sacrifice of individual liberty” that the system of organized labor “necessarily demands,” even when the sacrifice demanded is a judicial forum for asserting an individual statutory right. Ante , at 22. But in Gard- ner-Denver we determined that “Congress’ verdict” was otherwise when we held that Title VII does not permit a CBA to waive an employee’s right to a federal judicial forum. Because the purposes and relevant provisions of Title VII and the ADEA are not meaningfully distinguishable, it is only by reexamining the statutory questions resolved in Gardner-Denver through the lens of the policy favoring arbitration that the majority now reaches a different result.    Under the circumstances, I believe a passage from one of my earlier dissents merits repetition. The Court in Rodriguez de Quijas overruled our decision in Wilko and held that predispute agreements to arbitrate claims under the Securities Act of 1933 are enforceable. 490 U. S., at 484; see also id. , at 481 (noting Wilko ’s reliance on “the outmoded presumption of disfavoring arbitration proceedings”). I observed in dissent:    “In the final analysis, a Justice’s vote in a case like this depends more on his or her views about the respective lawmaking responsibilities of Congress and this Court than on conflicting policy interests. Judges who have confidence in their own ability to fashion public policy are less hesitant to change the law than those of us who are inclined to give wide latitude to the views of the voters’ representatives on nonconstitutional matters. Cf. Boyle v. United Technologies Corp. , 487 U. S. 500 (1988). As I pointed out years ago, Alberto-Culver Co. v. Scherk , 484 F. 2d 611 (CA7 1973) (dissenting opinion), rev’d, 417 U. S. 506 (1974), there are valid policy and textual arguments on both sides regarding the interrelation of federal securities and arbitration Acts. None of these arguments, however, carries sufficient weight to tip the balance between judicial and legislative authority and overturn an interpretation of an Act of Congress that has been settled for many years.” Rodriguez de Quijas , 490 U. S., at 487 (footnote and citation omitted).    As was true in Rodriguez de Quijas , there are competing arguments in this case regarding the interaction of the relevant statutory provisions. But the Court in Gardner-Denver considered these arguments, including “the federal policy favoring arbitration of labor disputes,” 415 U. S., at 59, and held that Congress did not intend to permit the result petitioners seek. In the absence of an intervening amendment to the relevant statutory language, we are bound by that decision. It is for Congress, rather than this Court, to reassess the policy arguments favoring arbitration and revise the relevant provisions to reflect its views.  Referring to the potential conflict between individual and collective interests, the Court asserts that it “cannot rely on this judicial policy concern as a source of authority for introducing a qualification into the ADEA that is not found in its text.” Ante , at 21. That potential conflict of interests, however, was a basis for our decision in several pertinent cases, including Alexander v. Gardner-Denver Co. , 415 U. S. 36 (1974), and Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20 , 35 (1991), and in the intervening years Congress has not seen fit to correct that interpretation. The Court’s derision of that “policy concern” is particularly disingenuous given its subversion of Gardner-Denver ’s holding in the service of an extratextual policy favoring arbitration. SOUTER, J., DISSENTING 14 PENN PLAZA LLC V. PYETT 556 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-581 14 PENN PLAZA LLC, et al., PETITIONERS v. STEVEN PYETT et al. on writ of certiorari to the united states court of appeals for the second circuit [April 1, 2009]    Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.    The issue here is whether employees subject to a collective-bargaining agreement (CBA) providing for conclusive arbitration of all grievances, including claimed breaches of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq. , lose their statutory right to bring an ADEA claim in court, §626(c). Under the 35- year-old holding in Alexander v. Gardner-Denver Co. , 415 U. S. 36 (1974), they do not, and I would adhere to stare decisis and so hold today. I    Like Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq. , the ADEA is aimed at “ ‘the elimination of discrimination in the workplace,’ ” McKennon v. Nashville Banner Publishing Co. , 513 U. S. 352 , 358 (1995) (quoting Oscar Mayer & Co. v. Evans , 441 U. S. 750 , 756 (1979)), and, again like Title VII, the ADEA “contains a vital element … : It grants an injured employee a right of action to obtain the authorized relief,” 513 U. S., at 358 . “Any person aggrieved” under the Act “may bring a civil action in any court of competent jurisdiction for legal or equitable relief,” 29 U. S. C. §626(c), thereby “not only redress[ing] his own injury but also vindicat[ing] the important congressional policy against discriminatory employment practices,” Gardner-Denver , supra , at 45. Gardner-Denver considered the effect of a CBA’s arbitration clause on an employee’s right to sue under Title VII. One of the employer’s arguments was that the CBA entered into by the union had waived individual employees’ statutory cause of action subject to a judicial remedy for discrimination in violation of Title VII. Although Title VII, like the ADEA, “does not speak expressly to the relationship between federal courts and the grievance-arbitration machinery of collective-bargaining agreements,” 415 U. S., at 47, we unanimously held that “the rights conferred” by Title VII (with no exception for the right to a judicial forum) cannot be waived as “part of the collective bargaining process,” id. , at 51. We stressed the contrast between two categories of rights in labor and employment law. There were “statutory rights related to collective activity,” which “are conferred on employees collectively to foster the processes of bargaining[, which] properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members.” Ibid. But “Title VII … stands on plainly different [categorical] ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.” Ibid. Thus, as the Court previously realized, Gardner-Denver imposed a “seemingly absolute prohibition of union waiver of employees’ federal forum rights.” Wright v. Universal Maritime Service Corp. , 525 U. S. 70 , 80 (1998).[ Footnote 1 ]    We supported the judgment with several other lines of complementary reasoning. First, we explained that antidiscrimination statutes “have long evinced a general intent to accord parallel or overlapping remedies against discrimination,” and Title VII’s statutory scheme carried “no suggestion … that a prior arbitral decision either forecloses an individual’s right to sue or divests federal courts of jurisdiction.” Gardner-Denver , 415 U. S., at 47. We accordingly concluded that “an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.” Id. , at 49.    Second, we rejected the District Court’s view that simply participating in the arbitration amounted to electing the arbitration remedy and waiving the plaintiff’s right to sue. We said that the arbitration agreement at issue covered only a contractual right under the CBA to be free from discrimination, not the “independent statutory rights accorded by Congress” in Title VII. Id. , at 49–50. Third, we rebuffed the employer’s argument that federal courts should defer to arbitral rulings. We declined to make the “assumption that arbitral processes are commensurate with judicial processes,” id. , at 56, and described arbitration as “a less appropriate forum for final resolution of Title VII issues than the federal courts,” id. , at 58.    Finally, we took note that “[i]n arbitration, as in the collective bargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit,” ibid., n. 19, a result we deemed unacceptable when it came to Title VII claims. In sum, Gardner-Denver held that an individual’s statutory right of freedom from discrimination and access to court for enforcement were beyond a union’s power to waive.    Our analysis of Title VII in Gardner-Denver is just as pertinent to the ADEA in this case. The “interpretation of Title VII … applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII,’ ” and indeed neither petitioners nor the Court points to any relevant distinction between the two statutes. Trans World Airlines, Inc. v. Thurston , 469 U. S. 111 , 121 (1985) (quoting Lorillard v. Pons , 434 U. S. 575 , 584 (1978)); see also McKennon , 513 U. S., at 358 (“The ADEA and Title VII share common substantive features and also a common purpose”). Given the unquestionable applicability of the Gardner-Denver rule to this ADEA issue, the argument that its precedent be followed in this case of statutory interpretation is equally unquestionable. “Principles of stare decisis … demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve the legal stability that they seek and upon which the rule of law depends.” CBOCS West, Inc. v. Humphries , 553 U. S. ___, ___ (2008) (slip op., at 14). And “[c]onsiderations of stare decisis have special force” over an issue of statutory interpretation, which is unlike constitutional interpretation owing to the capacity of Congress to alter any reading we adopt simply by amending the statute. Patterson v. McLean Credit Union , 491 U. S. 164 , 172–173 (1989). Once we have construed a statute, stability is the rule, and “we will not depart from [it] without some compelling justification.” Hilton v. South Carolina Public Railways Comm’n , 502 U. S. 197 , 202 (1991). There is no argument for abandoning precedent here, and Gardner-Denver controls. II    The majority evades the precedent of Gardner-Denver as long as it can simply by ignoring it. The Court never mentions the case before concluding that the ADEA and the National Labor Relations Act, 29 U. S. C. §151 et seq. , “yiel[d] a straightforward answer to the question presented,” ante , at 10, that is, that unions can bargain away individual rights to a federal forum for antidiscrimination claims. If this were a case of first impression, it would at least be possible to consider that conclusion, but the issue is settled and the time is too late by 35 years to make the bald assertion that “[n]othing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative.” Ante , at 9. In fact, we recently and unanimously said that the principle that “federal forum rights cannot be waived in union-negotiated CBAs even if they can be waived in individually executed contracts … assuredly finds support in” our case law, Wright , 525 U. S., at 77, and every Court of Appeals save one has read our decisions as holding to this position, Air Line Pilots Assn., Int’l v. Northwest Airlines, Inc. , 199 F. 3d 477, 484 (CADC 1999) (“We see a clear rule of law emerging from Gardner-Denver and Gilmer [v. Interstate/Johnson Lane Corp. , 500 U. S. 20 (1991)]: … an individual may prospectively waive his own statutory right to a judicial forum, but his union may not prospectively waive that right for him. All of the circuits to have considered the meaning of Gardner-Denver after Gilmer, other than the Fourth, are in accord with this view”).    Equally at odds with existing law is the majority’s statement that “[t]he decision to fashion a CBA to require arbitration of employment-discrimination claims is no different from the many other decisions made by parties in designing grievance machinery.” Ante , at 7. That is simply impossible to square with our conclusion in Gardner-Denver that “Title VII … stands on plainly different ground” from “statutory rights related to collective activity”: “it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.” 415 U. S., at 51; see also Atchison, T. & S. F. R. Co. v. Buell , 480 U. S. 557 , 565 (1987) (“[N]otwithstanding the strong policies encouraging arbitration, ‘different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers’ ” (quoting Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 , 737 (1981))).    When the majority does speak to Gardner-Denver , it misreads the case in claiming that it turned solely “on the narrow ground that the arbitration was not preclusive because the collective-bargaining agreement did not cover statutory claims.” Ante , at 12. That, however, was merely one of several reasons given in support of the decision, see Gardner-Denver , 415 U. S., at 47–59, and we raised it to explain why the District Court made a mistake in thinking that the employee lost his Title VII rights by electing to pursue the contractual arbitration remedy, see id. , at 49–50. One need only read Gardner-Denver itself to know that it was not at all so narrowly reasoned, and we have noted already how later cases have made this abundantly clear. Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S., at 737, provides further testimony: “Not all disputes between an employee and his employer are suited for binding resolution in accordance with the procedures established by collective bargaining. While courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of a collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.    “These considerations were the basis for our decision in [Gardner-Denver] .” See also Gilmer , supra , at 35 (“An important concern” in Gardner-Denver “was the tension between collective representation and individual statutory rights …”). Indeed, if the Court can read Gardner-Denver as resting on nothing more than a contractual failure to reach as far as statutory claims, it must think the Court has been wreaking havoc on the truth for years, since (as noted) we have unanimously described the case as raising a “seemingly absolute prohibition of union waiver of employees’ federal forum rights.” Wright , supra , at 80.[ Footnote 2 ] Human ingenuity is not equal to the task of reconciling statements like this with the majority’s representation that Gardner-Denver held only that “the arbitration was not preclusive because the collective-bargaining agreement did not cover statutory claims.” Ante , at 12.[ Footnote 3 ]    Nor, finally, does the majority have any better chance of being rid of another of Gardner-Denver ’s statements supporting its rule of decision, set out and repeated in previous quotations: “in arbitration, as in the collective-bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit,” ante , at 20 (citing 415 U. S. , at 58, n. 19), an unacceptable result when it comes to “an individual’s right to equal employment opportunities,” id. , at 51. The majority tries to diminish this reasoning, and the previously stated holding it supported, by making the remarkable rejoinder that “[w]e cannot rely on this judicial policy concern as a source of authority for introducing a qualification into the ADEA that is not found in its text.” Ante, at 20.[ Footnote 4 ] It is enough to recall that respondents are not seeking to “introduc[e] a qualification into” the law; they are justifiably relying on statutory-interpretation precedent decades old, never overruled, and serially reaffirmed over the years. See, e.g. , McDonald v. West Branch , 466 U. S. 284 , 291 (1984); Barrentine , supra , at 742. With that precedent on the books, it makes no sense for the majority to claim that “judicial policy concern[s]” about unions sacrificing individual antidiscrimination rights should be left to Congress.    For that matter, Congress has unsurprisingly understood Gardner-Denver the way we have repeatedly explained it and has operated on the assumption that a CBA cannot waive employees’ rights to a judicial forum to enforce antidiscrimination statutes. See, e.g. , H. R. Rep. No. 102–40, pt. 1, p. 97 (1991) (stating that, “consistent with the Supreme Court’s interpretation of Title VII in [Gardner-Denver] ,” “any agreement to submit disputed issues to arbitration … in the context of a collective bargaining agreement … does not preclude the affected person from seeking relief under the enforcement provisions of Title VII”). And Congress apparently does not share the Court’s demotion of Gardner-Denver ’s holding to a suspect judicial policy concern: “Congress has had [over] 30 years in which it could have corrected our decision … if it disagreed with it, and has chosen not to do so. We should accord weight to this continued acceptance of our earlier holding.” Hilton , 502 U. S., at 202; see also Patterson , 491 U. S. , at 172–173. III    On one level, the majority opinion may have little effect, for it explicitly reserves the question whether a CBA’s waiver of a judicial forum is enforceable when the union controls access to and presentation of employees’ claims in arbitration, ante , at 24–25, which “is usually the case,” McDonald , supra , at 291. But as a treatment of precedent in statutory interpretation, the majority’s opinion cannot be reconciled with the Gardner-Denver Court’s own view of its holding, repeated over the years and generally understood, and I respectfully dissent. Footnote 1 Gardner-Denver also contained some language seemingly prohibiting even individual prospective waiver of federal forum rights, see 415 U. S., at 51–52, an issue revisited in Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20 (1991), and not disputed here. Footnote 2 The majority seems inexplicably to think that the statutory right to a federal forum is not a right, or that Gardner-Denver failed to recognize it because it is not “substantive.” Ante , at 7, n. 5. But Gardner-Denver forbade union waiver of employees’ federal forum rights in large part because of the importance of such rights and a fear that unions would too easily give them up to benefit the many at the expense of the few, a far less salient concern when only economic interests are at stake. See, e.g. , Barrentine v. Arkansas-Best Freight System, Inc. , 450 U. S. 728 , 737 (1981). Footnote 3 There is no comfort for the Court in making the one point on which we are in accord, that Gardner-Denver relied in part on what the majority describes as “broad dicta that was highly critical of the use of arbitration for the vindication of statutory antidiscrimination rights.” Ante , at 15–16. I agree that Gardner-Denver ’s “ ‘mistrust of the arbitral process’ … has been undermined by our recent arbitration decisions,” Gilmer , supra , at 34, n. 5 (quoting Shearson/American Express Inc. v. McMahon , 482 U. S. 220 , 231 (1987)), but if the statements are “dicta,” their obsolescence is as irrelevant to Gardner-Denver ’s continued vitality as their currency was to the case’s holding when it came down; in Gardner-Denver itself we acknowledged “the federal policy favoring arbitration,” 415 U. S., at 46, n. 6, but nonetheless held that a union could not waive its members’ statutory right to a federal forum in a CBA. Footnote 4 The majority says it would be “particularly inappropriate” to consider Gardner-Denver ’s conflict-of-interest rationale because “Congress has made available” another “avenue” to protect workers against union discrimination, namely, a duty of fair representation claim. Ante , at 22. This answer misunderstands the law, for unions may decline for a variety of reasons to pursue potentially meritorious discrimination claims without succumbing to a member’s suit for failure of fair representation. See, e.g. , Barrentine , 450 U. S., at 742 (“[E]ven if the employee’s claim were meritorious, his union might, without breaching its duty of fair representation, reasonably and in good faith decide not to support the claim vigorously in arbitration”). More importantly, we have rejected precisely this argument in the past, making this yet another occasion where the majority ignores precedent. See, e.g. , ibid. ; Gardner-Denver , supra , at 58, n. 19 (noting that a duty of fair representation claim would often “prove difficult to establish”). And we were wise to reject it. When the Court construes statutes to allow a union to eliminate a statutory right to sue in favor of arbitration in which the union cannot represent the employee because it agreed to the employer’s challenged action, it is not very consoling to add that the employee can sue the union for being unfair.

The Supreme Court ruled that a collective bargaining agreement requiring union members to arbitrate claims under the Age Discrimination in Employment Act is enforceable, reversing the Second Circuit Court's decision. The Court disagreed with the lower court's interpretation of a previous case, Alexander v. Gardner-Denver Co., which they cited as forbidding enforcement of such arbitration provisions.

Labor & Employment

Staub v. Proctor Hospital

https://supreme.justia.com/cases/federal/us/562/411/

OPINION OF THE COURT STAUB V. PROCTOR HOSPITAL 562 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-400 VINCENT E. STAUB, PETITIONER v. PROCTOR HOSPITAL on writ of certiorari to the united states court of appeals for the seventh circuit [March 1, 2011]    Justice Scalia delivered the opinion of the Court.    We consider the circumstances under which an employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision. I    Petitioner Vincent Staub worked as an angiography technician for respondent Proctor Hospital until 2004, when he was fired. Staub and Proctor hotly dispute the facts surrounding the firing, but because a jury found for Staub in his claim of employment discrimination against Proctor, we describe the facts viewed in the light most favorable to him.    While employed by Proctor, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks a year. Both Janice Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s supervisor, were hostile to Staub’s military obligations. Mulally scheduled Staub for additional shifts without notice so that he would “ ‘pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.’ ” 560 F. 3d 647, 652 (CA7 2009). She also informed Staub’s co-worker, Leslie Sweborg, that Staub’s “ ‘military duty had been a strain on th[e] department,’ ” and asked Sweborg to help her “ ‘get rid of him.’ ” Ibid. Korenchuk referred to Staub’s military obligations as “ ‘a b[u]nch of smoking and joking and [a] waste of taxpayers[’] money.’ ” Ibid. He was also aware that Mulally was “ ‘out to get’ ” Staub. Ibid. In January 2004, Mulally issued Staub a “Corrective Action” disciplinary warning for purportedly violating a company rule requiring him to stay in his work area whenever he was not working with a patient. The Corrective Action included a directive requiring Staub to report to Mulally or Korenchuk “ ‘when [he] ha[d] no patients and [the angio] cases [we]re complete[d].’ ” Id., at 653. According to Staub, Mulally’s justification for the Corrective Action was false for two reasons: First, the company rule invoked by Mulally did not exist; and second, even if it did, Staub did not violate it.    On April 2, 2004, Angie Day, Staub’s co-worker, complained to Linda Buck, Proctor’s vice president of human resources, and Garrett McGowan, Proctor’s chief operating officer, about Staub’s frequent unavailability and abruptness. McGowan directed Korenchuk and Buck to create a plan that would solve Staub’s “ ‘availability’ problems.” Id., at 654. But three weeks later, before they had time to do so, Korenchuk informed Buck that Staub had left his desk without informing a supervisor, in violation of the January Corrective Action. Staub now contends this accusation was false: he had left Korenchuk a voice-mail notification that he was leaving his desk. Buck relied on Korenchuk’s accusation, however, and after reviewing Staub’s personnel file, she decided to fire him. The termination notice stated that Staub had ignored the directive issued in the January 2004 Corrective Action.    Staub challenged his firing through Proctor’s grievance process, claiming that Mulally had fabricated the allegation underlying the Corrective Action out of hostility toward his military obligations. Buck did not follow up with Mulally about this claim. After discussing the matter with another personnel officer, Buck adhered to her decision.    Staub sued Proctor under the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U. S. C. §4301 et seq., claiming that his discharge was motivated by hostility to his obligations as a military reservist. His contention was not that Buck had any such hostility but that Mulally and Korenchuk did, and that their actions influenced Buck’s ultimate employment decision. A jury found that Staub’s “military status was a motivating factor in [Proctor’s] decision to discharge him,” App. 68a, and awarded $57,640 in damages.    The Seventh Circuit reversed, holding that Proctor was entitled to judgment as a matter of law. 560 F. 3d 647. The court observed that Staub had brought a “ ‘cat’s paw’ case,” meaning that he sought to hold his employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision. Id., at 655–656.[ Footnote 1 ] It explained that under Seventh Circuit precedent, a “cat’s paw” case could not succeed unless the nondecisionmaker exercised such “ ‘singular influence’ ” over the decisionmaker that the decision to terminate was the product of “blind reliance.” Id., at 659. It then noted that “Buck looked beyond what Mulally and Korenchuk said,” relying in part on her conversation with Day and her review of Staub’s personnel file. Ibid. The court “admit[ted] that Buck’s investigation could have been more robust,” since it “failed to pursue Staub’s theory that Mulally fabricated the write-up.” Ibid. But the court said that the “ ‘singular influence’ ” rule “does not require the decisionmaker to be a paragon of independence”: “It is enough that the decisionmaker is not wholly dependent on a single source of information and conducts her own investigation into the facts relevant to the decision.” Ibid. (internal quotation marks omitted). Because the undisputed evidence established that Buck was not wholly dependent on the advice of Korenchuk and Mulally, the court held that Proctor was entitled to judgment. Ibid. We granted certiorari. 559 U. S. ___ (2010). II    The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides in relevant part as follows:    “A person who is a member of … or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, … or obligation.” 38 U. S. C. §4311(a). It elaborates further:    “An employer shall be considered to have engaged in actions prohibited … under subsection (a), if the person’s membership … is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” §4311(c). The statute is very similar to Title VII, which prohibits employment discrimination “because of … race, color, religion, sex, or national origin” and states that such discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U. S. C. §§2000e–2(a), (m).    The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in or obligation to a uniformed service, a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.    In approaching this question, we start from the premise that when Congress creates a federal tort it adopts the background of general tort law. See Burlington N. & S. F. R. Co. v. United States , 556 U. S. ___, ___ (2009) (slip op., at 13–14); Safeco Ins. Co. of America v. Burr , 551 U. S. 47 , 68–69 (2007); Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 764 (1998). Intentional torts such as this, “as distinguished from negligent or reckless torts, … generally require that the actor intend ‘the consequences ’ of an act,’ not simply ‘the act itself.’ ” Kawaauhau v. Geiger , 523 U. S. 57 , 61–62 (1998).    Staub contends that the fact that an unfavorable entry on the plaintiff’s personnel record was caused to be put there, with discriminatory animus, by Mulally and Korenchuk, suffices to establish the tort, even if Mulally and Korenchuk did not intend to cause his dismissal. But discrimination was no part of Buck’s reason for the dismissal; and while Korenchuk and Mulally acted with discriminatory animus, the act they committed—the mere making of the reports—was not a denial of “initial employment, reemployment, retention in employment, promotion, or any benefit of employment,” as liability under USERRA requires. If dismissal was not the object of Mulally’s and Korenchuk’s reports, it may have been their result, or even their foreseeable consequence, but that is not enough to render Mulally or Korenchuk responsible.    Here, however, Staub is seeking to hold liable not Mulally and Korenchuk, but their employer. Perhaps, therefore, the discriminatory motive of one of the employer’s agents (Mulally or Korenchuk) can be aggregated with the act of another agent (Buck) to impose liability on Proctor. Again we consult general principles of law, agency law, which form the background against which federal tort laws are enacted. See Meyer v. Holley , 537 U. S. 280 , 285 (2003); Burlington , supra , at 754–755. Here, however, the answer is not so clear. The Restatement of Agency suggests that the malicious mental state of one agent cannot generally be combined with the harmful action of another agent to hold the principal liable for a tort that requires both. See Restatement (Second) Agency §275, Illustration 4 (1958). Some of the cases involving federal torts apply that rule. See United States v. Science Applications Int’l Corp. , 626 F. 3d 1257, 1273–1276 (CADC 2010); Chaney v. Dreyfus Service Corp. , 595 F. 3d 219, 241 (CA5 2010); United States v. Philip Morris USA Inc. , 566 F. 3d 1095, 1122 (CADC 2009). But another case involving a federal tort, and one involving a federal crime, hold to the contrary. See United States ex rel. Harrison v. Westinghouse Savannah River Co. , 352 F. 3d 908, 918–919 (CA4 2003); United States v. Bank of New England, N. A. , 821 F. 2d 844, 856 (CA1 1987). Ultimately, we think it unnecessary in this case to decide what the background rule of agency law may be, since the former line of authority is suggested by the governing text, which requires that discrimination be “a motivating factor” in the adverse action . When a decision to fire is made with no unlawful animus on the part of the firing agent, but partly on the basis of a report prompted (unbeknownst to that agent) by discrimination, discrimination might perhaps be called a “factor” or a “causal factor” in the decision; but it seems to us a considerable stretch to call it “a motivating factor.”    Proctor, on the other hand, contends that the employer is not liable unless the de facto decisionmaker (the technical decisionmaker or the agent for whom he is the “cat’s paw”) is motivated by discriminatory animus. This avoids the aggregation of animus and adverse action, but it seems to us not the only application of general tort law that can do so. Animus and responsibility for the adverse action can both be attributed to the earlier agent (here, Staub’s supervisors) if the adverse action is the intended consequence of that agent’s discriminatory conduct. So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York , 559 U. S. 1 , ___ (2010) (slip op., at 9) (internal quotation marks omitted).[ Footnote 2 ] We do not think that the ultimate decisionmaker’s exercise of judgment automatically renders the link to the supervisor’s bias “remote” or “purely contingent.” The decisionmaker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez-Machain , 542 U. S. 692 , 704 (2004). Nor can the ultimate decisionmaker’s judgment be deemed a superseding cause of the harm. A cause can be thought “superseding” only if it is a “cause of independent origin that was not foreseeable.” Exxon Co., U. S. A. v. Sofec, Inc. , 517 U. S. 830 , 837 (1996) (internal quotation marks omitted).    Moreover, the approach urged upon us by Proctor gives an unlikely meaning to a provision designed to prevent employer discrimination. An employer’s authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors. Proctor’s view would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words. Proctor suggests that even if the decisionmaker’s mere exercise of independent judgment does not suffice to negate the effect of the prior discrimination, at least the decisionmaker’s independent investigation (and rejection) of the employee’s allegations of discriminatory animus ought to do so. We decline to adopt such a hard-and-fast rule. As we have already acknowledged, the requirement that the biased supervisor’s action be a causal factor of the ultimate employment action incorporates the traditional tort-law concept of proximate cause. See, e.g., Anza v. Ideal Steel Supply Corp. , 547 U. S. 451 , 457–458 (2006); Sosa , supra, at 703. Thus, if the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action (by the terms of USERRA it is the employer’s burden to establish that), then the employer will not be liable. But the supervisor’s biased report may remain a causal factor if the independent investigation takes it into account without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified. We are aware of no principle in tort or agency law under which an employer’s mere conduct of an independent investigation has a claim-preclusive effect. Nor do we think the independent investigation somehow relieves the employer of “fault.” The employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision.    Justice Alito claims that our failure to adopt a rule immunizing an employer who performs an independent investigation reflects a “stray[ing] from the statutory text.” Post , at 2 (opinion concurring in judgment). We do not understand this accusation. Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in his doing so, it is a “motivating factor in the employer’s action,” precisely as the text requires. Justice Alito suggests that the employer should be held liable only when it “should be regarded as having delegated part of the decisionmaking power” to the biased supervisor. Ibid. But if the independent investigation relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decisionmaker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor. Contrary to Justice Alito’s suggestion, the biased supervisor is not analogous to a witness at a bench trial. The mere witness is not an actor in the events that are the subject of the trial. The biased supervisor and the ultimate decisionmaker, however, acted as agents of the entity that the plaintiff seeks to hold liable; each of them possessed supervisory authority delegated by their employer and exercised it in the interest of their employer. In sum, we do not see how “fidelity to the statutory text,” ibid. , requires the adoption of an independent-investigation defense that appears nowhere in the text. And we find both speculative and implausible Justice Alito’s prediction that our Nation’s employers will systematically disfavor members of the armed services in their hiring decisions to avoid the possibility of cat’s-paw liability, a policy that would violate USERRA in any event.    We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,[ Footnote 3 ] and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. [ Footnote 4 ] III Applying our analysis to the facts of this case, it is clear that the Seventh Circuit’s judgment must be reversed. Both Mulally and Korenchuk were acting within the scope of their employment when they took the actions that allegedly caused Buck to fire Staub. A “reprimand … for workplace failings” constitutes conduct within the scope of an agent’s employment. Faragher v. Boca Raton , 524 U. S. 775 , 798–799 (1998). As the Seventh Circuit recognized, there was evidence that Mulally’s and Korenchuk’s actions were motivated by hostility toward Staub’s military obligations. There was also evidence that Mulally’s and Korenchuk’s actions were causal factors underlying Buck’s decision to fire Staub. Buck’s termination notice expressly stated that Staub was terminated because he had “ignored” the directive in the Corrective Action. Finally, there was evidence that both Mulally and Korenchuk had the specific intent to cause Staub to be terminated. Mulally stated she was trying to “ ‘get rid of ’ ” Staub, and Korenchuk was aware that Mulally was “ ‘out to get’ ” Staub. Moreover, Korenchuk informed Buck, Proctor’s personnel officer responsible for terminating employees, of Staub’s alleged noncompliance with Mulally’s Corrective Action, and Buck fired Staub immediately thereafter; a reasonable jury could infer that Korenchuk intended that Staub be fired. The Seventh Circuit therefore erred in holding that Proctor was entitled to judgment as a matter of law. It is less clear whether the jury’s verdict should be reinstated or whether Proctor is entitled to a new trial. The jury instruction did not hew precisely to the rule we adopt today; it required only that the jury find that “military status was a motivating factor in [Proctor’s] decision to discharge him.” App. 68a. Whether the variance between the instruction and our rule was harmless error or should mandate a new trial is a matter the Seventh Circuit may consider in the first instance. *  *  * The judgment of the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kagan took no part in the consideration or decision of this case. Footnote 1 The term “cat’s paw” derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law by Posner in 1990. See Shager v. Upjohn Co. , 913 F. 2d 398, 405 (CA7). In the fable, a monkey induces a cat by flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process, the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally, if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on the king’s behalf and receive no reward. Footnote 2 Under the traditional doctrine of proximate cause, a tortfeasor is sometimes, but not always, liable when he intends to cause an adverse action and a different adverse action results. See Restatement (Second) Torts §§435, 435B and Comment a (1963 and 1964). That issue is not presented in this case since the record contains no evidence that Mulally or Korenchuk intended any particular adverse action other than Staub’s termination. Footnote 3 Under traditional tort law, “ ‘intent’ … denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Id., §8A. Footnote 4 Needless to say, the employer would be liable only when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles. See Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 , 758 (1998). We express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision. We also observe that Staub took advantage of Proctor’s grievance process, and we express no view as to whether Proctor would have an affirmative defense if he did not. Cf. Pennsylvania State Police v. Suders , 542 U. S. 129 , 148–149 (2004). ALITO, J., CONCURRING IN JUDGMENT STAUB V. PROCTOR HOSPITAL 562 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-400 VINCENT E. STAUB, PETITIONER v. PROCTOR HOSPITAL on writ of certiorari to the united states court of appeals for the seventh circuit [March 1, 2011]    Justice Alito, with whom Justice Thomas joins, concurring in the judgment.    I agree with the Court that the decision of the Court of Appeals must be reversed, but I would do so based on the statutory text, rather than principles of agency and tort law that do not speak directly to the question presented here.    The relevant statutory provision states: “An employer shall be considered to have engaged in [prohibited discrimination against a member of one of the uniformed services] if the person’s membership … is a motivating factor in the employer’s action , unless the employer can prove that the action would have been taken in the absence of such membership … .” 38 U. S. C. §4311(c)(1) (emphasis added).    For present purposes, the key phrase is “a motivating factor in the employer’s action.” A “motivating factor” is a factor that “provide[s] … a motive.” See Webster’s Third New International Dictionary 1475 (1971) (defining “motivate”). A “motive,” in turn, is “something within a person … that incites him to action.” Ibid . Thus, in order for discrimination to be “a motivating factor in [an] employer’s action,” discrimination must be present “within,” i.e. , in the mind of, the person who makes the decision to take that action. And “the employer’s action” here is the decision to fire petitioner. Thus, petitioner, in order to recover, was required to show that discrimination motivated that action.    The Court, however, strays from the statutory text by holding that it is enough for an employee to show that discrimination motivated some other action and that this latter action, in turn, caused the termination decision. That is simply not what the statute says.    The Court fears this interpretation of the statute would allow an employer to escape liability by assigning formal decisionmaking authority to an officer who may merely rubberstamp the recommendation of others who are motivated by antimilitary animus. See ante , at 8. But fidelity to the statutory text does not lead to this result. Where the officer with formal decisionmaking authority merely rubberstamps the recommendation of others, the employer, I would hold, has actually delegated the decisionmaking responsibility to those whose recommendation is rubberstamped. I would reach a similar conclusion where the officer with the formal decisionmaking authority is put on notice that adverse information about an employee may be based on antimilitary animus but does not undertake an independent investigation of the matter. In that situation, too, the employer should be regarded as having delegated part of the decisionmaking power to those who are responsible for memorializing and transmitting the adverse information that is accepted without examination. The same cannot be said, however, where the officer with formal decisionmaking responsibility, having been alerted to the possibility that adverse information may be tainted, undertakes a reasonable investigation and finds insufficient evidence to dispute the accuracy of that information.     Nor can the employer be said to have “effectively delegated” decisionmaking authority any time a decisionmaker “relies on facts provided by [a] biased supervisor.” See ante , at 10. A decisionmaker who credits information provided by another person—for example, a judge who credits the testimony of a witness in a bench trial—does not thereby delegate a portion of the decisionmaking authority to the person who provides the information.    This interpretation of §4311(c)(1) heeds the statutory text and would provide fair treatment for both employers and employees who are members of the uniformed services. It would also encourage employers to establish internal grievance procedures similar to those that have been adopted following our decisions in Burlington Industries, Inc. v. Ellerth , 524 U. S. 742 (1998), and Faragher v. Boca Raton , 524 U. S. 775 (1998). Such procedures would often provide relief for employees without the need for litigation, and they would provide protection for employers who proceed in good faith.    The Court’s contrary approach, by contrast, is almost certain to lead to confusion and is likely to produce results that will not serve the interests of either employers or employees who are members of the uniformed services. The Court’s holding will impose liability unfairly on employers who make every effort to comply with the law, and it may have the perverse effect of discouraging employers from hiring applicants who are members of the Reserves or the National Guard. In addition, by leaving open the possibility that an employer may be held liable if it innocently takes into account adverse information provided, not by a supervisor, but by a low-level employee, see ante , at 10–11, n. 4, the Court increases the confusion that its decision is likely to produce.    For these reasons, I cannot accept the Court’s interpretation of §4311(c)(1), but I nevertheless agree that the decision below must be reversed. There was sufficient evidence to support a finding that at least Korenchuk was actually delegated part of the decisionmaking authority in this case. Korenchuk was the head of the unit in which Staub worked and it was Korenchuk who told Buck that Staub left his work area without informing his supervisors. There was evidence that Korenchuk’s accusation formed the basis of Buck’s decision to fire Staub, and that Buck simply accepted the accusation at face value. According to one version of events, Buck fired Staub immediately after Korenchuk informed her of Staub’s alleged misconduct, and she cited only that misconduct in the termination notice provided to Staub. See 5 Record 128–129, 267–268, 380–386; App. 74a. All of this is enough to show that Korenchuk was in effect delegated some of Buck’s termination authority. There was also evidence from which it may be inferred that displeasure with Staub’s Reserve responsibilities was a motivating factor in Korenchuk’s actions.  See 5 Record 343–344 (testimony that Korenchuk made negative remarks about Staub’s Reserve duties before firing him in 1998); id. , at 124–126, 352 (testimony that Korenchuk informed Staub of the revenue lost while he was on Active Duty in 2003, that Korenchuk was aware in January 2004 that Staub might be called to Active Duty again, and that “[b]udget was a big issue with [Korenchuk]”).

In Staub v. Proctor Hospital, the Supreme Court ruled that an employer may be held liable for employment discrimination if a biased supervisor's actions influence the ultimate employment decision, even if the decision-maker is unbiased. The Court found that Proctor Hospital could be held liable for discriminating against Staub based on his military obligations, as his supervisor's discriminatory actions influenced the decision to fire him. This case highlights the importance of ensuring that employment decisions are fair and unbiased, even when multiple individuals are involved in the decision-making process.

Labor & Employment

Wal-Mart Stores, Inc. v. Dukes

https://supreme.justia.com/cases/federal/us/564/338/

OPINION OF THE COURT WAL-MART STORES, INC. V. DUKES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-277 WAL-MART STORES, INC., PETITIONER v. BETTY DUKES et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 20, 2011]    Justice Scalia delivered the opinion of the Court.    We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminat-ing against women. In addition to injunctive and declaratory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). I A    Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores throughout the country: Discount Stores, Supercenters, Neighborhood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 40 and 53 separate departments and 80 to 500 staff positions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people.    Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may increase the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with-in preestablished ranges.    Promotions work in a similar fashion. Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office— e.g. , assistant manager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied. B    The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three current or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e–1 et seq.[ Footnote 1 ] Betty Dukes began working at a Pittsburgh, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service manager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infractions. Dukes also claims two male greeters in the Pittsburgh store are paid more than she is. Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a. The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy.    These plaintiffs, respondents here, do not allege that Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U. S. C. §2000e–2(k). And, respondents say, because Wal-Mart is aware of this effect, its refusal to cabin its managers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and declaratory relief, punitive damages, and backpay. It does not ask for compensatory damages.    Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action. C    Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certification must demonstrate, first, that:    “(1) the class is so numerous that joinder of all mem- bers is impracticable,    “(2) there are questions of law or fact common to the class,    “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and    “(4) the representative parties will fairly and adequately protect the interests of the class” (paragraph breaks added). Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”[ Footnote 2 ]    Invoking these provisions, respondents moved the District Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “questions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social framework analysis” of Wal-Mart’s “culture” and personnel practices, and concluded that the company was “vulnerable” to gender discrimination. 603 F. 3d 571, 601 (CA9 2010) (en banc).    Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s requirements of commonality, typicality, and adequate representation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunctive and declaratory relief, and second because the backpay claims could not be manageably tried as a class without depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certified their proposed class.[ Footnote 3 ] D    A divided en banc Court of Appeals substantially affirmed the District Court’s certification order. 603 F. 3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id. , at 612 (emphasis deleted). It also agreed with the District Court that the named plaintiffs’ claims were sufficiently typical of the class as a whole to satisfy Rule 23(a)(3), and that they could serve as adequate class representatives, see Rule 23(a)(4). Id. , at 614–615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id. , at 616 (internal quotation marks omitted).[ Footnote 4 ]    Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos , 103 F. 3d 767, 782–787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F. 3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be employed in this case.” Id. , at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid. , n. 56 (emphasis deleted).    We granted certiorari. 562 U. S. ___ (2010). II    The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki , 442 U. S. 682 , 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez , 431 U. S. 395 , 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War , 418 U. S. 208 , 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plaintiff ’s claims.’ ” General Telephone Co. of Southwest v. Falcon , 457 U. S. 147 , 156 (1982) (quoting General Telephone Co. of Northwest v. EEOC , 446 U. S. 318 , 330 (1980)). A    The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).[ Footnote 5 ] That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon , supra , at 157. This does not mean merely that they have all suffered a violation of the same pro-vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. “What matters to class certification … is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Nagareda, supra , at 132.    Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U. S., at 160, and that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id. , at 161; see id. , at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains … indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon , supra , at 160 (quoting Coopers & Lybrand v. Livesay , 437 U. S. 463 , 469 (1978); some internal quotation marks omitted).[ Footnote 6 ] Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g. , jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc. , 249 F. 3d 672, 676–677 (CA7 2001) (Easterbrook, J.).    In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination.[ Footnote 7 ] That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond , 467 U. S. 867 , 876 (1984). Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored . B    This Court’s opinion in Falcon describes how the commonality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class comprising all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U. S., at 152. We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims.” Id. , at 157–158. Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respondents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard.    The second manner of bridging the gap requires “significant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recognized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition … Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U. S. 579 (1993).[ Footnote 8 ] The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a general policy of discrimination.” C    The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct,” Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 990 (1988).    To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id. , at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co. , 401 U. S. 424 , 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex-based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.    Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.    The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin conducted his analysis region-by-region, comparing the number of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities … can be explained only by gender discrimination.” 603 F. 3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid. Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon , we held that one named plaintiff ’s experience of discrimination was insufficient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F. 3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity upon which the plaintiffs’ theory of commonality depends.    There is another, more fundamental, respect in which respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is challenged.” Watson , 487 U. S., at 994; accord, Wards Cove Packing Co. v. Atonio , 490 U. S. 642 , 656 (1989) (approving that statement), superseded by statute on other grounds, 42 U. S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certified. Other than the bare existence of delegated discretion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.    Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States , 431 U. S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id. , at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc. , 517 F. 2d 299, 308 (CA5 1975), overruled on other grounds , Teamsters , supra . The 40 anecdotes thus represented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F. 2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissenting). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id. , at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “operate[s] under a general policy of discrimination,” Falcon , supra , at 159, n. 15, which is what respondents must show to certify a companywide class.[ Footnote 9 ]    The dissent misunderstands the nature of the foregoing analysis. It criticizes our focus on the dissimilarities be-tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality requirement with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post , at 8–10 (Ginsburg, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post , at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate , but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.[ Footnote 10 ]    In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed… . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, at 652 (dissenting opinion). III    We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown , 511 U. S. 117 , 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. A    Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.    That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that predated its codification, Amchem Products, Inc. v. Windsor , 521 U. S. 591 , 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp. , 527 U. S. 815 , 841–845 (1999). As we observed in Amchem , “[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U. S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g. , Potts v. Flax , 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C. , 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U. S. 979 (1956).    Permitting the combination of individualized and classwide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impossible or unworkable, as in a (b)(1) class,[ Footnote 11 ] or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem , 521 U. S., at 614 (internal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id. , at 615 (quoting Advisory Committee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)). It allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B).    Given that structure, we think it clear that individ-ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class—predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class . When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) requires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and opt- out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts , 472 U. S. 797 , 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here. B    Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and declaratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction.    Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “predominate.” But it also created the possibility (if the predominance test were correct) that individual class members’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally estopped from independently seeking compensatory damages based on that same denial. That possibility underscores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have.    The predominance test would also require the District Court to reevaluate the roster of class members continually. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the validity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole ,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declaratory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3) , the ability to litigate a plaintiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certified under Rule 23(b)(2) at all.    Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunc-tive relief and the payment of “backpay,” see §2000e–5(g)(2)(A)). C    In Allison v. Citgo Petroleum Corp. , 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “incidental to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this standard, and in any event they cannot.    Contrary to the Ninth Circuit’s view, Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed remedial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en-gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay … or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimination, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A).    We have established a procedure for trying pattern-or-practice cases that gives effect to these statutory requirements. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings … to determine the scope of individual relief.” Teamsters , 431 U. S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id. , at 362.    The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b); see Ortiz , 527 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent backpay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo , that “incidental” monetary relief can be awarded to a 23(b)(2) class. *  *  *    The judgment of the Court of Appeals is Reversed. Footnote 1 The complaint included seven named plaintiffs, but only three remain part of the certified class as narrowed by the Court of Appeals. Footnote 2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications … that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us. Footnote 3 The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the ac- tion and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Id. , at 173. Footnote 4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to predominate. 603 F. 3d, at 621. Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate. It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed ,” id. , at 623 (emphasis added). Footnote 5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Falcon , 457 U. S. 147 , 157–158, n. 13 (1982). In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequate-representation requirements of Rule 23(a). Footnote 6 A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin , 417 U. S. 156 , 177 (1974), is sometimes mistakenly cited to the contrary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see id. , at 165), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases.    Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individual members” would often be an insuperable barrier to class certification, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plaintiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co. , 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits. Footnote 7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that … discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice.” Teamsters v. United States , 431 U. S. 324 , 358 (1977); see also Franks v. Bowman Transp. Co. , 424 U. S. 747 , 772 (1976). If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” Teamsters , supra , at 361. Footnote 8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analysis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be-havior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); id. , at 1745, 1747 (“[A] social framework necessarily contains only general statements about reliable patterns of relations among variables … and goes no further… . Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); id. , at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of Wal-Mart’s stores nationwide for the multi-year class period”). Footnote 9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class.” Post , at 5, n. 4 (Ginsburg, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Footnote 10 For this reason, there is no force to the dissent’s attempt to distinguish Falcon on the ground that in that case there were “ ‘ no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post , at 9, n. 7 (quoting Falcon , 457 U. S., at 162 (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post , at 9, n. 7), the same employment practices do not “touch and concern all members of the class.” Footnote 11 Rule 23(b)(1) applies where separate actions by or against individual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” Amchem Products, Inc. v. Windsor , 521 U. S. 591 , 614 (1997), or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, … in which numerous persons make claims against a fund insufficient to satisfy all claims,” Amchem, supra , at 614. OPINION OF GINSBURG, J. WAL-MART STORES, INC. V. DUKES 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-277 WAL-MART STORES, INC., PETITIONER v. BETTY DUKES et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 20, 2011]    Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, concurring in part and dissenting in part.    The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in violation of Title VII, 42 U. S. C. §2000e et seq. , seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante , at 20–27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g. , qualification for, and the amount of, backpay or compensatory damages—and that a class action is “superior” to other modes of adjudication.    Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.[ Footnote 1 ] The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). In so ruling, the Court imports into the Rule 23(a) de- termination concerns properly addressed in a Rule 23(b)(3) assessment. I A    Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.”[ Footnote 2 ] The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions §3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality requirement,” Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members).    A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Dictionary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved … [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either of fact or of law, the resolution of which will advance the determination of the class members’ claims.[ Footnote 3 ] B    The District Court, recognizing that “one significant is-sue common to the class may be sufficient to warrant cer-tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonality. See Califano v. Yamasaki , 442 U. S. 682 , 703 (1979) (“[M]ost issues arising under Rule 23 … [are] committed in the first instance to the discretion of the district court.”).    The District Court certified a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (internal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making employment decisions such as … promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male managerial workforce” using “arbitrary and subjective criteria.” Ibid . Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that employees be willing to relocate.” Id ., at 56a. Absent instruction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995).    Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” Id ., at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” Ibid .; cf. Ledbetter v. Goodyear Tire & Rubber Co. , 550 U. S. 618 , 643 (2007) (Ginsburg, J., dissenting).    The District Court identified “systems for … promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are common to all class members.” 222 F. R. D., at 149. The selection of employees for promotion to in-store management “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Id. , at 148. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Ibid .    Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. Wal-Mart provides no standards or criteria for setting wages within that band, and thus does nothing to counter unconscious bias on the part of supervisors. See id ., at 146–147.    Wal-Mart’s supervisors do not make their discretion- ary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed … corporate culture,” such as frequent meetings to re- inforce the common way of thinking, regular transfers of managers between stores to ensure uniformity through- out the company, monitoring of stores “on a close and con-stant basis,” and “Wal-Mart TV,” “broadcas[t] … into all stores.” Id ., at 151–153 (internal quotation marks omitted).    The plaintiffs’ evidence, including class members’ tales of their own experiences,[ Footnote 4 ] suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 (internal quotation marks omitted).    Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by … neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, controlled for factors including, inter alia , job performance, length of time with the company, and the store where an employee worked. Id ., at 159.[ Footnote 5 ] The results, the District Court found, were sufficient to raise an “inference of discrimination.” Id ., at 155–160. C    The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware.[ Footnote 6 ] The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.    The plaintiffs’ allegations resemble those in one of the prototypical cases in this area, Leisner v. New York Tel. Co. , 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” Id ., at 365 (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” Ibid. (internal quotation marks omitted). It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own.    We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such practices are motivated by discriminatory intent but also when they produce discriminatory results. See Watson v. Fort Worth Bank & Trust , 487 U. S. 977 , 988, 991 (1988). But see ante , at 17 (“[P]roving that [a] discretionary system has produced a … disparity is not enough .”). In Watson , as here, an employer had given its managers large authority over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion system” caused a discriminatory effect based on race. 487 U. S., at 984 (internal quotation marks omitted). Four different supervisors had declined, on separate occasions, to promote the employee. Id. , at 982. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Ibid. Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” Id ., at 990–991. See also Wards Cove Packing Co. v. Atonio , 490 U. S. 642 , 657 (1989) (recognizing “the use of ‘subjective decision making’ ” as an “employment practic[e]” subject to disparate-impact attack).    The plaintiffs’ allegations state claims of gender discrimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the District Court adequately demonstrated that resolving those claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for class-action certification, demands nothing further. II A    The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro- motion policies are discriminatory. See ante , at 9 (“Re- citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not suffi- cient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers.” Ante , at 9–10 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted).    The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Practice §23.23[2], p. 23–72 (3d ed. 2011).[ Footnote 7 ] Rule 23(b)(3) certification requires, in addition to the four 23(a) findings, de-terminations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is superior to other available methods for … adjudicating the controversy.”[ Footnote 8 ]    The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante , at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor Nagareda, whose “dissimilarities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).[ Footnote 9 ] “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor , 521 U. S. 591 , 623 (1997). If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3).    Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilarities” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See Amchem Products , 521 U. S., at 623, n. 19 (Rule 23(b)(1)(B) “does not have a predominance requirement”); Yamasaki , 442 U. S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue”). For example, in Franks v. Bowman Transp. Co. , 424 U. S. 747 (1976), a Rule 23(b)(2) class of African-American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. Id ., at 772 (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunctive] relief to the entire class.” Ibid . B    The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class members, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante , at 15.    Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes. 487 U. S., at 990–991; see supra , at 7–8. A finding that Wal-Mart’s pay and promotions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking individual remedies for company-wide discrimination. Teamsters v. United States , 431 U. S. 324 , 359 (1977); see Albemarle Paper Co. v. Moody , 422 U. S. 405 , 415–423 (1975). That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff “was refused … advancement … for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. *  *  *    The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion. Footnote 1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. Footnote 2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante , at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolution of those issues. Footnote 3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante , at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting … questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante , at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question. Footnote 4 The majority purports to derive from Teamsters v. United States , 431 U. S. 324 (1977), a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class. Ante , at 17–18. Teamsters , the Court acknowledges, see ante , at 18, n. 9, instructs that statistical evidence alone may suffice, 431 U. S.em>., at 339; that decision can hardly be said to establish a numerical floor before anecdotal evidence can be taken into account. Footnote 5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante , at 16 (internal quotation marks omitted). In fact, his regression analyses showed there were disparities within stores. The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order. Footnote 6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musicians through auditions open to all comers. Id ., at 716. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Id ., at 738. Footnote 7 The Court places considerable weight on General Telephone Co. of Southwest v. Falcon , 457 U. S. 147 (1982). Ante , at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in Falcon alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and failure to hire Mexican-American applicants. There were “ no common questions of law or fact” between the claims of the lead plaintiff and the applicant class. 457 U. S., at 162 (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intentionally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ibid ., appropriate for facially neutral practices. “[T]he only commonality [wa]s that respondent is a Mexican-American and he seeks to represent a class of Mexican-Americans.” Ibid . Here the same practices touch and concern all members of the class. Footnote 8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class members would create a risk of … inconsistent or varying adjudications … [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members … ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief … is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added). Footnote 9 Cf. supra , at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question … common to the members of the class” (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)).

In *Wal-Mart Stores, Inc. v. Dukes*, the Supreme Court considered whether the certification of a plaintiff class of approximately one and a half million current and former female employees of Wal-Mart was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). The plaintiffs alleged that Wal-Mart's policy of giving local managers discretion over pay and promotions resulted in discrimination against women. The Court held that the class did not meet the commonality requirement of Rule 23(a), as the plaintiffs' claims involved individualized issues of discrimination that could not be resolved on a class-wide basis. The Court also found that the class did not meet the typicality and adequacy requirements of Rule 23(a), as the named plaintiffs' claims were not representative of the class as a whole. Additionally, the Court held that the class did not satisfy Rule 23(b)(2), as the plaintiffs' primary goal was to obtain monetary relief in the form of backpay, rather than injunctive or declaratory relief. The Court concluded that the class action was not an appropriate vehicle for resolving the plaintiffs' claims and reversed the lower court's decision.

Labor & Employment

Univ. of Texas Southwestern Medical Center v. Nassar

https://supreme.justia.com/cases/federal/us/570/338/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–484 _________________ UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, PETITIONER v. NAIEL NASSAR on writ of certiorari to the united states court of appeals for the fifth circuit [June 24, 2013]      Justice Kennedy delivered the opinion of the Court.      When the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection, some link, between the injury sustained and the wrong alleged. The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation, a subject most often arising in elaborating the law of torts. This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., which provides remedies to employees for injuries related to discriminatory conduct and associated wrongs by employers.      Title VII is central to the federal policy of prohibiting wrongful discrimination in the Nation’s workplaces and in all sectors of economic endeavor. This opinion discusses the causation rules for two categories of wrongful employer conduct prohibited by Title VII. The first type is called, for purposes of this opinion, status-based discrimination. The term is used here to refer to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. See §2000e–2(a). The second type of conduct is employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination. See §2000e–3(a).      An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) , and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e–2(m), 2000e–5(g)(2)(B). The question the Court must answer here is whether that lessened causation standard is applicable to claims of unlawful employer retaliation under §2000e–3(a).      Although the Court has not addressed the question of the causation showing required to establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general in a case involving employer discrimination under a separate but related statute, the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §623. See Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009) . In Gross, the Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct. The holding and analysis of that decision are instructive here. I      Petitioner, the University of Texas Southwestern Medical Center (University), is an academic institution within the University of Texas system. The University specializes in medical education for aspiring physicians, health professionals, and scientists. Over the years, the University has affiliated itself with a number of healthcare facilities including, as relevant in this case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the University, the Hospital permits the University’s students to gain clinical experience working in its facilities. The agreement also requires the Hospital to offer empty staff physician posts to the University’s faculty members, see App. 361–362, 366, and, accordingly, most of the staff physician positions at the Hospital are filled by those faculty members.      Respondent is a medical doctor of Middle Eastern descent who specializes in internal medicine and infectious diseases. In 1995, he was hired to work both as a member of the University’s faculty and a staff physician at the Hospital. He left both positions in 1998 for additional medical education and then returned in 2001 as an assistant professor at the University and, once again, as a physician at the Hospital.      In 2004, Dr. Beth Levine was hired as the University’s Chief of Infectious Disease Medicine. In that position Levine became respondent’s ultimate (though not direct) superior. Respondent alleged that Levine was biased against him on account of his religion and ethnic heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well as comments that “ ‘Middle Easterners are lazy.’ ” 674 F. 3d 448, 450 (CA5 2012). On different occasions during his employment, respondent met with Dr. Gregory Fitz, the University’s Chair of Internal Medicine and Levine’s supervisor, to complain about Levine’s alleged harassment. Despite obtaining a promotion with Levine’s assistance in 2006, respondent continued to believe that she was biased against him. So he tried to arrange to continue working at the Hospital without also being on the University’s faculty. After preliminary negotiations with the Hospital suggested this might be possible, respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in which he stated that the reason for his departure was harassment by Levine. That harassment, he asserted, “ ‘stems from . . . religious, racial and cultural bias against Arabs and Muslims.’ ” Id., at 451. After reading that letter, Dr. Fitz expressed consternation at respondent’s accusations, saying that Levine had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly exonerated.” App. 41.      Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be members of the University faculty. The Hospital then withdrew its offer.      After exhausting his administrative remedies, respondent filed this Title VII suit in the United States District Court for the Northern District of Texas. He alleged two discrete violations of Title VII. The first was a status-based discrimination claim under §2000e–2(a). Respondent alleged that Dr. Levine’s racially and religiously moti- vated harassment had resulted in his constructive discharge from the University. Respondent’s second claim was that Dr. Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Dr. Levine’s harassment, in violation of §2000e–3(a). 674 F. 3d, at 452. The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more than $3 million in compensatory damages. The District Court later reduced the compensatory damages award to $300,000.      On appeal, the Court of Appeals for the Fifth Circuit affirmed in part and vacated in part. The court first concluded that respondent had submitted insufficient evidence in support of his constructive-discharge claim, so it vacated that portion of the jury’s verdict. The court affirmed as to the retaliation finding, however, on the theory that retaliation claims brought under §2000e–3(a)—like claims of status-based discrimination under §2000e–2(a)—require only a showing that retaliation was a motivating factor for the adverse employment action, rather than its but-for cause. See id., at 454, n. 16 (citing Smith v. Xerox Corp., 602 F. 3d 320, 330 (CA5 2010)). It further held that the evidence supported a finding that Dr. Fitz was motivated, at least in part, to retaliate against respondent for his complaints against Levine. The Court of Appeals then remanded for a redetermination of damages in light of its decision to vacate the constructive-discharge verdict.      Four judges dissented from the court’s decision not to rehear the case en banc, arguing that the Circuit’s application of the motivating-factor standard to retaliation cases was “an erroneous interpretation of [Title VII] and controlling caselaw” and should be overruled en banc. 688 F. 3d 211, 213–214 (CA5 2012) (Smith, J., dissenting from denial of rehearing en banc).      Certiorari was granted. 568 U. S. ___ (2013). II A      This case requires the Court to define the proper standard of causation for Title VII retaliation claims. Causation in fact—i.e., proof that the defendant’s conduct did in fact cause the plaintiff’s injury—is a standard requirement of any tort claim, see Restatement of Torts §9 (1934) (definition of “legal cause”); §431, Comment a (same); §279, and Comment c (intentional infliction of physical harm); §280 (other intentional torts); §281(c) (negligence). This includes federal statutory claims of workplace discrimination. Hazen Paper Co. v. Biggins, 507 U. S. 604, 610 (1993) (In intentional-discrimination cases, “liability depends on whether the protected trait” “actually motivated the employer’s decision” and “had a determinative in- fluence on the outcome”); Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 711 (1978) (explaining that the “simple test” for determining a discriminatory employment practice is “whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different” (internal quotation marks omitted)).      In the usual course, this standard requires the plaintiff to show “that the harm would not have occurred” in the absence of—that is, but for—the defendant’s conduct. Restatement of Torts §431, Comment a (negligence); §432(1), and Comment a (same); see §279, and Comment c (intentional infliction of bodily harm); §280 (other intentional torts); Restatement (Third) of Torts: Liability for Physical and Emotional Harm §27, and Comment b (2010) (noting the existence of an exception for cases where an injured party can prove the existence of multiple, independently sufficient factual causes, but observing that “cases invoking the concept are rare”). See also Restatement (Second) of Torts §432(1) (1963 and 1964) (negligence claims); §870, Comment l (intentional injury to another); cf. §435a, and Comment a (legal cause for intentional harm). It is thus textbook tort law that an action “is not regarded as a cause of an event if the particular event would have occurred without it.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an indication to the contrary in the statute itself. See Meyer v. Holley, 537 U. S. 280, 285 (2003) ; Carey v. Piphus, 435 U. S. 247 –258 (1978). B      Since the statute’s passage in 1964, it has prohibited employers from discriminating against their employees on any of seven specified criteria. Five of them—race, color, religion, sex, and national origin—are personal characteristics and are set forth in §2000e–2. (As noted at the outset, discrimination based on these five characteristics is called status-based discrimination in this opinion.) And then there is a point of great import for this case: The two remaining categories of wrongful employer conduct—the employee’s opposition to employment discrimination, and the employee’s submission of or support for a complaint that alleges employment discrimination—are not wrongs based on personal traits but rather types of protected employee conduct. These latter two categories are covered by a separate, subsequent section of Title VII, §2000e–3(a).      Under the status-based discrimination provision, it is an “unlawful employment practice” for an employer “to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a). In its 1989 decision in Price Waterhouse, the Court sought to explain the causation standard imposed by this language. It addressed in particular what it means for an action to be taken “because of” an individual’s race, religion, or nationality. Although no opinion in that case commanded a majority, six Justices did agree that a plaintiff could prevail on a claim of status-based discrimination if he or she could show that one of the prohibited traits was a “motivating” or “substantial” factor in the employer’s decision. 490 U. S., at 258 (plurality opinion); id., at 259 (White, J., concurring in judgment); id., at 276 (O’Connor, J., concurring in judgment). If the plaintiff made that showing, the burden of persuasion would shift to the employer, which could escape liability if it could prove that it would have taken the same employment action in the absence of all discriminatory animus. Id., at 258 (plurality opinion); id., at 259–260 (opinion of White, J.); id., at 276–277 (opinion of O’Connor, J.). In other words, the employer had to show that a discriminatory motive was not the but-for cause of the adverse employment action.      Two years later, Congress passed the Civil Rights Act of 1991 (1991 Act), 105Stat. 1071. This statute (which had many other provisions) codified the burden-shifting and lessened-causation framework of Price Waterhouse in part but also rejected it to a substantial degree. The legislation first added a new subsection to the end of §2000e–2, i.e., Title VII’s principal ban on status-based discrimination. See §107(a), 105Stat. 1075. The new provision, §2000e–2(m), states: “[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” This, of course, is a lessened causation standard.      The 1991 Act also abrogated a portion of Price Waterhouse’s framework by removing the employer’s ability to defeat liability once a plaintiff proved the existence of an impermissible motivating factor. See Gross, 557 U. S., at 178, n. 5. In its place, Congress enacted §2000e–5(g)(2), which provides:      “(B) On a claim in which an individual proves a violation under section 2000e–2(m) of this title and [the employer] demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court—      “(i) may grant declaratory relief, injunctive relief . . . and [limited] attorney’s fees and costs . . . ; and      “(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment . . . .”      So, in short, the 1991 Act substituted a new burden-shifting framework for the one endorsed by Price Waterhouse. Under that new regime, a plaintiff could obtain declaratory relief, attorney’s fees and costs, and some forms of injunctive relief based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action; but the employer’s proof that it would still have taken the same employment action would save it from monetary damages and a reinstatement order. See Gross, 557 U. S., at 178, n. 5; see also id., at 175, n. 2, 177, n. 3.      After Price Waterhouse and the 1991 Act, considerable time elapsed before the Court returned again to the meaning of “because” and the problem of causation. This time it arose in the context of a different, yet similar statute, the ADEA, 29 U. S. C. §623(a). See Gross, supra. Much like the Title VII statute in Price Waterhouse, the relevant portion of the ADEA provided that “ ‘[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.’ ” 557 U. S., at 176 (quoting §623(a)(1); emphasis and ellipsis in original).      Concentrating first and foremost on the meaning of the phrase “ ‘because of . . . age,’ ” the Court in Gross explained that the ordinary meaning of “ ‘because of’ ” is “ ‘by reason of’ ” or “ ‘on account of.’ ” Id., at 176 (citing 1 Webster’s Third New International Dictionary 194 (1966); 1 Oxford English Dictionary 746 (1933); The Random House Dictionary of the English Language 132 (1966); emphasis in original). Thus, the “requirement that an employer took adverse action ‘because of’ age [meant] that age was the ‘reason’ that the employer decided to act,” or, in other words, that “age was the ‘but-for’ cause of the employer’s adverse decision.” 557 U. S., at 176. See also Safeco Ins. Co. of America v. Burr, 551 U. S. 47 –64, and n. 14 (2007) (noting that “because of” means “based on” and that “ ‘based on’ indicates a but-for causal relationship”); Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 –266 (1992) (equating “by reason of” with “ ‘but for’ cause”).      In the course of approving this construction, Gross declined to adopt the interpretation endorsed by the plurality and concurring opinions in Price Waterhouse. Noting that “the ADEA must be ‘read . . . the way Congress wrote it,’ ” 557 U. S., at 179 (quoting Meacham v. Knolls Atomic Power Laboratory, 554 U. S. 84, 102 (2008) ), the Court concluded that “the textual differences between Title VII and the ADEA” “prevent[ed] us from applying Price Waterhouse . . . to federal age discrimination claims,” 557 U. S., at 175, n. 2. In particular, the Court stressed the congressional choice not to add a provision like §2000e–2(m) to the ADEA despite making numerous other changes to the latter statute in the 1991 Act. Id., at 174–175 (citing EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991) ); 557 U. S., at 177, n. 3 (citing 14 Penn Plaza LLC v. Pyett, 556 U. S. 247, 270 (2009) ).      Finally, the Court in Gross held that it would not be proper to read Price Waterhouse as announcing a rule that applied to both statutes, despite their similar wording and near-contemporaneous enactment. 557 U. S., at 178, n. 5. This different reading was necessary, the Court concluded, because Congress’ 1991 amendments to Title VII, including its “careful tailoring of the ‘motivating factor’ claim” and the substitution of §2000e–5(g)(2)(B) for Price Waterhouse’s full affirmative defense, indicated that the motivating-factor standard was not an organic part of Title VII and thus could not be read into the ADEA. See 557 U. S., at 178, n. 5.      In Gross, the Court was careful to restrict its analysis to the statute before it and withhold judgment on the proper resolution of a case, such as this, which arose under Title VII rather than the ADEA. But the particular confines of Gross do not deprive it of all persuasive force. Indeed, that opinion holds two insights for the present case. The first is textual and concerns the proper interpretation of the term “because” as it relates to the principles of causation underlying both §623(a) and §2000e–3(a). The second is the significance of Congress’ structural choices in both Title VII itself and the law’s 1991 amendments. These principles do not decide the present case but do inform its analysis, for the issues possess significant parallels. III A      As noted, Title VII’s antiretaliation provision, which is set forth in §2000e–3(a), appears in a different section from Title VII’s ban on status-based discrimination. The antiretaliation provision states, in relevant part:      “It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”      This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take adverse employment action against an employee “because” of certain criteria. Cf. 29 U. S. C. §623(a)(1). Given the lack of any meaningful textual difference between the text in this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action. See Gross, supra, at 176.      The principal counterargument offered by respondent and the United States relies on their different understanding of the motivating-factor section, which—on its face—applies only to status discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment practice; (2) §2000e–2(m) allows unlawful employment practices to be proved based on a showing that race, color, religion, sex, or national origin was a motivating factor for—and not necessarily the but-for factor in—the challenged employment action; and (3) the Court has, as a matter of course, held that “retaliation for complaining about race discrimination is ‘discrimination based on race.’ ” Brief for United States as Amicus Curiae 14; see id., at 11–14; Brief for Respondent 16–19.      There are three main flaws in this reading of §2000e–2(m). The first is that it is inconsistent with the provision’s plain language. It must be acknowledged that because Title VII defines “unlawful employment practice” to include retaliation, the question presented by this case would be different if §2000e–2(m) extended its coverage to all unlawful employment practices. As actually written, however, the text of the motivating-factor provision, while it begins by referring to “unlawful employment practices,” then proceeds to address only five of the seven prohibited discriminatory actions—actions based on the employee’s status, i.e., race, color, religion, sex, and national origin. This indicates Congress’ intent to confine that provision’s coverage to only those types of employment practices. The text of §2000e–2(m) says nothing about retaliation claims. Given this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope. Gardner v. Collins, 2 Pet. 58, 93 (1829) (“What the legislative intention was, can be derived only from the words they have used; and we cannot speculate beyond the reasonable import of these words”); see Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 8).      The second problem with this reading is its inconsistency with the design and structure of the statute as a whole. See Gross, 557 U. S., at 175, n. 2, 178, n. 5. Just as Congress’ choice of words is presumed to be deliberate, so too are its structural choices. See id., at 177, n. 3. When Congress wrote the motivating-factor provision in 1991, it chose to insert it as a subsection within §2000e–2, which contains Title VII’s ban on status-based discrimination, §§2000e–2(a) to (d), (l), and says nothing about retaliation. See 1991 Act, §107(a), 105Stat. 1075 (directing that “§2000e–2 . . . [be] further amended by adding at the end the following new subsection . . . (m)”). The title of the section of the 1991 Act that created §2000e–2(m)—“Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices”—also indicates that Congress determined to address only claims of status-based discrimination, not retaliation. See §107(a), id., at 1075.      What is more, a different portion of the 1991 Act contains an express reference to all unlawful employment actions, thereby reinforcing the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e–2(m). See Arabian American Oil Co., 499 U. S., at 256 (congressional amendment of ADEA on a similar subject coupled with congressional failure to amend Title VII weighs against conclusion that the ADEA’s standard applies to Title VII); see also Gross, supra, at 177, n. 3. The relevant portion of the 1991 Act, §109(b), allowed certain overseas operations by U. S. employers to engage in “any practice prohibited by section 703 or 704,” i.e., §2000e–2 or §2000e–3, “if compliance with such section would cause such employer . . . to violate the law of the foreign country in which such workplace is located.” 105Stat. 1077.      If Congress had desired to make the motivating-factor standard applicable to all Title VII claims, it could have used language similar to that which it invoked in §109. See Arabian American Oil Co., supra, at 256. Or, it could have inserted the motivating-factor provision as part of a section that applies to all such claims, such as §2000e–5, which establishes the rules and remedies for all Title VII enforcement actions. See FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000) . But in writing §2000e–2(m), Congress did neither of those things, and “[w]e must give effect to Congress’ choice.” Gross, supra, at 177, n. 3.      The third problem with respondent’s and the Government’s reading of the motivating-factor standard is in its submission that this Court’s decisions interpreting federal antidiscrimination law have, as a general matter, treated bans on status-based discrimination as also prohibiting retaliation. In support of this proposition, both respondent and the United States rely upon decisions in which this Court has “read [a] broadly worded civil rights statute . . . as including an antiretaliation remedy.” CBOCS West, Inc. v. Humphries, 553 U. S. 442 –453 (2008). In CBOCS, for example, the Court held that 42 U. S. C. §1981—which declares that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens”—prohibits not only racial discrimination but also retaliation against those who oppose it. 553 U. S., at 445. And in Gómez-Pérez v. Potter, 553 U. S. 474 (2008) , the Court likewise read a bar on retaliation into the broad wording of the federal-employee provisions of the ADEA. Id., at 479, 487 (“All personnel actions affecting [federal] employees . . . who are at least 40 years of age . . . shall be made free from any discrimination based on age,” 29 U. S. C. §633a(a)); see also Jackson v. Birmingham Bd. of Ed., 544 U. S. 167, 173, 179 (2005) ( 20 U. S. C. §1681(a) (Title IX)); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 , n. 3, 237 (1969) ( 42 U. S. C. §1982).      These decisions are not controlling here. It is true these cases do state the general proposition that Congress’ enactment of a broadly phrased antidiscrimination statute may signal a concomitant intent to ban retaliation against individuals who oppose that discrimination, even where the statute does not refer to retaliation in so many words. What those cases do not support, however, is the quite different rule that every reference to race, color, creed, sex, or nationality in an antidiscrimination statute is to be treated as a synonym for “retaliation.” For one thing, §2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII. The cases cited by respondent and the Government do not address rules of this sort, and those precedents are of limited relevance here.      The approach respondent and the Government suggest is inappropriate in the context of a statute as precise, complex, and exhaustive as Title VII. As noted, the laws at issue in CBOCS, Jackson, and Gómez-Pérez were broad, general bars on discrimination. In interpreting them the Court concluded that by using capacious language Congress expressed the intent to bar retaliation in addition to status-based discrimination. See Gómez-Pérez, supra, at 486–488. In other words, when Congress’ treatment of the subject of prohibited discrimination was both broad and brief, its omission of any specific discussion of retaliation was unremarkable.      If Title VII had likewise been phrased in broad and general terms, respondent’s argument might have more force. But that is not how Title VII was written, which makes it incorrect to infer that Congress meant anything other than what the text does say on the subject of retaliation. Unlike Title IX, §1981, §1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme. This statute enumerates specific unlawful employment practices. See §§2000e–2(a)(1), (b), (c)(1), (d) (status-based discrimination by employers, employment agencies, labor organizations, and training programs, respectively); §2000e–2(l) (status-based discrimination in employment-related testing); §2000e–3(a) (retaliation for opposing, or making or supporting a complaint about, unlawful employment actions); §2000e–3(b) (advertising a preference for applicants of a particular race, color, religion, sex, or national origin). It defines key terms, see §2000e, and exempts certain types of employers, see §2000e–1. And it creates an administrative agency with both rulemaking and enforcement authority. See §§2000e–5, 2000e–12.      This fundamental difference in statutory structure renders inapposite decisions which treated retaliation as an implicit corollary of status-based discrimination. Text may not be divorced from context. In light of Congress’ special care in drawing so precise a statutory scheme, it would be improper to indulge respondent’s suggestion that Congress meant to incorporate the default rules that apply only when Congress writes a broad and undifferentiated statute. See Gómez-Pérez, supra, at 486–488 (when construing the broadly worded federal-sector provision of the ADEA, Court refused to draw inferences from Congress’ amendments to the detailed private-sector provisions); Arabian American Oil Co., 499 U. S., at 256; cf. Jackson, supra, at 175 (distinguishing Title IX’s “broadly written general prohibition on discrimination” from Title VII’s “greater detail [with respect to] the conduct that constitutes discrimination”).      Further confirmation of the inapplicability of §2000e–2(m) to retaliation claims may be found in Congress’ approach to the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327. In the ADA Congress provided not just a general prohibition on discrimination “because of [an individual’s] disability,” but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination, see §§102(a), (b)(1)–(7), id., at 331–332 (codified at 42 U. S. C. §12112). And, most pertinent for present purposes, it included an express antiretaliation provision, see §503(a), 104Stat. 370 (codified at 42 U. S. C. §12203). That law, which Congress passed only a year before enacting §2000e–2(m) and which speaks in clear and direct terms to the question of retaliation, rebuts the claim that Congress must have intended to use the phrase “race, color, religion, sex, or national origin” as the textual equivalent of “retaliation.” To the contrary, the ADA shows that when Congress elected to address retaliation as part of a detailed statutory scheme, it did so in clear textual terms.      The Court confronted a similar structural dispute in Lehman v. Nakshian, 453 U. S. 156 (1981) . The question there was whether the federal-employment provisions of the ADEA, 29 U. S. C. §633a, provided a jury-trial right for claims against the Federal Government. Nakshian, 453 U. S., at 157. In concluding that it did not, the Court noted that the portion of the ADEA that prohibited age discrimination by private, state, and local employers, §626, expressly provided for a jury trial, whereas the federal-sector provisions said nothing about such a right. Id., at 162–163, 168. So, too, here. Congress has in explicit terms altered the standard of causation for one class of claims but not another, despite the obvious opportunity to do so in the 1991 Act. B      The proper interpretation and implementation of §2000e–3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being made with ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000 in 1997 to over 31,000 in 2012. EEOC, Charge Statistics FY 1997 Through FY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/ charges.cfm (as visited June 20, 2013, and available in Clerk of Court’s case file). Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race. See ibid.      In addition lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment. Consider in this regard the case of an employee who knows that he or she is about to be fired for poor perform- ance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. Cf. Vance v. Ball State Univ., post, at 9–11. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent. See Brief for National School Boards Association as Amicus Curiae 11–22. Yet there would be a significant risk of that consequence if respondent’s position were adopted here.      The facts of this case also demonstrate the legal and factual distinctions between status-based and retaliation claims, as well as the importance of the correct standard of proof. Respondent raised both claims in the District Court. The alleged wrongdoer differed in each: In respondent’s status-based discrimination claim, it was his indirect supervisor, Dr. Levine. In his retaliation claim, it was the Chair of Internal Medicine, Dr. Fitz. The proof required for each claim differed, too. For the status-based claim, respondent was required to show instances of racial slurs, disparate treatment, and other indications of nationality-driven animus by Dr. Levine. Respondent’s retaliation claim, by contrast, relied on the theory that Dr. Fitz was committed to exonerating Dr. Levine and wished to punish respondent for besmirching her reputation. Separately instructed on each type of claim, the jury returned a separate verdict for each, albeit with a single damages award. And the Court of Appeals treated each claim separately, too, finding insufficient evidence on the claim of status-based discrimination.      If it were proper to apply the motivating-factor standard to respondent’s retaliation claim, the University might well be subject to liability on account of Dr. Fitz’s alleged desire to exonerate Dr. Levine, even if it could also be shown that the terms of the affiliation agreement pre- cluded the Hospital’s hiring of respondent and that the University would have sought to prevent respondent’s hiring in order to honor that agreement in any event. That result would be inconsistent with the both the text and purpose of Title VII.      In sum, Title VII defines the term “unlawful employment practice” as discrimination on the basis of any of seven prohibited criteria: race, color, religion, sex, national origin, opposition to employment discrimination, and submitting or supporting a complaint about employment discrimination. The text of §2000e–2(m) mentions just the first five of these factors, the status-based ones; and it omits the final two, which deal with retaliation. When it added §2000e–2(m) to Title VII in 1991, Congress inserted it within the section of the statute that deals only with those same five criteria, not the section that deals with retaliation claims or one of the sections that apply to all claims of unlawful employment practices. And while the Court has inferred a congressional intent to prohibit retaliation when confronted with broadly worded antidiscrimination statutes, Title VII’s detailed structure makes that inference inappropriate here. Based on these textual and structural indications, the Court now concludes as follows: Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. IV      Respondent and the Government also argue that applying the motivating-factor provision’s lessened causation standard to retaliation claims would be consistent with longstanding agency views, contained in a guidance manual published by the EEOC. It urges that those views are entitled to deference under this Court’s decision in Skidmore v. Swift & Co., 323 U. S. 134 (1944) . See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101 , n. 6 (2002). The weight of deference afforded to agency interpretations under Skidmore depends upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.” 323 U. S., at 140; see Vance, post, at 9, n. 4.      According to the manual in question, the causation element of a retaliation claim is satisfied if “there is credible direct evidence that retaliation was a motive for the challenged action,” regardless of whether there is also “[e]vidence as to [a] legitimate motive.” 2 EEOC Compliance Manual §8–II(E)(1), pp. 614:0007–614:0008 (Mar. 2003). After noting a division of authority as to whether motivating-factor or but-for causation should apply to retaliation claims, the manual offers two rationales in support of adopting the former standard. The first is that “[c]ourts have long held that the evidentiary framework for proving [status-based] discrimination . . . also applies to claims of discrimination based on retaliation.” Id., at 614:0008, n. 45. Second, the manual states that “an interpretation . . . that permits proven retaliation to go unpunished undermines the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.” Ibid.      These explanations lack the persuasive force that is a necessary precondition to deference under Skidmore. See 323 U. S., at 140; Vance, post, at 9, n. 4. As to the first rationale, while the settled judicial construction of a particular statute is of course relevant in ascertaining statutory meaning, see Lorillard v. Pons, 434 U. S. 575 –581 (1978), the manual’s discussion fails to address the particular interplay among the status-based discrimination provision (§2000e–2(a)), the antiretaliation provision (§2000e–3(a)), and the motivating-factor provision (§2000e–2(m)). Other federal antidiscrimination statutes do not have the structure of statutory subsections that control the outcome at issue here. The manual’s failure to address the specific provisions of this statutory scheme, coupled with the generic nature of its discussion of the causation standards for status-based discrimination and retaliation claims, call the manual’s conclusions into serious question. See Kentucky Retirement Systems v. EEOC, 554 U. S. 135 –150 (2008).      The manual’s second argument is unpersuasive, too; for its reasoning is circular. It asserts the lessened causation standard is necessary in order to prevent “proven retaliation” from “go[ing] unpunished.” 2 EEOC Compliance Manual §8–II(E)(1), at 614:0008, n. 45. Yet this assumes the answer to the central question at issue here, which is what causal relationship must be shown in order to prove retaliation.      Respondent’s final argument, in which he is not joined by the United States, is that even if §2000e–2(m) does not control the outcome in this case, the standard applied by Price Waterhouse should control instead. That assertion is incorrect. First, this position is foreclosed by the 1991 Act’s amendments to Title VII. As noted above, Price Waterhouse adopted a complex burden-shifting framework. Congress displaced this framework by enacting §2000e–2(m) (which adopts the motivating-factor standard for status-based discrimination claims) and §2000e–5(g)(2)(B) (which replaces employers’ total defense with a remedial limitation). See Gross, 557 U. S., at 175, n. 2, 177, n. 3, 178, n. 5. Given the careful balance of lessened causation and reduced remedies Congress struck in the 1991 Act, there is no reason to think that the different balance articulated by Price Waterhouse somehow survived that legislation’s passage. Second, even if this argument were still available, it would be inconsistent with the Gross Court’s reading (and the plain textual meaning) of the word “because” as it appears in both §623(a) and §2000e–3(a). See Gross, supra, at 176–177. For these reasons, the rule of Price Waterhouse is not controlling here. V      The text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under §2000e–3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer. The University claims that a fair application of this standard, which is more demanding than the motivating-factor standard adopted by the Court of Appeals, entitles it to judgment as a matter of law. It asks the Court to so hold. That question, however, is better suited to resolution by courts closer to the facts of this case. The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 12–484 _________________ UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, PETITIONER v. NAIEL NASSAR on writ of certiorari to the united states court of appeals for the fifth circuit [June 24, 2013]      Justice Ginsburg, with whom Justice Breyer, Jus- tice Sotomayor, and Justice Kagan join, dissenting.      Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., makes it an “unlawful employment practice” to “discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a) (emphasis added). Backing up that core provision, Title VII also makes it an “unlawful employment practice” to discriminate against any individual “because” the individual has complained of, opposed, or participated in a proceeding about, prohibited discrimination. §2000e–3(a) (emphasis added). This form of discrimination is commonly called “retaliation,” although Title VII itself does not use that term. The Court has recognized that effective protection against retaliation, the office of §2000e–3(a), is essential to securing “a workplace where individuals are not discriminated against because of their racial, ethnic, religious, or gender-based status.” Burlington N. & S. F. R. Co. v. White, 548 U. S. 53, 63 (2006) (Burlington Northern). That is so because “fear of retaliation is the leading reason why people stay silent” about the discrimination they have encountered or observed. Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 279 (2009) (internal quotation marks and brackets omitted).      Similarly worded, the ban on discrimination and the ban on retaliation against a discrimination complainant have traveled together: Title VII plaintiffs often raise the two pro- visions in tandem. Today’s decision, however, drives a wedge between the twin safeguards in so-called “mixed-motive” cases. To establish discrimination, all agree, the complaining party need show only that race, color, religion, sex, or national origin was “a motivating factor” in an employer’s adverse action; an employer’s proof that “other factors also motivated the [action]” will not defeat the discrimination claim. §2000e–2(m). But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail unless the complainant shows “but-for” causation, i.e., that the employer would not have taken the adverse employment action but for a design to retaliate.      In so reining in retaliation claims, the Court misapprehends what our decisions teach: Retaliation for complaining about discrimination is tightly bonded to the core pro- hibition and cannot be disassociated from it. Indeed, this Court has explained again and again that “retaliation in response to a complaint about [proscribed] discrimination is discrimination” on the basis of the characteristic Congress sought to immunize against adverse employment action. Jackson v. Birmingham Bd. of Ed., 544 U. S. 167 , n. 3 (2005) (emphasis added; internal quotation marks omitted).      The Court shows little regard for the trial judges who will be obliged to charge discrete causation standards when a claim of discrimination “because of,” e.g., race is coupled with a claim of discrimination “because” the individual has complained of race discrimination. And jurors will puzzle over the rhyme or reason for the dual standards. Of graver concern, the Court has seized on a provision, §2000e–2(m), adopted by Congress as part of an endeavor to strengthen Title VII, and turned it into a measure reducing the force of the ban on retaliation. I      Dr. Naiel Nassar is of Middle Eastern descent. A specialist in the treatment of HIV/AIDS, Nassar was a faculty member of the University of Texas Southwestern Medical Center (UTSW) from 1995 until 2006, save for a period during which he left his employment to continue his education. UTSW is affiliated with Parkland Hospital and, like other faculty members at the University, Nassar also worked as a physician at the Hospital. Beginning in 2001, Nassar served as Associate Medical Director of the Hospital’s Amelia Court Clinic.      Until 2004, Dr. Phillip Keiser, Medical Director of the Clinic, was Nassar’s principal supervisor. In that year, UTSW hired Dr. Beth Levine to oversee the Clinic and to supervise Keiser. Before Levine commenced her employment at UTSW, she interviewed her potential subordinates. Meeting with other Clinic doctors for only 15 to 20 minutes, Levine spent an hour and a half with Nassar, engaging in a detailed review of his resume and reading from a list of prepared questions. Record 2926–2928.      Once Levine came on board, she expressed concern to Keiser about Nassar’s productivity and questioned his work ethic. Id., at 2361–2362. According to Keiser, Le- vine “never seemed to [be] satisf[ied]” with his assurances that Nassar was in fact working harder than other physicians. Id., at 2362. Disconcerted by Levine’s scrutiny, Nassar several times complained about it to Levine’s supervisor, Dr. Gregory Fitz, Chair of Internal Medicine. App. to Pet. for Cert. 4.      In 2005, Levine opposed hiring another physician who, like Nassar, was of Middle Eastern descent. In Keiser’s presence, Levine remarked that “Middle Easterners are lazy.” Id., at 3. When that physician was hired by Parkland, Levine said, again in Keiser’s presence, that the Hospital had “hired another one.” Ibid. See also Record 2399–2400. Keiser presented to Levine objective data demonstrating Nassar’s high productivity. Levine then began criticizing Nassar’s billing practices. Her criticism did not take into account that Nassar’s salary was funded by a federal grant that precluded billing for most of his services. App. to Pet. for Cert. 3.      Because of Levine’s hostility, Nassar sought a way to continue working at the Clinic without falling under her supervision. To that end, Nassar engaged in discussions with the Hospital about dropping his affiliation with UTSW and retaining his post at Parkland. Although he was initially told that an affiliation agreement between UTSW and Parkland obliged Parkland to fill its staff physician posts with UTSW faculty, talks with the Hos- pital continued. Eventually, Parkland verbally offered Nassar a position as a staff physician. See App. 67–71, 214–216, 326–330.      In July 2006, Nassar resigned from his position at UTSW. “The primary reason [for his] resignation,” Nassar wrote in a letter to Fitz, “[was] the continuing harassment and discrimination . . . by . . . Dr. Beth Levine.” App. to Pet. for Cert. 5 (internal quotation marks omitted). According to Keiser, Nassar’s letter shocked Fitz, who told Keiser that, because Levine had been “publicly humili- ated,” she should be “publicly exonerated.” App. 41. Fitz’s opposition to Parkland’s hiring Nassar prompted the Hospital to withdraw the offer to engage him. App. to Pet. for Cert. 5–6.      After accepting a position at a smaller HIV/AIDS clinic in Fresno, California, Nassar filed a complaint with the Equal Employment Opportunity Commission (EEOC). The agency found “credibl[e] testimonial evidence,” that UTSW had retaliated against Nassar for his allegations of discrimination by Levine. Brief for Respondent 8 (citing Pl. Trial Exh. 78). Nassar then filed suit in District Court alleging that UTSW had discriminated against him, in violation of Title VII, on the basis of his race, religion, and national origin, see §2000e–2(a), and had constructively discharged him. App. to Pet. for Cert. 6; Complaint ¶23. He further alleged that UTSW had retaliated against him for complaining about Levine’s behavior. App. to Pet. for Cert. 6.      On the retaliation claim, the District Court instructed the jury that Nassar “[did] not have to prove that retaliation was [UTSW’s] only motive, but he [had to] prove that [UTSW] acted at least in part to retaliate.” Id., at 47. The jury found UTSW liable for both constructive discharge and retaliation. At the remedial phase, the judge charged the jury not to award damages for “actions which [UTSW] prove[d] by a preponderance of the evidence . . . it would have taken even if it had not considered . . . Nassar’s protected activity.” Id., at 42–43. Finding that UTSW had not met its proof burden, the jury awarded Nassar $438,167.66 in backpay and $3,187,500 in compensatory damages. Id., at 43–44. [ 1 ]      The Court of Appeals for the Fifth Circuit affirmed in part. [ 2 ] Responding to UTSW’s argument that the District Court erred in instructing the jury on a mixed-motive theory of retaliation, the Fifth Circuit held that the instruction conformed to Circuit precedent. 674 F. 3d 448, 454, n. 16 (2012) (citing Smith v. Xerox Corp., 602 F. 3d 320, 330 (2010)). [ 3 ] II      This Court has long acknowledged the symbiotic relationship between proscriptions on discrimination and pro- scriptions on retaliation. Antidiscrimination provisions, the Court has reasoned, endeavor to create a workplace where individuals are not treated differently on account of race, ethnicity, religion, or sex. See Burlington Northern, 548 U. S., at 63. Antiretaliation provisions “see[k] to secure that primary objective by preventing an employer from interfering . . . with an employee’s efforts to secure or advance enforcement of [antidiscrimination] guarantees.” Ibid. As the Court has comprehended, “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Id., at 67. “ ‘[E]ffective enforcement,’ ” therefore, can “ ‘only be expected if employees . . . [feel] free to approach officials with their grievances.’ ” Ibid. (quoting Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288, 292 (1960) ). See also Crawford, 555 U. S., at 279.      Adverting to the close connection between discrimination and retaliation for complaining about discrimination, this Court has held, in a line of decisions unbroken until today, that a ban on discrimination encompasses retaliation. In Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237 (1969) , the Court determined that 42 U. S. C. §1982, which provides that “[a]ll citizens of the United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property,” protected a white man who suffered retaliation after complaining of discrimination against his black tenant. Jackson v. Birmingham Board of Education elaborated on that holding in the context of sex discrimination. “Retaliation against a person because [he] has complained of sex discrimination,” the Court found it inescapably evident, “is another form of intentional sex discrimination.” 544 U. S., at 173. As the Court explained: “Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subject to differential treatment. Moreover, retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” Id., at 173–174 (citations omitted).      Jackson interpreted Title IX of the Educational Amendments of 1972, 20 U. S. C. §1681(a). Noting that the legislation followed three years after Sullivan, the Court found it “not only appropriate but also realistic to presume that Congress was thoroughly familiar with Sullivan and . . . expected its enactment of Title IX to be interpreted in conformity with it.” 544 U. S., at 176 (internal quotation marks and alterations omitted).      Gómez-Pérez v. Potter, 553 U. S. 474 (2008) , was similarly reasoned. The Court there held that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §633a(a), barring discrimination “based on age,” also proscribes retaliation. 553 U. S., at 479–491. “What Jackson said about the relationship between Sullivan and the enactment of Title IX,” the Court observed, “can be said as well about the relation- ship between Sullivan and the enactment of the ADEA’s federal-sector provision.” Id., at 485. See also CBOCS West, Inc. v. Humphries, 553 U. S. 442 –457 (2008) (retaliation for race discrimination constitutes discrimination based on race under 42 U. S. C. §1981). There is no sound reason in this case to stray from the decisions in Sullivan, Jackson, Gómez-Pérez, and CBOCS West. III A      The Title VII provision key here, §2000e–2(m), states that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” Section 2000e–2(m) was enacted as part of the Civil Rights Act of 1991, which amended Title VII, along with other federal antidiscrimination statutes. See 105Stat. 1071. The amendments were intended to provide “additional protections against unlawful discrimination in employment,” id., §2(3), and to “respon[d] to a number of . . . decisions by [this Court] that sharply cut back on the scope and effectiveness” of antidiscrimination laws, H. R. Rep. No. 102–40, pt. II, pp. 2–4 (1991) (hereinafter House Report Part II) (citing, inter alia, Patterson v. McLean Credit Union, 491 U. S. 164 (1989) ; Martin v. Wilks, 490 U. S. 755 (1989) ; Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989) ).      Among the decisions found inadequately protective was Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) . A plurality of the Court in that case held that the words “because of” in §2000e–2(a) encompass claims challenging an employment decision attributable to “mixed motives,” i.e., one motivated by both legitimate and illegitimate factors. See id., at 240–242. [ 4 ] A Title VII plaintiff, the plurality concluded, need show only that a prohibited factor contributed to the employment decision—not that it was the but-for or sole cause. Id., at 240–244. But see id., at 281–282 (Kennedy, J., dissenting). An employer would not be liable, however, if it could show by a preponderance of the evidence that it would have taken the same action absent the illegitimate motive. Id., at 244–245.      Congress endorsed the plurality’s conclusion that, to be actionable under Title VII, discrimination must be a motivating factor in, but need not be the but-for cause of, an adverse employment action. See House Report Part II, at 18. Congress disagreed with the Court, however, insofar as the Price Waterhouse decision allowed an employer to escape liability by showing that the same action would have been taken regardless of improper motive. House Report Part II, at 18. See also H. R. Rep. No. 102–40, pt. I, pp. 45–48 (1991) (hereinafter House Report Part I). “If Title VII’s ban on discrimination in employment is to be meaningful,” the House Report explained, “victims of intentional discrimination must be able to obtain relief, and perpetrators of discrimination must be held liable for their actions.” House Report Part II, at 18.      Superseding Price Waterhouse in part, Congress sought to “restore” the rule of decision followed by several Circuits that any discrimination “actually shown to play a role in a contested employment decision may be the subject of liability.” House Report Part II, at 18. See also House Report Part I, at 48. To that end, Congress enacted §2000e–2(m) and §2000e–5(g)(2)(B). The latter provides that an employer’s proof that an adverse employment action would have been taken in any event does not shield the employer from liability; such proof, however, limits the plaintiff’s remedies to declaratory or injunctive relief, attorney’s fees, and costs.      Critically, the rule Congress intended to “restore” was not limited to substantive discrimination. As the House Report explained, “the Committee endors[ed] . . . the decisional law” in Bibbs v. Block, 778 F. 2d 1318 (CA8 1985) (en banc), which held that a violation of Title VII is established when the trier of fact determines that “an unlawful motive played some part in the employment decision or decisional process.” Id., at 1323; see House Report Part I, at 48. Prior to the 1991 Civil Rights Act, Bibbs had been applied to retaliation claims. See, e.g., Johnson v. Legal Servs. of Arkansas, Inc., 813 F. 2d 893, 900 (CA8 1987) (“Should the court find that retaliation played some invidious part in the [plaintiff’s] termination, a violation of Title VII will be established under Bibbs.”). See also EEOC v. General Lines, Inc., 865 F. 2d 1555, 1560 (CA10 1989). B      There is scant reason to think that, despite Congress’ aim to “restore and strengthen . . . laws that ban discrimination in employment,” House Report Part II, at 2, Congress meant to exclude retaliation claims from the newly enacted “motivating factor” provision. Section 2000e–2(m) provides that an “unlawful employment practice is established” when the plaintiff shows that a protected characteristic was a factor driving “any employment practice.” Title VII, in §2000e–3(a), explicitly denominates retaliation, like status-based discrimination, an “unlawful employment practice.” Because “any employment prac- tice” necessarily encompasses practices prohibited under §2000e–3(a), §2000e–2(m), by its plain terms, covers retaliation.      Notably, when it enacted §2000e–2(m), Congress did not tie the new provision specifically to §§2000e–2(a)–(d), which proscribe discrimination “because of” race, color, religion, gender, or national origin. Rather, Congress added an entirely new provision to codify the causation standard, one encompassing “any employment practice.” §2000e–2(m).      Also telling, §2000e–2(m) is not limited to situations in which the complainant’s race, color, religion, sex, or national origin motivates the employer’s action. In contrast, Title VII’s substantive antidiscrimination provisions refer to the protected characteristics of the complaining party. See §§2000e–2(a)(1)–(2), (c)(2) (referring to “such individual’s” protected characteristics); §§2000e–2(b), (c)(1), (d) (re-ferring to “his race, color, religion, sex, or national origin”). Congress thus knew how to limit Title VII’s coverage to victims of status-based discrimination when it was so minded. It chose, instead, to bring within §2000e– 2(m) “any employment practice.” To cut out retaliation from §2000e–2(m)’s scope, one must be blind to that choice. Cf. Jackson, 544 U. S., at 179, n. 3 (omission of reference to the complaining party’s sex in Title IX supports the conclusion that the statute protects a male plaintiff from retaliation in response to complaints about sex discrimination against women). C      From the inception of §2000e–2(m), the agency entrusted with interpretation of Title VII and superintendence of the Act’s administration, the EEOC, see §2000e–5, has understood the provision to cover retaliation claims. Shortly after Congress amended Title VII to include the motivating-factor provision, the EEOC issued guidance advising that, “[a]lthough [§2000e–2(m)] does not specify retaliation as a basis for finding liability whenever it is a motivating factor for an action, neither does it suggest any basis for deviating from the Commission’s long-standing rule that it will find liability . . . whenever retaliation plays any role in an employment decision.” EEOC, Revised Enforcement Guidance on Recent Developments in Disparate Treatment Theory, p. 20, n. 14 (July 14, 1992) (hereinafter EEOC Guidance), available at http://www.eeoc.gov/policy/docs/disparat.html (as visited June 21, 2013, and in Clerk of Court’s case file). As the EEOC’s initial guidance explained, “if retaliation were to go unremedied, it would have a chilling effect upon the willingness of individuals to speak out against employment discrimination.” Ibid.      In its compliance manual, the EEOC elaborated on its conclusion that “[§2000e–2(m)] applies to retaliation.” 2 EEOC Compliance Manual §8–II(E)(1), p. 614:0008, n. 45 (May 20, 1998) (hereinafter EEOC Compliance Manual). That reading, the agency observed, tracked the view, widely held by courts, “that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation.” Ibid. “[A]n interpretation of [§2000e–2(m)] that permit[ted] proven retaliation to go unpunished,” the EEOC noted, would “undermin[e] the purpose of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial mechanism.” Ibid.      The position set out in the EEOC’s guidance and compliance manual merits respect. See Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) ; Federal Express Corp. v. Holowecki, 552 U. S. 389, 399 (2008) (“[EEOC’s] policy statements, embodied in its compliance manual and internal directives . . . reflect a body of experience and informed judgment. . . . As such, they are entitled to a measure of respect under the less deferential Skidmore standard.” (internal quotation marks omitted)). If the breadth of §2000e–2(m) can be deemed ambiguous (although I believe its meaning is plain), the provision should be construed to accord with the EEOC’s well-reasoned and longstanding guidance. IV      The Court draws the opposite conclusion, ruling that retaliation falls outside the scope of §2000e–2(m). In so holding, the Court ascribes to Congress the unlikely purpose of separating retaliation claims from discrimination claims, thereby undermining the Legislature’s effort to fortify the protections of Title VII. None of the reasons the Court offers in support of its restrictive interpretation of §2000e–2(m) survives inspection. A      The Court first asserts that reading §2000e–2(m) to encompass claims for retaliation “is inconsistent with the provision’s plain language.” Ante, at 12. The Court acknowledges, however, that “the text of the motivating-factor provision . . . begins by referring to unlawful employment practices,” a term that undeniably includes retaliation. Ibid. (internal quotation marks omitted). Nevermind that, the Court continues, for §2000e–2(m) goes on to reference as “motivating factor[s]” only “race, color, religion, sex, or national origin.” The Court thus sees retaliation as a protected activity entirely discrete from status-based discrimination. Ibid.      This vision of retaliation as a separate concept runs up against precedent. See supra, at 6–7. Until today, the Court has been clear eyed on just what retaliation is: a manifestation of status-based discrimination. As Jackson explained in the context of sex discrimination, “retalia- tion is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.” 544 U. S., at 174.      The Court does not take issue with Jackson’s insight. Instead, it distinguishes Jackson and like cases on the ground that they concerned laws in which “Congress’ treatment of the subject of prohibited discrimination was both broad and brief.” Ante, at 15. Title VII, by contrast, “is a detailed statutory scheme,” that “enumerates specific unlawful employment practices,” “defines key terms,” and “exempts certain types of employers.” Ante, at 16. Accordingly, the Court says, “it would be improper to indulge [the] suggestion that Congress meant to incorporate [in Title VII] the default rules that apply only when Congress writes a broad and undifferentiated statute.” Ibid.      It is strange logic indeed to conclude that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation. It is hardly surprising, then, that our jurisprudence does not support the Court’s conclusion. In Gómez-Pérez, the Court construed the federal-sector provision of the ADEA, which proscribes “discrimination based on age,” 29 U. S. C. §633a(a), to bar retaliation. The Court did so mindful that another part of the Act, the provision applicable to private-sector employees, explicitly proscribes retaliation and, moreover, “set[s] out a specific list of forbidden employer practices.” Gómez-Pérez, 553 U. S., at 486–487 (citing 29 U. S. C. §§623(a) and (d)).      The Court suggests that “the la[w] at issue in . . . Gómez-Pérez [was a] broad, general ba[r] on discrimination.” Ante, at 15. But, as our opinion in that case observes, some of the ADEA’s provisions are brief, broad, and general, while others are extensive, specific, and detailed. 553 U. S., at 487. So too of Title VII. See ibid. (“The ADEA federal-sector provision was patterned di- rectly after Title VII’s federal-sector discrimination ban . . . [which] contains a broad prohibition of ‘discrimination,’ rather than a list of specific prohibited practices.” (some internal quotation marks omitted)). It makes little sense to apply a different mode of analysis to Title VII’s §2000e–2(m) and the ADEA’s §633a(a), both brief statements on discrimination in the context of larger statutory schemes. [ 5 ]      The Court’s reliance on §109(b) of the Civil Rights Act of 1991, 105Stat. 1077, [ 6 ] and the Americans with Disabilities Act of 1990 (ADA), 104Stat. 327, is similarly unavailing. According to the Court, Congress’ explicit reference to §2000e–3(a) in §109(b) “reinforc[es] the conclusion that Congress acted deliberately when it omitted retaliation claims from §2000e–2(m).” Ante, at 13. The same is true of the ADA, the Court says, as “Congress provided not just a general prohibition on discrimination ‘because of [an individual’s] disability,’ but also seven paragraphs of detailed description of the practices that would constitute the prohibited discrimination . . . [a]nd . . . an express antiretaliation provision.” Ante, at 17.      This argument is underwhelming. Yes, Congress has sometimes addressed retaliation explicitly in antidiscrimination statutes. When it does so, there is no occasion for interpretation. But when Congress simply targets discrimination “because of” protected characteristics, or, as in §2000e–2(m), refers to employment practices motivated by race, color, religion, sex, or national origin, how should courts comprehend those phrases? They should read them informed by this Court’s consistent holdings that such phrases draw in retaliation, for, in truth, retaliation is a “form of intentional [status-based] discrimination.” See Jackson, 544 U. S., at 173, described supra, at 6–7. That is why the Court can point to no prior instance in which an antidiscrimination law was found not to cover retaliation. The Court’s volte-face is particularly imprudent in the context of §2000e–2(m), a provision added as part of Congress’ effort to toughen protections against workplace discrimination. B      The Court also disassociates retaliation from status-based discrimination by stressing that the bar on the latter appears in §2000e–2, while the proscription of retaliation appears in a separate provision, §2000e–3. Section 2000e–2, the Court asserts, “contains Title VII’s ban on status-based discrimination . . . and says nothing about retaliation.” Ante, at 13. Retaliation, the Court therefore concludes, should not be read into §2000e–2(m). Ante, at 13–14.      The Court’s reasoning rests on a false premise. Section 2000e–2 does not deal exclusively with discrimination based on protected characteristics. The provisions stated after §§2000e–2(a)–(d) deal with a variety of matters, some of them unquestionably covering retaliation. For example, §2000e–2(n), enacted in tandem with and located immediately after §2000e–2(m), limits opportunities to collaterally attack employment practices installed to im- plement a consent judgment. Section 2000e–2(n) applies beyond the substantive antidiscrimination provisions in §2000e–2; indeed, it applies beyond Title VII to encom- pass claims “under the Constitution or [other] Federal civil rights laws.” §2000e–2(n)(1)(A). Thus, if an employee sues for retaliatory discharge in violation of §2000e–3(a), and a consent judgment orders reinstatement, any person adversely affected by that judgment (e.g., an employee who loses seniority as a result) would generally be barred from attacking the judgment if she was given actual no- tice of the proposed order and a reasonable opportunity to present objections. That Congress placed the consent-judgment provision in §2000e–2 and not in §2000e–3 is of no moment. As the text of the provision plainly conveys, §2000e–2(n) would reach consent judgments settling complaints about retaliation, just as it would cover consent judgments settling complaints about status-based discrimination.      Section 2000e–2(g) is similarly illustrative. Under that provision, “it shall not be an unlawful employment practice for an employer . . . to discharge [an] individual” if she fails to fulfill any requirement imposed in the interest of national security. Because §2000e–3(a) renders retal- iation an “unlawful employment practice,” §2000e–2(g)’s exemption would no doubt apply to a Title VII retaliatory discharge claim. Given these provisions, Congress’ placement of the motivating-factor provision within §2000e–2 cannot bear the weight the Court places on it. [ 7 ] C      The Court gives no deference to the EEOC’s longstanding position that §2000e–2(m) applies to retaliation because, the Court charges, the agency did not “address the particular interplay among the status-based antidiscrimination provision (§2000e–2(a)), the antiretaliation provision (§2000e–3(a)), and the motivating-factor provision (§2000e–2(m)).” Ante, at 21. Not so.      In its compliance manual, the EEOC noted that some courts had concluded that §2000e–2(m) does not cover retaliation, citing as an example Woodson v. Scott Paper Co., 109 F. 3d 913 (CA3 1997). In that decision, the Third Circuit acknowledged it was “given pause by the fact that . . . courts have generally borrowed from discrimination law in determining the burdens and order of proof in retaliation cases.” Id., at 934. One could therefore say, the Third Circuit continued, that “Congress knew of the practice of borrowing in retaliation cases, and presumed that courts would continue this practice after the 1991 Act.” Ibid.      While Woodson rejected that argument, the EEOC found it sound. See EEOC Compliance Manual, at 614:0008, n. 45 (“Courts have long held that the evidentiary framework for proving employment discrimination based on race, sex, or other protected class status also applies to claims of discrimination based on retaliation.”). See also EEOC Guidance, at 20, n. 14 (while §2000e–2(m) does not explicitly refer to retaliation, nothing in the provision calls for deviation from the longstanding practice of finding liability when a plaintiff demonstrates that retaliatory intent motivated an adverse employment decision). By adverting to Woodson, the EEOC made clear that it considered the very argument the Court relies on today. Putting down the agency’s appraisal as “generic,” ante, at 22, is thus conspicuously unfair comment.      The Court’s second reason for refusing to accord de- ference to the EEOC fares no better. The EEOC’s conclu- sion that “the lessened causation standard is necessary in order to prevent ‘proven retaliation’ from ‘go[ing] unpunished,’ ” the Court reasons, “is circular” because it “assumes the answer to the central question at issue here, which is what causal relationship must be shown in order to prove retaliation.” Ibid. That reasoning will not wash. Under the motivating-factor test set out in §2000e–2(m), a plaintiff prevails if she shows that proscribed conduct “was a motivating factor” for the adverse employment action she encountered, “even though other factors also moti- vated the [action].” She will succeed, although the relief to which she is entitled may be restricted. See supra, at 9. Under the Court’s view, proof that retaliation was a factor motivating an adverse employment action is insufficient to establish liability under §2000e–3(a). The Court’s but-for causation standard does not mean that the plaintiff has failed to prove she was subjected to unlawful retaliation. It does mean, however, that proof of a retaliatory motive alone yields no victory for the plaintiff. Put otherwise, the Court’s view “permits proven retaliation to go unpunished,” just as the EEOC recognized. See EEOC Compliance Manual, at 614:0008, n. 45. V A      Having narrowed §2000e–2(m) to exclude retaliation claims, the Court turns to Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009) , to answer the question presented: Whether a plaintiff must demonstrate but-for causation to establish liability under §2000e–3(a).      The Court held in Gross that, in contrast to Title VII, §623(a) of the ADEA does not authorize any age discrimination claim asserting mixed motives. Explaining that uniform interpretation of the two statutes is sometimes unwarranted, the Court noted in Gross that the phrase “because of . . . age” in §623(a) has not been read “to bar discrimination against people of all ages, even though the Court had previously interpreted ‘because of . . . race [or] sex’ in Title VII to bar discrimination against people of all races and both sexes.” 557 U. S., at 175, n. 2. Yet Gross, which took pains to distinguish ADEA claims from Title VII claims, is invoked by the Court today as pathmarking. See ante, at 2 (“The holding and analysis of [Gross] are instructive here.”).      The word “because” in Title VII’s retaliation provision, §2000e–3(a), the Court tells us, should be interpreted not to accord with the interpretation of that same word in the companion status-based discrimination provision of Ti- tle VII, §2000e–2(a). Instead, statutory lines should be crossed: The meaning of “because” in Title VII’s retaliation provision should be read to mean just what the Court held “because” means for ADEA-liability purposes. But see Gross, 557 U. S., at 174 (“When conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’ ”(quoting Holowecki, 552 U. S., at 393)). In other words, the employer prevailed in Gross because, according to the Court, the ADEA’s antidiscrimination prescription is not like Title VII’s. But the employer prevails again in Nassar’s case, for there is no “meaningful textual difference,” ante, at 11, between the ADEA’s use of “because” and the use of the same word in Title VII’s retaliation provision. What sense can one make of this other than “heads the employer wins, tails the employee loses”?      It is a standard principle of statutory interpretation that identical phrases appearing in the same statute—here, Title VII—ordinarily bear a consistent meaning. See Powerex Corp. v. Reliant Energy Services, Inc., 551 U. S. 224, 232 (2007) . Following that principle, Title VII’s retaliation provision, like its status-based discrimination provision, would permit mixed-motive claims, and the same causation standard would apply to both provisions. B      The Court’s decision to construe §2000e–3(a) to require but-for causation in line with Gross is even more confounding in light of Price Waterhouse. Recall that Price Waterhouse interpreted “because of” in §2000e–2(a) to permit mixed-motive claims. See supra, at 8. The Court today rejects the proposition that, if §2000e–2(m) does not cover retaliation, such claims are governed by Price Water- house’s burden-shifting framework, i.e., if the plaintiff shows that discrimination was a motivating factor in an adverse employment action, the defendant may escape liability only by showing it would have taken the same action had there been no illegitimate motive. It is wrong to revert to Price Waterhouse, the Court says, because the 1991 Civil Rights Act’s amendments to Title VII abrogated that decision.      This conclusion defies logic. Before the 1991 amendments, several courts had applied Price Waterhouse’s burden-shifting framework to retaliation claims. [ 8 ] In the Court’s view, Congress designed §2000e–2(m)’s motivating-factor standard not only to exclude retaliation claims, but also to override, sub silentio, Circuit precedent apply- ing the Price Waterhouse framework to such claims. And with what did the 1991 Congress replace the Price Waterhouse burden-shifting framework? With a but-for causation requirement Gross applied to the ADEA 17 years after the 1991 amendments to Title VII. Shut from the Court’s sight is a legislative record replete with statements evincing Congress’ intent to strengthen antidiscrimination laws and thereby hold employers accountable for prohibited discrimination. See Civil Rights Act of 1991, §2, 105Stat. 1071; House Report Part II, at 18. It is an odd mode of statutory interpretation that divines Congress’ aim in 1991 by looking to a decision of this Court, Gross, made under a different statute in 2008, while ignoring the overarching purpose of the Congress that enacted the 1991 Civil Rights Act, see supra, at 8–10. C      The Court shows little regard for trial judges who must instruct juries in Title VII cases in which plaintiffs allege both status-based discrimination and retaliation. Nor is the Court concerned about the capacity of jurors to follow instructions conforming to today’s decision. Causation is a complicated concept to convey to juries in the best of circumstances. Asking jurors to determine liability based on different standards in a single case is virtually certain to sow confusion. That would be tolerable if the governing statute required double standards, but here, for the reasons already stated, it does not. VI A      The Court’s assertion that the but-for cause requirement it adopts necessarily follows from §2000e–3(a)’s use of the word “because” fails to convince. Contrary to the Court’s suggestion, see ante, at 5–6, the word “because” does not inevitably demand but-for causation to the exclusion of all other causation formulations. When more than one factor contributes to a plaintiff’s injury, but-for causation is problematic. See, e.g., 1 Restatement (Third) of Torts §27, Comment a, p. 385 (2005) (noting near universal agreement that the but-for standard is inappropriate when multiple sufficient causes exist) (hereinafter Restatement Third); Restatement of Torts §9, Comment b, p. 18 (1934) (legal cause is a cause that is a “substantial factor in bringing about the harm”).      When an event is “overdetermined,” i.e., when two forces create an injury each alone would be sufficient to cause, modern tort law permits the plaintiff to prevail upon showing that either sufficient condition created the harm. Restatement Third §27, at 376–377. In contrast, under the Court’s approach (which it erroneously calls “textbook tort law,” ante, at 6), a Title VII plaintiff alleging retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate factors. Ante, at 18–19.      Today’s opinion rehashes arguments rightly rejected in Price Waterhouse. Concurring in the judgment in that case, Justice O’Connor recognized the disconnect between the standard the dissent advocated, which would have imposed on the plaintiff the burden of showing but-for causation, see 490 U. S., at 282, 286–287 (Kennedy, J., dissenting), and the common-law doctrines on which the dissent relied. As Justice O’Connor explained: “[I]n the area of tort liability, from whence the dissent’s ‘but-for’ standard of causation is derived, . . . the law has long recognized that in certain ‘civil cases’ leaving the burden of persuasion on the plaintiff to prove ‘but-for’ causation would be both unfair and destructive of the deterrent purposes embodied in the concept of duty of care. Thus, in multiple causation cases, where a breach of duty has been established, the common law of torts has long shifted the burden of proof to . . . defendants to prove that their negligent actions were not the ‘but-for’ cause of the plaintiff’s injury.” Id., at 263–264 (concurring in judgment) (citing Summers v. Tice, 33 Cal. 2d 80, 84–87, 199 P. 2d 1, 3–4 (1948)). Justice Brennan’s plurality opinion was even less solicitous of the dissent’s approach. Noting that, under the standard embraced by the dissent in Price Waterhouse, neither of two sufficient forces would constitute cause even if either one alone would have led to the injury, the plurality remarked: “We need not leave our common sense at the doorstep when we interpret a statute.” 490 U. S., at 241. B      As the plurality and concurring opinions in Price Waterhouse indicate, a strict but-for test is particularly ill suited to employment discrimination cases. Even if the test is appropriate in some tort contexts, “it is an entirely different matter to determine a ‘but-for’ relation when . . . consider[ing], not physical forces, but the mind-related characteristics that constitute motive.” Gross, 557 U. S., at 190 (Breyer, J., dissenting). When assessing an employer’s multiple motives, “to apply ‘but-for’ causation is to engage in a hypothetical inquiry about what would have happened if the employer’s thoughts and other circumstances had been different.” Id., at 191. See also Price Waterhouse, 490 U. S., at 264 (opinion of O’Connor, J.) (“ ‘[A]t . . . times the [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs.’ ” (quoting Malone, Ruminations on Cause-In-Fact, 9 Stan. L. Rev. 60, 67 (1956))).      This point, lost on the Court, was not lost on Congress. When Title VII was enacted, Congress considered and rejected an amendment that would have placed the word “solely” before “because of [the complainant’s] race, color, religion, sex, or national origin.” See 110 Cong. Rec. 2728, 13837–13838 (1964). Senator Case, a prime sponsor of Title VII, commented that a “sole cause” standard would render the Act “totally nugatory.” Id., at 13837. Life does not shape up that way, the Senator suggested, commenting “[i]f anyone ever had an action that was motivated by a single cause, he is a different kind of animal from any I know of.” Ibid. *  *  *      The Court holds, at odds with a solid line of decisions recognizing that retaliation is inextricably bound up with status-based discrimination, that §2000e–2(m) excludes retaliation claims. It then reaches outside of Title VII to arrive at an interpretation of “because” that lacks sensitivity to the realities of life at work. In this endeavor, the Court is guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII. In- deed, the Court appears driven by a zeal to reduce the number of retaliation claims filed against employers. See ante, at 18–19. Congress had no such goal in mind when it added §2000e–2(m) to Title VII. See House Report Part II, at 2. Today’s misguided judgment, along with the judgment in Vance v. Ball State Univ., post, p. 1, should prompt yet another Civil Rights Restoration Act.      For the reasons stated, I would affirm the judgment of the Fifth Circuit. Notes 1 The District Court reduced compensatory damages to $300,000, the statutory cap under Title VII. See . 2 The Court of Appeals found the evidence insufficient to supportthe claim of constructive discharge and reversed the District Court’s judgment to that extent. See App. to Pet. for Cert. 8–10. That ruling is not contested here. 3 The Fifth Circuit has since reversed course in an unpublished opinion, concluding that §2000e–2(m)’s motivating-factor prescription does not apply to retaliation claims. See Carter v. Luminant Power Servs. Co., No. 12–10642, 2013 WL 1337365 (Apr. 3, 2013). 4 Justices White and O’Connor separately concurred and would have required the Title VII plaintiff to show that protected characteristics constituted a substantial motivating factor in the adverse employment decision. See Price Waterhouse v. Hopkins, (White, J., concurring in judgment); id., at 265 (O’Connor, J., concurring in judgment). 5 The Court obscures the inconsistency between today’s opinion and Gómez-Pérez by comparing §633a to all of Title VII. See ante, at 16 (“Unlike Title IX, §1981, §1982, and the federal-sector provisions of the ADEA, Title VII is a detailed statutory scheme.”). That comparison is inapt. Like Title VII, the ADEA is a “detailed statutory scheme.” Ibid. Compare ibid. (citing Title VII provisions that proscribe status-based discrimination by employers, employment agencies, labor organizations, and training programs; bar retaliation; prohibit advertising a preference for certain protected characteristics; define terms; exempt certain employers; and create an agency with rulemaking and enforcement authority), with 29 U. S. C. §§623(a)–(e) (proscribing age discrimination by employers, employment agencies, and labor unions; barring retaliation; prohibiting advertising a preference for employees of a particular age), §628 (granting rulemaking authority to the EEOC), and §630 (defining terms). Thus, §633a is just like §2000e–2(m) in the relevant respect: both are single provisions comprised within a detailed scheme. 6 Now codified at –1(b), §109(b) provides: “It shall not be unlawful under §2000e–2 or 2000e–3 . . . for an employer . . . to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer . . . to violate the law of the foreign country in which such workplace is located.” The provision was framed to accord with this Court’s decision in EEOC v. Arabian American Oil Co., . 7 The Court’s assertion that we “confronted a similar structural dispute in Lehman v. Nakshian, ,” ante, at 17, assumes its own conclusion. As the Court explains, in Nakshian, the plaintiff argued that §633a of the ADEA afforded the right to trial by jury. 453 U. S., at 157. An amendment to the private-sector provision, codified at , granted that right to plaintiffs suing private employers, as well as state and local governmental entities. But no one argued in Nakshian that the private-sector amendment applied to the federal-sector provision. Hence, Nakshian’s holding that the ADEA does not permit a federal-sector plaintiff to try her case before a jury is relevant only if the Court is correct that §2000e–2(m) does not cover retaliation claims. 8 See Vislisel v. Turnage, 930 F. 2d 9, 9–10 (CA8 1991); Carter v. South Central Bell, 912 F. 2d 832, 843 (CA5 1990); Williams v. Mallinckrodt, 892 F. 2d 75 (CA4 1989) (table).

The Supreme Court ruled that an employee alleging status-based discrimination under Title VII of the Civil Rights Act of 1964 does not need to prove that the discrimination was the sole cause of their injury, but rather that it was a motivating factor. This is in contrast to retaliation claims, where the employee must show a closer link between the injury and the employer's wrongful conduct.

Labor & Employment

Lane v. Franks

https://supreme.justia.com/cases/federal/us/573/228/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 13–483 _________________ EDWARD R. LANE, PETITIONER v. STEVE FRANKS, in his individual capacity, and SUSAN BURROW, in her official capacity as ACTING PRESIDENT OF CENTRALALABAMA COMMUNITYCOLLEGE on writ of certiorari to the united states court of appeals for the eleventh circuit [June 19, 2014]      Justice Sotomayor delivered the opinion of the Court.      Almost 50 years ago, this Court declared that citizens do not surrender their First Amendment rights by accepting public employment. Rather, the First Amendment protection of a public employee’s speech depends on a careful balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968) . In Pickering, the Court struck the balance in favor of the public employee, extending First Amendment protection to a teacher who was fired after writing a letter to the editor of a local newspaper criticizing the school board that employed him. Today, we consider whether the First Amendment similarly protects a public employee who provided truthful sworn testimony, compelled by sub-poena, outside the course of his ordinary job responsibilities. We hold that it does. I      In 2006, Central Alabama Community College (CACC) hired petitioner Edward Lane to be the Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged youth. CACC hired Lane on a probationary basis. In his capacity as Director, Lane was responsible for overseeing CITY’s day-to-day operations, hiring and firing employees, and making decisions with respect to the program’s finances.      At the time of Lane’s appointment, CITY faced significant financial difficulties. That prompted Lane to conduct a comprehensive audit of the program’s expenses. The audit revealed that Suzanne Schmitz, an Alabama State Representative on CITY’s payroll, had not been reporting to her CITY office. After unfruitful discussions with Schmitz, Lane shared his finding with CACC’s president and its attorney. They warned him that firing Schmitz could have negative repercussions for him and CACC.      Lane nonetheless contacted Schmitz again and in-structed her to show up to the Huntsville office to serveas a counselor. Schmitz refused; she responded that shewished to “ ‘continue to serve the CITY program in the same manner as [she had] in the past.’ ” Lane v. Central Ala. Community College, 523 Fed. Appx. 709, 710 (CA11 2013) (per curiam). Lane fired her shortly thereafter. Schmitz told another CITY employee, Charles Foley, that she intended to “ ‘get [Lane] back’ ” for firing her. 2012 WL 5289412, *1 (ND Ala., Oct. 18, 2012). She also said that if Lane ever requested money from the state legislature for the program, she would tell him, “ ‘[y]ou’re fired.’ ” Ibid.      Schmitz’ termination drew the attention of many, including agents of the Federal Bureau of Investigation, which initiated an investigation into Schmitz’ employment with CITY. In November 2006, Lane testified before a federal grand jury about his reasons for firing Schmitz. In January 2008, the grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. See United States v. Schmitz, 634 F. 3d 1247, 1256–1257 (CA11 2011). The indictment alleged that Schmitz had collected $177,251.82 in federal funds even though she performed “ ‘virtually no services,’ ” “ ‘generated virtually no work product,’ ” and “ ‘rarely even appeared for work at the CITY Program offices.’ ” Id., at 1260. It further alleged that Schmitz had submitted false statements concerning the hours she worked and the nature of the services she performed. Id., at 1257.      Schmitz’ trial, which garnered extensive press coverage,[ 1 ] commenced in August 2008. Lane testified, under subpoena, regarding the events that led to his terminating Schmitz. The jury failed to reach a verdict. Roughly six months later, federal prosecutors retried Schmitz, and Lane testified once again. This time, the jury convicted Schmitz on three counts of mail fraud and four countsof theft concerning a program receiving federal funds. The District Court sentenced her to 30 months in prison and ordered her to pay $177,251.82 in restitution and forfeiture.      Meanwhile, CITY continued to experience considerable budget shortfalls. In November 2008, Lane began reporting to respondent Steve Franks, who had become president of CACC in January 2008. Lane recommended that Franks consider layoffs to address the financial difficulties. In January 2009, Franks decided to terminate 29 probationary CITY employees, including Lane. Shortly thereafter, however, Franks rescinded all but 2 of the 29 terminations—those of Lane and one other employee— because of an “ambiguity in [those other employees’] probationary service.” Brief for Respondent Franks 11. Franks claims that he “did not rescind Lane’s termination . . . because he believed that Lane was in a fundamentally different category than the other employees: he was the director of the entire CITY program, and not simply an employee.” Ibid. In September 2009, CACC eliminated the CITY program and terminated the program’s remaining employees. Franks later retired, and respondent Susan Burrow, the current Acting President of CACC, replaced him while this case was pending before the Eleventh Circuit.      In January 2011, Lane sued Franks in his individual and official capacities under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that Franks had violated the First Amendment by firing him in retaliation for his testimony against Schmitz.[ 2 ] Lane sought damages from Franks in his individual capacity and sought equitable relief, including reinstatement, from Franks in his official capacity.[ 3 ]      The District Court granted Franks’ motion for summary judgment. Although the court concluded that the record raised “genuine issues of material fact . . . concerning [Franks’] true motivation for terminating [Lane’s] employment,” 2012 WL 5289412, *6, it held that Franks was entitled to qualified immunity as to the damages claims because “a reasonable government official in [Franks’] position would not have had reason to believe that the Constitution protected [Lane’s] testimony,” id., *12. The District Court relied on Garcetti v. Ceballos, 547 U. S. 410 (2006) , which held that “ ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur-poses.’ ” 2012 WL 5289412, *10 (quoting Garcetti, 547 U. S.,at 421). The court found no violation of clearly established law because Lane had “learned of the information that he testified about while working as Director at [CITY],” such that his “speech [could] still be considered as part of his official job duties and not made as a citizen on a matter of public concern.” 2012 WL 5289412, *10.      The Eleventh Circuit affirmed. 523 Fed. Appx., at 710. Like the District Court, it relied extensively on Garcetti. It reasoned that, “[e]ven if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech ‘owes its existence to [the] employee’s professional responsibilities’ and is ‘a product that the “employer himself has commissioned or created.” ’ ” Id., at 711 (quoting Abdur-Rahman v. Walker, 567 F. 3d 1278, 1283 (CA11 2009)). The court concluded that Lane spoke as an employee and not as a citizen because he was acting pursuant to his official duties when he investigated Schmitz’ employment, spoke with Schmitz and CACC officials regarding the issue, and terminated Schmitz. 523 Fed. Appx., at 712. “That Lane testified about his official activities pursuant to a sub-poena and in the litigation context,” the court continued,“does not bring Lane’s speech within the protection of the First Amendment.” Ibid. The Eleventh Circuit also concluded that, “even if . . . a constitutional violation of Lane’s First Amendment rights occurred in these circumstances, Franks would be entitled to qualified immunity in his personal capacity” because the right at issue had not been clearly established. Id., at 711, n. 2.      We granted certiorari, 571 U. S. __ (2014), to resolve discord among the Courts of Appeals as to whether public employees may be fired—or suffer other adverse employment consequences—for providing truthful subpoenaed testimony outside the course of their ordinary job responsibilities. Compare 523 Fed. Appx., at 712 (case below), with, e.g., Reilly v. Atlantic City, 532 F. 3d 216, 231 (CA3 2008). II      Speech by citizens on matters of public concern lies at the heart of the First Amendment, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” Roth v. United States, 354 U. S. 476, 484 (1957) . This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights. See, e.g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 605 (1967) ; Pickering, 391 U. S., at 568; Connick v. Myers, 461 U. S. 138, 142 (1983) . There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees. For “[g]overnment employees are often in the best position to know what ails the agencies for which they work.” Waters v. Churchill, 511 U. S. 661, 674 (1994) (plurality opinion). “The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” San Diego v. Roe, 543 U. S. 77, 82 (2004) (per curiam).      Our precedents have also acknowledged the government’s countervailing interest in controlling the operation of its workplaces. See, e.g., Pickering, 391 U. S., at 568. “Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.” Garcetti, 547 U. S., at 418.      Pickering provides the framework for analyzing whether the employee’s interest or the government’s interest should prevail in cases where the government seeks to curtail the speech of its employees. It requires “balanc[ing] . . . the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U. S., at 568. In Pickering, the Court held that a teacher’s letter to the editor of a local news-paper concerning a school budget constituted speech on amatter of public concern. Id., at 571. And in balancing the employee’s interest in such speech against the government’s efficiency interest, the Court held that the publication of the letter did not “imped[e] the teacher’s proper performance of his daily duties in the classroom” or “interfer[e] with the regular operation of the schools generally.” Id., at 572–573. The Court therefore held that the teacher’s speech could not serve as the basis for his dismissal. Id., at 574.      In Garcetti, we described a two-step inquiry into whether a public employee’s speech is entitled to protection: “The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” 547 U. S., at 418 (citations omitted).      In describing the first step in this inquiry, Garcetti distinguished between employee speech and citizen speech. Whereas speech as a citizen may trigger protection, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur-poses, and the Constitution does not insulate their communi-cations from employer discipline.” Id., at 421. Applying that rule to the facts before it, the Court found that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted unprotected employee speech. Id., at 424. III      Against this backdrop, we turn to the question pre-sented: whether the First Amendment protects a public employee who provides truthful sworn testimony, compelledby subpoena, outside the scope of his ordinary job responsibilities.[ 4 ] We hold that it does. A      The first inquiry is whether the speech in question—Lane’s testimony at Schmitz’ trials—is speech as a citizen on a matter of public concern. It clearly is. 1      Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.      In rejecting Lane’s argument that his testimony was speech as a citizen, the Eleventh Circuit gave short shrift to the nature of sworn judicial statements and ignored the obligation borne by all witnesses testifying under oath. See 523 Fed. Appx., at 712 (finding immaterial the fact that Lane spoke “pursuant to a subpoena and in the litigation context”). Sworn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. See, e.g., 18 U. S. C. §1623 (criminalizing false statements under oath in judicial proceedings); United States v. Mandujano, 425 U. S. 564, 576 (1976) (plurality opinion) (“Perjured testimony is an obvious and flagrant affront to the basic concept of judicial proceedings”). When the person testifying is a public employee, he may bear separate obligations to his employer—for example, an obligation not to show up to court dressed in an unprofessional manner. But any such obligations as an employee are distinct and independent from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee.      In holding that Lane did not speak as a citizen whenhe testified, the Eleventh Circuit read Garcetti far too broadly. It reasoned that, because Lane learned of the sub-ject matter of his testimony in the course of his employment with CITY, Garcetti requires that his testimony be treated as the speech of an employee rather than that of a citizen. See 523 Fed. Appx., at 712. It does not.      The sworn testimony in this case is far removed from the speech at issue in Garcetti—an internal memorandum prepared by a deputy district attorney for his supervisors recommending dismissal of a particular prosecution. The Garcetti Court held that such speech was made pursuant to the employee’s “official responsibilities” because “[w]hen [the employee] went to work and performed the tasks he was paid to perform, [he] acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean that his supervisors were prohib-ited from evaluating his performance.” 547 U. S., at 422, 424.      But Garcetti said nothing about speech that simply relates to public employment or concerns information learned in the course of public employment. The Garcetti Court made explicit that its holding did not turn on the fact that the memo at issue “concerned the subject matter of [the prosecutor’s] employment,” because “[t]he First Amendment protects some expressions related to the speaker’s job.” Id., at 421. In other words, the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.      It bears emphasis that our precedents dating back to Pickering have recognized that speech by public employees on subject matter related to their employment holdsspecial value precisely because those employees gainknowledge of matters of public concern through their employment. In Pickering, for example, the Court observed that “[t]eachers are . . . the members of a commu-nity most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U. S., at 572; see also Garcetti, 547 U. S., at 421 (recognizing that “[t]he same is true of many other categories of public employees”). Most recently, in San Diego v. Roe, 543 U. S., at 80, the Court again observed that public employees “are uniquely qualified to comment” on “matters concerning government policies that are of interest to the public at large.”      The importance of public employee speech is especially evident in the context of this case: a public corruption scandal. The United States, for example, represents that because “[t]he more than 1000 prosecutions for federal corruption offenses that are brought in a typical year . . . often depend on evidence about activities that government officials undertook while in office,” those prosecutions often “require testimony from other government employees.” Brief for United States as Amicus Curiae 20. It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.      Applying these principles, it is clear that Lane’s sworn testimony is speech as a citizen. 2      Lane’s testimony is also speech on a matter of public concern. Speech involves matters of public concern “when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder v. Phelps, 562 U. S. ___, ___ (2011) (slip op., at 6–7) (citation omitted). The inquiry turns on the “content, form, and context” of the speech. Connick, 461 U. S., at 147–148.      The content of Lane’s testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public concern. See, e.g., Garcetti, 547 U. S., at 425 (“Exposing governmental inefficiency and misconduct is a matter of considerable significance”). And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. “Unlike speech in other contexts, testimony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others.” United States v. Alvarez, 567 U. S. ___, ___ (2012) (slip op., at 8–9) (plurality opinion). *  *  *      We hold, then, that Lane’s truthful sworn testimony at Schmitz’ criminal trials is speech as a citizen on a matter of public concern. B      This does not settle the matter, however. A public employee’s sworn testimony is not categorically entitled to First Amendment protection simply because it is speech as a citizen on a matter of public concern. Under Pickering, if an employee speaks as a citizen on a matter of public concern, the next question is whether the government had “an adequate justification for treating the employee differently from any other member of the public” based on the government’s needs as an employer. Garcetti, 547 U. S., at 418.      As discussed previously, we have recognized that government employers often have legitimate “interest[s] in the effective and efficient fulfillment of [their] responsibilities to the public,” including “ ‘promot[ing] efficiency and integrity in the discharge of official duties,’ ” and “ ‘maintain[ing] proper discipline in public service.’ ” Connick, 461 U. S., at 150–151. We have also cautioned, however, that “a stronger showing [of government interests] may be necessary if the employee’s speech more substantially involve[s] matters of public concern.” Id., at 152.      Here, the employer’s side of the Pickering scale is entirely empty: Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor. There is no evidence, for example, that Lane’s testimony at Schmitz’ trials was false or erroneous or that Lane unnecessarily disclosed any sensitive, confidential, or privileged information while testifying.[ 5 ] In these circumstances, we conclude that Lane’s speech is entitled to protection under the First Amendment. The Eleventh Circuit erred in holding otherwise and dismissing Lane’s claim of retaliation on that basis. IV      Respondent Franks argues that even if Lane’s testimony is protected under the First Amendment, the claims against him in his individual capacity should be dismissed on the basis of qualified immunity. We agree.      Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12). Under this doctrine, courts may not award damages against a government official in his personal capacity unless “the official violated a statutory or constitutional right,” and “the right was ‘clearly established’ at the time of the challenged conduct.” Id., at ___ (slip op., at 3).      The relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities? Eleventh Circuit precedent did not preclude Franks from reasonably holding that belief. And no decision of this Court was sufficiently clear to cast doubt on the controlling Eleventh Circuit precedent.      In dismissing Lane’s claim, the Eleventh Circuit relied on its 1998 decision in Morris v. Crow, 142 F. 3d 1379 (per curiam). There, a deputy sheriff sued the sheriff and two other officials, alleging that he had been fired in retaliation for statements he made in an accident report and later giving deposition testimony about his investigation of a fatal car crash between another officer and a citizen. Id., at 1381. In his accident report, the plaintiff noted that the officer was driving more than 130 mph in a 50 mph zone, without using his emergency blue warning light. See ibid. The plaintiff later testified to these facts at a deposition in a wrongful death suit against the sheriff’s office. Ibid. His superiors later fired him. Ibid.      The Eleventh Circuit, in a pre-Garcetti decision, concluded that the plaintiff’s deposition testimony was unprotected. It held that a public employee’s speech is protected only when it is “ ‘made primarily in the employee’s role as citizen,’ ” rather than “ ‘primarily in the role of employee.’ ” Morris, 142 F. 3d, at 1382. And it found the plaintiff’s deposition testimony to be speech as an em-ployee because it “reiterated the conclusions regardinghis observations of the accident” that he “generated in thenormal course of [his] duties.” Ibid. Critically, the court acknowledged—and was unmoved by—the fact that al-though the plaintiff had investigated the accident andprepared the report pursuant to his official duties, there was no “evidence that [he] gave deposition testimony for any reason other than in compliance with a subpoena to testify truthfully in the civil suit regarding the . . . accident.” Ibid. The court further reasoned that the speech could not “be characterized as an attempt to make public comment on sheriff’s office policies and procedures, the internal workings of the department, the quality of its employees or upon any issue at all.” Ibid.      Lane argues that two other Eleventh Circuit precedents put Franks on notice that his conduct violated the First Amendment: Martinez v. Opa-Locka, 971 F. 2d 708 (1992) (per curiam), and Tindal v. Montgomery Cty. Comm’n, 32 F. 3d 1535 (1994). Martinez involved a public employee’s subpoenaed testimony before the Opa-Locka City Commission regarding her employer’s procurement practices. 971 F. 2d, at 710. The Eleventh Circuit held that her speech was protected, reasoning that it addressed a matter of public concern and that her interest in speaking freely was not outweighed by her employer’s interest in providing government services. Id., at 712. It held, further, that the relevant constitutional rules were so clearly established at the time that qualified immunity did not apply. Id., at 713. Tindal, decided two years after Martinez, involved a public employee’s subpoenaed testimony in her co-worker’s sexual harassment lawsuit. 32 F. 3d, at 1537–1538. The court again ruled in favor of the em-ployee. It held that the employee’s speech touched upona public concern and that her employer had not offered any evidence that the speech hindered operations. Id., at 1539–1540.      Morris, Martinez, and Tindal represent the landscape of Eleventh Circuit precedent the parties rely on for qualified immunity purposes. If Martinez and Tindal were controlling in the Eleventh Circuit in 2009, we would agree with Lane that Franks could not reasonably have believed that it was lawful to fire Lane in retaliation for his testimony. But both cases must be read together with Morris, which reasoned—in declining to afford First Amendment protection—that the plaintiff’s decision to testify was motivated solely by his desire to comply with a subpoena. The same could be said of Lane’s decision to testify. Franks was thus entitled to rely on Morris when he fired Lane.[ 6 ]      Lane argues that Morris is inapplicable because it distinguished Martinez, suggesting that Martinez survived Morris. See Morris, 142 F. 3d, at 1382–1383. But this debate over whether Martinez or Morris applies to Lane’s claim only highlights the dispositive point: At the time of Lane’s termination, Eleventh Circuit precedent did not provide clear notice that subpoenaed testimony concerning information acquired through public employment is speech of a citizen entitled to First Amendment protection. At best, Lane can demonstrate only a discrepancy in Eleventh Circuit precedent, which is insufficient to defeat the defense of qualified immunity.      Finally, Lane argues that decisions of the Third and Seventh Circuits put Franks on notice that his firing of Lane was unconstitutional. See Reilly, 532 F. 3d, at 231 (CA3) (truthful testimony in court is citizen speech protected by the First Amendment); Morales v. Jones, 494 F. 3d 590, 598 (CA7 2007) (similar). But, as the court below acknowledged, those precedents were in direct conflict with Eleventh Circuit precedent. See 523 Fed. Appx., at 712, n. 3.      There is no doubt that the Eleventh Circuit incorrectly concluded that Lane’s testimony was not entitled to First Amendment protection. But because the question was not “beyond debate” at the time Franks acted, al-Kidd, 563 U. S., at ___ (slip op., at 9), Franks is entitled to qualified immunity. V      Lane’s speech is entitled to First Amendment protection, but because respondent Franks is entitled to qualified immunity, we affirm the judgment of the Eleventh Circuit as to the claims against Franks in his individual capacity. Our decision does not resolve, however, the claims against Burrow—initially brought against Franks when he served as President of CACC—in her official capacity. Although the District Court dismissed those claims for prospective relief as barred by the Eleventh Amendment, the Eleventh Circuit declined to consider that question on appeal, see 523 Fed. Appx., at 711 (“Because Lane has failed to establish a prima facie case of retaliation, we do not decide about Franks’ defense of sovereign immunity”), and the parties have not asked us to consider it now. We therefore reverse the judgment of the Eleventh Circuit as to those claims and remand for further proceedings. *  *  *      For the foregoing reasons, the judgment of the United States Court of Appeals for the Eleventh Circuit is affirmed in part and reversed in part, and the case is remandedfor further proceedings consistent with this opinion. It is so ordered. Notes 1 See, Lawmaker Faces Fraud Charge in June, Montgomery Advertiser, May 6, 2008, p. 1B; Johnson, State Lawmaker’s Fraud Trial Starts Today, Montgomery Advertiser, Aug. 18, 2008, p. 1B; Faulk, Schmitz Testifies in Her Defense: Says State Job was Legitimate, Birmingham News, Feb. 20, 2009, p. 1A; Faulk, Schmitz Convicted, Loses her State Seat, Birmingham News, Feb. 25, 2009, p. 1A. 2 Lane also brought claims against CACC, as well as claims under a state whistleblower statute, Ala. Code §36–26A–3 (2013), and . Those claims are not at issue here. 3 Because Burrow replaced Franks as President of CACC during the pendency of this lawsuit, the claims originally filed against Franks in his official capacity are now against Burrow. 4 It is undisputed that Lane’s ordinary job responsibilities did not include testifying in court proceedings. See v. , 523 Fed. Appx. 709, 712 (CA11 2013). For that reason, Lane asked the Court to decide only whether truthful sworn testimony that is not a part of an employee’s ordinary job responsibilities is citizen speech on a matter of public concern. Pet. for Cert. i. We accordingly need not address in this case whether truthful sworn testimony would constitute citizen speech under when given as part of a public employee’s ordinary job duties, and express no opinion on the matter today. 5 Of course, quite apart from balancing, wrongdoing that an employee admits to while testifying may be a valid basis for termination or other discipline. 6 There is another reason undermines and . In and , the Eleventh Circuit asked only whether the speech at issue addressed a matter of public concern. , which appeared to anticipate , asked both whether the speech at issue was speech of an employee (and not a citizen) and whether it touched upon a matter of public concern. In this respect, one could read as cabining and . SUPREME COURT OF THE UNITED STATES _________________ No. 13–483 _________________ EDWARD R. LANE, PETITIONER v. STEVE FRANKS, in his individual capacity, and SUSAN BURROW, in her official capacity as ACTING PRESIDENT OF CENTRALALABAMA COMMUNITYCOLLEGE on writ of certiorari to the united states court of appeals for the eleventh circuit [June 19, 2014]      Justice Thomas, with whom Justice Scalia and Justice Alito join, concurring.      This case presents the discrete question whether a public employee speaks “as a citizen on a matter of public concern,” Garcetti v. Ceballos, 547 U. S. 410, 418 (2006) , when the employee gives “[t]ruthful testimony under oath . . . outside the scope of his ordinary job duties,” ante, at 9. Answering that question requires little more than a straightforward application of Garcetti. There, we held that when a public employee speaks “pursuant to” his official duties, he is not speaking “as a citizen,” and First Amendment protection is unavailable. 547 U. S., at 421–422. The petitioner in this case did not speak “pursuant to” his ordinary job duties because his responsibilities did not include testifying in court proceedings, see ante, at 8, n. 4, and no party has suggested that he was subpoenaed as a representative of his employer, see Fed. Rule Civ. Proc. 30(b)(6) (requiring subpoenaed organizations to designate witnesses to testify on their behalf). Because petitioner did not testify to “fulfil[l] a [work] responsibility,” Garcetti, supra, at 421, he spoke “as a citizen,” not as an employee.      We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.

The Supreme Court ruled that a public employee who provides truthful sworn testimony, compelled by subpoena, outside the course of their ordinary job responsibilities is protected by the First Amendment. This extends to Edward R. Lane, who was hired as the director of a program for underprivileged youth at Central Alabama Community College and later fired after testifying about financial irregularities and the absence of an Alabama State Representative on the program's payroll. The Court held that Lane's First Amendment rights were protected as a citizen, even though he was a public employee, and that his speech addressed a matter of public concern.

Labor & Employment

Integrity Staffing Solutions, Inc. v. Busk

https://supreme.justia.com/cases/federal/us/574/27/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 13–433 _________________ INTEGRITY STAFFING SOLUTIONS, INC., PETITIONER v. JESSE BUSK et al. on writ of certiorari to the united states court of appeals for the ninth circuit [December 9, 2014] Justice Thomas delivered the opinion of the Court. The employer in this case required its employees, warehouse workers who retrieved inventory and packaged itfor shipment, to undergo an antitheft security screen-ing before leaving the warehouse each day. The question presented is whether the employees’ time spent waiting to undergo and undergoing those security screenings is compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq. , as amended by the Portal-to-Portal Act of 1947, §251 et seq. We hold that the time is not compensable. We therefore reverse the judgment of the United States Court of Appeals for the Ninth Circuit. I Petitioner Integrity Staffing Solutions, Inc., provides warehouse staffing to Amazon.com throughout the United States. Respondents Jesse Busk and Laurie Castro worked as hourly employees of Integrity Staffing at warehouses in Las Vegas and Fenley, Nevada, respectively. As warehouse employees, they retrieved products from the shelves and packaged those products for delivery to Amazon customers. Integrity Staffing required its employees to undergo a security screening before leaving the warehouse at the end of each day. During this screening, employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors. In 2010, Busk and Castro filed a putative class action against Integrity Staffing on behalf of similarly situated employees in the Nevada warehouses for alleged violations of the FLSA and Nevada labor laws. As relevant here, the employees alleged that they were entitled to compensation under the FLSA for the time spent waiting to undergo and actually undergoing the security screenings. They alleged that such time amounted to roughly 25 minutes each day and that it could have been reduced to a de minimis amount by adding more security screeners or by staggering the termination of shifts so that employees could flow through the checkpoint more quickly. They also alleged that the screenings were conducted “to prevent employee theft” and thus occurred “solely for the benefit of the employers and their customers.” App. 19, 21. The District Court dismissed the complaint for failure to state a claim, holding that the time spent waiting for and undergoing the security screenings was not compensable under the FLSA. It explained that, because the screenings occurred after the regular work shift, the employees could state a claim for compensation only if the screenings were an integral and indispensable part of the principal activities they were employed to perform. The District Court held that these screenings were not integral and indispensable but instead fell into a noncompensable category of postliminary activities. The United States Court of Appeals for the Ninth Circuit reversed in relevant part. 713 F. 3d 525 (2013). The Court of Appeals asserted that postshift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee’s principal activities if those postshift activities are necessary to the principal work performed and done for the benefit of the employer. Id. , at 530. Accepting as true the allegation that Integrity Staffing required the security screenings to prevent employee theft, the Court of Appeals concluded that the screenings were “necessary” to the employees’ primary work as warehouse employees and done for Integrity Staffing’s benefit. Id. , at 531. We granted certiorari, 571 U. S. ___ (2014), and now reverse. II A Enacted in 1938, the FLSA established a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek. §§6(a)(1), 7(a)(3), 52Stat. 1062–1063. An employer who violated these provisions could be held civilly liable for backpay, liquidated damages, and attorney’s fees. §16, id. , at 1069. But the FLSA did not define “work” or “workweek,” and this Court interpreted those terms broadly. It defined “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123 , 321 U. S. 590, 598 (1944) . Similarly, it defined “the statutory workweek” to “includ[e] all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co. , 328 U. S. 680 –691 (1946). Applying these expansive definitions, the Court found compensable the time spent traveling between mine portals and underground work areas, Tennessee Coal , supra , at 598, and the time spent walking from timeclocks to work benches, Anderson , supra , at 691–692. These decisions provoked a flood of litigation. In the six months following this Court’s decision in Anderson , unions and employees filed more than 1,500 lawsuits under the FLSA. S. Rep. No. 37, 80th Cong., 1st Sess., pp. 2–3 (1947). These suits sought nearly $6 billion in back pay and liquidated damages for various preshift and postshift activities. Ibid .  Congress responded swiftly. It found that the FLSAhad “been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers.” 29 U. S. C. §251(a). Declaring the situation to be an “emergency,” Congress found that, if such interpretations “were permitted to stand, . . . the payment of such liabilities would bring about financial ruin of many employers” and “employees would receive windfall payments . . . for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay.” §§251(a)–(b). Congress met this emergency with the Portal-to-Portal Act. The Portal-to-Portal Act exempted employers from liability for future claims based on two categories of work-related activities as follows: “(a) Except as provided in subsection (b) [which covers work compensable by contract or custom], no employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended, . . . on account of the failure of such employer . . .to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after the date of the enactment of this Act— “(1) walking, riding, or traveling to and from the ac-tual place of performance of the principal activity or ac-tivities which such employee is employed to perform, and “(2) activities which are preliminary to or postliminary to said principal activity or activities, “which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.” §4, 61Stat. 86–87 (codified at 29 U. S. C. §254(a)). At issue here is the exemption for “activities which are preliminary to or postliminary to said principal activity or activities.” B This Court has consistently interpreted “the term ‘principal activity or activities’ [to] embrac[e] all activities which are an ‘integral and indispensable part of the principal activities.’ ” IBP, Inc. v. Alvarez , 546 U. S. 21 –30 (2005) (quoting Steiner v. Mitchell , 350 U. S. 247 –253 (1956)). Our prior opinions used those words in their ordinary sense. The word “integral” means “[b]elonging to or making up an integral whole; constituent, component; spec [ ifically ] necessary to the completeness or integrity of the whole; forming an intrinsic portion or element, as distinguished from an adjunct or appendage.” 5 Oxford English Dictionary 366 (1933) (OED); accord, Brief for United States as Amicus Curiae 20 (Brief for United States); see also Webster’s New International Dictionary 1290 (2d ed. 1954) (Webster’s Second) (“[e]ssential to completeness; constituent, as a part”). And, when used to describe a duty, “indispensable” means a duty “[t]hat cannot be dispensed with, remitted, set aside, disregarded, or neglected.” 5 OED 219; accord, Brief for United States 19; see also Webster’s Second 1267 (“[n]ot capable of being dispensed with, set aside, neglected, or pronounced nonobligatory”). An activity is therefore integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. As we describe below, this definition, as applied in these circumstances, is consistent with the Department of Labor’s regulations. Our precedents have identified several activities that satisfy this test. For example, we have held compensable the time battery-plant employees spent showering and changing clothes because the chemicals in the plant were “toxic to human beings” and the employer conceded that “the clothes-changing and showering activities of the employees [were] indispensable to the performance of their productive work and integrally related thereto.” Steiner , supra , at 249, 251. And we have held compensable the time meatpacker employees spent sharpening their knives because dull knives would “slow down production” on the assembly line, “affect the appearance of the meat as well as the quality of the hides,” “cause waste,” and lead to “accidents.” Mitchell v. King Packing Co. , 350 U. S. 260, 262 (1956) . By contrast, we have held noncompensable the time poultry-plant employees spent waiting to don protective gear because such waiting was “two steps removed from the productive activity on the assembly line.” IBP , supra , at 42. The Department of Labor’s regulations are consistent with this approach. See 29 CFR §790.8(b) (2013) (“The term ‘principal activities’ includes all activities which are an integral part of a principal activity”); §790.8(c) (“Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance”). As an illustration, those regulations explain that the time spent by an employee in a chemical plant changing clothes would be compensable if he “c[ould not] perform his principal activities without putting on certain clothes” but would not be compensable if “changing clothes [were] merely a convenience to the employee and not directly related to his principal activities.” See §790.8(c). As the regulations explain, “when performed under the conditions normally present,” activities including “checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks” are “ ‘preliminary’ ” or “ ‘postliminary’ ” activities. §790.7(g). III A The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” 29 U. S. C. §254(a)(1). Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers. The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers. As explained above, an activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work. The Solicitor General, adopting the position of the Department of Labor, agrees that these screenings were noncompensable postliminary activities. See Brief for United States 10. That view is fully consistent with an Opinion Letter the Department issued in 1951. The letter found noncompensable a preshift security search of employees in a rocket-powder plant “ ‘for matches, spark producing devices such as cigarette lighters, and other items which have a direct bearing on the safety of the employees,’ ” as well as a postshift security search of the employees done “ ‘for the purpose of preventing theft.’ ” Opinion Letter from Dept. of Labor, Wage and Hour Div., to Dept. of Army, Office of Chief of Ordnance (Apr. 18, 1951), pp. 1–2 (available in Clerk of Court’s case file). The Department drew no distinction between the searches conducted for the safety of the employees and those conducted for the purpose of preventing theft—neither were compensable under the Portal-to-Portal Act. B The Court of Appeals erred by focusing on whether an employer required a particular activity. The integral and indispensable test is tied to the productive work that the employee is employed to perform . See, e.g., IBP, 546 U. S., at 42; Mitchell , supra , at 262; Steiner , 350 U. S., at 249–251; see also 29 CFR §790.8(a) (explaining that the term “principal activities” was “considered sufficiently broad to embrace within its terms such activities as are indispensable to the performance of productive work ” (internal quotation marks omitted; emphasis added)); §790.8(c) (“Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance ” (emphasis added)). If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “principal activities” the very activities that the Portal-to-Portal Act was designed to address. The employer in Anderson , for instance, required its employees to walk “from a timeclock near the factory gate to a workstation” so that they could “begin their work,” “but it is indisputable that the Portal-to-Portal Act evinces Congress’ intent to repudiate Anderson ’s holding that such walking time was compensable under the FLSA.” IBP , supra , at 41. A test that turns on whether the activity is for the benefit of the employer is similarly overbroad. Finally, we reject the employees’ argument that time spent waiting to undergo the security screenings is compensable under the FLSA because Integrity Staffing could have reduced that time to a de minimis amount. The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform. These arguments are properly presented to the employer at the bargaining table, see 29 U. S. C. §254(b)(1), not to a court in an FLSA claim. *  *  * We hold that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities. Because the employees’ time spent waiting to undergo and undergoing Integrity Staffing’s security screenings does not meet these criteria, we reverse the judgment of the Court of Appeals. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 13–433 _________________ INTEGRITY STAFFING SOLUTIONS, INC., PETITIONER v. JESSE BUSK et al. on writ of certiorari to the united states court of appeals for the ninth circuit [December 9, 2014] Justice Sotomayor, with whom Justice Kagan joins, concurring. I concur in the Court’s opinion, and write separately only to explain my understanding of the standards the Court applies. The Court reaches two critical conclusions. First, the Court confirms that compensable “ ‘principal’ ” activities “ ‘includ[e] . . . those closely related activities which are indispensable to [a principal activity’s] performance,’ ” ante , at 6 (quoting 29 CFR §790.8(c)(2013)), and holds that the required security screenings here were not “integral and indispensable” to another principal activity the employees were employed to perform, ante, at 7. I agree. As both Department of Labor regulations and our precedent make clear, an activity is “indispensable” to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively. Thus, although a battery plant worker might, for example, perform his principal activities without donning proper protective gear, he could not do so safely, see Steiner v. Mitchell , 350 U. S. 247 –253 (1956); likewise, a butcher might be able to cut meat without having sharpened his knives, but he could not do so effectively, see Mitchell v. King Packing Co. , 350 U. S. 260 –263 (1956); accord, 29 CFR §790.8(c). Here, by contrast, the security screenings were not “integral and indispensable” to the employees’ other principal activities in this sense. The screenings may, as the Ninth Circuit observed below, have been in some way related to the work that the employees performed in the warehouse, see 713 F. 3d 525, 531 (2013), but the employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired, see ante , at 7. Second, the Court holds also that the screenings were not themselves “ ‘principal . . . activities’ ” the employees were “ ‘employed to perform.’ ” Ibid. (quoting 29 U. S. C. §254(a)(1)). On this point, I understand the Court’s analysis to turn on its conclusion that undergoing security screenings was not itself work of consequence that the employees performed for their employer. See ante , at 7. Again, I agree. As the statute’s use of the words “preliminary” and “postliminary” suggests, §254(a)(2), and as our precedents make clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining the beginning and end of the workday. See IBP, Inc. v. Alvarez , 546 U. S. 21 ,34–37 (2005). It distinguishes between activities that are essentially part of the ingress and egress process, on the one hand, and activities that constitute the actual “work of consequence performed for an employer,” on the other hand. 29 CFR §790.8(a); see also ibid. (clarifying that a principal activity need not predominate over other activities, and that an employee could be employed to perform multiple principal activities). The security screenings at issue here fall on the “preliminary . . . or postliminary” side of this line. 29 U. S. C. §254(a)(2). The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting in line to do so—activities that Congress clearly deemed to be preliminary or postlimininary. See S. Rep. No. 48, 80th Cong., 1st Sess., 47 (1947); 29 CFR §790.7(g). Indeed, as the Court observes, the Department of Labor reached the very same conclusion regarding similar security screenings shortly after the Portal-to-Portal Act was adopted, see ante , at 7–8, and we owe deference to that determination, see Christensen v. Harris County , 529 U. S. 576, 587 (2000) . Because I understand the Court’s opinion to be consistent with the foregoing, I join it.

The Supreme Court held that warehouse workers who underwent mandatory security screenings before leaving the warehouse were not entitled to compensation under the Fair Labor Standards Act (FLSA) for the time spent waiting for and undergoing the screenings. The screenings were not considered integral and indispensable to the workers' principal activities, as they could skip the screenings without impairing their ability to perform their jobs safely and effectively. Additionally, the screenings were deemed preliminary or postliminary activities, akin to checking in and out of work, rather than principal activities performed for the employer.

Labor & Employment

Borough of Duryea v. Guarnieri

https://supreme.justia.com/cases/federal/us/564/379/

OPINION OF THE COURT BOROUGH OF DURYEA V. GUARNIERI 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1476 BOROUGH OF DURYEA, PENNSYLVANIA, et al., PETITIONERS v. CHARLES J. GUARNIERI on writ of certiorari to the united states court of appeals for the third circuit [June 20, 2011]    Justice Kennedy delivered the opinion of the court.    Among other rights essential to freedom, the First Amendment protects “the right of the people … to petition the Government for a redress of grievances.” U. S. Const., Amdt. 1. This case concerns the extent of the protection, if any, that the Petition Clause grants public employees in routine disputes with government employers. Petitions are a form of expression, and employees who invoke the Petition Clause in most cases could invoke as well the Speech Clause of the First Amendment. To show that an employer interfered with rights under the Speech Clause, the employee, as a general rule, must show that his speech was on a matter of public concern, as that term is defined in the precedents of this and other courts. Here the issue is whether that test applies when the employee invokes the Petition Clause.    Alone among the Courts of Appeals to have addressed the issue, the Court of Appeals for the Third Circuit has held that the public concern test does not limit Petition Clause claims by public employees. For the reasons stated below, this conclusion is incorrect. I    Charles Guarnieri filed a union grievance challenging his termination as chief of police for the borough of Duryea, a town of about 4,600 persons in northeastern Pennsylvania. His grievance proceeded to arbitration pursuant to the police union collective-bargaining agreement. The arbitrator found that the borough council, Duryea’s legislative body and the entity responsible for Guarnieri’s termination, committed procedural errors in connection with the termination; and the arbitrator also found that Guarnieri engaged in misconduct, including “attempting to intimidate Council members.” App. 37, 38. The arbitrator ordered Guarnieri reinstated after a disciplinary suspension. Id. , at 38.    Upon Guarnieri’s return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council’s attorney explained that the council “wanted to be sure that the chief understood what was going to be expected of him upon his return.” Tr. 19:12–14 (Apr. 16, 2008). One directive prohibited Guarnieri from working overtime without the council’s “express permission.” App. 59, ¶1. Another indicated that “[t]he police car is to be used for official business only.” Id. , at 60, ¶9. A third stated that the “Duryea municipal building is a smoke free building” and that the “police department is not exempt.” Id. , at 61, ¶10. Guarnieri testified that, because of these and other directives, his “coming back wasn’t a warm welcome feeling.” Tr. 65:7–8 (Apr. 15, 2008). Guarnieri filed a second union grievance challenging the directives. The arbitrator instructed the council to modify or withdraw some of the directives on the grounds that they were vague, interfered with the authority of the mayor, or were contrary to the collective-bargaining agreement.    Guarnieri filed this lawsuit against the borough, the borough council, and individual members of the council under 42 U. S. C. §1983. Guarnieri claimed that his first union grievance was a petition protected by the Petition Clause of the First Amendment, and he alleged that the directives issued upon his reinstatement were retaliation for that protected activity.    After this suit was filed, the council denied a request by Guarnieri for $338 in overtime. The United States Department of Labor investigated and concluded that Guarnieri was entitled to be paid. The council offered Guarnieri a check for the amount, but Guarnieri refused to accept it. Instead, Guarnieri amended his complaint to encompass the denial of overtime. Guarnieri alleged that his §1983 lawsuit was a petition and that the denial of overtime constituted retaliation for his having filed the lawsuit.    Under the law of the Circuit, the defendants could not obtain judgment as a matter of law on the basis that the lawsuit and grievances were not on a matter of public concern. The case proceeded to a jury. Guarnieri’s attorney argued that the council was “sending a message to” Guarnieri through the directives and the denial of overtime: “You might have won your arbitration, but we control you.” Tr. 53:24–25 (Apr. 17, 2008). The District Court instructed the jury that the lawsuit and union grievances were “protected activity … under the constitution,” and that the jury could find defendants liable if it found an adequate connection between the protected activity and the alleged retaliation. Id. , at 61:17–20; 62. The jury found in favor of Guarnieri. The jury awarded $45,000 in compensatory damages and $24,000 in punitive damages for the directives, as well as $358 in compensatory damages and $28,000 in punitive damages for the denial of overtime. The District Court awarded $45,000 in attorney’s fees and denied defendants’ renewed motion for judgment as a matter of law.    Defendants appealed on the ground that Guarnieri’s grievances and lawsuit did not address matters of public concern. Courts outside the Third Circuit have held that allegedly retaliatory actions by government employers against government employees may not give rise to liability under the Petition Clause unless the employee’s petition related to a matter of public concern. See, e.g., Kirby v. Elizabeth City , 388 F. 3d 440, 448–449 (CA4 2004); Tang v. Rhode Island, Dept. of Elderly Affairs , 163 F. 3d 7, 11–12 (CA1 1998); White Plains Towing Corp. v. Patterson , 991 F. 2d 1049, 1059 (CA2 1993). These courts rely on a substantial overlap between the rights of speech and petition to justify the application of Speech Clause pre-cedents to Petition Clause claims. They reason that, whether the grievance is considered under the Speech Clause or the Petition Clause, the government employer is entitled to take adverse action against the employee unless the dispute involves a matter of public concern.    Rejecting that view, the Court of Appeals here affirmed the award of compensatory damages, although it found insufficient evidence to sustain the award of punitive damages. The Court of Appeals concluded that “ ‘a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.’ ” 364 Fed. Appx. 749, 753 (CA3 2010) (quoting Foraker v. Chaffinch , 501 F. 3d 231, 236 (CA3 2007)). The decision of the Court of Appeals was consistent with the rule adopted and explained by that court in San Filippo v. Bongiovanni , 30 F. 3d 424, 442 (1994). This Court granted certiorari to resolve the conflict in the Courts of Appeals. 562 U. S. ___ (2010). II    When a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern. Connick v. Myers , 461 U. S. 138 , 147 (1983). If an employee does not speak as a citizen, or does not address a matter of public concern, “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Ibid. Even if an employee does speak as a citizen on a matter of public concern, the employee’s speech is not automatically privileged. Courts balance the First Amendment interest of the employee against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 , 568 (1968).    This framework “reconcile[s] the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.” San Diego v. Roe , 543 U. S. 77 , 82 (2004) (per curiam) . There are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract for public employment. “Our responsibility is to ensure that citizens are not deprived of [these] fundamental rights by virtue of working for the government.” Connick, supra , at 147; see also Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 , 605–606 (1967). Nevertheless, a citizen who accepts public employment “must accept certain limitations on his or her freedom.” Garcetti v. Ceballos , 547 U. S. 410 , 418 (2006). The government has a substantial interest in ensuring that all of its operations are efficient and effective. That interest may require broad authority to supervise the conduct of public employees. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.” Waters v. Churchill , 511 U. S. 661 , 675 (1994) (plurality opinion). Restraints are justified by the consensual nature of the employment relationship and by the unique nature of the government’s interest.    This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause. This Court’s precedents confirm that the Petition Clause protects the right of in-dividuals to appeal to courts and other forums estab- lished by the government for resolution of legal disputes. “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.” Sure-Tan, Inc. v. NLRB , 467 U. S. 883 , 896–897 (1984); see also BE&K Constr. Co. v. NLRB , 536 U. S. 516 , 525 (2002); Bill Johnson’s Restaurants, Inc. v. NLRB , 461 U. S. 731 , 741 (1983); California Motor Transport Co. v. Trucking Unlimited , 404 U. S. 508 , 513 (1972). Although retaliation by a government employer for a public employee’s exercise of the right of access to the courts may implicate the protections of the Petition Clause, this case provides no necessity to consider the correct application of the Petition Clause beyond that context.    Although this case proceeds under the Petition Clause, Guarnieri just as easily could have alleged that his employer retaliated against him for the speech contained within his grievances and lawsuit. That claim would have been subject to the public concern test already described. Because Guarnieri chose to proceed under the Petition Clause, however, the Court of Appeals applied a more generous rule. Following the decision of the Court of Appeals in San Filippo, supra , at 443, Guarnieri was deemed entitled to protection from retaliation so long as his petition was not a “sham.” Under that rule, defendants and other public employers might be liable under the Petition Clause even if the same conduct would not give rise to liability under the Speech Clause. The question presented by this case is whether the history and purpose of the Petition Clause justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause.    It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins , 323 U. S. 516 , 530 (1945); see also Wayte v. United States , 470 U. S. 598 , 610, n. 11 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas , 323 U. S., at 530. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.    Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid. (rights of speech and petition are “not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, re-quests action by the government to address those concerns. See Sure-Tan Inc., supra , at 896–897.    This Court’s opinion in McDonald v. Smith , 472 U. S. 479 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition … than other First Amendment expressions.” Id. , at 485. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.    As other Courts of Appeals have recognized, however, claims of retaliation by public employees do not call for this divergence. See supra , at 4. The close connection between these rights has led Courts of Appeals other than the Third Circuit to apply the public concern test developed in Speech Clause cases to Petition Clause claims by public employees. As will be explained further, this approach is justified by the extensive common ground in the definition and delineation of these rights. The considerations that shape the application of the Speech Clause to public employees apply with equal force to claims by those employees under the Petition Clause.    The substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause. Petitions, no less than speech, can interfere with the efficient and effective operation of government. A petition may seek to achieve results that “contravene governmental policies or impair the proper performance of governmental functions.” Garcetti , 547 U. S., at 419. Government must have authority, in appropriate circumstances, to restrain employees who use petitions to frustrate progress towards the ends they have been hired to achieve. A petition, like other forms of speech, can bring the “mission of the employer and the professionalism of its officers into serious disrepute.” Roe , 543 U. S., at 81. A public employee might, for instance, use the courts to pursue personal vendettas or to harass members of the general public. That behavior could cause a serious breakdown in public confidence in the government and its employees. And if speech or petition were directed at or concerned other public employees, it could have a serious and detrimental effect on morale.    When a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive. Unlike speech of other sorts, a lawsuit demands a response. Mounting a defense to even frivolous claims may consume the time and resources of the government employer. Outside the context of public employment, this Court has recognized that the Petition Clause does not protect “objectively baseless” litigation that seeks to “ ‘interfere directly with the business relationships of a competitor.’ ” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc. , 508 U. S. 49 , 60–61 (1993) (quoting Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. , 365 U. S. 127 , 144 (1961)). In recognition of the substantial costs imposed by litigation, Congress has also required civil rights plaintiffs whose suits are “frivolous, unreasonable, or without foundation” to pay attorney’s fees incurred by defendants. Christiansburg Garment Co. v. EEOC , 434 U. S. 412 , 421 (1978); see also Fed. Rule Civ. Proc. 11 (providing sanctions for claims that are “presented for [an] improper purpose,” frivolous, or lacking evidentiary support). The government likewise has a significant interest in disciplining public employees who abuse the judicial process.    Unrestrained application of the Petition Clause in the con- text of government employment would subject a wide range of government operations to invasive judicial superintendence. Employees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations. See Brief for National School Boards Association as Amicus Curiae 5. Every government action in response could present a potential federal constitutional issue. Judges and juries, asked to determine whether the government’s actions were in fact retaliatory, would be required to give scrutiny to both the government’s response to the grievance and the government’s justification for its actions. This would occasion review of a host of collateral matters typically left to the discretion of public officials. Budget priorities, personnel decisions, and substantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. It would also consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.    This case illustrates these risks and costs. Guarnieri’s attorney invited the jury to review myriad details of government decisionmaking. She questioned the council’s decision to issue directives in writing, rather than orally, Tr. 66 (Apr. 14, 2008); the council’s failure to consult the mayor before issuing the directives, id. , at 105 (Apr. 15, 2008); the amount of money spent to employ “Philadelphia lawyers” to defend Guarnieri’s legal challenges, id. , at 191–193:7–10 (Apr. 14, 2008); 152–153 (Apr. 16, 2008); and the wisdom of the council’s decision to spend money to install Global Positioning System devices on police cars, id. , at 161–162 (same). Finally, the attorney invited the jury to evaluate the council’s decisions in light of an emotional appeal on behalf of Guarnieri’s “little dog Hercules, little white fluffy dog and half Shitsu.” Id. , at 49:13–14 (Apr. 14, 2008). It is precisely to avoid this intrusion into internal governmental affairs that this Court has held that, “while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’ ” Garcetti, supra , at 420 (quoting Connick , 461 U. S., at 154).    If the Petition Clause were to apply even where matters of public concern are not involved, that would be unnecessary, or even disruptive, when there is already protection for the rights of public employees to file grievances and to litigate. The government can and often does adopt statutory and regulatory mechanisms to protect the rights of employees against improper retaliation or discipline, while preserving important government interests. Cf. Garcetti , supra , at 425 (noting a “powerful network of legislative enactments”). Employees who sue under federal and state employment laws often benefit from generous and quite detailed antiretaliation provisions. See, e.g., Pa. Stat. Ann., Tit. 43, §1101.1201(a)(4) (Purdon 2009); §1101.1302. These statutory protections are subject to legislative revision and can be designed for the unique needs of State, local, or Federal Governments, as well as the special circumstances of particular governmental offices and agencies. The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievances.    In light of the government’s interests in the public employment context, it would be surprising if Petition Clause claims by public employees were not limited as necessary to protect the employer’s functions and responsibilities. Even beyond the Speech Clause, this Court has explained that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture , 553 U. S. 591 , 599 (2008); see also NASA v. Nelson , 562 U. S. ___ , ___ (2011) (slip op., at 12). The government’s interest in managing its internal affairs requires proper restraints on the invocation of rights by employees when the workplace or the government employer’s responsibilities may be af-fected. There is no reason to think the Petition Clause should be an exception.    The public concern test was developed to protect these substantial government interests. Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test’s protections. Consider Sheila Myers, who was the original plaintiff in Connick . She circulated “a questionnaire soliciting the views of her fellow staff members” on various office matters. 461 U. S., at 141. The Court held that Myers’ claim for retaliation failed the public concern test because the questionnaire was “most accurately characterized as an employee grievance concerning internal office policy.” Id. , at 154. It would undermine that principle if a different result would have obtained had Myers raised those same claims using a formal grievance procedure. Myers’ employer “reasonably believed [Myers’ complaints] would disrupt the office, undermine his authority, and destroy close working relationships.” Ibid . These concerns would be no less significant in the context of a formal grievance. Employees should not be able to evade the rule articulated in the Connick case by wrapping their speech in the mantle of the Petition Clause.    Articulation of a separate test for the Petition Clause would aggravate potential harm to the government’s interests by compounding the costs of compliance with the Constitution. A different rule for each First Amendment claim would require employers to separate petitions from other speech in order to afford them different treatment; and that, in turn, would add to the complexity and expense of compliance with the Constitution. Identifying peti-tions might be easy when employees employ formal grievance procedures, but the right to petition is not limited to petitions lodged under formal procedures. See, e.g., Brown v. Louisiana , 383 U. S. 131 (1966). Indeed, the employee in Connick could have made a colorable argument that her questionnaire ought to be viewed as a petition for redress of grievances.    Guarnieri claims application of the public concern test to the Petition Clause would be inappropriate in light of the private nature of many petitions for redress of grievances. The Petition Clause undoubtedly does have force and application in the context of a personal grievance addressed to the government. See, e.g., Trainmen v. Virginia ex rel. Virginia State Bar , 377 U. S. 1 (1964); Thomas , 323 U. S., at 530–531. At the founding, citizens petitioned on a wide range of subjects, including matters of both private and public concern. Petitions to the colonial legislatures concerned topics as diverse as debt actions, estate distributions, divorce proceedings, and requests for modification of a criminal sentence. Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 146 (1986). Although some claims will be of interest only to the individual making the appeal, for that individual the need for a legal remedy may be a vital imperative. See, e.g. , M. L. B. v. S. L. J ., 519 U. S. 102 (1996); Boddie v. Connecticut , 401 U. S. 371 (1971). Outside the public employment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern.    There is, however, no merit to the suggestion that the public concern test cannot apply under the Petition Clause because the majority of petitions to colonial legislatures addressed matters of purely private concern. In analogous cases under the Speech Clause, this Court has noted the “Constitution’s special concern with threats to the right of citizens to participate in political affairs,” Connick, supra , at 145, even though it is likely that, in this and any other age, most speech concerns purely private matters. The proper scope and application of the Petition Clause likewise cannot be determined merely by tallying up petitions to the colonial legislatures. Some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty.    Petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole. Petition, as a word, a concept, and an essential safeguard of freedom, is of ancient significance in the English law and the Anglo-American legal tradition. See, e.g., 1 W. Blackstone, Commentaries *143. The right to petition applied to peti-tions from nobles to the King, from Parliament to the King, and from the people to the Parliament, and it concerned both discrete, personal injuries and great matters of state.    The right to petition traces its origins to Magna Carta, which confirmed the right of barons to petition the King. W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 467 (rev. 2d ed. 1958). The Magna Carta itself was King John’s answer to a petition from the barons. Id. , at 30–38. Later, the Petition of Right of 1628 drew upon centuries of tradition and Magna Carta as a model for the Parliament to issue a plea, or even a demand, that the Crown refrain from certain actions. 3 Car. 1, ch. 1 (1627). The Petition of Right stated four principal grievances: taxation without consent of Parliament; arbitrary imprisonment; quartering or billeting of soldiers; and the imposition of martial law. After its passage by both Houses of Parliament, the Petition received the King’s assent and became part of the law of England. See S. Gardiner, The First Two Stuarts and the Puritan Revolution, 1603–1660, pp. 60–61 (1886). The Petition of Right occupies a place in English constitutional history superseded in importance, perhaps, only by Magna Carta itself and the Declaration of Right of 1689.    The following years saw use of mass petitions to address matters of public concern. See 8 D. Hume, History of England from the Invasion of Julius Caesar to the Revolution in 1688, p. 122 (1763) (“Tumultuous petitioning … was an admirable expedient … for spreading discontent, and for uniting the nation in any popular clamour”). In 1680, for instance, more than 15,000 persons signed a petition regarding the summoning and dissolution of Par-liament, “one of the major political issues agitating the nation.” Knights, London’s ‘Monster’ Petition, 36 Historical Journal 39, 40–43 (1993). Nine years later, the Declaration of Right listed the illegal acts of the sovereign and set forth certain rights of the King’s subjects, one of which was the right to petition the sovereign. It stated that “it is the Right of the Subjects to petition the King, and all Commitments and Prosecutions for such Petitioning are Illegal.” 1 W. & M., ch. 2; see also L. Schwoerer, The Declaration of Rights, 1689, pp. 69–71 (1981).    The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶30.    After independence, petitions on matters of public concern continued to be an essential part of contemporary debates in this country’s early history. Two years before the adoption of the Constitution, James Madison’s Memorial and Remonstrance against Religious Assessments, an important document in the history of the Establishment Clause, was presented to the General Assembly of the Com-monwealth of Virginia as a petition. See 1 D. Lay- cock, Religious Liberty: Overviews and History 90 (2010); Arizona Christian School Tuition Organization v. Winn , 563 U. S. ___ , ___ (2011) (slip op., at 12–13). It attracted over 1,000 signatures. Laycock, supra , at 90, n. 153. During the ratification debates, Antifederalists circulated petitions urging delegates not to adopt the Constitution absent modification by a bill of rights. Boyd, Antifederalists and the Acceptance of the Constitution: Pennsylvania, 1787–1792, 9 Publius, No. 2, pp. 123, 128–133 (Spring 1979).    Petitions to the National Legislature also played a central part in the legislative debate on the subject of slavery in the years before the Civil War. See W. Miller, Arguing About Slavery (1995). Petitions allowed participation in democratic governance even by groups excluded from the franchise. See Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2182 (1998). For instance, petitions by women seeking the vote had a role in the early woman’s suffrage movement. See Cogan & Ginzberg, 1846 Petition for Woman’s Suffrage, New York State Constitutional Convention, 22 Signs 427, 437–438 (1997). The right to petition is in some sense the source of other fundamental rights, for petitions have provided a vital means for citizens to request recognition of new rights and to assert existing rights against the sovereign.    Petitions to the courts and similar bodies can likewise address matters of great public import. In the context of the civil rights movement, litigation provided a means for “the distinctive contribution of a minority group to the ideas and beliefs of our society.” NAACP v. Button , 371 U. S. 415 , 431 (1963). Individuals may also “engag[e] in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.” In re Primus , 436 U. S. 412 , 431 (1978). Litigation on matters of public concern may facilitate the informed public participation that is a cornerstone of democratic society. It also allows individuals to pursue desired ends by direct appeal to government officials charged with applying the law.    The government may not misuse its role as employer unduly to distort this deliberative process. See Garcetti , 547 U. S., at 419. Public employees are “the members of a community most likely to have informed and definite opinions” about a wide range of matters related, directly or indirectly, to their employment. Pickering , 391 U. S., at 572. Just as the public has a right to hear the views of public employees, the public has a right to the benefit of those employees’ participation in petitioning activity. Petitions may “allow the public airing of disputed facts” and “promote the evolution of the law by supporting the development of legal theories,” NLRB , 536 U. S., at 532 (internal quotation marks omitted), and these and other benefits may not accrue if one class of knowledgeable and motivated citizens is prevented from engaging in petitioning activity. When a public employee seeks to participate, as a citizen, in the process of deliberative democracy, either through speech or petition, “it is necessary to regard the [employee] as the member of the general public he seeks to be.” Pickering, supra , at 574.    The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause, will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases. Roe , 543 U. S., at 82–83. When a public employee petitions as a citizen on a matter of public concern, the employee’s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. Pickering, supra , at 568. If that balance favors the public employee, the employee’s First Amendment claim will be sustained. If the interference with the government’s operations is such that the balance favors the employer, the employee’s First Amendment claim will fail even though the petition is on a matter of public concern.    As under the Speech Clause, whether an employee’s petition relates to a matter of public concern will depend on “the content, form, and context of [the petition], as revealed by the whole record.” Connick , 461 U. S., at 147–148, and n. 7. The forum in which a petition is lodged will be relevant to the determination of whether the petition relates to a matter of public concern. See Snyder v. Phelps , 562 U. S. ___ , ___ (2011) (slip op., at 8–9). A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.    Of course in one sense the public may always be interested in how government officers are performing their duties. But as the Connick and Pickering test has evolved, that will not always suffice to show a matter of public concern. A petition that “involves nothing more than a complaint about a change in the employee’s own duties” does not relate to a matter of public concern and accordingly “may give rise to discipline without imposing any special burden of justification on the government employer.” United States v. Treasury Employees , 513 U. S. 454 , 466 (1995). The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. III    Because the Third Circuit did not find it necessary to apply this framework, there has been no determination as to how it would apply in the context of this case. The parties did not address the issue in the opening brief or the response, and the United States did not address the issue in its brief as amicus curiae . In their reply brief, petitioners suggest that this Court should address the issue and resolve it in their favor. Yet in their opening brief petitioners sought only vacatur and remand. This Court need not consider this issue without the benefit of full briefs by the parties.    The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THOMAS, J., CONCURRING IN JUDGMENT BOROUGH OF DURYEA V. GUARNIERI 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1476 BOROUGH OF DURYEA, PENNSYLVANIA, et al., PETITIONERS v. CHARLES J. GUARNIERI on writ of certiorari to the united states court of appeals for the third circuit [June 20, 2011]    Justice Thomas, concurring in the judgment.    For the reasons set forth by Justice Scalia, I seriously doubt that lawsuits are “petitions” within the original meaning of the Petition Clause of the First Amendment. See post , at 2–3 (opinion concurring in judgment in part and dissenting in part). Unreasoned statements to the contrary in this Court’s prior decisions do not convince me otherwise. Like the Court, however, I need not decide that question today because “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause.” Ante , at 6.    I also largely agree with Justice Scalia about the framework for assessing public employees’ retaliation claims under the Petition Clause. The “public concern” doctrine of Connick v. Myers , 461 U. S. 138 (1983), is rooted in the First Amendment’s core protection of speech on matters of public concern and has no relation to the right to petition. See post , at 3–7. I would not import that test into the Petition Clause. Rather, like Justice Scalia, I would hold that “the Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its ca-pacity as their sovereign.” Post , at 7.    But I would not end the analysis after determining that a petition was addressed to the government as sovereign. Recognizing “the realities of the employment context,” we have held that “government has significantly greater lee-way in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture , 553 U. S. 591 , 600, 599 (2008). Even where a public employee petitions the government in its capacity as sovereign, I would balance the employee’s right to petition the sovereign against the government’s interest as an employer in the ef- fective and efficient management of its internal affairs. Cf. Garcetti v. Ceballos , 547 U. S. 410 , 419 (2006) (noting that employees “speaking as citizens about matters of pub-lic concern” still must “face … speech restrictions that are necessary for their employers to operate efficiently and effectively”); United States v. Treasury Employees , 513 U. S. 454 , 492 (1995) (Rehnquist, C. J., dissenting) (“In conducting this balance [in the Speech Clause context], we consistently have given substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved was on a matter of public concern”); O’Connor v. Ortega , 480 U. S. 709 , 721–722 (1987) (plurality opinion) (balancing the “the realities of the workplace” against the “legitimate privacy interests of public employees” to conclude that a warrant requirement would “seriously disrupt the routine conduct of business” and “be unduly burdensome”). In assessing a retaliation claim under the Petition Clause, courts should be able to conclude that, in instances when the petition is especially disruptive, as some lawsuits might be, the balance of interests may weigh in favor of the government employer.    Applying this framework, I would vacate the judgment and remand. The Court of Appeals erred with respect to both Guarnieri’s union grievance and his 42 U. S. C. §1983 suit. First, even assuming the grievance was a petition, it was addressed to the local government in its capacity as Guarnieri’s employer. See post , at 8 (opinion of Scalia, J.). Second, Guarnieri addressed his §1983 suit to the Federal Government in its capacity as sovereign, not to the local government as his employer. See ibid. But the Court of Appeals did not consider whether the local government’s interest as an employer “in achieving its goals as effectively and efficiently as possible” nevertheless outweighs Guarnieri’s interest in petitioning the Federal Government regarding his local employment. Engquist , supra , at 598 (internal quotation marks omitted). I would vacate and remand for the Court of Appeals to conduct that analysis in the first instance. OPINION OF SCALIA, J. BOROUGH OF DURYEA V. GUARNIERI 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-1476 BOROUGH OF DURYEA, PENNSYLVANIA, et al., PETITIONERS v. CHARLES J. GUARNIERI on writ of certiorari to the united states court of appeals for the third circuit [June 20, 2011]    Justice Scalia, concurring in the judgment in part and dissenting in part.    I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.” Ante , at 6. Our first opinion clearly saying that lawsuits are “Petitions” under the Petition Clause came less than 40 years ago. In California Motor Transport Co. v. Trucking Unlimited , 404 U. S. 508 (1972),[ Footnote 1 ] an opinion by Justice Douglas, the Court asserted that “[t]he right of access to the courts is indeed but one aspect of the right of petition.” Id., at 510. As authority it cited two habeas corpus cases, Johnson v. Avery , 393 U. S. 483 (1969), and Ex parte Hull , 312 U. S. 546 (1941), neither of which even mentioned the Petition Clause. The assertion, moreover, was pure dictum. The holding of California Motor Transport was that the Noerr-Pennington doctrine, a judicial gloss on the Sherman Act that had been held to immunize certain lobbying (legislature-petitioning) activity, did not apply to sham litigation that “sought to bar … competitors from meaningful access to adjudicatory tribunals,” 404 U. S., at 510–512. The three other cases cited by the Court as holding that lawsuits are petitions, ante , at 6, are all statutory interpretation decisions construing the National Labor Relations Act, albeit against the backdrop of the Petition Clause. See BE&K Constr. Co. v. NLRB , 536 U. S. 516 , 534–536 (2002); Sure-Tan, Inc. v. NLRB , 467 U. S. 883 , 896–897 (1984) Bill Johnson’s Restaurants, Inc. v. NLRB , 461 U. S. 731 , 741–743 (1983). The Court has never actually held that a lawsuit is a constitutionally protected “Petition,” nor does today’s opinion hold that. The Court merely observes that “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause,” ante , at 6, and concludes that Guarnieri’s 42 U. S. C. §1983 claim would fail even if that premise were correct.    I find the proposition that a lawsuit is a constitutionally protected “Petition” quite doubtful. The First Amendment’s Petition Clause states that “Congress shall make no law … abridging … the right of the people … to petition the Government for a redress of grievances.” The reference to “the right of the people” indicates that the Petition Clause was intended to codify a pre-existing individual right, which means that we must look to historical practice to determine its scope. See District of Columbia v. Heller , 554 U. S. 570 , 579, 592 (2008).    There is abundant historical evidence that “Petitions” were directed to the executive and legislative branches of government, not to the courts. In 1765, the Stamp Act Congress stated “[t]hat it is the right of the British subjects in these colonies to petition the King or either House of Parliament.” Declaration of Rights and Grievances, Art. 13, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 195, 198 (1971); it made no mention of petitions directed to the courts. As of 1781, seven state constitutions protected citizens’ right to apply or petition for redress of grievances; all seven referred only to legislative petitions. See Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: De-fining the Right, 60 Ohio St. L. J. 557, 604–605, n. 159 (1999). The Judiciary Act of 1789 did not grant federal trial courts jurisdiction to hear lawsuits arising under federal law; there is no indication anyone ever thought that this restriction infringed on the right of citizens to petition the Federal Government for redress of grievances. The fact that the Court never affirmed a First Amendment right to litigate until its unsupported dictum in 1972—after having heard almost 200 years’ worth of lawsuits, untold numbers of which might have been affected by a First Amendment right to litigate—should give rise to a strong suspicion that no such right exists. “[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Nevada Comm’n on Ethics v. Carrigan , ante , at 4 (internal quotation marks omitted).    I acknowledge, however, that scholars have made detailed historical arguments to the contrary. See, e.g. , Andrews, supra , at 595–625; Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 903–962 (1997). As the Court’s opinion observes, the parties have not litigated the issue, and so I agree we should leave its resolution to another day.    Second, and of greater practical consequence, I disagree with the Court’s decision to apply the “public concern” framework of Connick v. Myers , 461 U. S. 138 (1983), to retaliation claims brought under the Petition Clause. The Court correctly holds that the Speech Clause and Petition Clause are not co-extensive, ante , at 7–8. It acknowledges, moreover, that the Petition Clause protects personal grievances addressed to the government, ante , at 13. But that is an understatement—rather like acknowledging that the Speech Clause protects verbal expression. “[T]he primary responsibility of colonial assemblies was the settlement of private disputes raised by petitions.” Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 145 (1986). “[T]he overwhelming majority of First Congress petitions presented private claims.” 8 Documentary History of the First Federal Congress 1789–1791, p. xviii (K. Bowling, W. DiGiacomantonio, & C. Bickford eds. 1998). The Court nonetheless holds that, at least in public employment cases, the Petition Clause and Speech Clause should be treated identically, so that since the Speech Clause does not prohibit retaliation against public employees for speaking on matters of private concern, neither does the Petition Clause. The Court gives two reasons for this: First, “[a] different rule for each First Amendment claim would … add to the complexity and expense of compliance with the Constitution” and “would provide a ready means for public employees to circumvent the test’s protections,” and second, “[p]etitions to the government … assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole.” Ante , at 12–14.    Neither reason is persuasive. As to the former: The complexity of treating the Petition Clause and Speech Clause separately is attributable to the inconsiderate disregard for judicial convenience displayed by those who ratified a First Amendment that included both provisions as separate constitutional rights. A plaintiff does not engage in pernicious “circumvention” of our Speech Clause precedents when he brings a claim premised on a separate enumerated right to which those precedents are inapplicable.    As to the latter: Perhaps petitions on matters of public concern do in some sense involve an “added dimension,” but that “added dimension” does not obliterate what has traditionally been the principal dimension of the Petition Clause. The public-concern limitation makes sense in the context of the Speech Clause, because it is speech on matters of public concern that lies “within the core of First Amendment protection.” Engquist v. Oregon Dept. of Agri-culture , 553 U. S. 591 , 600 (2008). The Speech Clause “has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United v. Federal Election Comm’n , 558 U. S. ___, ___ (2010) (slip op., at 23) (internal quotation marks omitted). The unique protection granted to political speech is grounded in the history of the Speech Clause, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Connick , supra , at 145 (internal quotation marks omitted).    But the mere fact that we have a longstanding tradition of granting heightened protection to speech of public concern does not suggest that a “public concern” requirement should be written into other constitutional provisions. We would not say that religious proselytizing is entitled to more protection under the Free Exercise Clause than private religious worship because public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened in the context of litigation of national importance because such litigation is somehow at the “core of the due process guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of petitions at the founding—a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute “core petitioning activity.” In the Court’s view, if Guar-nieri had submitted a letter to one of the borough of Duryea’s council members protesting a tax assessment that he claimed was mistaken; and if the borough had fired him in retaliation for that petition; Guarnieri would have no claim for a Petition Clause violation. That has to be wrong. It takes no account of, and thus frustrates, the principal purpose of the Petition Clause.    The Court responds that “[t]he proper scope and application of the Petition Clause . . . cannot be determined merely by tallying up petitions to the colonial legislatures,” ante , at 14, but that misses the point. The text of the Petition Clause does not distinguish petitions of public concern from petitions of private concern. Accordingly, there should be no doctrinal distinction between them unless the history or tradition of the Petition Clause justifies it. The mere fact that the Court can enumerate several historical petitions of public importance, ante , at 14–16, does not establish such a tradition, given that peti-tions for redress of private grievances vastly outnumbered them. Indeed, the Court’s holding is contrary to this Court’s historical treatment of the Petition Clause, assuming (as the Court believes) that the Clause embraces litigation: We have decided innumerable cases establishing constitutional rights with respect to litigation, and until today not a one of them has so much as hinted that litigation of public concern enjoys more of those rights than litigation of private concern. The Court’s belief in the social importance of public petitions, and its reminiscences of some of the public-petition greats of yesteryear, ibid. , do not justify the proclamation of special constitutional rights for public petitions. It is the Constitution that establishes constitutional rights, not the Justices’ notions of what is important, or the top numbers on their Petition Hit Parade. And there is no basis for believing that the Petition Clause gives special protection to public petitions.    Rather than shoehorning the “public concern” doctrine into a Clause where it does not fit, we should hold that the Petition Clause protects public employees against re-taliation for filing petitions unless those petitions are ad-dressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign. As the Court states, we have long held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Ante , at 11–12 (quoting Engquist , supra , at 599; internal quotation marks omitted). To apply to the Petition Clause context what we have said regarding the Speech Clause: When an employee files a petition with the government in its capacity as his employer, he is not acting “as [a] citize[n] for First Amendment purposes,” because “there is no relevant analogue to [petitions] by citizens who are not government employees.” Garcetti v. Ceballos , 547 U. S. 410 , 421, 423–424 (2006). To be sure, the line between a petition addressed to government as the petitioner’s employer and one addressed to it as sovereign is not always clear, but it is no more fuzzy than the line between matters of private and matters of public concern.[ Footnote 2 ] The criterion I suggest would largely resolve the legitimate practical concerns identified by the Court, ante , at 10–12, while recognizing and giving effect to the difference between the Speech and Petition Clauses.    Under what I think to be the proper test, the Third Circuit judgment before us here should be reversed in part and affirmed in part. The portion of it upholding Guarnieri’s claim of retaliation for having filed his union grievance must be reversed. A union grievance is the epitome of a petition addressed to the government in its capacity as the petitioner’s employer. No analogous petitions to the government could have been filed by private citizens, who are not even permitted to avail themselves of Guarnieri’s union grievance procedure. Contrariwise, the portion of the judgment upholding Guarnieri’s claim of retaliation for having filed his §1983 claim must be affirmed. Given that Guarnieri was not an employee of the Federal Government, it is impossible to say that the §1983 claim was addressed to government in its capacity as his employer. I think it clear that retaliating against a state employee for writing a letter to his Congressman about his state job would run afoul of the Petition Clause. Assuming that the §1983 lawsuit should be treated like a letter to a Congressman for Petition Clause purposes—a proposition which, I again emphasize, is doubtful, but which the parties do not dispute in this case—retaliation for having filed his lawsuit also violates the Clause. Footnote 1 Respondent would agree, since he cited this case in argument as the earliest. Tr. of Oral Arg. 36. There were, however, three cases in the 1960’s which adverted vaguely to lawsuits as involving the right to petition. See Mine Workers v. Illinois Bar Assn. , 389 U. S. 217 , 222–224 (1967); Trainmen v. Virginia ex rel. Virginia State Bar , 377 U. S. 1 , 7 (1964); NAACP v. Button , 371 U. S. 415 , 430 (1963). Footnote 2 Compare, e.g., Alpha Energy Savers, Inc. v. Hansen , 381 F. 3d 917, 927 (CA9 2004) (testimony concerning claim of employment discrimination by government contractor constituted matter of public concern because “[l]itigation seeking to expose … wrongful governmental activity is, by its very nature, a matter of public concern”), with Padilla v. South Harrison R-II School Dist. , 181 F. 3d 992, 997 (CA8 1999) (teacher’s testimony approving sexual relationship between teacher and minor was matter of private concern because it “does not relate to the teacher’s legitimate disagreement with a school board’s policies”). And compare, e.g. , Voigt v. Savell , 70 F. 3d 1552, 1560 (CA9 1995) (speech regarding how judge handled two internal personnel matters was matter of public concern because “[t]he public has an interest in knowing whether the court treats its job applicants fairly”), with Maggio v. Sipple , 211 F. 3d 1346, 1353 (CA11 2000) (testimony at hearing concerning employee grievance was matter of private concern because it did “not allege … fraud or corruption in [defendant’s] implementation of its personnel policies and appeal procedures”).

The Supreme Court ruled that public employees are protected under the First Amendment's Petition Clause when petitioning the government for redress, but this right is limited in the context of employee-employer disputes. The Court held that a union grievance filed by a public employee is considered a petition to the government in its capacity as an employer, and thus, the employee must show that the speech involved a matter of public concern to be protected. However, the Court also affirmed that retaliation against a public employee for filing a lawsuit under Section 1983 of the Civil Rights Act violates the Petition Clause, as it is not addressed to the government as an employer.

Labor & Employment

Heffernan v. City of Paterson

https://supreme.justia.com/cases/federal/us/578/14-1280/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1280 _________________ JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, et al. on writ of certiorari to the united states court of appeals for the third circuit [April 26, 2016] Justice Breyer delivered the opinion of the Court. The First Amendment generally prohibits government officials from dismissing or demoting an employee because of the employee’s engagement in constitutionally protected political activity. See Elrod v. Burns , 427 U. S. 347 (1976) ; Branti v. Finkel , 445 U. S. 507 (1980) ; but cf. Civil Service Comm’n v. Letter Carriers , 413 U. S. 548, 564 (1973) . In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor. The question is whether the official’s factual mistake makes a critical legal difference. Even though the employee had not in fact engaged in protected political activity, did his demotion “deprive” him of a “right . . . secured by the Constitution”? 42 U. S. C. §1983. We hold that it did. I To decide the legal question presented, we assume the following, somewhat simplified, version of the facts: In 2005, Jeffrey Heffernan, the petitioner, was a police officer in Paterson, New Jersey. He worked in the office of the Chief of Police, James Wittig. At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola’s. During the campaign, Heffernan’s mother, who was bedridden, asked Heffernan to drive downtown and pick up a large Spagnola sign. She wanted to replace a smaller Spagnola sign, which had been stolen from her front yard. Heffernan went to a Spagnola distribution point and picked up the sign. While there, he spoke for a time to Spagnola’s campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force. The next day, Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a “walking post.” In this way they punished Heffernan for what they thought was his “overt involvement” in Spag-nola’s campaign. In fact, Heffernan was not involved in the campaign but had picked up the sign simply to help his mother. Heffernan’s supervisors had made a factual mistake. Heffernan subsequently filed this lawsuit in federal court. He claimed that Chief Wittig and the other respondents had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. They had thereby “depriv[ed]” him of a “right . . . secured by the Constitution.” Rev. Stat. §1979, 42 U. S. C. §1983. The District Court found that Heffernan had not engaged in any “ First Amendment conduct,” 2 F. Supp. 3d 563, 580 (NJ 2014); and, for that reason, the respondents had not deprived him of any constitutionally protected right. The Court of Appeals for the Third Circuit affirmed. It wrote that “a free-speech retaliation claim is actionable under §1983 only where the adverse action at issue was prompted by an employee’s actual , rather than perceived , exercise of constitutional rights.” 777 F. 3d 147, 153 (2015) (citing Ambrose v. Robinson , 303 F. 3d 488, 496 (CA3 2002); emphasis added). Heffernan filed a petition for certiorari. We agreed to decide whether the Third Circuit’s legal view was correct. Compare 777 F. 3d, at 153 (case below), with Dye v. Office of Racing Comm’n , 702 F. 3d 286, 300 (CA6 2012) (similar factual mistake does not affect the validity of the government employee’s claim). II With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. See Elrod v. Burns , supra ; Branti v. Finkel , supra . The basic constitutional requirement reflects the First Amendment’s hostility to government action that “prescribe[s] what shall be orthodox in politics.” West Virginia Bd. of Ed . v. Barnette , 319 U. S. 624, 642 (1943) . The exceptions take account of “practical realities” such as the need for “efficiency” and “effective[ness]” in government service. Waters v. Churchill , 511 U. S. 661, 672, 675 (1994) ; see also Civil Service Comm’n , supra , at 564 (neutral and appropriately limited policy may prohibit government employees from engaging in partisan activity), and Branti , supra , at 518 (political affiliation requirement permissible where affiliation is “an appropriate requirement for effective performance of the public office involved”). In order to answer the question presented, we assume that the exceptions do not apply here. But see infra , at 8 . We assume that the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, see Rutan v. Republican Party of Ill. , 497 U. S. 62, 69 (1990) (“joining, working for or contributing to the political party and candidates of their own choice”), but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities. Does Heffernan’s constitutional case consequently fail? The text of the relevant statute does not answer the question. The statute authorizes a lawsuit by a person “depriv[ed]” of a “right . . . secured by the Constitution.” 42 U. S. C. §1983. But in this context, what precisely is that “right?” Is it a right that primarily focuses upon (the employee’s) actual activity or a right that primarily fo-cuses upon (the supervisor’s) motive, insofar as that motive turns on what the supervisor believes that activity to be? The text does not say. Neither does precedent directly answer the question. In some cases we have used language that suggests the “right” at issue concerns the employee’s actual activity. In Connick v. Myers , 461 U. S. 138 (1983) , for example, we said that a court should first determine whether the plaintiff spoke “ ‘as a citizen’ ” on a “ ‘matter[] of public concern,’ ” id., at 143. We added that, if the employee has not engaged in what can “be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.” Id., at 146. We made somewhat similar statements in Garcetti v. Ceballos , 547 U. S. 410, 418 (2006) , and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 (1968) . These cases, however, did not present the kind of question at issue here. In Connick , for example, no factual mistake was at issue. The Court assumed that both the employer and the employee were at every stage in agreement about the underlying facts: that the employer dismissed the employee because of her having circulated within the office a document that criticized how the office was being run (that she had in fact circulated). The question was whether the circulation of that document amounted to constitutionally protected speech. If not, the Court need go no further. Neither was any factual mistake at issue in Pickering. The Court assumed that both the employer (a school board) and the employee understood the cause for dismissal, namely, a petition that the employee had indeed circulated criticizing his employer’s practices. The question concerned whether the petition was protectedspeech. Garcetti is substantially similar. In each of these cases, the only way to show that the employer’s motive was unconstitutional was to prove that the controver-sial statement or activity—in each case the undisputed reason for the firing—was in fact protected by the First Amendment. Waters v. Churchill , 511 U. S. 661 (1994) , is more to the point. In that case the Court did consider the consequences of an employer mistake. The employer wrongly, though reasonably, believed that the employee had spoken only on personal matters not of public concern, and the employer dismissed the employee for having engaged in that unprotected speech. The employee, however, had in fact used words that did not amount to personal “gossip” (as the employer believed) but which focused on matters of public concern. The Court asked whether, and how, the employer’s factual mistake mattered. The Court held that, as long as the employer (1) had reasonably believed that the employee’s conversation had involved personal matters, not matters of public concern, and (2) had dismissed the employee because of that mistaken belief, the dismissal did not violate the First Amendment. Id., at 679–680. In a word, it was the employer’s motive, and in particular the facts as the employer reasonably understood them, that mattered. In Waters , the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander. We conclude that, as in Waters , the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983—even if, as here, the employer makes a factual mistake about the employee’s behavior. We note that a rule of law finding liability in these circumstances tracks the language of the First Amend-ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment beginsby focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was di-rectly harmed, namely, demoted, through application of that policy. We also consider relevant the constitutional implications of a rule that imposes liability. The constitutional harm at issue in the ordinary case consists in large part of discouraging employees—both the employee discharged (or demoted) and his or her colleagues—from engaging in protected activities. The discharge of one tells the others that they engage in protected activity at their peril. See, e.g ., Elrod , 427 U. S., at 359 (retaliatory employment action against one employee “unquestionably inhibits protected belief and association” of all employees). Hence, we do not require plaintiffs in political affiliation cases to “prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance.” Branti , 445 U. S., at 517. The employer’s factual mistake does not diminish the risk of causing precisely that same harm. Neither, for that matter, is that harm diminished where an employer announces a policy of demoting those who, say, help a particular candidate in the mayoral race, and all employees (including Heffernan), fearful of demotion, refrain from providing any such help. Cf. Gooding v. Wilson , 405 U. S. 518, 521 (1972) (explaining that overbreadth doctrine is necessary “because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions”). The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake. Finally, we note that, contrary to respondents’ asser-tions, a rule of law that imposes liability despite the employer’s factual mistake will not normally impose significant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more difficult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks. III We now relax an assumption underlying our decision. We have assumed that the policy that Heffernan’s employers implemented violated the Constitution. Supra, at 3. There is some evidence in the record, however, suggesting that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. See Brief for United States as Amicus Curiae 27–28. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it complies with constitutional standards, see Civil Service Comm’n , 413 U. S., at 564, are all matters for the lower courts to decide in the first instance. Without expressing views on the matter, we reverse the judgment of the Third Circuit and remand the case for such further proceedings consistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1280 _________________ JEFFREY J. HEFFERNAN, PETITIONER v. CITY OF PATERSON, NEW JERSEY, et al. on writ of certiorari to the united states court of appeals for the third circuit [April 26, 2016] Justice Thomas, with whom Justice Alito joins, dissenting. Today the Court holds that a public employee may bring a federal lawsuit for money damages alleging a violation of a constitutional right that he concedes he did not exercise. Ante, at 1. Because federal law does not provide a cause of action to plaintiffs whose constitutional rights have not been violated, I respectfully dissent. I This lawsuit concerns a decision by the city of Paterson, New Jersey (hereinafter City), to demote one of its police officers, Jeffrey Heffernan. At the time of Heffernan’s demotion, Paterson’s mayor, Jose Torres, was running for reelection against one of Heffernan’s friends, Lawrence Spagnola. The police chief demoted Heffernan after another officer assigned to Mayor Torres’ security detail witnessed Heffernan pick up a Spagnola campaign sign when Heffernan was off duty. Heffernan claimed that he picked up the sign solely as an errand for his bedridden mother. Heffernan denied supporting or associating with Spagnola’s campaign and disclaimed any intent to communicate support for Spagnola by retrieving the campaign sign. Despite Heffernan’s assurances that he was not engaged in protected First Amendment activity, he filed this lawsuit alleging that his employer violated his First Amendment rights by demoting him based on its mistaken belief that Heffernan had communicated support for the Spagnola campaign. II Title 42 U. S. C. §1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution.” For Heffernan to prevail on his §1983 claim, then, a state actor must have deprived him of a constitutional right. Nothing in the text of §1983 provides a remedy against public officials who attempt but fail to violate someone’s constitutional rights. There are two ways to frame Heffernan’s First Amendment claim, but neither can sustain his suit. As in most §1983 suits, his claim could be that the City interfered with his freedom to speak and assemble. But because Heffernan has conceded that he was not engaged in protected speech or assembly when he picked up the sign, the majority must resort to a second, more novel framing. It concludes that Heffernan states a §1983 claim because the City unconstitutionally regulated employees’ political speech and Heffernan was injured because that policy resulted in his demotion. See ante, at 6. Under that theory, too, Heffernan’s §1983 claim fails. A city’s policy, even if unconstitutional, cannot be the basis of a §1983 suit when that policy does not result in the infringement of the plaintiff’s constitutional rights. A To state a claim for retaliation in violation of the First Amendment, public employees like Heffernan must allege that their employer interfered with their right to speak as a citizen on a matter of public concern. Whether the employee engaged in such speech is the threshold inquiry under the Court’s precedents governing whether a public employer violated the First Amendment rights of its employees. See Garcetti v. Ceballos , 547 U. S. 410, 418 (2006) . If the employee has not spoken on a matter of public concern, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Ibid. If the employee did, however, speak as a citizen on a matter of public concern, then the Court looks to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Ibid. Under this framework, Heffernan’s claim fails at the first step. He has denied that, by picking up the yard sign, he “spoke as a citizen on a matter of public concern.” Ibid. In fact, Heffernan denies speaking in support of or associating with the Spagnola campaign. He has claimed that he picked up the yard sign only as an errand for hisbedridden mother. Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional. To be sure, Heffernan could exercise his First Amendment rights by choosing not to assemble with the Spagnola campaign. Cf. Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U. S. 539, 559 (1985) (freedom of expression “includes both the right to speak freely and the right to refrain from speaking at all” (internal quotation marks omitted)). But such an allegation could not save his claim here. A retaliation claim requires proving that Heffernan’s protected activity was a cause-in-fact of the retaliation. See University of Tex. Southwestern Medical Center v. Nassar , 570 U. S. ___, ___ (2013) (slip op., at 23). And Heffernan’s exercise of his right not to associate with the Spagnola campaign did not cause his demotion. Rather, his perceived association with the Spagnola campaign did. At bottom, Heffernan claims that the City tried to interfere with his constitutional rights and failed. But it is not enough for the City to have attempted to infringe his First Amendment rights. To prevail on his claim, he must establish that the City actually did so. The City’s attempt never ripened into an actual violation of Heffernan’s constitutional rights because, unbeknownst to the City, Heffernan did not support Spagnola’s campaign. Though, in criminal law, a factually impossible attempt like the City’s actions here could constitute an attempt,[ 1 ]* there is no such doctrine in tort law. A plaintiff may maintain a suit only for a completed tort; “[t]here are no attempted torts.” United States v. Stefonek , 179 F. 3d 1030, 1036 (CA7 1999) (internal quotation marks omitted); see also Sebok, Deterrence or Disgorgement? Reading Ciraolo After Campbell , 64 Md. L. Rev. 541, 565 (2005) (same). And “there can be no doubt that claims brought pursuant to §1983 sound in tort.” Monterey v. Del Monte Dunes at Monterey, Ltd. , 526 U. S. 687, 709 (1999) . Because Heffernan could claim at most that the City attempted to interfere with his First Amendment rights, he cannot prevail on a claim under the theory that the City infringed his right to speak freely or assemble. B To get around this problem of factual impossibility, the majority reframes Heffernan’s case as one about the City’s lack of power to act with unconstitutional motives. See ante, at 4. Under the majority’s view, the First Amendment prohibits the City from taking an adverse employment action intended to impede an employee’s rights to speak and assemble, regardless of whether the City has accurately perceived an employee’s political affiliation. The majority surmises that an attempted violation of an employee’s First Amendment rights can be just as harmful as a successful deprivation of First Amendment rights. Ante, at 7. And the majority concludes that the City’s demotion of Heffernan based on his wrongfully perceived association with a political campaign is no differentfrom the City’s demotion of Heffernan based on his actual association with a political campaign. Ante , at 6. But §1983 does not provide a cause of action for unauthorized government acts that do not infringe the constitutional rights of the §1983 plaintiff. See Blessing v. Freestone , 520 U. S. 329, 340 (1997) (“In order to seek redress through §1983, . . . a plaintiff must assert the violation of a federal right , not merely a violation of federal law ”). Of course the First Amendment “focus[es] upon the activity of the Government.” Ante , at 6. See Amdt. 1 (“Congress shall make no law . . . ”). And here, the “activity of Government” has caused Heffernan harm, namely, a demotion. But harm alone is not enough; it has to be the right kind of harm. Section 1983 provides a remedy only if the City has violated Heffernan’s constitutional rights , not if it has merely caused him harm. Restated in the language of tort law, Heffernan’s injury must result from activities within the zone of interests that §1983 protects. Cf. Lexmark Int’l, Inc. v. Static Control Components, Inc. , 572 U. S. ___, ___, n. 5 (2014) (slip op., at 11, n. 5) (discussing the zone-of-interests test in the context of negligence per se ). The mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured. Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse , 440 U. S. 648, 661 (1979) . And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a §1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury. They must allege, instead, that their injury amounted to a violation of their constitutional right against unreasonable seizures—that is, by being unconstitutionally detained. Here too, Heffernan must allege more than an injury from an unconstitutional policy. He must establish that this policy infringed his constitutional rights to speak freely and peaceably assemble. Even if the majority is correct that demoting Heffernan for a politically motivated reason was beyond the scope of the City’s power, the City never invaded Heffernan ’s right to speak or assemble. Accordingly, he is not entitled to money damages under §1983 for the nonviolation of his First Amendment rights. The majority tries to distinguish the Fourth Amendment by emphasizing the textual differences between that Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment . . . , the First Amendment begins by focusing upon the activity of the Government”). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Government” by “tak[ing] certain policy choices off the table.” District of Columbia v. Heller , 554 U. S. 570, 636 (2008) ; see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55–57 (1913) (recognizing that an immunity implies a corresponding lack of power). Fourth Amendment rights could be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins “Congress shall make no law” does not broaden a citizen’s ability to sue to vindicate his freedoms of speech and assembly. To reach the opposite conclusion, the majority relies only on Waters v. Churchill , 511 U. S. 661 (1994) (plurality opinion). See ante, at 5–7. But Waters does not support the majority’s expansion of §1983 to cases where the employee did not exercise his First Amendment rights. The issue in Waters was whether a public employer violated the First Amendment where it reasonably believed that the speech it proscribed was unprotected. The Court concluded that the employer did not violate the First Amendment because it reasonably believed the employee’s speech was unprotected: “We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information.” 511 U. S., at 679. And the Court reaffirmed that, to state a First Amendment retaliation claim, the public employee must allege that she spoke on a matter of public concern. See id., at 681. Unlike the employee in Waters , Heffernan admits that he was not engaged in constitutionally protected activity. Accordingly, unlike in Waters, he cannot allege that his employer interfered with conduct protected by the First Amendment. “[W]hat is sauce for the goose” is not “sauce for the gander,” ante , at 6, when the goose speaks and the gander does not. *  *  * If the facts are as Heffernan has alleged, the City’s demotion of him may be misguided or wrong. But, because Heffernan concedes that he did not exercise his First Amendment rights, he has no cause of action under §1983. I respectfully dissent. Notes 1 * Factual impossibility occurs when “an actor engages in conduct designed to culminate in the commission of an offense that is impossible for him to consummate under the existing circumstances.” 1 P. Robinson, Criminal Law Defenses §85, p. 422 (1984). Canonical examples include an attempt to steal from an empty pocket, State v. Wilson , 30 Conn. 500, 505 (1862), or an attempt to commit false pretenses where the victim had no money, People v. Arberry , 13 Cal. App. 749, 757 (1910).

The Supreme Court ruled that a government official's mistaken belief that an employee engaged in political activity is protected by the First Amendment, even if the employee did not actually engage in such activity. This case centered around a police officer who was demoted for allegedly supporting a candidate running against the incumbent mayor, when in fact he was acting on behalf of his mother. The Court held that the officer's demotion "deprived him of a right secured by the Constitution," regardless of the factual mistake.

Labor & Employment

Vance v. Ball State University

https://supreme.justia.com/cases/federal/us/570/421/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–556 _________________ MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITY on writ of certiorari to the united states court of appeals for the seventh circuit [June 24, 2013]      Justice Alito delivered the opinion of the Court.      In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , and Far- agher v. Boca Raton, 524 U. S. 775 (1998) , namely, who qualifies as a “supervisor” in a case in which an employee asserts a Title VII claim for workplace harassment?      Under Title VII, an employer’s liability for such harassment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “super- visor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Id., at 807; Ellerth, supra, at 765. Under this framework, therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.      We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim, and we therefore affirm the judgment of the Seventh Circuit. I      Maetta Vance, an African-American woman, began working for Ball State University (BSU) in 1989 as a sub- stitute server in the University Banquet and Catering division of Dining Services. In 1991, BSU promoted Vance to a part-time catering assistant position, and in 2007 she applied and was selected for a position as a full-time catering assistant.      Over the course of her employment with BSU, Vance lodged numerous complaints of racial discrimination and retaliation, but most of those incidents are not at issue here. For present purposes, the only relevant incidents concern Vance’s interactions with a fellow BSU employee, Saundra Davis.      During the time in question, Davis, a white woman, was employed as a catering specialist in the Banquet and Catering division. The parties vigorously dispute the precise nature and scope of Davis’ duties, but they agree that Davis did not have the power to hire, fire, demote, promote, transfer, or discipline Vance. See No. 1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *12 (SD Ind., Sept. 10, 2008) (“Vance makes no allegations that Ms. Davis possessed any such power”); Brief for Petitioner 9–11 (describing Davis’ authority over Vance); Brief for Respondent 39 (“[A]ll agree that Davis lacked the author- ity to take tangible employments [sic] actions against petitioner”).      In late 2005 and early 2006, Vance filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination, and many of these complaints and charges pertained to Davis. 646 F. 3d 461, 467 (CA7 2011). Vance complained that Davis “gave her a hard time at work by glaring at her, slamming pots and pans around her, and intimidating her.” Ibid. She alleged that she was “left alone in the kitchen with Davis, who smiled at her”; that Davis “blocked” her on an elevator and “stood there with her cart smiling”; and that Davis often gave her “weird” looks. Ibid. (internal quotation marks omitted).      Vance’s workplace strife persisted despite BSU’s attempts to address the problem. As a result, Vance filed this lawsuit in 2006 in the United States District Court for the Southern District of Indiana, claiming, among other things, that she had been subjected to a racially hostile work environment in violation of Title VII. In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment. Complaint in No. 1:06–cv–01452–SEB–TAB (SD Ind., Oct. 3, 2006), Dkt. No. 1, pp. 5–6.      Both parties moved for summary judgment, and the District Court entered summary judgment in favor of BSU. 2008 WL 4247836, at *1. The court explained that BSU could not be held vicariously liable for Davis’ alleged racial harassment because Davis could not “ ‘hire, fire, demote, promote, transfer, or discipline’ ” Vance and, as a result, was not Vance’s supervisor under the Seventh Circuit’s interpretation of that concept. See id., at *12 (quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7 2002)). The court further held that BSU could not be liable in negligence because it responded reasonably to the incidents of which it was aware. 2008 WL 4247836, *15.      The Seventh Circuit affirmed. 646 F. 3d 461. It explained that, under its settled precedent, supervisor status requires “ ‘the power to hire, fire, demote, promote, transfer, or discipline an employee.’ ” Id., at 470 (quoting Hall, supra, at 355). The court concluded that Davis was not Vance’s supervisor and thus that Vance could not recover from BSU unless she could prove negligence. Finding that BSU was not negligent with respect to Davis’ conduct, the court affirmed. 646 F. 3d, at 470–473. II A      Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). This provision obviously prohibits discrimination with respect to employment decisions that have direct economic consequences, such as termination, demotion, and pay cuts. But not long after Title VII was enacted, the lower courts held that Title VII also reaches the creation or perpetuation of a discriminatory work environment.      In the leading case of Rogers v. EEOC, 454 F. 2d 234 (1971), the Fifth Circuit recognized a cause of action based on this theory. See Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 –66 (1986) (describing development of hostile environment claims based on race). The Rogers court reasoned that “the phrase ‘terms, conditions, or privileges of employment’ in [Title VII] is an expansive concept which sweeps within its protective ambit the practice of creating a working environment heavily charged with ethnic or racial discrimination.” 454 F. 2d, at 238. The court observed that “[o]ne can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psy- chological stability of minority group workers.” Ibid. Following this decision, the lower courts generally held that an employer was liable for a racially hostile work environ- ment if the employer was negligent, i.e., if the employer knew or reasonably should have known about the harassment but failed to take remedial action. See Ellerth, 524 U. S., at 768–769 (Thomas, J., dissenting) (citing cases).      When the issue eventually reached this Court, we agreed that Title VII prohibits the creation of a hostile work environment. See Meritor, supra, at 64–67. In such cases, we have held, the plaintiff must show that the work environment was so pervaded by discrimination that the terms and conditions of employment were altered. See, e.g., Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) . B      Consistent with Rogers, we have held that an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior. Faragher, 524 U. S., at 789. Courts have generally applied this rule to evaluate employer liability when a co-worker harasses the plaintiff. [ 1 ]      In Ellerth and Faragher, however, we held that different rules apply where the harassing employee is the plain- tiff’s “supervisor.” In those instances, an employer may be vicariously liable for its employees’ creation of a hostile work environment. And in identifying the situations in which such vicarious liability is appropriate, we looked to the Restatement of Agency for guidance. See, e.g., Meri- tor, supra, at 72; Ellerth, supra, at 755.      Under the Restatement, “masters” are generally not liable for the torts of their “servants” when the torts are committed outside the scope of the servants’ employment. See 1 Restatement (Second) of Agency §219(2), p. 481 (1957) (Restatement). And because racial and sexual harassment are unlikely to fall within the scope of a servant’s duties, application of this rule would generally preclude employer liability for employee harassment. See Faragher, supra, at 793–796; Ellerth, supra, at 757. But in Ellerth and Faragher, we held that a provision of the Restatement provided the basis for an exception. Section 219(2)(d) of that Restatement recognizes an exception to the general rule just noted for situations in which the servant was “aided in accomplishing the tort by the existence of the agency relation.” [ 2 ] Restatement 481; see Far- agher, supra, at 802–803; Ellerth, supra, at 760–763.      Adapting this concept to the Title VII context, Ellerth and Faragher identified two situations in which the aided-in-the-accomplishment rule warrants employer liability even in the absence of negligence, and both of these situations involve harassment by a “supervisor” as opposed to a co-worker. First, the Court held that an employer is vicariously liable “when a supervisor takes a tangible employment action,” Ellerth, supra, at 762; Faragher, supra, at 790—i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, 524 U. S., at 761. We explained the reason for this rule as follows: “When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. . . . A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors.” Id., at 761–762. In those circumstances, we said, it is appropriate to hold the employer strictly liable. See Faragher, supra, at 807; Ellerth, supra, at 765.      Second, Ellerth and Faragher held that, even when a supervisor’s harassment does not culminate in a tangible employment action, the employer can be vicariously liable for the supervisor’s creation of a hostile work environment if the employer is unable to establish an affirmative defense. [ 3 ] We began by noting that “a supervisor’s power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation.” El- lerth, supra, at 763; see Faragher, 524 U. S., at 803–805. But it would go too far, we found, to make employers strictly liable whenever a “supervisor” engages in harassment that does not result in a tangible employment action, and we therefore held that in such cases the employer may raise an affirmative defense. Specifically, an employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided. Faragher, supra, at 807; Ellerth, 524 U. S., at 765. This compromise, we ex- plained, “accommodate[s] the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees.” Id., at 764.      The dissenting Members of the Court in Ellerth and Faragher would not have created a special rule for cases involving harassment by “supervisors.” Instead, they would have held that an employer is liable for any employee’s creation of a hostile work environment “if, and only if, the plaintiff proves that the employer was negligent in permitting the [offending] conduct to occur.” Ellerth, supra, at 767 (Thomas, J., dissenting); Faragher, supra, at 810 (same). C      Under Ellerth and Faragher, it is obviously important whether an alleged harasser is a “supervisor” or merely a co-worker, and the lower courts have disagreed about the meaning of the concept of a supervisor in this context. Some courts, including the Seventh Circuit below, have held that an employee is not a supervisor unless he or she has the power to hire, fire, demote, promote, transfer, or discipline the victim. E.g., 646 F. 3d, at 470; Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004). Other courts have substantially followed the more open-ended approach advocated by the EEOC’s Enforcement Guidance, which ties supervisor status to the ability to exercise significant direction over another’s daily work. See, e.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 126–127 (CA2 2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 245–247 (CA4 2010); EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, *3 (hereinafter EEOC Guidance).      We granted certiorari to resolve this conflict. 567 U. S. ___ (2012). III      We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “sig- nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance [ 4 ] and substantially adopted by several courts of appeals. Petitioner’s reliance on colloquial uses of the term “supervisor” is misplaced, and her contention that our cases require the EEOC’s abstract definition is simply wrong.      As we will explain, the framework set out in Ellerth and Faragher presupposes a clear distinction between supervisors and co-workers. Those decisions contemplate a unitary category of supervisors, i.e., those employees with the authority to make tangible employment decisions. There is no hint in either decision that the Court had in mind two categories of supervisors: first, those who have such authority and, second, those who, although lacking this power, nevertheless have the ability to direct a co-worker’s labor to some ill-defined degree. On the contrary, the Ellerth/Faragher framework is one under which supervisory status can usually be readily determined, generally by written documentation. The approach recommended by the EEOC Guidance, by contrast, would make the determination of supervisor status depend on a highly case-specific evaluation of numerous factors.      The Ellerth/Faragher framework represents what the Court saw as a workable compromise between the aided-in-the-accomplishment theory of vicarious liability and the legitimate interests of employers. The Seventh Circuit’s understanding of the concept of a “supervisor,” with which we agree, is easily workable; it can be applied without undue difficulty at both the summary judgment stage and at trial. The alternative, in many cases, would frustrate judges and confound jurors. A      Petitioner contends that her expansive understanding of the concept of a “supervisor” is supported by the meaning of the word in general usage and in other legal contexts, see Brief for Petitioner 25–28, but this argument is both incorrect on its own terms and, in any event, misguided.      In general usage, the term “supervisor” lacks a sufficiently specific meaning to be helpful for present purposes. Petitioner is certainly right that the term is often used to refer to a person who has the authority to direct another’s work. See, e.g., 17 Oxford English Dictionary 245 (2d ed. 1989) (defining the term as applying to “one who inspects and directs the work of others”). But the term is also often closely tied to the authority to take what Ellerth and Faragher referred to as a “tangible employment action.” See, e.g., Webster’s Third New International Dictionary 2296, def. 1(a) (1976) (“a person having authority dele- gated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to rec- ommend such action”).      A comparison of the definitions provided by two colloquial business authorities illustrates the term’s imprecision in general usage. One says that “[s]upervisors are usually authorized to recommend and/or effect hiring, disciplining, promoting, punishing, rewarding, and other associated activities regarding the employees in their departments.” [ 5 ] Another says exactly the opposite: “A supervisor generally does not have the power to hire or fire employees or to promote them.” [ 6 ] Compare Ellerth, 524 U. S., at 762 (“Tangible employment actions fall within the special province of the supervisor”).      If we look beyond general usage to the meaning of the term in other legal contexts, we find much the same situation. Sometimes the term is reserved for those in the upper echelons of the management hierarchy. See, e.g., 25 U. S. C. §2021(18) (defining the “supervisor” of a school within the jurisdiction of the Bureau of Indian Affairs as “the individual in the position of ultimate authority at a Bureau school”). But sometimes the term is used to refer to lower ranking individuals. See, e.g., 29 U. S. C. §152(11) (defining a supervisor to include “any individual having authority . . . to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment”); 42 U. S. C. §1396n(j)(4)(A) (providing that an eligible Medicaid beneficiary who receives care through an approved self-directed services plan may “hire, fire, supervise, and manage the individuals providing such services”).      Although the meaning of the concept of a supervisor varies from one legal context to another, the law often contemplates that the ability to supervise includes the ability to take tangible employment actions. [ 7 ] See, e.g., 5 CFR §§9701.511(a)(2), (3) (2012) (referring to a supervisor’s authority to “hire, assign, and direct employees . . . and [t]o lay off and retain employees, or to suspend, re- move, reduce in grade, band, or pay, or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source”); §9701.212(b)(4) (defining “supervisory work” as that which “may involve hiring or selecting employees, assigning work, managing performance, recognizing and rewarding employees, and other associated duties”).      In sum, the term “supervisor” has varying meanings both in colloquial usage and in the law. And for this reason, petitioner’s argument, taken on its own terms, is unsuccessful.      More important, petitioner is misguided in suggesting that we should approach the question presented here as if “supervisor” were a statutory term. “Supervisor” is not a term used by Congress in Title VII. Rather, the term was adopted by this Court in Ellerth and Faragher as a label for the class of employees whose misconduct may give rise to vicarious employer liability. Accordingly, the way to understand the meaning of the term “supervisor” for present purposes is to consider the interpretation that best fits within the highly structured framework that those cases adopted. B      In considering Ellerth and Faragher, we are met at the outset with petitioner’s contention that at least some of the alleged harassers in those cases, whom we treated as supervisors, lacked the authority that the Seventh Circuit’s definition demands. This argument misreads our decisions.      In Ellerth, it was clear that the alleged harasser was a supervisor under any definition of the term: He hired his victim, and he promoted her (subject only to the minis- terial approval of his supervisor, who merely signed the paperwork). 524 U. S., at 747. Ellerth was a case from the Seventh Circuit, and at the time of its decision in that case, that court had already adopted its current definition of a supervisor. See Volk v. Coler, 845 F. 2d 1422, 1436 (1988). See also Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033, n. 1 (CA7 1998) (discussing Circuit case law). Although the en banc Seventh Circuit in Ellerth issued eight separate opinions, there was no disagreement about the harasser’s status as a supervisor. Jansen v. Packaging Corp. of America, 123 F. 3d 490 (1997) (per curiam). Likewise, when the case reached this Court, no question about the harasser’s status was raised.      The same is true with respect to Faragher. In that case, Faragher, a female lifeguard, sued her employer, the city of Boca Raton, for sexual harassment based on the conduct of two other lifeguards, Bill Terry and David Silverman, and we held that the city was vicariously liable for Terry’s and Silverman’s harassment. Although it is clear that Terry had authority to take tangible employment actions affecting the victim, [ 8 ] see 524 U. S., at 781 (explaining that Terry could hire new lifeguards, supervise their work assignments, counsel, and discipline them), Silverman may have wielded less authority, ibid. (noting that Silverman was “responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training”). Nevertheless, the city never disputed Far- agher’s characterization of both men as her “supervisors.” See App., O. T. 1997, No. 97–282, p. 40 (First Amended Complaint ¶¶6–7); id., at 79 (Answer to First Amended Complaint ¶¶6–7) (admitting that both harassers had “supervisory responsibilities” over the plaintiff). [ 9 ]      In light of the parties’ undisputed characterization of the alleged harassers, this Court simply was not presented with the question of the degree of authority that an employee must have in order to be classified as a supervisor. [ 10 ] The parties did not focus on the issue in their briefs, although the victim in Faragher appears to have agreed that supervisors are employees empowered to take tangible employment actions. See Brief for Petitioner, O. T. 1997, No. 97–282, p. 24 (“Supervisors typically exercise broad discretionary powers over their subordinates, determining many of the terms and conditions of their employment, including their raises and prospects for pro- motion and controlling or greatly influencing whether they are to be dismissed”).      For these reasons, we have no difficulty rejecting petition- er’s argument that the question before us in the present case was effectively settled in her favor by our treatment of the alleged harassers in Ellerth and Faragher. [ 11 ]      The dissent acknowledges that our prior cases do “not squarely resolve whether an employee without power to take tangible employment actions may nonetheless qualify as a supervisor,” but accuses us of ignoring the “all-too-plain reality” that employees with authority to control their subordinates’ daily work are aided by that authority in perpetuating a discriminatory work environment. Post, at 8 (opinion of Ginsburg, J.). As Ellerth recognized, however, “most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation,” and consequently “something more” is required in order to warrant vicarious liability. 524 U. S., at 760. The ability to direct another employee’s tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments, see post, at 9–11 (discussing examples), but so are many other co-workers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions. C      Although our holdings in Faragher and Ellerth do not resolve the question now before us, we believe that the answer to that question is implicit in the characteristics of the framework that we adopted.      To begin, there is no hint in either Ellerth or Faragher that the Court contemplated anything other than a unitary category of supervisors, namely, those possessing the authority to effect a tangible change in a victim’s terms or conditions of employment. The Ellerth/Faragher framework draws a sharp line between co-workers and supervisors. Co-workers, the Court noted, “can inflict psychologi- cal injuries” by creating a hostile work environment, but they “cannot dock another’s pay, nor can one co-worker demote another.” Ellerth, 524 U. S., at 762. Only a supervisor has the power to cause “direct economic harm” by taking a tangible employment action. Ibid. “Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control. . . . Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates.” Ibid. (emphasis added). The strong implication of this passage is that the authority to take tangible employment actions is the defining characteristic of a supervisor, not simply a characteristic of a subset of an ill-defined class of employees who qualify as supervisors.      The way in which we framed the question presented in Ellerth supports this understanding. As noted, the Ellerth/Faragher framework sets out two circumstances in which an employer may be vicariously liable for a supervisor’s harassment. The first situation (which results in strict liability) exists when a supervisor actually takes a tangible employment action based on, for example, a subordinate’s refusal to accede to sexual demands. The second situation (which results in vicarious liability if the employer cannot make out the requisite affirmative defense) is present when no such tangible action is taken. Both Ellerth and Faragher fell into the second category, and in Ellerth, the Court couched the question at issue in the following terms: “whether an employer has vicarious liability when a supervisor creates a hostile work en- vironment by making explicit threats to alter a subor- dinate’s terms or conditions of employment, based on sex, but does not fulfill the threat.” 524 U. S., at 754. This statement plainly ties the second situation to a supervisor’s authority to inflict direct economic injury. It is because a supervisor has that authority—and its potential use hangs as a threat over the victim—that vicarious liability (subject to the affirmative defense) is justified.      Finally, the Ellerth/Faragher Court sought a framework that would be workable and would appropriately take into account the legitimate interests of employers and employees. The Court looked to principles of agency law for guidance, but the Court concluded that the “malleable terminology” of the aided-in-the-commission principle counseled against the wholesale incorporation of that principle into Title VII case law. Ellerth, 524 U. S., at 763. Instead, the Court also considered the objectives of Title VII, including “the limitation of employer liability in certain circumstances.” Id., at 764.      The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervi- sor, and in others, the alleged harasser’s status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment. By contrast, under the approach advocated by petitioner and the EEOC, supervisor status would very often be murky—as this case well illustrates. [ 12 ]      According to petitioner, the record shows that Davis, her alleged harasser, wielded enough authority to qualify as a supervisor. Petitioner points in particular to Davis’ job description, which gave her leadership responsibilities, and to evidence that Davis at times led or directed Vance and other employees in the kitchen. See Brief for Petitioner 42–43 (citing record); Reply Brief 22–23 (same). The United States, on the other hand, while applying the same open-ended test for supervisory status, reaches the opposite conclusion. At least on the present record, the United States tells us, Davis fails to qualify as a supervisor. Her job description, in the Government’s view, is not dispositive, and the Government adds that it would not be enough for petitioner to show that Davis “occasionally took the lead in the kitchen.” Brief for United States as Amicus Curiae 31 (U. S. Brief).      This disagreement is hardly surprising since the EEOC’s definition of a supervisor, which both petitioner and the United States defend, is a study in ambiguity. In its Enforcement Guidance, the EEOC takes the position that an employee, in order to be classified as a supervisor, must wield authority “ ‘of sufficient magnitude so as to as- sist the harasser explicitly or implicitly in carrying out the harassment.’ ” Id., at 27 (quoting App. to Pet. for Cert. 89a (EEOC Guidance)). But any authority over the work of another employee provides at least some assistance, see Ellerth, supra, at 763, and that is not what the United States interprets the Guidance to mean. Rather, it informs us, the authority must exceed both an ill-defined temporal requirement (it must be more than “occa- siona[l]”) and an ill-defined substantive requirement (“an employee who directs ‘only a limited number of tasks or assignments’ for another employee . . . would not have sufficient authority to qualify as a supervisor.” U. S. Brief 28 (quoting App. to Pet. for Cert. 92a (EEOC Guidance)); U. S. Brief 31.      We read the EEOC Guidance as saying that the number (and perhaps the importance) of the tasks in question is a factor to be considered in determining whether an employee qualifies as a supervisor. And if this is a correct interpretation of the EEOC’s position, what we are left with is a proposed standard of remarkable ambiguity.      The vagueness of this standard was highlighted at oral argument when the attorney representing the United States was asked to apply that standard to the situation in Faragher, where the alleged harasser supposedly threatened to assign the plaintiff to clean the toilets in the lifeguard station for a year if she did not date him. 524 U. S., at 780. Since cleaning the toilets is just one task, albeit an unpleasant one, the authority to assign that job would not seem to meet the more-than-a-limited-number-of-tasks requirement in the EEOC Guidance. Nevertheless, the Government attorney’s first response was that the authority to make this assignment would be enough. Tr. of Oral Arg. 23. He later qualified that answer by saying that it would be necessary to “know how much of the day’s work [was] encompassed by cleaning the toilets.” Id., at 23–24. He did not explain what percentage of the day’s work (50%, 25%, 10%?) would suffice.      The Government attorney’s inability to provide a de- finitive answer to this question was the inevitable con- sequence of the vague standard that the Government asks us to adopt. Key components of that standard—“sufficient” authority, authority to assign more than a “limited number of tasks,” and authority that is exercised more than “occasionally”—have no clear meaning. Applying these standards would present daunting problems for the lower federal courts and for juries.      Under the definition of “supervisor” that we adopt today, the question of supervisor status, when contested, can very often be resolved as a matter of law before trial. The elimination of this issue from the trial will focus the efforts of the parties, who will be able to present their cases in a way that conforms to the framework that the jury will apply. The plaintiff will know whether he or she must prove that the employer was negligent or whether the employer will have the burden of proving the elements of the Ellerth/Faragher affirmative defense. Perhaps even more important, the work of the jury, which is inevitably complicated in employment discrimination cases, will be simplified. The jurors can be given preliminary instructions that allow them to understand, as the evidence comes in, how each item of proof fits into the framework that they will ultimately be required to apply. And even where the issue of supervisor status cannot be eliminated from the trial (because there are genuine factual disputes about an alleged harasser’s authority to take tangible employment actions), this preliminary question is rela- tively straightforward.      The alternative approach advocated by petitioner and the United States would make matters far more complicated and difficult. The complexity of the standard they favor would impede the resolution of the issue before trial. With the issue still open when trial commences, the parties would be compelled to present evidence and argu- ment on supervisor status, the affirmative defense, and the question of negligence, and the jury would have to grapple with all those issues as well. In addition, it would often be necessary for the jury to be instructed about two very different paths of analysis, i.e., what to do if the alleged harasser was found to be a supervisor and what to do if the alleged harasser was found to be merely a co-worker.      Courts and commentators alike have opined on the need for reasonably clear jury instructions in employment discrimination cases. [ 13 ] And the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof. [ 14 ] By simplifying the process of determining who is a supervisor (and by extension, which liability rules apply to a given set of facts), the approach that we take will help to ensure that juries return verdicts that reflect the application of the correct legal rules to the facts.      Contrary to the dissent’s suggestions, see post, at 14, 17, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be con- sidered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly, see post, 9–11 (offering examples), and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here. D      The dissent argues that the definition of a supervisor that we now adopt is out of touch with the realities of the workplace, where individuals with the power to assign daily tasks are often regarded by other employees as supervisors. See post, at 5, 8–12. But in reality it is the alternative that is out of touch. Particularly in modern organizations that have abandoned a highly hierarchical management structure, it is common for employees to have overlapping authority with respect to the assignment of work tasks. Members of a team may each have the responsibility for taking the lead with respect to a particular aspect of the work and thus may have the responsibility to direct each other in that area of responsibility.      Finally, petitioner argues that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions. But a broad definition of “supervisor” is not necessary to guard against this concern.      As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actu- ally interact with the affected employee. Cf. Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 509 (CA7 2004) (Rovner, J., concurring in part and concurring in judgment) (“Although they did not have the power to take formal employment actions vis-à-vis [the victim], [the harassers] necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work—certainly more familiar with it than the off-site Department Administrative Services Manager”). Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth, 524 U. S., at 762. IV      Importuning Congress, post, at 21–22, the dissent suggests that the standard we adopt today would cause the plaintiffs to lose in a handful of cases involving shocking allegations of harassment, see post, at 9–12. However, the dissent does not mention why the plaintiffs would lose in those cases. It is not clear in any of those examples that the legal outcome hinges on the definition of “supervisor.” For example, Clara Whitten ultimately did not prevail on her discrimination claims—notwithstanding the fact that the Fourth Circuit adopted the approach advocated by the dissent, see Whitten v. Fred’s, Inc., 601 F. 3d 231, 243–247 (2010)—because the District Court subsequently dismissed her claims for lack of jurisdiction. See Whitten v. Fred’s, Inc., No. 8:08–0218–HMH–BHH, 2010 WL 2757005, *3 (D SC, July 12, 2010). And although the dissent suggests that Donna Rhodes’ employer would have been liable under the dissent’s definition of “supervisor,” that is pure speculation: It is not clear that Rhodes suffered any tangible employment action, see Rhodes v. Illinois Dept. of Transp., 243 F. Supp. 2d 810, 817 (ND Ill. 2003), and no court had occasion to determine whether the employer could have established the affirmative defense (a prospect that is certainly feasible given that there was evidence that the employer had an “adequate anti-harassment policy in place,” that the employer promptly addressed the incidents about which Rhodes complained, and that “Rhodes failed to take advantage of the preventative or corrective opportunities provided,” Rhodes v. Illinois Dept. of Transp., 359 F. 3d, at 507). [ 15 ] Finally, the dissent’s reliance on Monika Starke’s case is perplexing given that the EEOC ultimately did obtain relief (in the amount of $50,000) for the harassment of Starke, [ 16 ] see Order of Dismissal in No. 1:07–cv–0095–LRR (ND Iowa, Feb. 2, 2013), Dkt. No. 380, Exh.  1, ¶1, notwithstanding the fact that the court in that case applied the definition of “supervisor” that we adopt today, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 684 (CA8 2012).      In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding “relieves scores of employers of responsibility” for the behavior of workers they employ. Post, at 14.      The standard we adopt is not untested. It has been the law for quite some time in the First, Seventh, and Eighth Circuits, see, e.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Weyers v. Lear Operations Corp., 359 F. 3d 1049, 1057 (CA8 2004); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1033–1034, and n. 1 (CA7 1998)—i.e., in Arkansas, Illinois, Indiana, Iowa, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, North Dakota, Rhode Island, South Dakota, and Wisconsin. We are aware of no evidence that this rule has produced dire consequences in these 14 jurisdictions.      Despite its rhetoric, the dissent acknowledges that Davis, the alleged harasser in this case, would probably not qualify as a supervisor even under the dissent’s preferred approach. See post, at 20 (“[T]here is cause to anticipate that Davis would not qualify as Vance’s supervisor”). On that point, we agree. Petitioner did refer to Davis as a “supervisor” in some of the complaints that she filed, App. 28; id., at 45, and Davis’ job description does state that she supervises Kitchen Assistants and Substitutes and “[l]ead[s] and direct[s]” certain other employees, id., at 12–13. But under the dissent’s preferred approach, supervisor status hinges not on formal job titles or “paper descriptions” but on “specific facts about the working relationship.” Post, at 20–21 (internal quotation marks omitted).      Turning to the “specific facts” of petitioner’s and Davis’ working relationship, there is simply no evidence that Davis directed petitioner’s day-to-day activities. The record indicates that Bill Kimes (the general manager of the Catering Division) and the chef assigned petitioner’s daily tasks, which were given to her on “prep lists.” No. 1:06–cv–1452–SEB–JMS, 2008 WL 4247836, *7 (SD Ind., Sept. 10, 2008); App. 430, 431. The fact that Davis sometimes may have handed prep lists to petitioner, see id., at 74, is insufficient to confer supervisor status, see App. to Pet. for Cert. 92a (EEOC Guidance). And Kimes—not Davis—set petitioner’s work schedule. See App. 431. See also id., at 212.      Because the dissent concedes that our approach in this case deprives petitioner of none of the protections that Ti- tle VII offers, the dissent’s critique is based on nothing more than a hypothesis as to how our approach might affect the outcomes of other cases—cases where an employee who cannot take tangible employment actions, but who does direct the victim’s daily work activities in a meaningful way, creates an unlawful hostile environment, and yet does not wield authority of such a degree and nature that the employer can be deemed negligent with respect to the harassment. We are skeptical that there are a great number of such cases. However, we are confident that, in every case, the approach we take today will be more easily administrable than the approach advocated by the dissent. *  *  *      We hold that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim. Because there is no evidence that BSU empowered Davis to take any tangible employment actions against Vance, the judgment of the Seventh Circuit is affirmed. It is so ordered. Notes 1 See, e.g., Williams v. Waste Management of Ill., 361 F. 3d 1021, 1029 (CA7 2004); McGinest v. GTE Serv. Corp., 360 F. 3d 1103, 1119 (CA9 2004); Joens v. John Morrell & Co., 354 F. 3d 938, 940 (CA8 2004); Noviello v. Boston, 398 F. 3d 76, 95 (CA1 2005); Duch v. Jakubek, 588 F. 3d 757, 762 (CA2 2009); Huston v. Procter & Gamble Paper Prods. Corp., 568 F. 3d 100, 104–105 (CA3 2009). 2 The Restatement (Third) of Agency disposed of this exception to liability, explaining that “[t]he purposes likely intended to be met by the ‘aided in accomplishing’ basis are satisfied by a more fully elaborated treatment of apparent authority and by the duty of reasonable care that a principal owes to third parties with whom it interacts through employees and other agents.” 2 Restatement (Third) §7.08, p. 228 (2005). The parties do not argue that this change undermines our holdings in Faragher and Ellerth. 3 Faragher and Ellerth involved hostile environment claims premised on sexual harassment. Several federal courts of appeals have held that Faragher and Ellerth apply to other types of hostile environment claims, including race-based claims. See Spriggs v. Diamond Auto Glass, 242 F. 3d 179, 186, n. 9 (CA4 2001) (citing cases reflecting “the developing consensus . . . that the holdings [in Faragher and Ellerth] apply with equal force to other types of harassment claims under Title VII”). But see Ellerth, 524 U. S., at 767 (Thomas, J., dissenting) (stating that, as a result of the Court’s decision in Ellerth, “employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged”). Neither party in this case challenges the application of Faragher and Ellerth to race-based hostile environment claims, and we assume that the framework announced in Faragher and Ellerth applies to cases such as this one. 4 The United States urges us to defer to the EEOC Guidance. Brief for United States as Amicus Curiae 26–29 (citing Skidmore v. Swift & Co., ). But to do so would be proper only if the EEOC Guidance has the power to persuade, which “depend[s] upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Id., at 140. For the reasons explained below, we do not find the EEOC Guidance persuasive. 5 http://www.businessdictionary.com/definition/supervisor.html (all In-ternet materials as visited June 21, 2013, and available in Clerk of Court’s case file). 6 http://management.about.com/od/policiesandprocedures/g/supervisor1.html 7 One outlier that petitioner points to is the National Labor Relations Act (NLRA), . Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates. Brief for Petitioner 27–28. The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect. E.g., In re Connecticut Humane Society, 358 NLRB No. 31, *33 (Apr. 12, 2012); Frenchtown Acquisition Co., Inc. v. NLRB, 683 F. 3d 298, 305 (CA6 2012); Beverly Enterprises-Massachusetts, Inc. v. NLRB, 165 F. 3d 960, 963 (CADC 1999). Indeed, in defining a supervisor for purposes of the NLRA, Congress sought to distinguish “between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as theright to hire or fire, discipline, or make effective recommendations with respect to such action.” S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947). Cf. NLRB v. Health Care & Retirement Corp. of America, (HCRA) (Ginsburg, J., dissenting) (“Through case-by-case adjudication, the Board has sought to distinguish individuals exercising the level of control that truly places them in the ranks of management, from highly skilled employees, whether professional or technical, who perform, incidentally to their skilled work, a limited supervisory role”). Accordingly, the NLRB has interpreted the NLRA’s statutory definition of supervisor more narrowly than its plain language might permit. See, e.g., Connecticut Humane Society, supra, at *39 (an employee who evaluates others is not a supervisor unless the evaluation “affect[s] the wages and the job status of the employee evaluated”); In re CGLM, Inc., 350 NLRB 974, 977 (2007) (“ ‘If any authority over someone else, no matter how insignificant or infrequent, made an employee a super-visor, our industrial composite would be predominantly supervisory. Every order-giver is not a supervisor. Even the traffic director tells the president of the company where to park his car’ ” (quoting NLRB v. Security Guard Serv., Inc., 384 F. 2d 143, 151 (CA5 1967))). The NLRA therefore does not define the term “supervisor” as broadly as petitioner suggests. To be sure, the NLRA may in some instances define “supervisor” more broadly than we define the term in this case. But those differences reflect the NLRA’s unique purpose, which is to preserve the balance of power between labor and management, see HCRA, supra, at 573 (explaining that Congress amended the NLRA to exclude supervisors in order to address the “imbalance between labor and management” that resulted when “supervisory employees could organize as part of bargaining units and negotiate with the employer”). That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that Congress has decided that the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII. The NLRA’s definition of supervisor therefore is not controlling in this context. 8 The dissent suggests that it is unclear whether Terry would qualify as a supervisor under the test we adopt because his hiring decisions were subject to approval by higher management. Post, at 7, n. 1 (opinion of Ginsburg, J.). See also Faragher, 524 U. S., at 781. But we have assumed that tangible employment actions can be subject to such approval. See Ellerth, 524 U. S., at 762. In any event, the record indicates that Terry possessed the power to make employment decisions having direct economic consequences for his victims. See Brief for Petitioner in Faragher v. Boca Raton, O. T. 1997, No. 97–282, p. 9 (“No one, during the twenty years that Terry was Marine Safety Chief, was hired without his recommendation. [He] initiated firing and suspending personnel. [His] evaluations of the lifeguards translated into sal-ary increases. [He] made recommendations regarding promotions . . .” (citing record)). 9 Moreover, it is by no means certain that Silverman lacked the authority to take tangible employment actions against Faragher. In her merits brief, Faragher stated that, as a lieutenant, Silverman “made supervisory and disciplinary decisions and had input on the evaluations as well.” Id., at 9–10. If that discipline had economic consequences (such as suspension without pay), then Silverman might qualify as a supervisor under the definition we adopt today. Silverman’s ability to assign Faragher significantly different work responsibilities also may have constituted a tangible employment action. Silverman told Faragher, “ ‘Date me or clean the toilets for a year.’ ” Faragher, supra, at 780. That threatened reassignment of duties likely would have constituted significantly different responsibilities for a lifeguard, whose job typically is to guard the beach. If that reassignment had economic consequences, such as foreclosing Far-agher’s eligibility for promotion, then it might constitute a tangible employment action. 10 The lower court did not even address this issue. See Faragher v. Boca Raton, 111 F. 3d 1530, 1547 (CA11 1997) (Anderson, J., concurring in part and dissenting in part) (noting that it was unnecessary to “decide the threshold level of authority which a supervisor must possess in order to impose liability on the employer”). 11 According to the dissent, the rule that we adopt is also inconsistent with our decision in Pennsylvania State Police v. Suders, . See post, at 7–8. The question in that case was “whether a constructive discharge brought about by supervisor harassment ranks as a tangible employment action and therefore precludes assertion of the affirmative defense articulated in Ellerth and Faragher.” Suders, supra, at 140. As the dissent implicitly acknowledges, the supervi-sor status of the harassing employees was not before us in that case. See post, at 8. Indeed, the employer conceded early in the litigation that the relevant employees were supervisors, App. in Pennsylvania State Police v. Suders, O. T. 2003, No. 03–95, p. 20 (Answer ¶29),and we therefore had no occasion to question that unchallengedcharacterization. 12 The dissent attempts to find ambiguities in our holding, see post,at 15–16, and n. 5, but it is indisputable that our holding is orders of magnitude clearer than the nebulous standard it would adopt. Employment discrimination cases present an almost unlimited numberof factual variations, and marginal cases are inevitable under any standard. 13 See, e.g., Gross v. FBL Financial Services, Inc., ; Armstrong v. Burdette Tomlin Memorial Hospital, 438 F. 3d 240, 249 (CA3 2006) (noting in the context of McDonnell Douglas Corp. v. Green, , that that “the ‘prima facie case and the shifting burdens confuse lawyers and judges, much less juries, who do not have the benefit of extensive study of the law on the subject’ ” (quoting Mogull v. Commercial Real Estate, 162 N. J. 449, 471, 744 A. 2d 1186, 1199 (2000))); Whittington v. Nordam Group Inc., 429 F. 3d 986, 998 (CA10 2005) (noting that unnecessarily complicated instructions complicate a jury’s job in employment discrimination cases, and “unnecessary complexity increases the opportunity for error”); Sanders v. New York City Human Resources Admin., 361 F. 3d 749, 758 (CA2 2004) (“Making the burden-shifting scheme of McDonnell Douglas part of a jury charge undoubtedly constitutes error because of the manifest risk of confusion it creates”); Mogull, supra, at 473, 744 A. 2d, at 1200 (“Given the confusion that often results when the first and second stages of the McDonnell Douglas test goes to the jury, we recommend that the court should decide both those issues”); Tymkovich, The Problem with Pretext, 85 Denver Univ. L. Rev. 503, 527–529 (2008) (discussing the potential for jury confusion that arises when in-structions are unduly complex and proposing a simpler framework); Grebeldinger, Instructing the Jury in a Case of Circumstantial Individual Disparate Treatment: Thoroughness or Simplicity? 12 Lab. Law. 399, 419 (1997) (concluding that more straightforward instructions “provid[e] the jury with clearer guidance of their mission”); Davis, The Stumbling Three-Step, Burden-Shifting Approach in Employment Discrimination Cases, 61 Brook. L. Rev. 703, 742–743 (1995) (discussing potential for juror confusion in the face of complex instructions); Note, Toward a Motivating Factor Test for Individual Disparate Treatment Claims, 100 Mich. L. Rev. 234, 262–273 (2001) (discussing the need for a simpler approach to jury instructions in employment discrimination cases). 14 Cf. Struve, Shifting Burdens: Discrimination Law Through the Lens of Jury Instructions, 51 Boston College L. Rev. 279, 330–334 (2010) (arguing that unnecessary confusion arises when a jury must resolve different claims under different burden frameworks); Monahan, Cabrera v. Jakabovitz—A Common-Sense Proposal for Formulating Jury Instructions Regarding Shifting Burdens of Proof in Disparate Treatment Discrimination Cases, 5 Geo. Mason U. C. R. L. J. 55, 76 (1994) (“Any jury instruction that attempts to shift the burden of per-suasion on closely related issues is never likely to be successful”). 15 Similarly, it is unclear whether Yasharay Mack ultimately would have prevailed even under the dissent’s definition of “supervisor.” The Second Circuit (adopting a definition similar to that advocated by the dissent) remanded the case for the District Court to determine whether Mack “ ‘unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.’ ” Mack v. Otis Elevator Co., 326 F. 3d 116, 127–128 (2003) (quoting Ellerth, 524 U. S., at 765). But before it had an opportunity to make any such determination, Mack withdrew her complaint and the District Court dismissed her claims with prejudice. See Stipulation and Order of Dismissal in No. 1:00–cv–7778–LAP (SDNY, Oct. 21, 2004), Dkt. No. 63. 16 Starke herself lacked standing to pursue her claims, see EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), but the Eighth Circuit held that the EEOC could sue in its own name to remedy the sexual harassment against Starke and other CRST employees, see id., at 682. SUPREME COURT OF THE UNITED STATES _________________ No. 11–556 _________________ MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITY on writ of certiorari to the united states court of appeals for the seventh circuit [June 24, 2013]      Justice Thomas, concurring.      I continue to believe that Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , and Faragher v. Boca Raton, 524 U. S. 775 (1998) , were wrongly decided. See ante, at 8. However, I join the opinion because it provides the narrowest and most workable rule for when an employer may be held vicariously liable for an employee’s harassment. SUPREME COURT OF THE UNITED STATES _________________ No. 11–556 _________________ MAETTA VANCE, PETITIONER v. BALL STATE UNIVERSITY on writ of certiorari to the united states court of appeals for the seventh circuit [June 24, 2013]      Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.      In Faragher v. Boca Raton, 524 U. S. 775 (1998) , and Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998) , this Court held that an employer can be vicariously liable under Title VII of the Civil Rights Act of 1964 for harassment by an employee given supervisory authority over subordinates. In line with those decisions, in 1999, the Equal Employment Opportunity Commission (EEOC) provided enforcement guidance “regarding employer liability for harassment by supervisors based on sex, race, color, religion, national origin, age, disability, or protected activity.” EEOC, Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, 8 BNA FEP Manual 405:7651 (Feb. 2003) (hereinafter EEOC Guidance). Addressing who qualifies as a supervisor, the EEOC answered: (1) an individual authorized “to undertake or recommend tangible employment decisions affecting the employee,” including “hiring, firing, promoting, demoting, and reassigning the employee”; or (2) an individual authorized “to direct the employee’s daily work activities.” Id., at 405:7654.      The Court today strikes from the supervisory category employees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under which members of the work force labor, and disserves the objective of Title VII to prevent discrimination from infecting the Nation’s workplaces. I would follow the EEOC’s Guidance and hold that the authority to direct an employee’s daily activities establishes supervisory status under Title VII. I A      Title VII makes it “an unlawful employment practice for an employer” to “discriminate against any individual with respect to” the “terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a). The creation of a hostile work environment through harassment, this Court has long recognized, is a form of proscribed discrimination. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 78 (1998) ; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 –65 (1986).      What qualifies as harassment? Title VII imposes no “general civility code.” Oncale, 523 U. S., at 81. It does not reach “the ordinary tribulations of the workplace,” for example, “sporadic use of abusive language” or generally boorish conduct. B. Lindemann & D. Kadue, Sexual Harassment in Employment Law 175 (1992). See also 1 B. Lindemann & P. Grossman, Employment Discrimination Law 1335–1343 (4th ed. 2007) (hereinafter Lindemann & Grossman). To be actionable, charged behavior need not drive the victim from her job, but it must be of such sever-ity or pervasiveness as to pollute the working environment, thereby “alter[ing] the conditions of the victim’s employment.” Harris v. Forklift Systems, Inc., 510 U. S. 17 –22 (1993).      In Faragher and Ellerth, this Court established a framework for determining when an employer may be held liable for its employees’ creation of a hostile work environment. Recognizing that Title VII’s definition of “employer” includes an employer’s “agent[s],” 42 U. S. C. §2000e(b), the Court looked to agency law for guidance in formulating liability standards. Faragher, 524 U. S., at 791, 801; Ellerth, 524 U. S., at 755–760. In particular, the Court drew upon §219(2)(d) of the Restatement (Second) of Agency (1957), which makes an employer liable for the conduct of an employee, even when that employee acts beyond the scope of her employment, if the employee is “aided in accomplishing” a tort “by the existence of the agency relation.” See Faragher, 524 U. S., at 801; Ellerth, 524 U. S., at 758.      Stemming from that guide, Faragher and Ellerth distinguished between harassment perpetrated by supervisors, which is often enabled by the supervisor’s agency relationship with the employer, and harassment perpetrated by co-workers, which is not similarly facilitated. Faragher, 524 U. S., at 801–803; Ellerth, 524 U. S., at 763–765. If the harassing employee is a supervisor, the Court held, the employer is vicariously liable whenever the harassment culminates in a tangible employment action. Far- agher, 524 U. S., at 807–808; Ellerth, 524 U. S., at 764–765. The term “tangible employment action,” Ellerth observed, “constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Id., at 761. Such an action, the Court explained, provides “assurance the injury could not have been inflicted absent the agency relation.” Id., at 761–762.      An employer may also be held vicariously liable for a supervisor’s harassment that does not culminate in a tangible employment action, the Court next determined. In such a case, however, the employer may avoid liability by showing that (1) it exercised reasonable care to pre-vent and promptly correct harassing behavior, and (2) the complainant unreasonably failed to take advantage of preventative or corrective measures made available to her. Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765. The employer bears the burden of establishing this affirmative defense by a preponderance of the evidence. Faragher, 524 U. S., at 807; Ellerth, 524 U. S., at 765.      In contrast, if the harassing employee is a co-worker, a negligence standard applies. To satisfy that standard, the complainant must show that the employer knew or should have known of the offensive conduct but failed to take appropriate corrective action. See Faragher, 524 U. S., at 799; Ellerth, 524 U. S., at 758–759. See also 29 CFR §1604.11(d) (2012); EEOC Guidance 405:7652. B      The distinction Faragher and Ellerth drew between supervisors and co-workers corresponds to the realities of the workplace. Exposed to a fellow employee’s harassment, one can walk away or tell the offender to “buzz off.” A supervisor’s slings and arrows, however, are not so easily avoided. An employee who confronts her harassing supervisor risks, for example, receiving an undesirable or unsafe work assignment or an unwanted transfer. She may be saddled with an excessive workload or with placement on a shift spanning hours disruptive of her family life. And she may be demoted or fired. Facing such dangers, she may be reluctant to blow the whistle on her superior, whose “power and authority invests his or her harassing conduct with a particular threatening character.” Ellerth, 524 U. S., at 763. See also Faragher, 524 U. S., at 803; Brief for Respondent 23 (“The potential threat to one’s livelihood or working conditions will make the victim think twice before resisting harassment or fighting back.”). In short, as Faragher and Ellerth recognized, harassment by supervisors is more likely to cause palpable harm and to persist unabated than similar conduct by fellow employees. II      While Faragher and Ellerth differentiated harassment by supervisors from harassment by co-workers, neither decision gave a definitive answer to the question: Who qualifies as a supervisor? Two views have emerged. One view, in line with the EEOC’s Guidance, counts as a supervisor anyone with authority to take tangible employ-ment actions or to direct an employee’s daily work activities. E.g., Mack v. Otis Elevator Co., 326 F. 3d 116, 127 (CA2 2003); Whitten v. Fred’s, Inc., 601 F. 3d 231, 246 (CA4 2010); EEOC Guidance 405:7654. The other view ranks as supervisors only those authorized to take tangible employment actions. E.g., Noviello v. Boston, 398 F. 3d 76, 96 (CA1 2005); Parkins v. Civil Constructors of Ill., Inc., 163 F. 3d 1027, 1034 (CA7 1998); Joens v. John Morrell & Co., 354 F. 3d 938, 940–941 (CA8 2004).      Notably, respondent Ball State University agreed with petitioner Vance and the United States, as amicus curiae, that the tangible-employment-action-only test “does not necessarily capture all employees who may qualify as supervisors.” Brief for Respondent 1. “[V]icarious liability,” Ball State acknowledged, “also may be triggered when the harassing employee has the authority to control the victim’s daily work activities in a way that materially enables the harassment.” Id., at 1–2.      The different view taken by the Court today is out of accord with the agency principles that, Faragher and Ellerth affirmed, govern Title VII. See supra, at 3–4. It is blind to the realities of the workplace, and it discounts the guidance of the EEOC, the agency Congress established to interpret, and superintend the enforcement of, Title VII. Under that guidance, the appropriate question is: Has the employer given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making. A      Until today, our decisions have assumed that employees who direct subordinates’ daily work are supervisors. In Faragher, the city of Boca Raton, Florida, employed Bill Terry and David Silverman to oversee the city’s corps of ocean lifeguards. 524 U. S., at 780. Terry and Silverman “repeatedly subject[ed] Faragher and other female lifeguards to uninvited and offensive touching,” and they regularly “ma[de] lewd remarks, and [spoke] of women in offensive terms.” Ibid. (internal quotation marks omitted). Terry told a job applicant that “female lifeguards had sex with their male counterparts,” and then “asked whether she would do the same.” Id., at 782. Silverman threatened to assign Faragher to toilet-cleaning duties for a year if she refused to date him. Id., at 780. In words and conduct, Silverman and Terry made the beach a hostile place for women to work.      As Chief of Boca Raton’s Marine Safety Division, Terry had authority to “hire new lifeguards (subject to the approval of higher management), to supervise all aspects of the lifeguards’ work assignments, to engage in counseling, to deliver oral reprimands, and to make a record of any such discipline.” Id., at 781. Silverman’s duties as a Marine Safety lieutenant included “making the lifeguards’ daily assignments, and . . . supervising their work and fitness training.” Ibid. Both men “were granted virtually unchecked authority over their subordinates, directly controlling and supervising all aspects of Faragher’s day-to-day activities.” Id., at 808 (internal quotation marks and brackets omitted).      We may assume that Terry would fall within the definition of supervisor the Court adopts today. See ante, at 9. [ 1 ] But nothing in the Faragher record shows that Silver- man would. Silverman had oversight and assignment responsibilities—he could punish lifeguards who would not date him with full-time toilet-cleaning duty—but there was no evidence that he had authority to take tangible employment actions. See Faragher, 524 U. S., at 780–781. Holding that Boca Raton was vicariously liable for Silverman’s harassment, id., at 808–809, the Court characterized him as Faragher’s supervisor, see id., at 780, and there was no dissent on that point, see id., at 810 (Thomas, J., dissenting).      Subsequent decisions reinforced Faragher’s use of the term “supervisor” to encompass employees with authority to direct the daily work of their victims. In Pennsylvania State Police v. Suders, 542 U. S. 129, 140 (2004) , for example, the Court considered whether a constructive discharge occasioned by supervisor harassment ranks as a tangible employment action. The harassing employees lacked authority to discharge or demote the complainant, but they were “responsible for the day-to-day supervi- sion” of the workplace and for overseeing employee shifts. Suders v. Easton, 325 F. 3d 432, 450, n. 11 (CA3 2003). Describing the harassing employees as the complainant’s “supervisors,” the Court proceeded to evaluate the complainant’s constructive discharge claim under the Ellerth and Faragher framework. Suders, 542 U. S., at 134, 140–141.      It is true, as the Court says, ante, at 15–17, and n. 11, that Faragher and later cases did not squarely resolve whether an employee without power to take tangible em-ployment actions may nonetheless qualify as a supervisor. But in laboring to establish that Silverman’s supervi- sor status, undisputed in Faragher, is not dispositive here, the Court misses the forest for the trees. Faragher illustrates an all-too-plain reality: A supervisor with authority to control subordinates’ daily work is no less aided in his harassment than is a supervisor with authority to fire, demote, or transfer. That Silverman could threaten Far-agher with toilet-cleaning duties while Terry could orally reprimand her was inconsequential in Faragher, and properly so. What mattered was that both men took advantage of the power vested in them as agents of Boca Raton to facilitate their abuse. See Faragher, 524 U. S., at 801 (Silverman and Terry “implicitly threaten[ed] to mis-use their supervisory powers to deter any resistance or complaint.”). And when, assisted by an agency relationship, in-charge superiors like Silverman perpetuate a discriminatory work environment, our decisions have appropriately held the employer vicariously liable, subject to the above-described affirmative defense. See supra, at 3–4. B      Workplace realities fortify my conclusion that harassment by an employee with power to direct subordinates’ day-to-day work activities should trigger vicarious employer liability. The following illustrations, none of them hypothetical, involve in-charge employees of the kind the Court today excludes from supervisory status. [ 2 ]      Yasharay Mack: Yasharay Mack, an African-American woman, worked for the Otis Elevator Company as an elevator mechanic’s helper at the Metropolitan Life Building in New York City. James Connolly, the “mechanic in charge” and the senior employee at the site, targeted Mack for abuse. He commented frequently on her “fantastic ass,” “luscious lips,” and “beautiful eyes,” and, using deplorable racial epithets, opined that minorities and women did not “belong in the business.” Once, he pulled her on his lap, touched her buttocks, and tried to kiss her while others looked on. Connolly lacked authority to take tangible employment actions against mechanic’s helpers, but he did assign their work, control their schedules, and direct the particulars of their workdays. When he became angry with Mack, for example, he denied her overtime hours. And when she complained about the mistreatment, he scoffed, “I get away with everything.” See Mack, 326 F. 3d, at 120–121, 125–126 (internal quotation marks omitted).      Donna Rhodes: Donna Rhodes, a seasonal highway maintainer for the Illinois Department of Transportation, was responsible for plowing snow during winter months. Michael Poladian was a “Lead Lead Worker” and Matt Mara, a “Technician” at the maintenance yard where Rhodes worked. Both men assembled plow crews and managed the work assignments of employees in Rhodes’s position, but neither had authority to hire, fire, promote, demote, transfer, or discipline employees. In her third season working at the yard, Rhodes was verbally assaulted with sex-based invectives and a pornographic image was taped to her locker. Poladian forced her to wash her truck in sub-zero temperatures, assigned her undesirable yard work instead of road crew work, and prohibited another employee from fixing the malfunctioning heating system in her truck. Conceding that Rhodes had been subjected to a sex-based hostile work environment, the Department of Transportation argued successfully in the District Court and Court of Appeals that Poladian and Mara were not Rhodes’s supervisors because they lacked authority to take tangible employment actions against her. See Rhodes v. Illinois Dept. of Transp., 359 F. 3d 498, 501–503, 506–507 (CA7 2004).      Clara Whitten: Clara Whitten worked at a discount retail store in Belton, South Carolina. On Whitten’s first day of work, the manager, Matt Green, told her to “give [him] what [he] want[ed]” in order to obtain approval for long weekends off from work. Later, fearing what might transpire, Whitten ignored Green’s order to join him in an isolated storeroom. Angered, Green instructed Whitten to stay late and clean the store. He demanded that she work over the weekend despite her scheduled day off. Dismissing her as “dumb and stupid,” Green threatened to make her life a “living hell.” Green lacked authority to fire, promote, demote, or otherwise make decisions affecting Whitten’s pocketbook. But he directed her activities, gave her tasks to accomplish, burdened her with undesirable work assignments, and controlled her schedule. He was usually the highest ranking employee in the store, and both Whitten and Green considered him the supervisor. See Whitten, 601 F. 3d, at 236, 244–247 (internal quotation marks omitted).      Monika Starke: CRST Van Expedited, Inc., an interstate transit company, ran a training program for newly hired truckdrivers requiring a 28-day on-the-road trip. Monika Starke participated in the program. Trainees like Starke were paired in a truck cabin with a single “lead driver” who lacked authority to hire, fire, promote, or demote, but who exercised control over the work environment for the duration of the trip. Lead drivers were responsible for providing instruction on CRST’s driving method, assigning specific tasks, and scheduling rest stops. At the end of the trip, lead drivers evaluated trainees’ performance with a nonbinding pass or fail recommendation that could lead to full driver status. Over the course of Starke’s training trip, her first lead driver, Bob Smith, filled the cabin with vulgar sexual remarks, commenting on her breast size and comparing the gear stick to genitalia. A second lead driver, David Goodman, later forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade. See EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 665–666, 684–685 (CA8 2012).      In each of these cases, a person vested with authority to control the conditions of a subordinate’s daily work life used his position to aid his harassment. But in none of them would the Court’s severely confined definition of su-pervisor yield vicarious liability for the employer. The senior elevator mechanic in charge, the Court today tells us, was Mack’s co-worker, not her supervisor. So was the store manager who punished Whitten with long hours for refusing to give him what he wanted. So were the lead drivers who controlled all aspects of Starke’s working environment, and the yard worker who kept other employees from helping Rhodes to control the heat in her truck.      As anyone with work experience would immediately grasp, James Connolly, Michael Poladian, Matt Mara, Matt Green, Bob Smith, and David Goodman wielded employer-conferred supervisory authority over their victims. Each man’s discriminatory harassment derived force from, and was facilitated by, the control reins he held. Cf. Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 –71 (2006) (“Common sense suggests that one good way to discourage an employee . . . from bringing discrimination charges would be to insist that she spend more time performing the more arduous duties and less time performing those that are easier or more agreeable.”). Under any fair reading of Title VII, in each of the illustrative cases, the superior employee should have been classified a supervisor whose conduct would trigger vicarious liability. [ 3 ] C      Within a year after the Court’s decisions in Faragher and Ellerth, the EEOC defined “supervisor” to include any employee with “authority to undertake or recommend tangible employment decisions,” or with “authority to di-rect [another] employee’s daily work activities.” EEOC Guidance 405:7654. That definition should garner “respect proportional to its ‘power to persuade.’ ” United States v. Mead Corp., 533 U. S. 218, 235 (2001) (quoting Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) ). See also Crawford v. Metropolitan Government of Nashville and Davidson Cty., 555 U. S. 271, 276 (2009) (EEOC guidelines merited Skidmore deference); Federal Express Corp. v. Holowecki, 552 U. S. 389 –403 (2008) (same); Meritor, 477 U. S., at 65 (same). [ 4 ]      The EEOC’s definition of supervisor reflects the agency’s “informed judgment” and “body of experience” in enforcing Title VII. Id., at 65 (internal quotation marks omitted). For 14 years, in enforcement actions and litigation, the EEOC has firmly adhered to its definition. See Brief for United States as Amicus Curiae 28 (citing numerous briefs in the Courts of Appeals setting forth the EEOC’s understanding).      In developing its definition of supervisor, the EEOC paid close attention to the Faragher and Ellerth framework. An employer is vicariously liable only when the authority it has delegated enables actionable harassment, the EEOC recognized. EEOC Guidance 405:7654. For that reason, a supervisor’s authority must be “of a sufficient magnitude so as to assist the harasser . . . in carrying out the harassment.” Ibid. Determining whether an employee wields sufficient authority is not a mechanical inquiry, the EEOC explained; instead, specific facts about the employee’s job function are critical. Id., at 405:7653 to 405:7654. Thus, an employee with authority to increase another’s workload or assign undesirable tasks may rank as a supervisor, for those powers can enable harassment. Id., at 405:7654. On the other hand, an employee “who directs only a limited number of tasks or assignments” ordinarily would not qualify as a supervisor, for her harassing conduct is not likely to be aided materially by the agency relationship. Id., at 405:7655.      In my view, the EEOC’s definition, which the Court puts down as “a study in ambiguity,” ante, at 21, has the ring of truth and, therefore, powerfully persuasive force. As a precondition to vicarious employer liability, the EEOC explained, the harassing supervisor must wield authority of sufficient magnitude to enable the harassment. In other words, the aided-in-accomplishment standard requires “something more than the employment relation itself.” Ellerth, 524 U. S., at 760. Furthermore, as the EEOC perceived, in assessing an employee’s qualification as a supervisor, context is often key. See infra, at 16–17. I would accord the agency’s judgment due respect. III      Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the “robust protection against workplace discrimination Congress intended Title VII to secure.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 660 (2007) (Ginsburg, J., dissenting). A      The Court purports to rely on the Ellerth and Faragher framework to limit supervisor status to those capable of taking tangible employment actions. Ante, at 10, 18. That framework, we are told, presupposes “a sharp line between co-workers and supervisors.” Ante, at 18. The definition of supervisor decreed today, the Court insists, is “clear,” “readily applied,” and “easily workable,” ante, at 10, 20, when compared to the EEOC’s vague standard, ante, at 22.      There is reason to doubt just how “clear” and “workable” the Court’s definition is. A supervisor, the Court holds, is someone empowered to “take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsi-bilities, or a decision causing a significant change in benefits.’ ” Ante, at 9 (quoting Ellerth, 524 U. S., at 761). Whether reassignment authority makes someone a supervisor might depend on whether the reassignment carries economic consequences. Ante, at 16, n. 9. The power to discipline other employees, when the discipline has economic consequences, might count, too. Ibid. So might the power to initiate or make recommendations about tangible employment actions. Ante, at 15, n. 8. And when an employer “concentrates all decisionmaking authority in a few individuals” who rely on information from “other workers who actually interact with the affected employee,” the other workers may rank as supervisors (or maybe not; the Court does not commit one way or the other). Ante, at 26.      Someone in search of a bright line might well ask, what counts as “significantly different responsibilities”? Can any economic consequence make a reassignment or disciplinary action “significant,” or is there a minimum threshold? How concentrated must the decisionmaking authority be to deem those not formally endowed with that authority nevertheless “supervisors”? The Court leaves these questions unanswered, and its liberal use of “mights” and “mays,” ante, at 15, n. 8, 16, n. 9, 26, dims the light it casts. [ 5 ]      That the Court has adopted a standard, rather than a clear rule, is not surprising, for no crisp definition of supervisor could supply the unwavering line the Court desires. Supervisors, like the workplaces they manage, come in all shapes and sizes. Whether a pitching coach supervises his pitchers (can he demote them?), or an artistic director supervises her opera star (can she impose significantly different responsibilities?), or a law firm associate supervises the firm’s paralegals (can she fire them?) are matters not susceptible to mechanical rules and on-off switches. One cannot know whether an employer has vested supervisory authority in an employee, and whether harassment is aided by that authority, without looking to the particular working relationship between the harasser and the victim. That is why Faragher and Ellerth crafted an employer liability standard embracive of all whose authority significantly aids in the creation and perpetuation of harassment.      The Court’s focus on finding a definition of supervisor capable of instant application is at odds with the Court’s ordinary emphasis on the importance of particular circumstances in Title VII cases. See, e.g., Burlington Northern, 548 U. S., at 69 (“[T]he significance of any given act of retaliation will often depend upon the particular circumstances.”); Harris, 510 U. S., at 23 (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”). [ 6 ] The question of supervisory status, no less than the question whether retali-ation or harassment has occurred, “depends on a constellation of surrounding circumstances, expectations, and relationships.” Oncale, 523 U. S., at 81–82. The EEOC’s Guidance so perceives. B      As a consequence of the Court’s truncated conception of supervisory authority, the Faragher and Ellerth framework has shifted in a decidedly employer-friendly direction. This realignment will leave many harassment victims without an effective remedy and undermine Title VII’s capacity to prevent workplace harassment.      The negligence standard allowed by the Court, see ante, at 24, scarcely affords the protection the Faragher and Ellerth framework gave victims harassed by those in control of their lives at work. Recall that an employer is negligent with regard to harassment only if it knew or should have known of the conduct but failed to take appropriate corrective action. See 29 CFR §1604.11(d); EEOC Guidance 405:7652 to 405:7653. It is not uncommon for employers to lack actual or constructive notice of a harassing employee’s conduct. See Lindemann & Grossman 1378–1379. An employee may have a reputation as a harasser among those in his vicinity, but if no complaint makes its way up to management, the employer will escape liability under a negligence standard. Id., at 1378.      Faragher is illustrative. After enduring unrelenting harassment, Faragher reported Terry’s and Silverman’s conduct informally to Robert Gordon, another immediate supervisor. 524 U. S., at 782–783. But the lifeguards were “completely isolated from the City’s higher management,” and it did not occur to Faragher to pursue the matter with higher ranking city officials distant from the beach. Id., at 783, 808 (internal quotation marks omitted). Applying a negligence standard, the Eleventh Circuit held that, despite the pervasiveness of the harassment, and despite Gordon’s awareness of it, Boca Raton lacked constructive notice and therefore escaped liability. Id., at 784–785. Under the vicarious liability standard, however, Boca Raton could not make out the affirmative defense, for it had failed to disseminate a policy against sexual harassment. Id., at 808–809.      On top of the substantive differences in the negligence and vicarious liability standards, harassment victims, under today’s decision, are saddled with the burden of proving the employer’s negligence whenever the harasser lacks the power to take tangible employment actions. Faragher and Ellerth, by contrast, placed the burden squarely on the employer to make out the affirmative defense. See Suders, 542 U. S., at 146 (citing Ellerth, 524 U. S., at 765; Faragher, 524 U. S., at 807). This allocation of the burden was both sensible and deliberate: An employer has superior access to evidence bearing on whether it acted reasonably to prevent or correct harassing behavior, and superior resources to marshal that evidence. See 542 U. S., at 146, n. 7 (“The employer is in the best position to know what remedial procedures it offers to employees and how those procedures operate.”).      Faced with a steeper substantive and procedural hill to climb, victims like Yasharay Mack, Donna Rhodes, Clara Whitten, and Monika Starke likely will find it impossible to obtain redress. We can expect that, as a consequence of restricting the supervisor category to those formally empowered to take tangible employment actions, victims of workplace harassment with meritorious Title VII claims will find suit a hazardous endeavor. [ 7 ]      Inevitably, the Court’s definition of supervisor will hinder efforts to stamp out discrimination in the workplace. Because supervisors are comparatively few, and employees are many, “the employer has a greater opportunity to guard against misconduct by supervisors than by common workers,” and a greater incentive to “screen [supervisors], train them, and monitor their performance.” Faragher, 524 U. S., at 803. Vicarious liability for employers serves this end. When employers know they will be answerable for the injuries a harassing jobsite boss inflicts, their incentive to provide preventative instruction is heightened. If vicarious liability is confined to supervisors formally empowered to take tangible employment actions, however, employers will have a diminished incentive to train those who control their subordinates’ work activities and schedules, i.e., the supervisors who “actually interact” with employees. Ante, at 26. IV      I turn now to the case before us. Maetta Vance worked as substitute server and part-time catering assistant for Ball State University’s Banquet and Catering Division. During the period in question, she alleged, Saundra Davis, a catering specialist, and other Ball State employees subjected her to a racially hostile work environment. Applying controlling Circuit precedent, the District Court and Seventh Circuit concluded that Davis was not Vance’s supervisor, and reviewed Ball State’s liability for her conduct under a negligence standard. 646 F. 3d 461, 470–471 (2011); App. to Pet. for Cert. 53a–55a, 59a–60a. Because I would hold that the Seventh Circuit erred in restrict- ing supervisor status to employees formally empowered to take tangible employment actions, I would remand for application of the proper standard to Vance’s claim. On this record, however, there is cause to anticipate that Davis would not qualify as Vance’s supervisor. [ 8 ]      Supervisor status is based on “job function rather than job title,” and depends on “specific facts” about the working relationship. EEOC Guidance 405:7654. See supra, at 13. Vance has adduced scant evidence that Davis controlled the conditions of her daily work. Vance stated in an affidavit that the general manager of the Catering Division, Bill Kimes, was charged with “overall supervision in the kitchen,” including “reassign[ing] people to perform different tasks,” and “control[ling] the schedule.” App. 431. The chef, Shannon Fultz, assigned tasks by preparing “prep lists” of daily duties. Id., at 277–279, 427. There is no allegation that Davis had a hand in creating these prep lists, nor is there any indication that, in fact, Davis otherwise controlled the particulars of Vance’s workday. Vance herself testified that she did not know whether Davis was her supervisor. Id., at 198.      True, Davis’ job description listed among her responsibilities “[l]ead[ing] and direct[ing] kitchen part-time, substitute, and student employee helpers via demonstration, coaching, and overseeing their work.” Id., at 13. And another employee testified to believing that Davis was “a supervisor.” Id., at 386. But because the supervisor-status inquiry should focus on substance, not labels or paper descriptions, it is doubtful that this slim evidence would enable Vance to survive a motion for summary judgment. Nevertheless, I would leave it to the Seventh Circuit to decide, under the proper standard for super-visory status, what impact, if any, Davis’ job description and the co-worker’s statement should have on the determination of Davis’ status. [ 9 ] V      Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.      Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007) . See also Civil Rights Act of 1991, 105Stat. 1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989) ; Martin v. Wilks, 490 U. S. 755 (1989) ; Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989) ; and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) . The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today. *  *  *      For the reasons stated, I would reverse the judgment of the Seventh Circuit and remand the case for application of the proper standard for determining who qualifies as a supervisor. Notes 1 It is not altogether evident that Terry would qualify under the Court’s test. His authority to hire was subject to approval by higher management, Faragher v. Boca Raton, , and there is scant indication that he possessed other powers on the Court’s list. The Court observes that Terry was able to “recommen[d],” and “initiat[e]” tangible employment actions. Ante, at 15, n. 8 (internal quotation marks omitted). Nothing in the Faragher record, however, shows that Terry had authority to take such actions himself. Far-agher’s complaint alleged that Terry said he would never promote a female lifeguard to the rank of lieutenant, 524 U. S., at 780, but that statement hardly suffices to establish that he had ultimate promotional authority. Had Boca Raton anticipated the position the Court today announces, the city might have urged classification of Terry as Far-agher’s superior, but not her “supervisor.” 2 The illustrative cases reached the appellate level after grants of summary judgment in favor of the employer. Like the Courts of Appeals in each case, I recount the facts in the light most favorable to the employee, the nonmoving party. 3 The Court misses the point of the illustrations. See ante, at 26–28, and nn. 15–16. Even under a vicarious liability rule, the Court points out, employers might escape liability for reasons other than the harasser’s status as supervisor. For example, Rhodes might have avoided summary judgment in favor of her employer; even so, it would have been open to the employer to raise and prove to a jury the Faragher/Ellerth affirmative defense, see supra, at 3–4. No doubt other bar-riers also might impede an employee from prevailing, for example, Whitten’s and Starke’s intervening bankruptcies, see Whitten v. Fred’s Inc., No. 8:08–0218–HMH–BHH, 2010 WL 2757005 (D. SC, July 12, 2010); EEOC v. CRST Van Expedited, Inc., 679 F. 3d 657, 678, and n. 14 (CA8 2012), or Mack’s withdrawal of her complaint for reasons not apparent from the record, see ante, at 27–28, n. 16. That, however, is no reason to restrict the definition of supervisor in a way that leaves out those genuinely in charge. 4 Respondent’s amici maintain that the EEOC Guidance is ineligible for deference under Skidmore v. Swift & Co., , because it interprets Faragher and Burlington Industries, Inc. v. Ellerth, , not the text of Title VII. See Brief for Society for Human Resource Management et al. 11–16. They are mistaken. The EEOC Guidance rests on the employer liability framework set forth in Faragher and Ellerth, but both the framework and EEOC Guidance construe the term “agent” in . 5 Even the Seventh Circuit, whose definition of supervisor the Court adopts in large measure, has candidly acknowledged that, under its definition, supervisor status is not a clear and certain thing. See Doe v. Oberweis Dairy, 456 F. 3d 704, 717 (2006) (“The difficulty of classification in this case arises from the fact that Nayman, the shift supervisor, was in between the paradigmatic classes [of supervisor and co-worker]. He had supervisory responsibility in the sense of authority to direct the work of the [ice-cream] scoopers, and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor.”). 6 The Court worries that the EEOC’s definition of supervisor will confound jurors who must first determine whether the harasser is a supervisor and second apply the correct employer liability standard. Ante, at 22–24, and nn. 13, 14. But the Court can point to no evidence that jury instructions on supervisor status in jurisdictions following the EEOC Guidance have in fact proved unworkable or confusing to jurors. Moreover, under the Court’s definition of supervisor, jurors in many cases will be obliged to determine, as a threshold question, whether the alleged harasser possessed supervisory authority. See supra, at 15–16. 7 Nor is the Court’s confinement of supervisor status needed to deter insubstantial claims. Under the EEOC Guidance, a plaintiff must meet the threshold requirement of actionable harassment and then show that her supervisor’s authority was of “sufficient magnitude” to assist in the harassment. See EEOC Guidance 405:7652, 405:7654. 8 In addition to concluding that Davis was not Vance’s supervisor, the District Court held that the conduct Vance alleged was “neither sufficiently severe nor pervasive to be considered objectively hostile for the purposes of Title VII.” App. to Pet. for Cert. 66a. The Seventh Circuit declined to address this issue. See 646 F. 3d 461, 471 (2011). If the case were remanded, the Court of Appeals could resolve the hostile environment issue first, and then, if necessary, Davis’ status as supervisor or co-worker. 9 The Court agrees that Davis “would probably not qualify” as Vance’s supervisor under the EEOC’s definition. Ante, at 28–29. Then why, one might ask, does the Court nevertheless reach out to announce its restrictive standard in this case, one in which all parties, including the defendant-employer, accept the fitness for Title VII of the EEOC’s Guidance? See supra, at 5.

In *Vance v. Ball State University*, the Supreme Court held that an employee is a "supervisor" for the purposes of vicarious liability under Title VII of the Civil Rights Act if they are empowered by their employer to take tangible employment actions against the victim. This case concerned a question left open in two previous cases, *Burlington Industries, Inc. v. Ellerth* and *Faragher v. Boca Raton*, regarding who qualifies as a "supervisor" in a Title VII claim for workplace harassment. The Court's decision affirmed the judgment of the Seventh Circuit, holding that Maetta Vance, an African-American woman who experienced racial discrimination and retaliation during her employment at Ball State University, did not have a supervisor-subordinate relationship with the alleged harasser, and therefore her employer was not vicariously liable. The dissent argued for a broader definition of "supervisor" and criticized the majority's decision for potentially undermining the effectiveness of Title VII in addressing workplace harassment.