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Novotny v. Great American Federal Savings & Loan Association

August 7, 1978



Before Seitz, Chief Judge, and Rosenn and Garth, Circuit Judges. Argued Feb. 16, 1978 Reargued May 11, 1978 En Banc Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.

Author: Adams


Advocacy of equal rights has seldom been a completely secure vocation. Whether out of fear or for less attractive motives, certain individuals view the advance of equality as a threat to be opposed. Those who take up the cause of equal rights run the risk that their persons and property will suffer the consequences of their opponents' hostility. In days past, this risk exposed individuals to serious harm. Harassment was routine; more serious threats and physical injury were not uncommon. Fortunately, however, such flagrant retaliation has largely subsided. In this case we are called upon to determine whether statutory provisions which did service against the violent assaults on equal-rights advocates in earlier times or other, comparable, legislative enactments can guard against less dramatic retribution.

The precise issue here is whether 42 U.S.C. § 1985(3) and 42 U.S.C. § 2000e (Title VII) protect an employee who claims to have been discharged because his actions and advocacy stood in the path of a plan to deprive women of their equal employment rights.


John R. Novotny, the plaintiff, began work with Great American Federal Savings and Loan Association (GAF) in 1950. During subsequent years he rose through the ranks to become the Secretary of the company and a member of its board of directors. In the course of his employment, Novotny alleges that he discovered that the individual defendants in this action, officers and board members, "intentionally and deliberately embarked upon and pursued a course of conduct the effect of which was to deny female employees equal employment opportunity."*fn1

During the summer of 1974, the GAF board of directors became engaged in a dispute with one Betty Batis, a female employee, who claimed to have been the victim of sex discrimination. According to Novotny's complaint, he took up Batis' cause at a subsequent board meeting and expressed the view that GAF had not met its legal obligations with regard to equal employment opportunity.

The other members of the board voted in January 1975 to terminate Novotny's employment with GAF. On the basis of that termination, Novotny promptly filed an unlawful employment practice charge with the EEOC, and was granted a right to sue letter in December of 1976. Claiming that his dismissal was a reprisal for his advocacy of the cause of equal rights for women in the corporation, Novotny then brought the present action against GAF, officers of the company and individual members of the board of directors.*fn2 Novotny alleged that the retaliatory discharge imposed upon him constituted an infraction of Section 2 of the Ku Klux Klan Act of 1871,*fn3 and Title VII of the Civil Rights Act of 1964.*fn4

Pursuant to a motion filed under Rule 12(b)(6), the district court dismissed both of Novotny's claims. Because the individual defendants were employees of a single corporation, the trial judge held that they were legally incapable of conspiring in violation of § 1985(3). And, in the court's view, Title VII offered the plaintiff no protection because Novotny had not been discharged as a result of any involvement in a formal EEOC proceeding.

Novotny's timely appeal brought the case before us.


Defendants challenge the plaintiffs' § 1985(3) claim on three grounds. They allege that: (1) as a matter of statutory construction, § 1985(3) confers no redress for grievances such as the one in this case; (2) as a matter of constitutional law, if such redress is provided then § 1985(3) would exceed the powers of Congress; (3) as a matter of definition, officers and directors of a single corporate entity are legally incapable of forming a "conspiracy."

Both in briefs and at oral argument, the parties have occasionally combined discussion of the first and second grounds of objection. However, Congress' intention with respect to the coverage of § 1985(3) is a distinct issue from Congressional power under the Constitution to pass such legislation. Clear analysis therefore requires that the issue of the intended scope of the legislation and its proper construction be examined separately from the question whether such scope is constitutionally authorized. Since defendants' success on the statutory construction issue would obviate the need to explore an unsettled area of constitutional law, we turn first to an examination of the statutory structure.

A. Background: An overview of the History of § 1985(3)

The statute now codified as 42 U.S.C. § 1985(3) began its existence as a part of Section 2 of the Act of April 20, 1871 (the Ku Klux Klan Act).*fn5 The 1871 Act was one of several Congressional reactions to the continued violent resistance to Reconstruction in the South.*fn6 Consideration of the Act was triggered by a message sent to Congress by President Grant on March 23, 1871, warning that "(a) condition of affairs now exits in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous," and calling for legislation to remedy this situation.*fn7 The Congressional response embodied in the 1871 Ku Klux Klan Act included the grant of a civil cause of action against those who deprived persons of constitutional rights under color of state law (later codified as 42 U.S.C. § 1983), the authorization of deployment of federal troops and suspension of habeas corpus in certain situations, and the establishment of criminal penalties for conspiracies to obstruct justice and to interfere with "equal protection" or "equal privileges and immunities." In section 2 of the legislation, the predecessor of § 1985(3), Congress also created a cause of action for persons injured by acts done in furtherance of such conspiracies.

With the cooling of Reconstructionist ardor, the reception accorded to the Ku Klux Klan Act in the courts was not a hospitable one. In United States v. Harris,*fn8 the Supreme Court sustained a demurrer to an indictment, under the Act's conspiracy provisions, of 20 southern whites charged with lynching a black, and declared such criminal penalties unconstitutional as a usurpation of the states' role in protecting liberty and property.

This holding was reaffirmed by Baldwin v. Franks,*fn9 which granted habeas corpus to a member of a group of Californians who had driven resident Chinese aliens out of town in violation of the treaty rights of the Chinese citizens. While conceding that the federal government might have the power to protect treaty rights through criminal sanctions, the Supreme Court held that since the criminal provisions protected All privileges and immunities they were invalid.

Following Harris and Baldwin, Section 2 of the 1871 Act languished largely unused for seventy years.*fn10 And in 1952, the Supreme Court further cut back on the statute's apparently broad scope in Collins v. Hardyman.*fn11 In response to a claim under the civil conspiracy provisions originally contained in the Act, the Court held that the 1871 Act protected only against deprivations of rights brought about by state action.*fn12 There the matter rested until 1971, when the Supreme Court gave new life to the civil conspiracy provisions of the Ku Klux Klan Act (now recodified as 42 U.S.C. § 1985(3)) in Griffin v. Breckenridge.*fn13

In Griffin, the three black plaintiffs were attacked and beaten on a highway in Mississippi by whites who were under the mistaken impression that their victims were associates of a civil rights worker. The blacks brought suit against their assailants under § 1985(3), claiming to have been deprived of various privileges and immunities under the laws of the United States and the State of Mississippi, including the rights of free speech, assembly, association, movement, liberty and security of their persons. The suit was dismissed in the district court, and on the basis of Collins the Court of Appeals reluctantly sustained the dismissal. The Supreme Court, however, reversed.

First the Court explained that the constitutional difficulties which shaped the result in Collins twenty years earlier had been dissipated by intervening cases. It then held that, at least in a situation where the right to interstate travel is implicated or where a federal power to abolish the badges and incidents of slavery under the Thirteenth Amendment can be invoked, no state action is required to establish the constitutional power to regulate private activity.*fn14 The Court proceeded to examine the legislative history of § 1985(3), and, finding no reason to decline to accord the terms of the statute their full sweep, sustained the plaintiffs' claim.

Nonetheless, Griffin expressed sensitivity to the potential that the expansive syntax of § 1985(3) would give rise to a "general federal tort law." To guard against this possibility, the Court looked to the legislative history, which had stressed the adoption of language regarding "Equal Protection or Equal privileges and immunities" as a limitation on the reach of § 1985(3).*fn15 Read in light of this history, the Court suggested a cause of action based on a conspiracy to deprive one of equal protection or equal privileges and immunities requires that there must be some racial, or otherwise class based, invidiously discriminatory animus underlying the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all.*fn16

B. The Reach of § 1985(3)

(1) Class Based Animus

Despite the broad wording of the statute, the Supreme Court avoided interpreting § 1985(3) as a "general federal tort law . . . by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment."*fn17 And in § 1985(3) litigation subsequent to Griffin, the element of class-based invidiously discriminatory animus has, in the words of one commentator, acted as a "threshold requirement,"*fn18 screening out a variety of § 1985(3) claims at an early stage.*fn19

In determining the applicability of § 1985(3) to the case before us, therefore, an initial inquiry must be whether the actions which form the basis for this case are the offspring of a "class-based invidiously discriminatory animus" within the meaning of the Griffin test.

(a) Women as a class

(i) Women Were Not Excluded from § 1985(3)

As an opening thrust, defendants urge that, when read in its historical context, § 1985(3) could not have contemplated punishing conspiracies against women. Therefore, they suggest, sex-based conspiracies cannot form the predicate for a cause of action under § 1985(3).

While some of the individuals who voted for § 1985(3) may not have been sympathetic to equal rights for women,*fn20 the interpretation of statutes is not, in the face of contrary language, tied to the subjective expectations of particular legislators. The fact is that the wording of § 1985(3) gives no basis for excluding women from its protection rather, the phrases of the statute are attuned to the evolving ideal of equality.

Section 2 of the Act was cast in general terms; it proscribed conspiracies aimed at depriving "any person or class of persons" of equal protection and equal privileges. The breadth of such language was not adventitious. While the impetus toward enactment of the lineal ancestor of § 1985(3) was supplied by concern regarding violence directed at blacks and Union sympathizers,*fn21 the bill subsequently enacted contained no such limitations.*fn22 As Judge Aldisert noted in Brawer v. Horowitz,*fn23 Senator Edmunds, in reporting the amendments of the Ku Klux Klan Act to the Senate, interpreted the Act to command that:

If . . . it should appear that this conspiracy was formed against a man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter . . . this section could reach it.*fn24

Consequently, we find it difficult to conclude that Congress affirmatively intended to exclude women from protection. Indeed, the sole specific reference to women that we have been able to discover in the legislative history implies to the contrary. In the debate on the scope of the term "privileges and immunities," in the proposed § 2 of the 1871 Act, Senator Trumbull sought to prove that the right to vote was not a "privilege or immunity" because women could not exercise the franchise.*fn25 The burden of his argument seems to have been that women were protected in the enjoyment of rights which could properly be classified as "privileges and immunities" and therefore rights from which women were admittedly excluded could not be "privileges and immunities." The underlying premise of this reasoning was that women are within the reach of § 2.*fn26 The history of the statute thus leads us to determine that the language of § 1985(3) should not be unnaturally cropped to exclude women from its protection.

Chief Justice Warren wrote in a comparable context:*fn27

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection.

(ii) Discrimination against women is "invidious class-based" discrimination

Although we can ascertain that § 1985(3) was intended to have a rather broad sweep, it is nonetheless difficult to parse the precise dimensions of the "classes" which the Congress sought to protect, for, as the Supreme Court noted in Tenney v. Brandhove, "The limits of §§ 1 and 2 of the 1871 statute . . . were not spelled out in debate."*fn28

In interpreting the language of the statute, the Supreme Court in Griffin said:

The language requiring intent to deprive of Equal protection, or Equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.*fn29

We need not determine here what classes other than those distinguished by race or gender may be within the ambit of § 1985(3). The Court in Frontiero v. Richardson*fn30 remarked: "Congress itself has concluded that classifications based upon sex are inherently invidious." And in discussing discrimination, the Court pointed out that sex, like race and national origin, is an immutable characteristic determined by the accident of birth and that the sex characteristic frequently bears no relation to ability to perform or contribute to society.*fn31 Thus, to deprive members of a class founded on gender of equal protection or equal privileges and immunities without any justification is to act in an irrational and odious manner hence, with an invidiously discriminatory animus.*fn32

The principle that individuals should not be discriminated against on the basis of traits for which they bear no responsibility makes discrimination against individuals on the basis of immutable characteristics repugnant to our system.*fn33 The fact that a person bears no responsibility for gender, combined with the pervasive discrimination practiced against women,*fn34 and the emerging rejection of sexual stereotyping as incompatible with our ideals of equality*fn35 convince us that whatever the outer boundaries of the concept, an animus directed against women includes the elements of a "class-based invidiously discriminatory" motivation.

We therefore join the two circuits that have included sex discrimination within the categories of animus condemned by § 1985(3).*fn36

(b) Novotny's Standing

Even if sex discrimination is an "invidious class-based animus" within the intendment of Griffin the defendants argue, Novotny has no standing to raise a § 1985(3) claim, since as a male, the animus toward females was not directed at him. We believe, however, that this claim is at odds with the statutory language, purpose and legislative history.

Section 1985(3) provides for a cause of action in any instance where "in furtherance of the object of" a proscribed conspiracy an act is done "whereby another is injured in his person or property." By its terms, the statute gives no hint of any requirement that the "other" must have any relationship to the "person or class of ...

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