Exide, and that, therefore, she had not complied with the
statutory requirements prerequisite to her right to prosecute a
civil action against Exide. 377 F.2d at 242.
In Hall v. Werthan Bag Corp., M.D. Tenn., 251 F. Supp. 184, the
court considered the question whether a class action would lie to
enforce the provisions of the Act. The complaint was filed by
Hall, a Negro employee of Werthan, on behalf of himself and all
other Negro employees of the company who were similarly affected
by alleged discriminatory practices. A motion by Tate, another
Negro employee of the company, to intervene as a party plaintiff,
gave rise to the court's opinion. Only Hall had invoked the
administrative remedy provided by the Act by filing a charge with
The court did hold that Tate could intervene in the suit and
that the suit would lie as a class action. That decision was,
however, expressly limited to the prayer of the complaint for
prospective relief. The court reasoned that the Commission had
employed the conciliation process in an effort to obtain
voluntary compliance with the Act upon the charge filed by Hall.
It held that the demands of the statute, that the conciliation
process be first invoked, were satisfied insofar as the complaint
sought to enjoin the continuation of racially discriminatory
practices which were alleged to affect all Negro employees in the
same way as a class. 251 F. Supp. at 187-188.
The court further held that retrospective relief, i.e., back
pay or reinstatement, was available only to Hall in the
proceeding, because the Commission had not had the opportunity to
attempt "conciliation in regard to rectifying any alleged
injuries which other Negro employees or would-be employees may
claim to have suffered as a result of the defendant's alleged
discrimination." 251 F. Supp. at 188.
All of those decisions are considered as consistent in holding
that resort to the remedy of conciliation is a jurisdictional
prerequisite to the right to file a civil action. This court
agrees with that construction of the Act. The plain language of
the statute requires it, as does the established principle that
statutes creative of remedies not known to the common law are to
be strictly construed. Cf., e.g., Matheny v. Porter, 10 Cir.,
158 F.2d 478, 479; Atlantic Coast Line R. Co. v. United States, M.D.
Fla., 213 F. Supp. 199, 204, 205. Under such a statute, the right
of action itself is conditioned upon strict compliance with all
conditions imposed by the statute as a basis for assertion of a
right of redress by resort to court processes.
Plaintiff's argument is rejected that Hall v. Werthan Bag
Corp., M.D.Tenn., 251 F. Supp. 184, is authority tending to
sustain her position that resort to the conciliation procedure is
not a prerequisite to the right to file a civil suit. What the
court did hold, as we have noted above in this opinion, is that
where attempts at conciliation have failed to resolve a question
which is common to a whole class of employees, it is not
necessary, for the purpose of seeking prospective relief, that
conciliation had been attempted on behalf of every member of the
class. Clearly, the court would require each to invoke the
conciliation machinery as a prerequisite to his seeking
individual and retrospective relief. 251 F. Supp. at 188.
This court also rejects dictum in Ward v. Firestone Tire &
Rubber Co., D.C., 260 F. Supp. 579, at 580, construing the Hall
case as holding that a complaint before the Commission is not a
jurisdictional prerequisite to a civil suit. Compare, Mickel v.
South Carolina State Employment Service, 4 Cir., 377 F.2d 239,
Does the provision requiring that the charge before the
Commission be "under oath" partake of the same character as does
the provision requiring resort to the conciliation procedure as a
prerequisite to the institution of a civil action? In this
court's opinion it does.
The legislative history of this Act unquestionably places the
upon conciliation and voluntary compliance as the principal and
preferable method for its enforcement. The Act creates the
Commission for the single, expressed purpose of enforcing the
Act. 42 U.S.C. § 2000e-4. It establishes an express course of
procedure to be followed in the initiation and processing of
charges filed with the Commission under the Act. 42 U.S.C.
§ 2000e-5(a). The jurisdiction of the Commission is invoked only by
the filing of a charge. Charges may be filed in two ways, namely,
"a written charge" by any of the Commissioners who have reason to
believe that a violation has occurred, or a charge "in writing
under oath" by a person claiming to be aggrieved by a violation
of the Act. 42 U.S.C. § 2000e-5(a). When a charge has been properly
initiated, the Commission is directed to give notice of the
charge and to make an investigation thereof, and, if the
Commission believes from its investigation that the charge is
likely true, to seek to obtain voluntary compliance with the Act
by "informal methods of conference, conciliation and persuasion."
42 U.S.C. § 2000e-5(a). If that effort fails, a civil action may be
filed within thirty days after the aggrieved person is notified
that the Commission's efforts have proved to be fruitless.
42 U.S.C. § 2000e-5(e)(1). The course of procedure is clearly
delineated, with each step, in sequence, geared to the obtaining
of compliance with the Act.
In addition to the mandate of avoiding discrimination in the
specified particulars, the Act also requires an employer to keep
and maintain records and to open them to the Commission in the
course of any lawful investigation. The ultimate burden upon an
employer which the Act envisions is a civil suit for injunction
and other relief, including an award of attorneys' fees in a
proper case. The statutory purpose of preventing discrimination
in employment is tempered by an equally cogent need to protect
employers and other persons subject to the Act's mandate from
subjection to the burden of frivolous charges, claims and
demands. The requirement that a person aggrieved invoke the
statute's procedures by a sworn complaint effectually preserves
the major purpose of this legislation and, at the same time,
affords a measure of protection against harassment by frivolous
and groundless claims to those upon whom the burden of the Act
It seems obvious from the language of the Act that Congress
attached significance to the requirement of an oath. There is no
other explanation for the distinction made between charges made
by a commissioner and charges made by a person who claims to be
aggrieved. In the former case, a "written charge" suffices, while
in the latter a charge "in writing under oath" is required.
42 U.S.C. § 2000e-5(a). It seems to this court that the fact that
Congress saw fit to make that distinction provides sufficient
basis for holding that a sworn charge is a necessary requisite to
the right to invoke the statutory remedy.
Plaintiff almost concedes the premise in her argument. She
argues that a charge under oath is not necessary to the
initiation of a civil suit, but that it is a prerequisite to
setting the conciliation machinery of the Commission in motion.
The analysis of previously decided cases hereinabove demonstrates
the lack of merit of that contention. The right to file a civil
suit presupposes, at the very least, that the conciliation
processes of the Commission have been properly invoked. Effect
must be given to the plain language of the statute.
Strict application of similar statutory provisions has been
decreed in cases of other types. Atlantic Coast Line R. Co. v.
United States, M.D.Fla., 213 F. Supp. 199, 205; Burrell v.
LaFollette Coach Lines, E.D.Tenn., 97 F. Supp. 279, 282, 283. In
the former, the filing of an unverified complaint before the
Interstate Commerce Commission did not stop the running of a
statute of limitations where the complainant had not complied
with a rule of the Commission requiring that such complaints be
verified. In the latter, an amendment to the Fair Labor Standards
Act required that any suit for overtime
compensation be filed within 120 days after the effective date of
the amendment and that a class suit could be instituted within
such time by the filing of a complaint and, also, the written
consent of each named plaintiff to become a party to the suit. It
was held that a class suit was not commenced by the filing of a
complaint only, not accompanied by the consents signed by each
This court concludes that the filing of a verified charge with
the Commission is necessary to invoke the statutory enforcement
procedures. The complaint herein is fatally defective because it
fails to allege that the complaint filed with the Commission was
No useful purpose appears for commenting upon other contentions
made by the defendant against this complaint. For the reasons
herein stated, judgment is entered for the defendant dismissing