Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. IP 72-C-398 JAMES E. NOLAND, Judge. Rehearing En Banc January 26, 1976
Fairchild, Chief Judge, Swygert, Cummings, Pell, Sprecher, Tone and Bauer, Circuit Judges. Tone, Circuit Judge, with whom Pell and Bauer, Circuit Judges, join, dissenting.
This appeal reheard in banc concentrates on whether the alleged victim of racial and sex discrimination made sufficiently like or reasonably related allegations in her charges to the Equal Employment Opportunity Commission to support, and out of which could grow or reasonably be expected to grow, the racial and sex allegations in her judicial complaint.
The plaintiff brought this action on her own behalf and on behalf of other persons similarly situated as a class action, charging the defendants, her former employers, with denying her promotions and better assignments, and with ultimately terminating her employment because of her "race, sex, black styles of hair and dress," in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The plaintiff sought declaratory and injunctive relief, reinstatement with backpay and other money damages.
On July 17, 1974, the district court denied the plaintiff's motion seeking an order pursuant to F.R. Civ. P. 23(c)(1) determining that the action be maintainable as a class action.*fn1 The court stated that "a Title VII complaint must be viewed in relationship to the charges filed by the plaintiff against the defendant before the Equal Employment Opportunity Commission." The court's reasoning in denying certification of a class action was that: (1) "it is clear that she did not raise sex before the EEOC . . ."; (2) "while there is an arguable connection to race by the allegation of hair style discrimination, such is not sufficient to raise the panorama of alleged [racial] evils plaintiff seeks to adjudicate in her complaint"; (3) "her class could, therefore, only be composed of those persons denied promotion or not hired for wearing an Afro hair style"; and (4) "no proof has been presented to the Court to show that this group of people would be so large that joinder of them in this action would be impracticable."
On January 21, 1975, the district court denied the plaintiff's motion for a preliminary injunction. The plaintiff's notice of appeal was from both the July 17, 1974 and January 21, 1975 orders.
Upon this appeal a panel of this court reversed the district court's judgment "in light of the fact that the trial court dismissed the complaint because of the failure of the named plaintiff to qualify as representative of her class under Title VII, without giving consideration to the claim based on § 1981, and since we conclude that the relief claimed under § 1981 need not be based on any form of claim filed with the EEOC . . ." Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 522 F.2d 1235, 1241 (7th Cir. 1975). The case was remanded for the district court to give consideration to whether the plaintiff could qualify as a representative of the class upon her § 1981 claim, which alleged only racial discrimination, and thereafter to consider "what equitable relief the plaintiff may be entitled to." Id. at 1242.
A petition for rehearing in banc was granted. Every member of the court would reach the same end result as the panel did -- that is, reverse the judgment and remand the case. Also every member would do so for at least the same reason as the panel did, namely failure of the district court to give consideration to plaintiff's § 1981 claim.*fn2
At least seven circuits, including this one, have held that § 1981 is independent of Title VII, that Title VII creates no procedural barriers to § 1981 actions, and that § 1981 is available regardless of whether one has pursued his Title VII administrative remedies. Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478 F.2d 979, 996 (1973); Gresham v. Chambers, 501 F.2d 687, 691 (2d Cir. 1974); Young v. International Telephone & Telegraph Co., 438 F.2d 757, 763 (3d Cir. 1971); Alpha Portland Cement Co. v. Reese, 507 F.2d 607, 610 (5th Cir. 1975); Guerra v. Manchester Terminal Corp., 498 F.2d 641, 652 (5th Cir. 1974); Hill v. American Airlines, Inc., 479 F.2d 1057, 1060 (5th Cir. 1973); Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (5th Cir. 1971), cert. den., 405 U.S. 916, 30 L. Ed. 2d 785, 92 S. Ct. 931 (1972); Long v. Ford Motor Co., 496 F.2d 500, 503 (6th Cir. 1974); Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309, 1315 (7th Cir. 1974), cert. den., 425 U.S. 997, 96 S. Ct. 2214, 48 L. Ed. 2d 823 (1976); Brady v. Bristol-Meyers, Inc., 459 F.2d 621, 623 (8th Cir. 1972).
Finally, every member of the court would agree with the panel's conclusion that the propriety and nature of equitable relief should depend at the minimum ...