17 Fair empl.prac.cas. 1252, 17 Empl. Prac. Dec. P 8576 John R. Novotny v. Great American Federal Savings & Loan Association, John A. Virostek, Joseph E. Bugel, John J. Dravecky, Daniel T. Kubasak, Edward J. Lesko, James E. Orris, Joseph A. Prokopovitsh, John G. Micenko and Frank J. Vanek

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."1

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.2 Novotny alleged that the retaliatory discharge imposed upon him constituted an infraction of Section 2 of the Ku Klux Klan Act of 1871,3 and Title VII of the Civil Rights Act of 1964.4

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).5 The 1871 Act was one of several Congressional reactions to the continued violent resistance to Reconstruction in the South.6 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.7 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,8 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,9 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.10 And in 1952, the Supreme Court further cut back on the statute's apparently broad scope in Collins v. Hardyman.11 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.12 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.13

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.14 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).15 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.16

(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."17 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,"18 screening out a variety of § 1985(3) claims at an early stage.19

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,20 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,21 the bill subsequently enacted contained no such limitations.22 As Judge Aldisert noted in Brawer v. Horowitz,23 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.24

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.25 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 § 2.26 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:27Throughout 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."28

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.29

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. Richardson30 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.31 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.32

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.33 The fact that a person bears no responsibility for gender, combined with the pervasive discrimination practiced against women,34 and the emerging rejection of sexual stereotyping as incompatible with our ideals of equality35 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).36

(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 persons" which the conspiracy seeks to deprive of equal protection, privileges or immunities.

Nor does the legislative history betray any intimation that a cause of action under § 1985(3) presupposes membership in the class against which the conspiracy is directed. As Senator Edmunds stated: "This section gives a civil action to Anybody who may be injured by the conspiracy."37 Likewise, the testimony regarding the problems which the Act attempted to solve is replete with references to individuals in situations analogous to that of Novotny. Representative Buckley adverted to the fate of "William C. Luke, an educated man from the North who spoke several languages, and who was an enthusiast on the subject of educating and elevating the colored race."38 Mr. Luke, apparently a white man, was hanged at midnight by the Ku Klux Klan for his activities. Representative Shellabarger referred to one Mr. Allen, by all indications a white man, who was "shot at and banished for teaching colored children to read,"39 and to Reverend Corless, likewise apparently not a black man, a minister sent from Philadelphia to "preach to the colored men," who was "scourged near unto death."40 Id. Summarizing the activities of the Ku Klux Klan, Representative Perry declared:

Their operations are . . . directed chiefly against blacks And against white people who by any means attract attention as earnest friends of the blacks.41

In light of this history, we do not believe that Congress intended to immunize Klansmen when their victims happened to be white. By analogy, members of a conspiracy to deprive women of equal rights are liable under § 1985(3) to persons who are injured in furtherance of the object of the conspiracy, whether male or female.

This determination draws further sustenance from the Supreme Court's holding in Sullivan v. Little Hunting Park.42 There the Court summarily determined that a white person expelled from membership in an all-white swimming club for advocating the membership of a black person could maintain an action under § 1982. Despite the fact that § 1982 gave no explicit cause of action to those injured in the course of conduct which it prohibited, the Court said:

We turn to Sullivan's expulsion for the advocacy of Freeman's cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. . . . Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.43

Given the wording of the statute and the history canvassed above, as well as the Court's pronouncement in Little Hunting Park, a similar conclusion follows A fortiori in the case before us.

Finally, a close reading of Griffin itself compels the conclusion that an action under § 1985(3) need not be predicated on a conspiracy involving invidious animus directed against the plaintiff personally. In Griffin the three plaintiffs had ridden to the place where they were attacked in a car owned by R. G. Grady, who was not involved in the suit. The complaint alleged that the assailants were under the mistaken impression that Grady was a civil rights worker. In determining that a cause of action had been made out under § 1985(3), the Supreme Court stated:

Finally, the petitioners Whether or not the nonparty Grady was the main or only target of the conspiracy allege personal injury resulting from those (conspiratorial) acts.44

There is no intimation that, had one of the plaintiffs in Griffin been a white civil rights worker, he would have been denied the cause of action which his black compatriots were granted.

Novotny asserts in his complaint that his employment was terminated as a result of his support of equal opportunity claims of the female employees of GAF, "because of his known support for equal employment opportunity for women within the GAF organization", and because he was "in a position to affect (sic) actions and procedures to implement equal employment opportunities for women."45 Such allegations constitute a sufficient pleading of acts "in furtherance of the object of" a conspiracy to deprive women in GAF of equal employment opportunity so as to entitle Novotny to maintain an action for damages to his person or property resulting from such acts.46(2) Equal Privileges and Immunities and Equal Protection

(a) The Statutory Scheme

Once the existence of class-based invidious animus is established, the boundaries of protection offered by § 1985(3) are traced by the scope of the words, "equal protection of the laws" and "equal privileges and immunities under the laws." These are the two primary interests which the statute purports to guard.47

As a result, since the resuscitation of § 1985(3) in Griffin, there has been considerable discussion by jurists and scholars as to whether the statute is "substantive" or "remedial," and if "remedial," for which rights it provides remedies.48 While we have no occasion to undertake to review the entire debate, certain observations frame our discussion here.

It seems that § 1985(3) is not to be read as a general charter to federal courts to set codes of conduct wherever "equality" of any class is allegedly infringed. The reluctance to trigger the development of such a "general federal tort law" formed the backdrop of the Supreme Court's discussion in Griffin,49 and properly so in light of the statutory language contained in § 1985(3) as well as its legislative history.

The passage, "of depriving . . . equal protection Of the laws, or of equal privileges and immunities Under the laws,"50 connotes the existence of laws outside of § 1985(3) which define the "protection" and "privileges and immunities" that are guaranteed against invasion.51 This connotation is confirmed by our reading of the debates surrounding the adoption of § 1985(3). Most of the proponents of the Ku Klux Klan Act explicitly viewed it as protecting rights conferred by sources other than the Act itself.52 Indeed, Senator Edmunds, the floor manager of the bill in the Senate, explicitly stated:

All civil suits which this Act authorizes, as every lawyer understands, are not based on it, they are based on the rights of the citizen. The Act only gives a remedy.53

Similarly, in describing the conspiracies actionable under § 1985(3), the Supreme Court in Griffin said:

The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights Secured by the law to all.54

Whatever else "equal privileges and immunities" or "equal protection" may mean, in the context here, we conclude that a deprivation of equal privileges and immunities under § 1985(3) includes the deprivation of a right secured by a federal statute guaranteeing equal employment opportunity.

This is not to say, however, that the object of the conspiracy must necessarily be independently illegal, or that the law conferring a right must by its own force secure it against private action.55 For the statute proscribes conspiracies to deprive persons or classes of persons of legal rights "directly or indirectly." And, as Judge Learned Hand said of another section of the Ku Klux Klan Act securing federal privileges, "it would emasculate the act either to deny protection against reprisal to those whom threats did not deter, or to leave without recourse those who were later made victims of reprisals of which they had not been warned."56

Thus § 1985(3) may not be construed as a warrant to impose wide-ranging new duties upon private individuals in the interests of abstract equality. Yet it must be remembered that the Act was broad-gauged legislation designed to provide additional remedies for actions threatening the enjoyment of important rights. As a draftsman of the Act expressed the intent:

This Act is remedial and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally construed . . . (and) the largest latitude consistent with the words employed is uniformly given in construing such statutes. . . .57

(b) Equal Protection Privileges and Immunities in this case

Here, as noted above, the plaintiff alleged a concerted course of conduct on the part of individual defendants of "intentionally and deliberately . . . denying to female employees equal employment opportunity," in various specified respects.58 Novotny further pleaded that in retribution for his support of equal employment opportunities for women within the GAF organization, the individual defendants, acting in concert, caused his employment with GAF to be terminated. Taking his averments as true as on a Rule 12(b)(6) motion we must59 Novotny has made out a case that he has been injured by acts done in furtherance of a conspiracy proscribed by § 1985(3).

The conspiracy alleged had as its goal the denial of job equality for women, in direct violation of federal law guaranteeing this basic and important right.60 And at least a coadunation to deprive female employees of the basic right of equal opportunity in contravention of federal law would fall squarely within the statute's prohibition of conspiracies to abridge equal privileges and immunities.61

While the Congress in 1871 could not have specifically contemplated a federal statute that was not enacted until almost a century later, as a matter of ordinary language the words of § 1985(3) clearly embrace a statutorily provided right of equal employment opportunity within the rubric "equal privileges and immunities under the laws." As the Court said in United States v. Price,62 regarding 18 U.S.C. § 241, the "closest remaining criminal analogue to § 1985(3)":63

The language . . . is plain and unlimited. As we have discussed, its language embraces all of the rights and privileges secured to citizens by All of the Constitution and All of the laws of the United States. There is no indication in the language that the sweep of the section is confined to rights that are conferred by or "flow from" the Federal Government, as distinguished from those secured or confirmed or guaranteed by the Constitution.

Nor does the legislative history of the Ku Klux Klan Act weaken the implication of the statutory language that rights conferred by at least some federal statutes fall within the definition of "equal privileges and immunities."64 Congressman Shellabarger, the Act's prime legislative engineer, described § 2, from which § 1985(3) is derived as "providing for the punishment of any combination or conspiracy" impinging on basic rights protected by law.65 And Senator Edmunds stated that § 2 mandated punishment for acts done in pursuance of "a conspiracy to deprive the citizens of the United States, in the various ways named, of the rights which the Constitution and laws of the United States made pursuant to it give them."66

The conclusion that rights conferred by at least some federal statutes fall within the ambit of "equal privileges and immunities under the laws," which § 1985(3) protects, is also amply supported by relevant precedent. A number of courts of appeals have determined that a deprivation of certain statutory rights gives rise to a cause of action under § 1985(3).67 Moreover, in cases regarding statutes cognate to § 1985(3), the Supreme Court has held that "privileges and immunities" include federal statutory rights.68

In United States v. Johnson,69 the Supreme Court reviewed the application of § 241,70 which protects the "free exercise or enjoyment of any right or privilege secured by the Constitution and laws of the United States," to a "conspiracies by outside hoodlums to assault Negroes for exercising their right to equality in public accommodations under § 201 of the Civil Rights Act."71 The Court had little trouble in concluding that "the right to service in a restaurant is such a 'right', (under § 241) at least by virtue of the 1964 Act".72 Similarly, almost a century earlier, in United States v. Waddell,73 the Supreme Court was faced with a combination to drive a homesteader off federal land upon which he was attempting to establish a claim pursuant to statutory procedures. Such acts "to prevent or throw obstruction in the way of exercising such statutory rights" were held to constitute a conspiracy to impair federal rights which could be attacked under § 241.

Similar light is cast by the interpretation of § 1983, formerly § 1 of the Ku Klux Klan Act of 1871.74 In City of Greenwood v. Peacock, the Supreme Court stated that under § 1983 "officers may be made to respond in damages . . . for violations of rights conferred by federal equal civil rights laws (sic)," and a number of Circuits have acknowledged that suits for such statutory violations are proper.75

Having held that at least some federal statutory rights can form the predicate for a suit under § 1985(3), we conclude that Novotny, in alleging the existence of a conspiracy to violate the equal employment rights of female employees in contravention of Title VII, has adequately pleaded the existence of conspiracy to deprive a class of persons of equal privileges or immunities under the laws.

(c) Conflict with Title VII

The defendants suggest that even if § 1985(3) provides a remedy for conspiracies to impair statutorily-conferred rights as a general matter, a § 1985(3) action to redress conspiracies to violate Title VII rights would be inconsistent with the administrative mechanism established by the latter Act. In support of this proposition, they cite the Fourth Circuit's holding in Doski v. Goldseker.76

In Doski, a female employee brought suit alleging sex discrimination violative of both Title VII and § 1985(3). The court held the Title VII remedy to be the exclusive means of vindicating statutory rights, since the availability of § 1985(3) would allow a plaintiff to by-pass the administrative procedures provided by Title VII. Doski read those parts of the legislative history of Title VII approving overlap between Title VII and other Civil Rights Act remedies to refer only to vindication of "federal right (which existed) prior to the enactment of Title VII."77

At least one court of appeals has apparently reached a conclusion contrary to that of the Fourth Circuit. In Marlowe v. Fischer Body,78 the Sixth Circuit reversed the dismissal of a complaint which alleged employment discrimination based on religion and national origin. Although the complaint contained counts based on Title VII and the NLRA, in addition to § 1985(3), the Sixth Circuit reversed the dismissal on all counts.79

We find the result reached in Marlowe to be better grounded in history and precedent than that in Doski. On its face § 1985(3) makes no distinction among federal privileges and immunities depending on the date of the enactment of laws securing them. As noted above, the language seems to protect All such privileges and immunities. Indeed, in describing the bill, Senator Edmunds stated that it reached "conspiracies to deprive people of the equal protection of the laws, Whatever those laws may be."80

Thus, if rights protected by Title VII are to be excluded from the scope of § 1985(3), such result must flow from the fact that Title VII worked a partial repeal of § 1985(3), although § 1985(3) was not mentioned by the later legislation. Such repeals by implication are, of course, not favored. In Runyon v. McCrary,81 the Supreme Court recently reiterated, in reference to § 1981, the rule that implied repeals occur only if the two legislative acts in question are in irreconcilable conflict.82 Given the legislative history of Title VII and its construction by the Supreme Court, we discern no such conflict here.

As the Supreme Court observed in Alexander v. Gardner-Denver Co.,83 the Senate defeated an amendment which would have made Title VII the exclusive federal remedy for most unlawful employment practices, and a similar amendment was rejected in connection with the Equal Employment Opportunity Act of 1972. Indeed, the Supreme Court noted in Runyon84 that Senator Williams, floor manager of the 1972 Act, argued in opposition to the amendment that "it is not our purpose to repeal existing civil rights laws," and specifically stated that:

The law against employment discrimination did not begin with Title VII and the EEOC, nor is it intended to end with it . . . the courts have specifically held that Title VII and the Civil Rights Acts of 1866 and 1871 are not mutually exclusive, and must be read together to provide alternative means to redress individual grievances.85

Such statements are not isolated remarks. After reviewing the legislative history of Title VII, the Supreme Court in Johnson v. REA concluded:

Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.86

In view of this holding, and of the generally favorable reception which the Supreme Court has extended to Reconstruction Act litigation dealing with subjects also covered by later civil rights enactments,87 we conclude that Novotny's claim under § 1985(3) is not precluded by Title VII.

(1) The Scope of the Inquiry

The defendants assert that if § 1985(3) purports to reach confederations such as the one alleged by Novotny, the statute is beyond the powers conferred upon Congress, and therefore unconstitutional. Before examining this contention, the question of the statute's constitutionality must be set in perspective.

In the first case in which the Supreme Court faced a challenge to the constitutionality of the Ku Klux Klan Act of 1871, the Court set forth its analysis in these terms:

Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not withi