To deter violence against blacks in the Reconstruction era, Congress passed a law, the Ku Klux Klan Act of 1871, that provided both civil and criminal penalties for those who conspire to deprive anyone "of equal privileges and immunities under the laws."
For more than a century, the law has been little used to secure equal rights, partly because of crippling restrictions imposed by the courts almost from the start. The criminal sanctions were knocked out way back in 1882.
Now, however, the government is urging the Supreme Court to hold that the law applies to corporation officials accused by a former director and officer of firing him for trying to stop discrimination against women employes.
"Today, conspiracies are less violent, the members often wear business suits, and discrimination is practiced in a corporate name," Solicitor General Wade H. McCree Jr. wrote in a friend-of-the-court brief for the United States and the Equal Employment Opportunity Commission.
Yet the KKK law, known as section 1985, "still condemns schemes to deny equal rights," McCree said. Indeed, he pointed out in a footenot, "The modern Ku Klux Klan has incorporated and its leadership operates as a private corporation."
At the same time, McCree emphasized that section 1985 doesn't reach every discriminatory act of a corporation or organization, an example being the "company" decisions made by and individual solely on his own authority.
The case, which the court will hear April 18, involves the Great American Federal Savings & Loan Association of Pittsburgh (GAF), nine present and former officers and directors, and former secretary and director John R. Novotny.
Novotny began as a clerk in 1950, worked his way up through the ranks and was fired in 1975. Nov 54, he told a reporter that he gets along "sort of, trying to sell real estate." He and his wife, Agnes, who is not active in the women's movement, have three grown children.
His concern about bias against women came to a head in July 1974, when GAF demoted Betty Batis as assistant treasurer in charge of tellers and assigned her to work for another woman in the savings department. Batis complained that the company's promotion policies discriminated against women. She was fired.
In a phone interview, Novotny said the Batis episode particularly disturbed him because it occurred in an organization that had been set up to "help people." GAF, he pointed out, was founded in 1916 as the Slovak Savings & Loan Association and retained that ethnic indentification for nearly 20 years. "I used to push for equal rights before I was a director," he said.
Novotny decided to protest GAF's promotion policies at a meeting of the board. Why? the reporter inquired.
"It may sound far-fetched, but I believe in equal rights," he replied. "I realize you can't just pass a law and have equal rights immediately," but, he said, the Batis demotion, showed that "we are regressing."
At the meeting, held in January 1975, Novotny's fellow directors voted to fire him as secretary and as an employe.
Within a week, he filed a charge with the EEOC that his dismissal violated the guarantee against discrimination in Title VII of the Civil Rights Act of 1964. The commission then authorized him to file a private suit.
Invoking the Klan law, Novotny then went into U.S. District Court to charge that his firing resulted from a conspiracy by among the nine individual defendants "to deprive [him] of an to penalize him for the exercise of his constitutional rights to freedom of expression and association" because he had supported "equal employment opportunities for women within the GAF organization."
GAF argued, however, that officers and directors of a single corporation are legally incapable of forming conspiracy. The judge agreed and dismissed the suit.
In a stunning upset, however, the 3rd U.S. Circuit Court of Appeals reversed 9 to 0. GAF, in a petition for Supreme Court Review, again argues the inapplicability of section 1985. The government and the American Civil Liberties Union, also in a friend-of-the-court brief, argue the contrary.