author: Justice Powell Justice Stewart, Justice Stevens,

text:
    DELAWARE STATE COLLEGE et al. v. RICKS
    No. 79-939.
    Argued October 7, 1980
    Decided December 15, 1980

      Powell, J., delivered the opinion of the Court, in which Btjkger, C. J., and White, BlachmtjN, and Rehnquist, JJ., joined. Stewart, J., filed a dissenting opinion, in which BrenNAN and Marshall, JJ., joined, post, p. 262. SteveNS, J., filed a dissenting opinion, post, p. 265.

      Nicholas H. Rodriguez argued the cause for petitioners. With him on the briefs were Harold Schmittinger and William D. Fletcher, Jr.

      Judith E. Harris argued the cause and filed briefs for respondent.

        Robert E. Williams, Douglas S. McDowell, and Daniel R. Levinson
        filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Deputy Solicitor General Wallace, Edwin S. Kneedler, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prayer for the United States et al.; and by David M. Rabban and Victor J. Stone for the American Association of University Professors.

   Justice Powell

delivered the opinion of the Court.

The question in this case is whether respondent, a college professor, timely complained under the civil rights laws that he had been denied academic tenure because of his national origin.

I

Columbus Ricks is a black Liberian. In 1970, Ricks joined the faculty at Delaware State College, a state institution attended predominantly by blacks. In February 1973, the Faculty Committee on Promotions and Tenure (the tenure committee) recommended that Ricks not receive a tenured position in the education department. The tenure committee, however, agreed to reconsider its decision the following year. Upon reconsideration, in February 1974, the committee adhered to its earlier recommendation. The following month, the Faculty Senate voted to support the tenure committee’s negative recommendation. On March 13, 1974, the College Board of Trustees formally voted to deny tenure to Ricks.

Dissatisfied with the decision, Ricks immediately filed a grievance with the Board’s Educational Policy Committee (the grievance committee), which in May 1974 held a hearing and took the matter under submission. During the pendency of the grievance, the College administration continued to plan for Ricks’ eventual termination. Like many colleges and universities, Delaware State has a policy of not discharging immediately a junior faculty member who does not receive tenure. Rather, such a person is offered a “terminal” contract to teach one additional year. When that contract expires, the employment relationship ends. Adhering to this policy, the Trustees on June 26, 1974, told Ricks that he would be offered a 1-year “terminal” contract that would expire June 30, 1975. Ricks signed the contract without ob-jeetion or reservation on September 4, 1974. Shortly thereafter, on September 12, 1974, the Board of Trustees notified Ricks that it had denied his grievance.

Ricks attempted to file an employment discrimination charge with the Equal Employment Opportunity Commission (EEOC) on April 4, 1975. Under Title YII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, however, state fair employment practices agencies have primary jurisdiction over employment discrimination complaints. See 42 U. S. C. § 2000e-5 (c). The EEOC therefore referred Ricks’ charge to the appropriate Delaware agency. On April 28, 1975, the state agency waived its jurisdiction, and the EEOC accepted Ricks’ complaint for filing. More than two years later, the EEOC issued a “right to sue” letter.

Ricks filed this lawsuit in the District Court on September 9, 1977. The complaint alleged, inter alia, that the College had discriminated against him on the basis of his national origin in violation of Title VII and 42 U. S. C. § 1981. The District Court sustained the College’s motion to dismiss both claims as untimely. It concluded that the only unlawful employment practice alleged was the College’s decision to deny Ricks tenure, and that the limitations periods for both claims had commenced to run by June 26, 1974, when the President of the Board of Trustees officially notified Ricks that he would be offered a 1-year “terminal” contract. See n. 2, supra. The Title YII claim was not timely because Ricks had not filed his charge with the EEOC within 180 days after that date. Similarly, the § 1981 claim was not timely because the lawsuit had not been filed in the District Court within the applicable 3-year statute of limitations.

The Court of Appeals for the Third Circuit reversed. 605 F. 2d 710 (1979). It agreed with the District Court that Ricks’ essential allegation was that he. had been denied tenure illegally. Id., at 711. According to the Court of Appeals, however, the Title YII filing requirement, and the statute of limitations for the § 1981 claim, did not commence to run until Ricks’ “terminal” contract expired on June 30, .1975. The court reasoned:

“ ‘ [A] terminated employee who is still working should not be required to consult a lawyer or file charges of discrimination against his employer as long as he is still working, even though he has been told of the employer’s present intention to terminate him in the future.’ ” Id., at 712, quoting Bonham v. Dresser Industries, Inc., 569 F. 2d 187, 192 (CA3 1977), cert. denied, 439 U. S. 821 (1978).

See Egelston v. State University College at Geneseo, 535 F. 2d 752 (CA2 1976); cf. Noble v. University of Rochester, 535 F. 2d 756 (CA2 1976).

The Court of Appeals believed that the initial decision to terminate an employee sometimes might be reversed. The aggrieved employee therefore should not be expected to resort to litigation until termination actually has occurred. Prior resort to judicial or administrative remedies would be “likely to have the negative side effect of reducing that employee’s effectiveness during the balance of his or her term. Working relationships will be injured, if not sundered, and the litigation process will divert attention from the proper fulfillment of job responsibilities.” 605 F. 2d, at 712. Finally, the Court of Appeals thought that a rule focusing on the last day of employment would provide a “bright line guide both for the courts and for the victims of discrimination.” Id., at 712-713. It therefore reversed and remanded the case to the District Court for trial on the merits of Ricks’ discrimination claims. We granted certiorari. 444 U. S. 1070 (1980).

For the reasons that follow, we think that the Court of Appeals erred in holding that the filing limitations periods did not commence to run until June 30, 1975. We agree instead with the District Court that both the Title YII and § 1981 claims were untimely. Accordingly, we reverse.

II

Title VII requires aggrieved persons to file a complaint with the EEOC “within one hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U. S. C. § 2000e-5 (e). Similarly, § 1981 plaintiffs in Delaware must file suit within three years of the unfavorable employment decision. See n. 5, supra. The limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending claims arising from employment decisions that are long past. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 463-464 (1975); see United Air Lines, Inc. v. Evans, 431 U. S. 553, 558 (1977).

Determining the timeliness of Ricks’ EEOC complaint, and this ensuing lawsuit, requires us to identify precisely the “unlawful employment practice” of which he complains. Ricks now insists that discrimination motivated the College not only in denying him tenure, but also in terminating his employment on June 30, 1975. Tr. of Oral Arg. 25, 26, 31-32. In effect, he is claiming a “continuing violation” of the civil rights laws with the result that the limitations periods did not commence to run until his 1-year “terminal” contract expired. This argument cannot be squared with the allegations of the complaint. Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. United Air Lines, Inc. v. Evans, supra, at 558. If Ricks intended to complain of a discriminatory discharge, he should have identified the alleged discriminatory acts that continued until, or occurred at the time of, the actual termination of his employment. But the complaint alleges no such facts.

Indeed, the contrary is true. It appears that termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure. In order for the limitations periods to commence with the date of discharge, Ricks would have had to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure. But no suggestion has been made that Ricks was treated differently from other unsuccessful tenure aspirants. Rather, in accord with the College’s practice, Ricks was offered a 1-year “terminal” contract, with explicit notice that his employment would end upon its expiration.

In sum, the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later. The Court of Appeals for the Ninth Circuit correctly held, in a similar tenure case, that “[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” Abramson v. University of Hawaii, 594 F. 2d 202, 209 (1979) (emphasis added); see United Air Lines, Inc. v. Evans, 431 U. S., at 558. It is simply insufficient for Ricks to allege that his termination “gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.” Id., at 557. The emphasis is not upon the effects of earlier employment decisions; rather, it “is [upon] whether any present violation exists.” Id., at 558 (emphasis in original).

III

We conclude for the foregoing reasons that the limitations periods commenced to run when the tenure decision was made and Ricks was notified. The remaining inquiry is the identification of this date.

A

Three dates have been advanced and argued by the parties. As indicated above, Ricks contended for June 30, 1975, the final date of his “terminal” contract, relying on a continuing-violation theory. This contention fails, as we have shown, because of the absence of any allegations of facts to support it. The Court of Appeals agreed with Ricks that the relevant date was June 30, 1975, but it did so on a different theory. It found that the only alleged discriminatory act was the denial of tenure, 605 F. 2d, at 711, but nevertheless adopted the “final date of employment” rule primarily for policy reasons. Supra, at 255-256. Although this view has the virtue of simplicity, the discussion in Part II of this opinion demonstrates its fallacy as a rule of general application. Congress has decided that time limitations periods commence with the date of the “alleged unlawful employment practice.” See 42 U. S. C. § 2000e-5 (e). Where, as here, the only challenged employment practice occurs before the termination date, the limitations periods necessarily commence to run before that date. It should not be forgotten that time-limitations provisions themselves promote important interests; “the period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, Inc., 421 U. S., at 463-464. See Mohasco Corp. v. Silver, 447 U. S. 807, 820, 825 (1980).

B

The EEOC, in its amicus brief, contends in the alternative for a different date. It was not until September 12, 1974, that the Board notifiéd Ricks that his grievance had been denied. The EEOC therefore asserts that, for purposes of computing limitations periods, this was the date of the unfavorable tenure decision. Two possible lines of reasoning underlie this argument. First, it could be contended that the Trustees’ initial decision was only an expression of intent that did not become final until the grievance was denied. In support of this argument, the EEOC notes that the June 26 letter explicitly held out to Ricks the possibility that he would receive tenure if the Board sustained his grievance. See n. 2, supra. Second, even if the Board’s first decision expressed its official position, it could be argued that the pendency of the grievance should toll the running of the limitations periods.

We do not find either argument to be persuasive. As to the former, we think that the Board of Trustees had made clear well before September 12 that it had formally rejected Ricks’ tenure bid. The June 26 letter itself characterized that as the Board’s "official position.” Ibid. It is apparent, of course, that the Board in the June 26 letter indicated a willingness to change its prior decision if Ricks’ grievance were found to be meritorious. But entertaining a grievance complaining of the tenure decision does not suggest that the earlier decision was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.

As to the latter argument, we already have held that the pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods. Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229 (1976). The existence of careful procedures to assure fairness in the tenure decision should not obscure the principle that limitations periods normally commence when the employer’s decision is made. Of. id., at 234-235.

C

The District Court rejected both the June 30, 1975, date and the September 12, 1974, date, and concluded that the limitations periods had commenced to run by June 26, 1974, when the President of the Board notified Ricks that he would be offered a "terminal” contract for the 1974-1975 school year. We cannot say that this decision was erroneous. By June 26, the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee’s recommendation; and the Board of Trustees formally had voted to deny Ricks tenure. In light of this unbroken array of negative decisions, the District Court was justified in concluding that the College had established its official position — and made that position apparent to Ricks — ho later than June 26, 1974.

We therefore reverse the decision of the Court of Appeals and remand to that court so that it may reinstate the District Court’s order dismissing the complaint.

Reversed and remanded.

Justice Stewart,

with whom Justice Brennan and Justice Marshall join, dissenting.

I agree with the Court that the unlawful employment practice alleged in the respondent’s complaint was a discriminatory denial of tenure, not a discriminatory termination of employment. See ante, at 257-259, and nn. 8, 9. Nevertheless, I believe that a fair reading of the complaint reveals a plausible allegation that the College actually denied Ricks tenure on September 12, 1974, the date on which the Board finally confirmed its decision to accept the faculty’s recommendation that he not be given tenure.

Therefore, unlike the Court, I think Ricks should be allowed to prove to the District Court that the allegedly unlawful denial of tenure occurred on that date. As noted by the Court, see ante, at 260, n. 13, if Ricks succeeds in this proof, his § 1981 claim would certainly be timely, and the timeliness of his Title VII claim would then depend on whether his filing of a complaint with the Delaware Department of Labor entitled him to file his EEOC charge within 300 days of the discriminatory act, rather than within the 180 days’ limitation that the Court of Appeals and the District Court assumed to be applicable.

A brief examination of the June 26, 1974, letter to Ricks from the Board of Trustees, quoted by the Court, ante, at 253, n. 2, provides a reasonable basis for the allegation that the College did not effectively deny Ricks tenure until September 12. The letter informed Ricks of the Board’s “intent not to renew” his contract at the end of the 1974-1975 academic year. And the letter suggested that the Board was so informing Ricks at that time only to ensure technical compliance with College and American Association of University Professors requirements in case it should later decide to abide by its earlier acceptance of the faculty’s recommendation that Ricks be denied tenure. The Board expressly stated in the letter that it had “no way of knowing” what the outcome of the grievance process might be, but that a decision of the Board’s Educational Policy Committee favorable to Ricks would “of course . . . supersede any previous action taken by the Board.”

Thus, the Board itself may have regarded its earlier actions as tentative or preliminary, pending a thorough review triggered by the respondent’s request to the Committee. The Court acknowledges that this letter expresses the Board’s willingness to change its earlier view on Ricks’ tenure, but considers the grievance procedure under which the decision might have been changed to be a remedy for an earlier tenure decision and not a part of the overall process of making the initial tenure decision. Ricks, however, may be able to prove to the District Court that at his College the original Board response to the faculty’s recommendation was not a virtually final action subject to reopening only in the most extreme cases, but a preliminary decision to advance the tenure question to the Board’s grievance committee as the next conventional stage in the process.

Whether this is an accurate view of the tenure process at Delaware State College is, of course, a factual question we cannot resolve here. But Ricks lost his case in the trial court on a motion to dismiss. I think that motion was wrongly-granted, and that Ricks was entitled to a hearing and a determination of this factual issue. See Abramson v. University of Hawaii, 594 F. 2d 202 (CA9).

I would, therefore, vacate the judgment of the Court of Appeals and remand the case to the District Court so that it can make this determination and then, if necessary, resolve whether Title VII allowed Ricks 300 days from the denial of tenure to file his charge with the Commission.

Justice Stevens,

dissenting.

The custom widely followed by colleges and universities of offering a 1-year terminal contract immediately after making an adverse tenure decision is, in my judgment, analogous to the custom in many other personnel relationships of giving an employee two weeks’ advance notice of discharge. My evaluation of this case can perhaps best be explained by that analogy.

Three different reference points could arguably determine when a cause of action for a discriminatory discharge accrues: (1) when the employer decides to terminate the relationship; (2) when notice of termination is given to the employee; and (3) when the discharge becomes effective. The most sensible rule would provide that the date of discharge establishes the time when a cause of action accrues and the statute of limitations begins to run. Prior to that date, the allegedly wrongful act is subject to change; more importantly, the effective discharge date is the date which can normally be identified with the least difficulty or dispute.

I would apply the same reasoning here in identifying the date on which respondent’s allegedly discriminatory discharge became actionable. See Egelston v. State University College at Geneseo, 535 F. 2d 752, 755 (CA2 1976). Thus under my analysis the statute of limitations began to run on June 30, 1975, the termination date of respondent’s 1-year contract. In reaching that conclusion, I do not characterize the College’s discharge decision as a “continuing violation”; nor do I suggest that a teacher who is denied tenure and who remains in a school’s employ for an indefinite period could file a timely complaint based on the tenure decision when he or she is ultimately discharged. Rather, I regard a case such as this one, in which a college denies tenure and offers a terminal 1-year contract as part of the adverse tenure decision, as a discharge case. The decision to deny tenure in this situation is in all respects comparable to another employer’s decision to discharge an employee and, in due course, to give the employee notice of the effective date of that discharge. Both the interest in harmonious working relations during the terminal period of the employment relationship, and the interest in certainty that is so important in litigation of this kind, support this result.

For these reasons, I would affirm the judgment of the Court of Appeals.

       According to the Court of Appeals, the grievance committee almost immediately recommended to the Board that Ricks’ grievance be denied. 605 F. 2d 710, 711 (CA3 1979). Nothing in the record, however, reveals the date on which the grievance committee rendered its decision.

       The June 26 letter stated:
      June 26, 1974
      Dr. Columbus Ricks
      Delaware State College
      Dover, Delaware
      Dear Dr. Ricks:
      On March 13, 1974, the Board of Trustees of Delaware State College officially endorsed the recommendations of the Faculty Senate at its March 11, 1974 meeting, at which time the Faculty Senate recommended that the Board not grant you tenure.
      As we are both aware, the Educational Policy Committee of the Board of Trustees has heard your grievance and it is now in the process of coming to a decision. The Chairman of the Educational Policy Committee has indicated to me that a decision may not be forthcoming until sometime in July. In order to comply with the 1971 Trustee Policy Manual and AAUP requirements with regard to the amount of time needed in proper notification of non-reappointment for non-tenured faculty members, the Board has no choice but to follow actions according to its official position prior to the grievance process, and thus, notify you of its intent not to renew your contract at the end of the 1974-75 school year.
      Please understand that we have no way of knowing what the outcome of the grievance process may be, and that this action is being taken at this time in order to be consistent with the present formal position of the Board and AAUP time requirements in matters of this kind. Should the Educational Policy Committee decide to recommend that you be granted tenure, and should the Board of Trustees concur with their recommendation, then of course, it will supersede any previous action taken by the Board.
      Sincerely yours,
      /s/ Walton H. Simpson, President
      Board of Trustees of Delaware State College

       In addition to the College itself, other defendants (petitioners in this Court) are Trustees Walton H. Simpson, William H. Davis, William G. Dix, Edward W. Hagemeyer, James C. Hardcastle, Delma Lafferty, James H. Williams, William S. Young, Burt C. Pratt, Luna I. Mishoe, and Pierre S. duPont IV (ex officio); the academic dean, M. Milford Caldwell (now deceased); the education department chairman, George W. McLaughlin; and tenure committee members Romeo C. Henderson, Harriet R. Williams, Arthur E. Bragg, Ora Bunch, Ehsan Helmy, Vera Powell, John R. Price, Herbert Thompson, W. Richard Wynder, Ulysses Washington, and Jane Laskaris.

       Section 1981 provides:
      “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

       The statute of limitations in § 1981 cases is that applicable to similar claims under state law. Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 462 (1975). The parties in this case agree that the applicable limitations period under Delaware law is three years.

       Because the claims were not timely filed, we do not decide whether a claim of national origin discrimination is cognizable under § 1981.

       Under certain circumstances, the filing period is extended to 300 days. 42 U. S. C. § 2000e-5 (e); see Mohasco Corp. v. Silver, 447 U. S. 807 (1980).

       Sixteen paragraphs in the complaint describe in detail the sequence of events surrounding the tenure denial. Only one paragraph even mentions Ricks’ eventual departure from Delaware State, and nothing in that paragraph alleges any fact suggesting discrimination in the termination of Ricks’ employment.
      The complaint does allege that a variety of unusual incidents occurred during the 1974-1975 school year, including one in which the education department chairman, George W. McLaughlin, physically attacked Ricks. This incident allegedly resulted in McLaughlin’s conviction for assault. Counsel for Ricks conceded at oral argument that incidents such as this were not independent acts of discrimination, Tr. of Oral Arg. 29-30, but at most evidence that could be used at a trial.

       Complaints that employment termination resulted from discrimination can present widely varying circumstances. In this case the only alleged discriminatory act is the denial of tenure sought by a college professor, with the termination of employment not occurring until a later date. The application of the general principles discussed herein necessarily must be made on a case-by-case basis.

       Brief for EEOC as Amicus Curiae 19-22; 605 F. 2d, at 712-713.

       The Court of Appeals also thought it was significant that a final-date-of-employment rule would permit the teacher to conclude his affairs at a school without the acrimony engendered by the filing of an administrative complaint or lawsuit. Id., at 712. It is true that “the filing of a lawsuit might tend to deter efforts at conciliation.” Johnson v. Railway Express Agency, Inc., 421 U. S., at 461. But this is the “natural effec[t] of the choice Congress has made,” ibid., in explicitly requiring that the limitations period commence with the date of the “alleged unlawful employment practice,” 42 U. S. C. § 2000e-5 (c).

         It is conceivable that the Court of Appeals’ "final day of employment” rule might discourage colleges even from offering a “grace period,” such as Delaware State’s practice of 1-year “terminal” contracts, during which the junior faculty member not offered tenure may seek a teaching position elsewhere.

       If September 12 were the critical date, the § 1981 claim would be timely. Counting from September 12, the Title VII claim also would be timely if Ricks is entitled to 300 days, rather than 180 days, in which to file with the EEOC. In its brief before this Court, the EEOC as amicus curiae noted that Delaware is a State with its own fair employment practices agency. According to the EEOC, therefore, Ricks was entitled to 300 days to file his complaint. See n. 7, supra. Because we hold that the time-limitations periods commenced to run no later than June 26, 1974, we need not decide whether Ricks was entitled to 300 days to file under Title VII. Counting from the June 26 date, Ricks’ filing with the EEOC was not timely even with the benefit of the 300-day period.

       See also B. Schlei & P. Grossman, Employment Discrimination Law 235 (1979 Supp.), and cases cited therein.

       We do not suggest that aspirants for academic tenure should ignore available opportunities to request reconsideration. Mere requests to reconsider, however, cannot extend the limitations periods applicable to the civil rights laws.

       We recognize, of course, that the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes. See Oscar Mayer & Co. v. Evans, 441 U. S. 750, 761 (1979); Love v. Pullman Co., 404 U. S. 522, 526-527 (1972). But, for the reasons we have stated, there can be no claim here that Ricks was not abundantly forewarned. In NLRB v. Yeshiva University, 444 U. S. 672, 677 (1980), we noted that university boards of trustees customarily rely on the professional expertise of the tenured faculty, particularly with respect to decisions about hiring, tenure, termination, and promotion. Thus, the action of the Board of Trustees on March 13, 1974, affirming the faculty recommendation, was entirely predictable. The Board’s letter of June 26, 1974, simply repeated to Ricks the Board’s official position and acknowledged the pendency of the grievance through which Ricks hoped to persuade the Board to change that position.

       We need not decide whether the District Court correctly focused on the June 26 date, rather than the date the Board communicated to Ricks its unfavorable tenure decision made at the March 13, 1974, meeting. As we have stated, see n. 13, supra, both the Title VII and § 1981 complaints were not timely filed even counting from the June 26 date.

       The Court treats the District Court’s determination of June 26, 1974, as the date of tenure denial as a factual finding which is not clearly erroneous. Ante, at 261-262. But it must be stressed that the District Court dismissed Ricks’ claims on the pleadings, and so never made factual determinations on this or any other issue.

       Title VII would allow Ricks 300 days if he had “initially instituted” proceedings with a local or state agency with authority to grant him relief. 42 U. S. C. § 2000e-5 (e); see Mohasco Corp. v. Silver, 447 U. S. 807. To benefit from this provision, however, Ricks would arguably have had to make a timely filing with the state agency. Delaware law requires that a charge of discrimination be filed with the Department of Labor within 90 days after the allegedly discriminatory practice occurred or within 120 days after the practice is discovered, whichever date is later. Del. Code Ann., Tit. 19, § 712(d) (1979). Neither the District Court nor the Court of Appeals considered the timeliness of Ricks’ filing with the state agency, nor the significance of the state agency’s action in waiving jurisdiction over Ricks’ charge, and so these questions would be appropriately addressed on remand.

       This view is consistent with the policies and model procedures of the American Association of University Professors, AAUP Policy Documents and Reports 15, 29 (1977); see Board of Regents v. Roth, 408 U. S. 564, 578-579, and n. 17; Brief for AAUP as Amicus Curiae 9-10, on whose requirements the Board of Trustees in this case expressly relied in explaining its action in the June 26 letter.

       Although few courts have had the occasion to consider the issue in the context of notice of discharge preceding actual termination, some courts have recognized that the date on which the employee actually ceases to perform services for the employer, and not a later date when the payment of benefits or accrued vacation time ceases, should determine the running of the statute of limitations. See Bonham v. Dresser Industries, Inc., 669 F. 2d 187, 192 (CA3 1977), cert. denied, 439 U. S. 821 (1978); Krzyzewski v. Metropolitan Government of Nashville and Davidson County, 584 F. 2d 802, 804-805 (CA6 1978).

       This interest has special force in the college setting. Because the employee must file a charge with the EEOC within 180 days after the occurrence, the Court’s analysis will necessitate the filing of a charge while the teacher is still employed. The filing of such a charge may prejudice any pending reconsideration of the tenure decision and also may impair the teacher’s performance of his or her regular duties. Neither of these adverse consequences would be present in a discharge following a relatively short notice such as two weeks.

       The interest in certainty lies not only in choosing the most easily identifiable date, but also in avoiding the involvement of the EEOC until the school’s decision to deny tenure is final. The American Association of University Professors, as amicus curiae here, has indicated that under the “prevailing academic employment practices” of American higher education, which allow for maximum flexibility in tenure decisions, initial tenure determinations are often reconsidered, and the reconsideration process may take the better part of the terminal contract year. Brief for American Association of University Professors as Amicus Curiae 6-11.


source: Caselaw Access Project

author: Justice Stevens Justice Blackmun,

license: Public Domain

text:
    POTOMAC ELECTRIC POWER CO. v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U. S. DEPARTMENT OF LABOR, et al.
    No. 79-816.
    Argued October 8, 1980
    Decided December 15, 1980

      Stevens, J., delivered the opinion of the Court, in which BuRger, C. J., and Brennan, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, post, p. 284.

      Richard W. Turner argued the cause for petitioner. With him on the briefs was Stephen A. Trimble.

      Elinor Hadley Stillman argued the cause for the federal respondent. With her on the brief were Solicitor General McCree, Deputy Solicitor General Geller, Laurie M. Streeter, and Lois G. Williams. Leslie Scherr argued the cause for respondent Cross. With him on the brief was William F. Krebs.

   Justice Stevens

delivered the opinion of the Court.

Under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. (part 2) 1424, as amended, 38 U. S. C. §§ 901-950 (1976 ed. and Supp. III), compensation for a permanent partial disability must be determined in one of two ways. First, if the injury is of a kind specifically identified in the schedule set forth in §§8(c)(1)-(20) of the Act, 33 U. S. C. §§ 908 (c)(1)-(20), the injured employee is entitled to receive two-thirds of his average weekly wages for a specific number of weeks, regardless of whether his earning capacity has actually been impaired. Second, in all other cases, § 8 (c)(21), 33 U. S. C. § 908 (c)(21), authorizes compensation equal to two-thirds of the difference between the employee’s preinjury average weekly wages and his postinjury wage-earning capacity, during the period of his disability. The question, in this case is whether a permanently partially disabled employee, entitled to compensation under the statutory schedule, may elect to receive a larger recovery under § 8(c) (21) measured by the actual impairment of wage-earning capacity caused by his injury. Although Congress could surely authorize such an election, it has not yet done so. We therefore hold that respondent Cross’ recovery must be limited by the statutory schedule.

Cross is employed by Potomac Electric Power Co. (Pepeo) as a cable splicer — a job that requires strength and agility. In 1974, he earned a total of $21,959.38, including overtime pay of $8,543.30. In December of that year, he injured his left knee in the course of his employment, thereby suffering a permanent partial loss of the use of his leg. The physical impairment is described as a 5 to 20% loss of the use of one leg, but the resulting impairment of his earning capacity is apparently in excess of 40%. Although Cross has retained his job, he has not been able to perform all of the strenuous duties required of a cable splicer and therefore he has received no overtime and has not qualified for certain pay increases.

Because he worked in the District of Columbia, respondent Cross is entitled to compensation under the LHWCA. It is undisputed that the injury to his leg is a “permanent partial disability” within the meaning of § 8 (c) of the Act; he therefore has an unquestioned right to a compensation award measured by a fraction of his earnings for 288 weeks. His claim, however, is for the larger amount measured by two-thirds of the difference between his average weekly earnings before the injury and his present wage-earning capacity, multiplied by the number of weeks that his disability continues.

The Administrative Law Judge allowed the larger recovery. He held that an injured employee is not required to accept the specific amount authorized by §§ 8 (c) (2) and (19) for the partial loss of the use of a leg, but instead may recover an amount based on the formula set forth in § 8(c) (21) for “all other cases.” Using that formula, the Administrative Law Judge found that respondent Cross’ permanent loss of earning capacity amounted to approximately $130 per week, and ordered Pepeo to pay him two-thirds of that amount each week for the remainder of his working life. The Benefits Review Board affirmed. Cross v. Potomac Electric Power Co., 7 BRBS 10 (1977).

The United States Court of Appeals for the District of Columbia Circuit also affirmed. 196 U. S. App. D. C. 417, 606 F. 2d 1324 (1979). Recognizing that the Act “must be construed in light of its humanitarian objectives,” and noting a “recent trend in workmen’s compensation law away from the idea of exclusivity of scheduled benefits,” the court concluded that the “all other cases” language in § 8 (c)(21) provided a “remedial alternative” measure of compensation for cases in which “the scheduled benefits fail adequately to compensate for a diminution in [wage-earning] capabilities.” While expressing sympathy for the result reached by the majority, one judge dissented.

I

The language of the Act plainly supports the view that the character of the disability determines the method of compensation. Section 8 identifies four different categories of disability and separately prescribes the method of compensation for each. In the permanent partial disability category, § 8 (c) provides a compensation schedule which covers 20 different specific injuries. It then adds an additional sub-paragraph, § 8(c) (21), that applies to any injury not included within the list of specific injuries. There is no language in that additional subparagraph indicating that it was intended to provide an alternative method of compensation for the cases described in the preceding subparagraphs; quite the contrary, by its terms, subparagraph (21) is applicable “In all other cases.”

It is also noteworthy that the statutory direction that precedes the schedule of specifically described partial disabilities mandates that the compensation prescribed by the schedule “shall be paid to the employee, as follows.” We are not free to read this language as though it granted the employee an election. Nor are we free to read the subsequent words “all other cases” as though they described “all of the foregoing” as well; the use of the word “other” forecloses that reading.

In sum, we find nothing in the statute itself to support the view that the reference to “all other cases” in § 8 (c)(21) was intended to authorize an alternative method for computation of disability benefits in certain cases of permanent partial disability already provided for in the schedule.

II

The legislative history of the Act is entirely consistent with the conclusion that it was intended to mean what it says. Although that history contains no specific consideration of the precise question before us, one aspect of the Act’s history is somewhat enlightening. The relevant language was enacted in 1927. It was patterned after a similar “scheduled benefits” provision in the New York Workmen’s Compensation Law enacted in 1922. A few years after enactment of the LHWCA, the New York Court of Appeals was confronted with the same question of construction under the New York statute that is now presented to us under the federal statute. The New York Court of Appeals apparently considered the statutory language so clear on its face that little discussion of this issue was necessary:

“Obviously, the phrase 'in all other cases’ signifies that the provisions of the paragraph shall apply only in cases where the injuries received are not confined to a specific member or specific members.” Sokolowski v. Bank of America, 261 N. Y. 57, 62, 184 N. E. 492, 494 (1933).

Nothing in the original legislative history of the federal Act or in the legislative history of subsequent amendments indicates that Congress did not intend the plain language of the federal statute to receive the same construction as the substantially identical language of its New York ancestor.

Ill

The weight of judicial authority also supports a literal reading of the Act.

During the first half century of administration of the LHWCA, federal tribunals consistently construed the schedule benefits provision as exclusive. Although the exclusivity question did not explicitly arise until 1964, prior to that time evidence of loss of wages or wage-earning capacity was considered irrelevant in cases of permanent partial disability falling within the schedule provisions. In 1964, in Williams v. Donovan, 234 F. Supp. 135 (ED La.), aff’d, 367 F. 2d 825 (CA5 1966), cert. denied, 386 U. S. 977 (1967), the first federal court to address the exclusivity issue found that “the form and language of the Act” indicated that compensation under § 8 (c)(21) for loss of wage-earning capacity was not available in cases covered by the schedule. 234 F. Supp., at 139. This construction of the Act went unchallenged for the next decade.

It was not until 1975 that the Benefits Review Board announced its dissatisfaction with the Williams construction of the statute and concluded that claimants suffering from a permanent partial disability may elect to proceed under either the schedule or § 8 (c)(21). The Board has since applied its construction of the Act in a series of decisions of which the instant case is a member. The divided opinion of the Court of Appeals is apparently the first and only federal court de-cisión accepting that construction. The notion that the plain language of the LHWCA might not mean what it says is thus a relatively recent development surfacing for the first time almost 50 years after its enactment. The relevant judicial authority prior to 1975, although not abundant, indicates that the schedule benefits were considered exclusive.

While the federal decisional authority on this question is scarce, state-law authority apparently is not. The lower court cited, and the respondents rely upon, the “recent trend in workmen’s compensation law away from the idea of exclusivity of scheduled benefits.” 196 U. S. App. D. C., at 421, 606 F. 2d, at 1328. Although this “trend” unquestionably exists, it is neither uniform nor based entirely on cases presenting issues comparable to the precise issue before us. More importantly, a proper understanding of the judicial role in this case reveals that the recent trend actually supports a literal reading of the federal statute. Our task is to ascertain the congressional intent underlying the schedule benefit provisions enacted in 1927; we are not free to incorporate into those provisions subsequent state-law developments that we may consider sound as a matter of policy. In attempting to ascertain the legislative intent underlying a statute enacted over 50 years ago, the view that once “dominate [d] the field” is more enlightening than a recent state-law trend that has not motivated subsequent Congresses to amend the federal statute. The once dominant view is entirely consistent with a literal reading of the Act.

IV

Respondents suggest two reasons why this settled construction is erroneous. They submit that it does not fulfill the fundamental remedial purpose of the Act and that it may produce anomalous results that Congress probably did not intend. The first submission is not entirely accurate; the second, though theoretically correct, has insufficient force to overcome the plain language of the statute itself.

Respondents correctly observe that prior decisions of this Court require that the LHWCA be liberally construed in order to effectuate its remedial purposes. Respondents accordingly argue that the Act should be interpreted in a manner which provides a complete and adequate remedy to an injured employee. Implicit in this argument, however, is the assumption that the sole purpose of the Act was to provide disabled workers with a complete remedy for their industrial injuries. The inaccuracy of this implicit assumption undercuts the validity of respondents’ argument.

The LHWCA, like other workmen’s compensation legislation, is indeed remedial in that it was intended to provide a certain recovery for employees who are injured on the job. It imposes liability without fault and precludes the assertion of various common-law defenses that had frequently resulted in the denial of any recovery for disabled laborers. While providing employees with the benefit of a more certain recovery for work-related harms, statutes of this kind do not purport to provide complete compensation for the wage earner’s economic loss. On the contrary, they provide employers with definite and lower limits on potential liability than would have been applicable in common-law tort actions for damages. None of the categories of disability covered by the LHWCA authorizes recovery measured by the full loss of an injured employee’s earnings; even those in the most favored categories may recover only two-thirds of the actual loss of earnings. It therefore is not correct to interpret the Act as guaranteeing a completely adequate remedy for all covered disabilities. Rather, like most workmen’s compensation legislation, the LHWCA represents a compromise between the competing interests of disabled laborers and their employers. The use of a schedule of fixed benefits as an exclusive remedy in certain cases is consistent with the employees’ interest in receiving a prompt and certain recovery for their industrial injuries as well as with the employers’ interest in having their contingent liabilities identified as precisely and as early as possible.

It is true, however, that requiring resort to the schedule may produce certain incongruous results. Unless an injury results in a scheduled disability, the employee’s compensation is dependent upon proving a loss of wage-earning capacity; in contrast, even though a scheduled injury may have no actual effect on an employee’s capacity to perform a particular job or to maintain a prior level of income, compensation in the schedule amount must be paid. Conversely, the schedule may seriously undercompensate some employees like respondent Cross. The result seems particularly unfair when his case is compared with an employee who suffers an unscheduled disability resulting in an equivalent impairment of earning capacity. Indeed, it is possible that the award for a serious .temporary partial disability could exceed the amount scheduled for a permanent disability of like character.

As this Court has observed in the past, it is not to be lightly assumed that Congress intended that the LHWCA produce incongruous results. Baltimore & Phila. Steamboat Co. v. Norton, 284 U. S. 408, 412-413 (1932). But if “compelling language” produces incongruities, the federal courts may not avoid them by rewriting or ignoring that language. Id., at 413. Such compelling statutory language is present in this case. See Part I, supra. The fact that it leads to seemingly unjust results in particular cases does not give judges a license to disregard it.

If anomalies actually do occur with any frequency in the day-to-day administration of the Act, they provide a persuasive justification for a legislative review of the statutory compensation schedule. It would obviously be sound policy for Congress t<5 re-examine the schedule of permanent partial disability benefits more frequently than every half century. In such a re-examination the extent and importance of hypothetical cases such as those described by respondents could be fairly evaluated. In this judical proceeding, however, concern with such hypothetical cases is less compelling than sympathy for the actual plight of the individual litigant in the case before us. Nonetheless, that sympathy is an insufficient basis for approving a recovery that Congress has not authorized.

The judgment is

Reversed.

Justice Blackmun,

dissenting.

The Court in this case and the dissent in the Court of Appeals argue rather persuasively (but, for me, not convincingly) that, although they reach an incongruous result, see ante, at 282-284, the statute is to be construed in favor of that incongruity and of the anomalies that concededly exist. It is said that this is so because Congress just wrote the statute that way. Now that the Court has so ruled, the Congress fortunately can remedy the anomalous situation if only it will go about doing it.

That, of course, is of no help or comfort to respondent Cross, the particular litigant here, who suffered the injury and who, as the Court concedes, ante, at 283, might have had a greater award had his injury been less enduring. That does not make much sense to me and, while I realize that statutory inequities occasionally exist in the area of workmen’s compensation where seemingly arbitrary lines must be drawn somewhere, I cannot believe that by the language of this statute Congress intended such a result.

Soon after the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 44 Stat. (part 2) 1424, 33 U. S. C. §§ 901-950, became law in 1927, this Court unanimously announced the principles to be applied in resolving questions of statutory construction that arise under it:

“The measure before us, like recent similar legislation in many States, requires employers to make payments for the relief of employees and their dependents who sustain loss as a result of personal injuries and deaths occurring in the course of their work, whether with or without fault attributable to employers. Such laws operate to relieve persons suffering such misfortunes of a part of the burden and to distribute it to the industries and mediately to those served by them. They are deemed to be in the public interest and should be construed liberally in furtherance of the purpose for which they were enacted and, if possible, so as to avoid incongruous or harsh results.” Baltimore & Phila. Steamboat Co. v. Norton, 284 U. S. 408, 414 (1932).

See also Voris v. Eikel, 346 U. S. 328, 333 (1953).

Today’s decision departs from these principles by reaching, rather than avoiding, a harsh and incongruous result. It is undisputed that respondent Cross has suffered an injury that will reduce his weekly earnings by $130.13 for the rest of his working life. To compensate him for this injury, the Benefits Review Board awarded him two-thirds of his lost earnings — $86.76 per week or approximately $4,500 per year — for as long as he continues to work. Under the Court’s decision, however, the most that Cross will receive is a total of about $12,800,' less than three years’ compensation as awarded by the Board. If the Board now accepts petitioner’s argument that Cross has lost only 5% of the use of his leg, he will receive about $3,200, less than one year’s compensation. Of course, if Congress really intended such a result, the Court would be powerless to change it. I believe, however, that neither the language of the statute nor its legislative history warrants the interpretation that the Court adopts.

The starting point, of course, is the statute’s definition of “disability.” Section 2 (10) of the Act, 33 U. S. C. § 902 (10), defines “disability” as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.” As used in the Act, therefore, “disability” is an economic concept, rather than a medical one. An injury is not compensable under the Act unless it results in some diminution in the employee’s earning power.

Not surprisingly, then, the amount of compensation that the Act provides depends upon the amount of wages lost by the injured employee due to his injury. A worker who suffers permanent total disability, and therefore is unable to earn any wages, receives two-thirds of his average weekly wages. § 908 (a). One who suffers temporary total disability receives two-thirds of his average weekly wages as long as he remains disabled. § 908 (b). One who suffers temporary partial disability receives two-thirds of the difference between his average weekly wages before the injury and his wage-earning capacity after the injury, payable as long as the disability continues, but not longer than five years. § 908 (e).

The Act’s treatment of permanent partial disability should be read against this background. As the Court notes, § 908 (c) contains 20 subsections establishing compensation for permanent partial disability caused by particular injuries. That compensation is two-thirds of the worker’s weekly wages for a specified number of weeks for the injury listed. Subsection (21) then provides that “[i]n all other cases in this class of disability” an employee shall receive two-thirds of the difference between his average weekly wages before the injury and his wage-earning capacity thereafter. The Court prefers to construe “other cases” to mean that the compensation specified for the injuries listed in subsections (1) to (20) is the exclusive method of compensating workers who are permanently, but partially, disabled by these injuries. I believe that “other cases” includes any case in which the worker does not wish to accept the compensation offered in subsections (1) to (20), but elects to bear the burden of proving the difference between his wages before the injury and his wage-earning capacity afterwards.

This interpretation is far more in harmony with the overall purpose of the Act than is the Court’s construction. The House Committee that considered the legislation explained that workers’ compensation “has come to be universally recognized as a necessity in the interest of social justice between employer and employee,” and that this Act would provide an injured worker with “compensation during the period of his illness or inability to pursue his usual employment . . . (Emphasis added.) H. R. Rep. No. 1767, 69th Cong., 2d Sess., 19-20 (1927). The compensation that the Court’s decision provides to respondent Cross falls far short of this goal.

An additional purpose of the statute was to afford prompt relief to covered workers “without the delay and expense which an action at law entails.” Id., at 20. The inclusion of a schedule of benefits in § 908 (c) serves this goal by providing an easily ascertainable award to a person who suffers one of the scheduled injuries. There is no indication in the legislative history, however, that providing prompt and certain relief is to be regarded as more important than providing adequate relief, especially in a case, such as this one, in which it is undisputed that the schedule of benefits will not compensate respondent Cross for the wages he has lost and will lose because of his injury.

Although the Court states that the “weight of judicial authority” supports its view, it is able to cite only a single Federal District Court decision in point, namely, Williams v. Donovan, 234 F. Supp. 135 (ED La. 1964), aff’d, 367 F. 2d 825 (CA5 1966), cert. denied, 386 U. S. 977 (1967). This contrasts with the consistently held view of the Benefits Review Board, the agency established to administer the LHWCA. Sokolowski v. Bank of America, 261 N. Y. 57, 184 N. E. 492 (1933), of course, provides scant support for today’s decision. That case was decided after the LHWCA was enacted, and is an uncertain guide, at best, to the intent of the Congress that passed the Act six years earlier.

Thus, the anomalous results the Court’s decision imposes upon respondent Cross and other claimants under the LHWCA are not mandated, in my view, by the statute. It is possible to construe the statute to allow a claimant seeking compensation for permanent partial disability to choose between the schedule and the provisions of §908 (c)(21). I think we should follow Baltimore & Phila. Steamboat Co. v. Norton, 284 U. S. 408 (1932), and adopt a liberal construction of the statute so as to avoid the amazingly incongruous result approved by the Court.

I would affirm the judgment of the Court of Appeals.

       Section 8, as set forth in 33 U. S. C. § 908, provides, in part, as follows:
      "Compensation for disability shall be paid to the employee as follows:
      “(c) Permanent partial disability: In case of disability partial in character but permanent in quality the compensation shall be 66% per centum of the average weekly wages, which shall be in addition to compensation for temporary total disability or temporary partial disability paid in accordance with subdivision (b) or subdivision (e) of this section, respectively, and shall be paid to the employee, as follows:

        “(1) Arm lost, three hundred and twelve weeks’ compensation.
      “(2) Leg lost, two hundred and eighty-eight weeks’ compensation.
      “(3) Hand lost, two hundred and forty-four weeks’ compensation.
      “(4) Foot lost, two hundred and five weeks’ compensation.
      “(5) Eye lost, one hundred and sixty weeks’ compensation.
      “(18) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for loss of the member.
      “(19) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member may be for proportionate loss or loss of use of the member.
      “(20) Disfigurement: Proper and equitable compensation not to exceed $3,500 shall be awarded for serious disfigurement of the face, head, or neck or of other normally exposed areas likely to handicap the employee in securing or maintaining employment.
      “(21) Other cases: In all other cases in this class of disability the compensation shafi be 66% per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the deputy commissioner on his own motion or upon application of any party in interest.”

       Cross’ 1975 earnings amounted to $12,086.48, in contrast to 1974 earnings of $21,959.38.

       The District of Columbia Workmen’s Compensation Act, D. C. Code §§ 36-501 to 36-504 (1973 and Supp. V-1978), adopts the LHWCA as the workmen’s compensation law for the District of Columbia. See Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 471 (1947). Section 1 of the Act, D. C. Code §36-501 (1973), provides:
      “The provisions of chapter 18 of title 33, U. S. Code, including all amendments that may hereafter be made thereto, shall apply in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term ‘employer’ shall be held to mean every person carrying on any employment in the District of Columbia, and the term ‘employee’ shall be held to mean every employee of any such person.”

       Under §§8 (e)(2) and (18), an employee suffering a total loss of the use of one leg is entitled to receive two-thirds of his average weekly wages for a period of 288 weeks. If an injury results in a partial loss of the use of a scheduled member, as in this case, § 8 (c) (19) provides that compensation is to be calculated as a proportionate loss of the use of that member. Under the schedule, Cross is therefore entitled to receive two-thirds of his average weekly wages for whatever fraction of 288 weeks represents the proportionate loss of the use of his leg caused by the knee injury. Because this case was decided under § 8 (c) (21), rather than the schedule, it was not necessary for the Administrative Law Judge to determine the precise extent of respondent Cross’ disability. The medical testimony indicates that he suffered a 5 to 20% loss of the use of his leg.

       This computation is derived from § 8(c) (21), 33 U. S. C. § 908 (c) (21), quoted in n. 1, supra. It should be noted that “wage-earning capacity” under § 8 (c) (21) is not necessarily measured by an injured employee’s actual postinjury earnings. Section 8 (h) of the Act, as set forth in 33 U. S. C. §908 (h), provides:
      “The wage-earning capacity of an injured employee in cases of partial disability under subdivision (c) (21) of this section or under subdivision (e) of this section shall be determined by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Pro

        vided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wage-earning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future.”

       196 U. S. App. D. C., at 420-421, 606 F. 2d, at 1327-1328.

       Before analyzing the statute and its history in detail, Judge MacKinnon wrote:
      “Nothing in section 8 permits an employee whose injury is unquestionably confined to one of those set out in the schedule to circumvent Congress' conclusive presumptions with a showing of lost earning capacity in excess of the specified benefit. The majority holds otherwise, and does so despite the fact that during the fifty-two year old regime of an essentially unaltered statutory scheme no federal court has ever read section 8 in that manner while a number of federal courts have adopted a contrary approach. I am not unsympathetic to the result the majority’s holding achieves, but I submit that it is within the province of the legislative branch to weigh and decide whether this result ought to obtain.” Id., at 422-423, 606 F. 2d, at 1329-1330.

       In addition to permanent partial disability, the Act provides for permanent total, temporary total, and temporary partial disability. The remedies for permanent and temporary total disability — essentially two-thirds of the employee’s average weekly wages during the period of the disability — are set forth in subsections (a) and (b) of § 8, 33 U. S. C. §§ 908 (a) and (b). The remedy for temporary partial disability — two-thirds of the difference between the employee’s preinjury average weekly wages and his postinjury wage-earning capacity during the period of disability, up to a maximum of five years — is set forth in § 8 (e), 33 U. S. C. §908 (e).

       Indeed, it should be noted that the words “other cases” appear twice in subparagraph (21). See n. 1, supra.

       33 U. S. C. § 908 (c) (emphasis supplied). See n. 1, supra.

       Judge MacKinnon’s dissenting opinion reviewed the legislative history in detail; although he discovered no clear answer to the exclusivity question, see 196 U. S. App. D. C., at 425, 606 F. 2d, at 1332, he found that, to the extent any conclusions could be drawn, the legislative history supported the view that the schedule and “all other cases” categories were intended to be mutually exclusive. Id., at 425-429, 606 F. 2d, at 1332-1336.

       Act of Mar. 4, 1927, 44 Stat. 1424, 33 U. S. C. § 901 et seq.

       1922 N. Y. Laws, ch. 615, § 15 (3). The 1922 Act was an extensive revision of the Workmen’s Compensation Law of 1914, 1914 N. Y. Laws, ch. 41. A schedule covering particular cases of permanent partial disability initially appeared in the 1914 Act. See 1914 N. Y. Laws, ch. 41, § 15 (3). This schedule was retained, in a slightly revised form, in the 1922 Act. The schedule adopted by Congress in the LHWCA was substantially identical to the New York schedule of 1922. Congress selected the New York statute as the model for the LHWCA because that statute was considered one of the best workmen’s compensation laws of its time. See H. R. Rep. No. 1190, 69th Cong., 1st Sess., 2 (1926).

       In 1972, Congress considered and failed to pass an amendment to § 8 (c) that would have permitted an employee suffering from a permanent partial disability caused by a scheduled injury to recover both the schedule benefits and two-thirds of his lost wage-earning capacity after expiration of the schedule period. See S. 2318, § 7, 92d Cong., 2d Sess. (1971), reprinted in Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972: Hearings before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 7 (1972); H. R. 12006, §7, 92d Cong., 1st Sess. (1971), and H. R. 15023, §7, 92d Cong., 2d Sess. (1972), reprinted in Longshoremen’s and Harbor Workers’ Compensation Act: Hearings before the Select Subcommittee on Labor of the House Committee on Education and Labor, 92d Cong., 2d Sess., 27, 38 (1972). Although Pepeo relies heavily upon Congress’ rejection of this proposed amendment as support for its position that schedule benefits are exclusive, this action is of marginal relevance in this case because the amendment would have authorized cumulative, not alternative, remedies. Pepco’s reliance upon 1949 and 1966 amendments to the Federal Employees Compensation Act (FECA), 5 U. S. C. §8101 et seq., is similarly misplaced. These amendments, authorizing cumulative remedies under the FECA, shed little light upon Congress’ intention with respect to alternative remedies under the LHWCA. See Act of Oct. 14, 1949, ch. 691, § 104, 63 Stat. 855; Act of Sept. 6, 1966, Pub. L. 89-554, 80 Stat. 536.

       See, e. g., Travelers Insurance Co. v. Cardillo, 225 F. 2d 137, 143-144 (CA2), cert. denied, 350 U. S. 913 (1955). It should be noted, however, that this principle was announced in response to employer attempts to defeat an injured employee’s claim for schedule benefits on the ground that the employee had suffered no actual loss of wages or wage-earning capacity. Prior to 1964, the federal courts apparently had not been confronted with an employee, entitled to compensation under the schedule, who attempted to secure a greater recovery by establishing an actual loss of wages or wage-earning capacity in excess of the schedule benefit.

       Although the question arose in a significantly different context, another 1964 decision, Flamm v. Hughes, 329 F. 2d 378, 380, suggests that the Court of Appeals for the Second Circuit considered the schedule and “other cases” provisions mutually exclusive.

        Mason v. Old Dominion Stevedoring Corp., 1 BRBS 357, 363-365 (1975). In Mason, the Board rejected Williams in favor of American Mutual Insurance Co. v. Jones, 138 U. S. App. D. C. 269, 426 F. 2d 1263 (1970), a decision upon which the court below also relied. See 196 U. S. App. D. C., at 421, 606 F. 2d, at 1328. The opinion in Jones, however, does not address the exclusivity issue presented in this case. Rather, Jones held merely that a scheduled injury can give rise to an award for permanent total disability under § 8 (a) where the facts establish that the injury prevents the employee from engaging in the only employment for which he is qualified. 138 U. S. App. D. C., at 271-272, 426 F. 2d, at 1265-1266. This conclusion is entirely consistent with the statute which, in § 8 (a), directs that “permanent total disability shall be determined in accordance with the facts.” 33 U. S. C. §908 (a). Indeed, since the §8(c) schedule applies only in cases of permanent partial disability, once it is determined that an employee is totally disabled the schedule becomes irrelevant. The question presented in Mason and in this case is the very different question of whether § 8 (c) permits an employee suffering from a disability determined to be partial in character to choose between recovery under the schedule and recovery under § 8 (c) (21). The Court of Appeals for the Fifth Circuit recently recognized this distinction when it noted that Williams and Jones are in no way inconsistent, because the former concerns partial disability while the latter concerns total disability. See Jacksonville Shipyards, Inc. v. Dugger, 587 F. 2d 197, 198 (1979).

         See Collins v. Todd Shipyards Corp., 9 BRBS 1015 (1979); Brandt v. Avondale Shipyards, Inc., 8 BRBS 698 (1978); Dugger v. Jacksonville Shipyards, 8 BRBS 552 (1978); Richardson v. Perna & Cantrell, Inc., 6 BRBS 588 (1977); Longo v. Universal Terminal & Stevedoring Corp., 2 BRBS 357 (1975). It should be noted that two of these decisions, Dugger and Longo, involved permanent total, not permanent partial, disability; therefore, comments in those decisions pertaining to the exclusivity issue are dicta. See n. 17, supra. It should also be noted that the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts. See Hastings v. Earth Satellite Corp., 202 U. S. App. D. C. 85, 94, 628 F. 2d 85, 94 (1980) cert. denied, post, p. 905; Tri-State Terminals, Inc. v. Jesse, 596 F. 2d 752, 757, n. 5 (CA7 1979).
      In the Board’s most recent examination of the exclusivity issue, Collins v. Todd Shipyards, supra, Chairman Smith vigorously dissented from the majority’s conclusion that § 8 (c) (21) benefits are available for scheduled injuries. 9 BRBS, at 1027-1036. Chairman Smith acknowledged that the contrary construction could produce inequitable results, but concluded that the statutory language would support no other construction: “The statute is not ambiguous or indefinite. It needs no strained interpretation or construction. The statutory language contained in Section 8 (c) clearly indicates that the schedule awards and the Section 8 (c) (21) awards are mutually exclusive. Sections 8 (c)(1) through (20) set forth the provisions and conditions for making schedule awards. Section 8 (e) (21) represents a clear line of demarcation from the schedule in that it applies to 'all other cases’ in the permanent partial class of disability.” Id., at 1027.

       The majority quoted the following passage from a leading treatise on workmen’s compensation law:
      “ 'Although it is difficult to speak in terms of a majority rule on this point, because of significant differences in statutory background, it can be said that at one time the doctrine of exclusiveness of schedule allowances did dominate the field. But in recent years there has developed such a strong trend in the opposite direction that one might now, with equal justification, say that the field is dominated by the view that schedule allowances should not be deemed exclusive, whether the issue is treatment of a smaller member as a percentage loss of a larger, or treatment of any scheduled loss as a partial or total disability of the body as a whole.’ ” 196 U. S. App. D. C., at 214-215, 606 F. 2d, at 1328-1329, quoting 2 A. Larson, Workmen’s Compensation Law § 58.20, pp. 10-212 to 10-214 (1976) (footnotes omitted).

       The trend away from exclusivity identified by Professor Larson has developed, at least in part, in eases involving scheduled injuries which result in either total disability or permanent partial disability extending in effect to other parts of the body. See id., § 58.20, pp. 10-196 to 10-206, 10-214 to 10-220. We are concerned here solely with a case in which a scheduled injury, limited in effect to the injured part of the body, results in a permanent partial disability.
      With respect to the limited question before us, it appears that, despite the recent trend to the contrary, a significant number of jurisdictions continue to view schedule benefits as exclusive in cases of permanent partial disability. See, e. g., E. Blair, Reference Guide to Workmen’s Compensation Law §11:07, p. 11-24 (1974); 11 W. Schneider, Workmen’s Compensation §2322 (a), pp. 562-565 (Perm. ed. 1957). Indeed, Professor Larson’s treatise indicates that exclusivity, although perhaps no longer the majority view, nonetheless represents the view of “many jurisdictions.” See 2 A. Larson, supra, § 58.00, p. 10-164; § 58.20, pp. 10-206 to 10-212; see also id., § 58.13, p. 10-174.

       As Professor Larson noted in the passage quoted by the court below, “at one time the doctrine of exclusiveness of schedule allowances did dominate the field.” Id., § 58.20, p. 10-212, quoted in 196 U. S. App. D. C., at 421, 606 F. 2d, at 1328. See n. 19, supra.

       See, e. g., Reed v. The Yaka, 373 U. S. 410, 415 (1963); Voris v. Eikel, 346 U. S. 328, 333 (1953); Baltimore & Phila. Steamboat Co. v. Norton, 284 U. S. 408, 414 (1932).

       The LHWCA clearly does not attempt to compensate injured employees for their entire loss. In all four classes of disability covered by the Act, see n. 8, swpra, the maximum compensation available is expressly designated to be less than an employee’s actual economic loss. In this respect, the LHWCA is typical of most workmen’s compensation statutes. See 1 A. Larson, supra n. 19, § 2.50, p. 11; Small, The General Structure of Law Applicable to Employee Injury and Death, 16 Vand. L. Rev. 1021, 1027-1028 (1963).

       The compromise nature of workmen’s compensation legislation is well recognized:
      “Workmen’s compensation acts are in the nature of a compromise or quid pro quo between employer and employee. Employers relinquish certain legal rights which the law affords to them and so, in tum, do the employees. Employers give up the common-law defenses of the fellow servant rule and assumption of risk. Employees are assured hospital and medical care and subsistence during the convalescence period. In return for a fixed schedule of payments and a fixed amount in the event of the worker’s death, employers are made certain that irrespective of their fault, liability to an injured workman is limited under workmen’s compensation. Employees, on the other hand, ordinarily give up the right of suit for damages for personal injuries against employers in return for the certainty of compensation payments as recompense for those injuries.” 1 M. Norris, The Law of Maritime Personal Injuries § 55, p. 102 (3d ed. 1975).
      See also E. Blair, supra n. 20, §1:00, pp. 1-1 to 1-2; W. Prosser, Law of Torts 531-532 (4th ed. 1971). This Court has previously recognized that the concept of compromise is central to the LHWCA, as adopted by the District of Columbia Workmen’s Compensation Act:
      “A prime purpose of the Act is to provide residents of the District of Columbia with a practical and expeditious remedy for their industrial accidents and to place on District of Columbia employers a limited and determinate liability.” Cardillo v. Liberty Mutual Ins. Co., 330 U. S., at 476.

       Under the schedule, Cross is entitled to an award of approximately $3,200 to $12,800, depending upon the ultimate conclusion with respect to the degree of his disability. See n. 4, supra. Under §8(c)(21), in contrast, Cross was awarded $86.76 per week for the remainder of his working life, which, according to counsel in this case, could amount to well over $100,000. Brief for Petitioner 9; Tr. of Oral Arg. 10, 31, 34, 36. This dramatic disparity may be partially attributable to the fact that Cross received an exceptional amount of overtime compensation in the year preceding his injury.

       It is possible that, had Cross’ disability been temporary in duration, he might have been entitled to a larger recovery than is available under the schedule for his permanent disability. On the basis of the evidence presented below, the maximum award available to Cross under the schedule is approximately $12,800. Because compensation for temporary partial disability under § 8 (e) is based upon lost wage-earning capacity rather than a schedule, Cross could have received approximately $22,400 for a temporary partial disability, assuming that the loss of wage-earning capacity demonstrate^ in this case was found to continue for the 5-year maximum temporary partial disability period. See 33 U. S. C. § 908 (e).

       As The Chief Justice, writing for the Court, stated in another case in which plain statutory language led to a seemingly incongruous result:
      “Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end.” TVA v. Hill, 437 U. S. 153, 194 (1978).

       Compensation for permanent partial disability apparently presents particularly complex and troublesome problems in the workmen’s compensation field. See generally Burton, Permanent Partial Disabilities and Workers’ Compensation, 53 J. Urb. L. 853 (1976). Such problems are appropriately solved by legislative, not judicial, action. Although § 8 (e) has been amended in minor respects since its enactment, the present schedule is substantially identical to the schedule included in the Act in 1927.

       The Court’s decision also rejects the consistent interpretation of the Benefits Review Board, the agency which administers the LHWCA. In four cases, in addition to this one, the Board has ruled that the schedule of benefits set out in §§ 908 (c) (1) to (20) is not the exclusive method of compensation for an employee who suffers permanent partial disability from a scheduled injury. Collins v. Todd Shipyards Corp., 9 BRBS 1015 (1979); Brand v. Avondale Shipyards, Inc., 8 BRBS 698 (1978); Richardson v. Perna & Cantrell, Inc., 6 BRBS 588 (1977); Mason v. Old Dominion Stevedoring Corp., 1 BRBS 357 (1975). Cf. American Mutual Ins. Co. v. Jones, 138 U. S. App. D. C. 269, 426 F. 2d 1263 (1970); Dugger v. Jacksonville Shipyards, 8 BRBS 552 (1978), aff’d, 587 F. 2d 197 (CA5 1979); Longo v. Universal Terminal & Stevedoring Corp., 2 BRBS 357 (1975) (employee who suffers permanent total disability due to a scheduled injury is not limited to compensation provided by the schedule).

       The Administrative Law Judge found that respondent Cross’ average weekly wage was $332.48. The schedule of benefits provides that a worker who completely loses the use of a leg shall receive two-thirds of his average weekly wage for 288 weeks. §908 (c)(2). Because Cross lost no more than 20% of the use of his leg, the most he can recover under the schedule is 20% of the compensation awarded for the total loss of the use of a leg. § 908(e) (19). Therefore, the maximum amount available to him under the schedule is $332.48 X % X 288 X 20% = $12,767.23.

       $332.48 X % X 288 X 5% = $3,191.81.

       It is significant that this language appears in the House Committee’s Report, since that Committee amended the bill to provide for the schedule of benefits after it had passed in the Senate without a schedule. See 67 Cong. Rec. 10614 (1926).

       Compare S. Rep. No. 836, 81st Cong., 1st Sess., 17 (1949), discussing an amendment that provides a schedule of benefits, similar to that contained in the LHWCA, for the Federal Employees Compensation Act (FECA):
      “Under the present act an employee may receive compensation to the extent of 66% percent of whatever loss he has sustained in wage-earning capacity as caused by the injury. Unless the injury results in wage loss, no compensation can be paid. The absence of a schedule covering members and functions of the body has presented two principal difficulties, the first of which is the extreme difficulty in determining fairly and objectively the precise extent to which a particular physical impairment diminishes the injured employee’s wage-eaming capacity.”
      The Court of Appeals appropriately noted that on occasion the schedule may overcompensate a claimant. For example, a lawyer who loses an arm due to an accident at work may not suffer any diminution in his earning ability, but he would be eligible for compensation under the schedule. 196 U. S. App. D. C. 417, 421, n. 28, 606 F. 2d 1324, 1328, n. 28 (1979). To this extent, the schedule is an exception to the principle that disability is an economic concept rather than a medical one, but it is an exception that Congress deliberately chose to make. In addressing the second of the “principal difficulties” presented by the then absence of a schedule in the FECA, the Senate Report concluded:
      “A particular physical impairment to a member or function of the body does not always cause a proportional reduction in earning capacity. An employee having a loss of a member or function may be able to return to employment without apparent wage loss. In that event, notwithstanding the severe physical loss to him, he may not under the present act be paid compensation for his physical impairment. It is understandable that employees with such losses expect some form of indemnity for their loss.” S. Rep. No. 836, at 17.
      In relying upon this legislative history of the FECA, I do not mean to suggest that that history is part of the legislative history of the LHWCA. As the Court notes, ante, at 275, the legislative history of the LHWCA is silent concerning the reasons why Congress included a schedule. Although Congress’ intent in this matter cannot be discerned with absolute certainty, it is plausible that its reasons for adopting a schedule for the FECA were the same as its reasons for having one for the LHWCA.

       The other federal cases cited by the Court are clearly distinguishable. In Flamm v. Hughes, 329 F. 2d 378 (CA2 1964), the court rejected a claim that it was unconstitutional for Congress to provide a schedule for some injuries, but not for others. The plaintiff, however, was dissatisfied with the award obtained under § 908 (c) (21), and hoped to obtain a larger award from a schedule. The court did not address the question whether the schedule provides an exclusive remedy for a claimant who can prove a wage loss greater than that specified by the schedule. The Court acknowledges that Travelers Ins. Co. v. Cardillo, 225 F. 2d 137 (CA2), cert. denied, 350 U. S. 913 (1955), which held that proof of lost wages is irrelevant when an employee seeks to recover under the schedule, did not decide the question before us. Ante, at 277, n. 15.

       The one paragraph per curiam affirming the District Court’s decision in Williams does not discuss the exclusivity issue.

       See n. 1, supra.

       The inadequate compensation awarded to respondent Cross is only one of a number of peculiarities resulting from today’s decision. Under the rule announced by the Court, a person who suffers a temporary partial disability may receive more compensation than one who suffers a like but permanent partial disability, even though the latter injury is obviously more serious and will cause a greater loss of earnings. In this case, if Cross’ injury were a temporary partial disability, he would be entitled to receive two-thirds of his lost earning capacity for a maximum of five years. § 908 (e). Thus, he could receive a total of about $22,400 ($86 per week for five years), an amount almost twice as large as the maximum compensation that the Court now allows him for his permanent partial disability. “It may not reasonably be assumed that Congress intended to require payment of more compensation for a lesser disability than for a greater one including the lesser. Nothing less than compelling language would justify such a construction of the Act.” Baltimore & Phila. Steamboat Co. v. Norton, 284 U. S. 408, 413 (1932).
      Today’s decision also creates a significant disincentive for the seriously injured workers who otherwise might wish to return to work. The courts and the Benefits Review Board have held that a worker who is unable to do any work as the result of a scheduled injury may be compensated for permanent total disability, and the Court does not question this rule. See ante, at 277-278, n. 17. A worker who has been permanently and totally disabled receives two-thirds of his average weekly wages. § 908 (a). A worker who takes a low-paying job because a scheduled injury makes him unable to work at his old job will be considered permanently partially disabled. His compensation will be limited to the scheduled amount, even though that amount may be insufficient to make up the difference between his former earnings and his earnings at the new job. Such a worker will learn quickly that it is to his advantage not to attempt to do any work. See Mason v. Old Dominion Stevedoring Corp., 1 BRBS, at 365; Brandt v. Avondale Shipyards, Inc., 8 BRBS, at 701-702.