source: Caselaw Access Project

author: Justice Blackmun Justice Stevens,

license: Public Domain

text:
    DOE v. UNITED STATES
    No. 86-1753.
    Argued March 2, 1988
    Decided June 22, 1988

      Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, post, 219.

      Richard E. Tirnbie argued the cause for petitioner. With him on the briefs were Cono R. Namorato, Scott D. Michel, and Jeffrey S. Lehman.

      Charles A. Rothfeld argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Bryson, Gary R. Allen, Robert E. Lindsay, and Alan Hechtkopf.

        Rex E. Lee, Joseph B. Tompkins, Jr., and Carter G. Phillips filed a brief for the Government of the Cayman Islands as amicus curiae.

   Justice Blackmun

delivered the opinion of the Court.

This case presents the question whether a court order compelling a target of a grand jury investigation to authorize foreign banks to disclose records of his accounts, without identifying those documents or acknowledging their existence, violates the target’s Fifth Amendment privilege against self-incrimination.

I

Petitioner, named here as John Doe, is the target of a federal grand jury investigation into possible federal offenses arising from suspected fraudulent manipulation of oil cargoes and receipt of unreported income. Doe appeared before the grand jury pursuant to a subpoena that directed him to produce records of transactions in accounts at three named banks in the Cayman Islands and Bermuda. Doe produced some bank records and testified that no additional records responsive to the subpoena were in his possession or control. When questioned about the existence or location of additional records, Doe invoked the Fifth Amendment privilege against self-incrimination.

The United States branches of the three foreign banks also were served with subpoenas commanding them to produce records of accounts over which Doe had signatory authority. Citing their governments’ bank-secrecy laws, which prohibit the disclosure of account records without the customer’s consent, the banks refused to comply. See App. to Pet. for Cert. 17a, n. 2. The Government then filed a motion with the United States District Court for the Southern District of Texas that the court order Doe to sign 12 forms consenting to disclosure of any bank records respectively relating to 12 foreign bank accounts over which the Government knew or suspected that Doe had control. The forms indicated the account numbers and described the documents that the Government wished the banks to produce.

The District Court denied the motion, reasoning that by signing the consent forms, Doe would necessarily be admitting the existence of the accounts. The District Court believed, moreover, that if the banks delivered records pursuant to the consent forms, those forms would constitute “an admission that [Doe] exercised signatory authority over such accounts.” Id., at 20a. The court speculated that the Government in a subsequent proceeding then could argue that Doe must have guilty knowledge of the contents of the accounts. Thus, in the court’s view, compelling Doe to sign the forms was compelling him “to perform a testimonial act that would entail admission of knowledge of the contents of potentially incriminating documents,” id., at 20a, n. 6, and such compulsion was prohibited by the Fifth Amendment. The District Court also noted that Doe had not been indicted, and that his signing of the forms might provide the Government with the incriminating link necessary to obtain an indictment, the kind of “fishing expedition” that the Fifth Amendment was designed to prevent. Id., at 21a.

The Government sought reconsideration. Along with its motion, it submitted to the court a revised proposed consent directive that was substantially the same as that approved by the Eleventh Circuit in United States v. Ghidoni, 732 F. 2d 814, cert. denied, 469 U. S. 932 (1984). The form purported to apply to any and all accounts over which Doe had a right of withdrawal, without acknowledging the existence of any such account. The District Court denied this motion also, reasoning that compelling execution of the consent directive might lead to the uncovering and linking of Doe to accounts that the grand jury did not know were in existence. The court concluded that execution of the proposed form would “admit signatory authority over the speculative accounts [and] would implicitly authenticate any records of the speculative accounts provided by the banks pursuant to the consent.” App. to Pet. for Cert. 13a, n. 7.

The Court of Appeals for the Fifth Circuit reversed in an unpublished per curiam opinion, judgt. order reported at 775 F. 2d 300 (1985). Relying on its intervening decision in In re United States Grand Jury Proceedings (Cid), 767 F. 2d 1131 (1985), the court held that Doe could not assert his Fifth Amendment privilege as a basis for refusing to sign the consent directive, because the form “did not have testimonial significance” and therefore its compelled execution would not violate Doe’s Fifth Amendment rights. App. to Pet. for Cert. 7a.

On remand, the District Court ordered petitioner to execute the consent directive. He refused. The District Court accordingly found petitioner in civil contempt and ordered that he be confined until he complied with the order. Id., at 2a. The court stayed imposition of sanction pending appeal and application for writ of certiorari. Id., at 2a-3a.

The Fifth Circuit affirmed the contempt order, again in an unpublished per curiam, concluding that its prior ruling constituted the “law of the case” and was dispositive of Doe’s appeal. Id., at 3a; judgt. order reported at 812 F. 2d 1404 (1987). We granted certiorari, 484 U. S. 813 (1987), to resolve a conflict among the Courts of Appeals as to whether the compelled execution of a consent form directing the disclosure of foreign bank records is inconsistent with the Fifth Amendment. We conclude that a court order compelling the execution of such a directive as is at issue here does not implicate the Amendment.

II

It is undisputed that the contents of the foreign bank records sought by the Government are not privileged under the Fifth Amendment. See Braswell v. United States, ante, at 108-110; United States v. Doe, 465 U. S. 605 (1984); Fisher v. United States, 425 U. S. 391 (1976). There also is no question that the foreign banks cannot invoke the Fifth Amendment in declining to produce the documents; the privilege does not extend to such artificial entities. See Braswell v. United States, ante, at 102-103; Bellis v. United States, 417 U. S. 85, 89-90 (1974). Similarly, petitioner asserts no Fifth Amendment right to prevent the banks from disclosing the account records, for the Constitution “necessarily does not proscribe incriminating statements elicited from another.” Couch v. United States, 409 U. S. 322, 328 (1973). Petitioner’s sole claim is that his execution of the consent forms directing the banks to release records as to which the banks believe he has the right of withdrawal has independent testimonial significance that will incriminate him, and that the Fifth Amendment prohibits governmental compulsion of that act.

The Self-Incrimination Clause of the Fifth Amendment reads: “No person . . . shall be compelled in any criminal case to be a witness against himself.” This Court has explained that “the privilege protects a person only against being incriminated by his own compelled testimonial communications.” Fisher v. United States, 425 U. S., at 409, citing Schmerber v. California, 384 U. S. 757 (1966); United States v. Wade, 388 U. S. 218 (1967); and Gilbert v. California, 388 U. S. 263 (1967). The execution of the consent directive at issue in this case obviously would be compelled, and we may assume that its execution would have an incriminating effect. The question on which this case turns is whether the act of executing the form is a “testimonial communication.” The parties disagree about both the meaning of “testimonial” and whether the consent directive fits the proposed definitions.

A

Petitioner contends that a compelled statement is testimonial if the Government could use the content of the speech or writing, as opposed to its physical characteristics, to further a criminal investigation of the witness. The second half of petitioner’s “testimonial” test is that the statement must be incriminating, which is, of course, already a separate requirement for invoking the privilege. Thus, Doe contends, in essence, that every written and oral statement significant for its content is necessarily testimonial for purposes of the Fifth Amendment. Under this view, the consent directive is testimonial because it is a declarative statement of consent made by Doe to the foreign banks, a statement that the Government will use to persuade the banks to produce potentially incriminating account records that would otherwise be unavailable to the grand jury.

The Government, on the other hand, suggests that a compelled statement is not testimonial for purposes of the privilege, unless it implicitly or explicitly relates a factual assertion or otherwise conveys information to the Government. It argues that, under this view, the consent directive is not testimonial because neither the directive itself nor Doe’s execution of the form discloses or communicates facts or information. Petitioner disagrees.

The Government’s view of the privilege, apparently accepted by the Courts of Appeals that have considered compelled consent forms, is derived largely from this Court’s decisions in Fisher and Doe. The issue presented in those cases was whether the act of producing subpoenaed documents, not itself the making of a statement, might nonetheless have some protected testimonial aspects. The Court concluded that the act of production could constitute protected testimonial communication because it might entail implicit statements of fact: by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic. United States v. Doe, 465 U. S., at 613, and n. 11; Fisher, 425 U. S., at 409-410; id., at 428, 432 (concurring opinions). See Braswell v. United States, ante, at 104; ante, at 122 (dissenting opinion). Thus, the Court made clear that the Fifth Amendment privilege against self-incrimination applies to acts that imply assertions of fact.

We reject petitioner’s argument that this test does not control the determination as to when the privilege applies to oral or written statements. While the Court in Fisher and Doe did not purport to announce a universal test for determining the scope of the privilege, it also did not purport to establish a more narrow boundary applicable to acts alone. To the contrary, the Court applied basic Fifth Amendment principles. An examination of the Court’s application of these principles in other cases indicates the Court’s recognition that, in order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a “witness” against himself.

This understanding is perhaps most clearly revealed in those cases in which the Court has held that certain acts, though incriminating, are not within the privilege. Thus, a suspect may be compelled to furnish a blood sample, Schmerber v. California, 384 U. S., at 765; to provide a handwriting exemplar, Gilbert v. California, 388 U. S., at 266-267, or a voice exemplar, United States v. Dionisio, 410 U. S. 1, 7 (1973); to stand in a lineup, United States v. Wade, 388 U. S., at 221-222; and to wear particular clothing, Holt v. United States, 218 U. S. 245, 252-253 (1910). These decisions are grounded on the proposition that “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber, 384 U. S., at 761. The Court accordingly held that the privilege was not implicated in each of those cases, because the suspect was not required “to disclose any knowledge he might have,” or “to speak his guilt,” Wade, 388 U. S., at 222-223. See Dionisio, 410 U. S., at 7; Gilbert, 388 U. S., at 266-267. It is the “extortion of information from the accused,” Couch v. United States, 409 U. S., at 328, the attempt to force him “to disclose the contents of his own mind,” Curcio v. United States, 354 U. S. 118, 128 (1957), that implicates the Self-Incrimination Clause. See also Kastigar v. United States, 406 U. S. 441, 445 (1972) (the privilege “protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used”) (emphasis added). “Unless some attempt is made to secure a communication — written, oral or otherwise — upon which reliance is to be placed as involving [the accused’s] consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one.” 8 Wigmore §2265, p. 386.

It is consistent with the history of and the policies underlying the Self-Incrimination Clause to hold that the privilege may be asserted only to resist compelled explicit or implicit disclosures of incriminating information. Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the ecclesiastical courts and the Star Chamber — the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. See Andresen v. Maryland, 427 U. S. 463, 470-471 (1976); 8 Wigmore § 2250; E. Griswold, The Fifth Amendment Today 2-3 (1955). The major thrust of the policies undergirding the privilege is to prevent such compulsion. The Self-Incrimination Clause reflects “ ‘a judgment. . . that the prosecution should [not] be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused’ ” (emphasis added). Ullmann v. United States, 350 U. S. 422, 427 (1956), quoting Maffie v. United States, 209 F. 2d 225, 227 (CA1 1954). The Court in Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52 (1964), explained that the privilege is founded on

“our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ . . . ; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty/ is often ‘a protection to the innocent.’” Id., at 55 (citations omitted).

These policies are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government.

We are not persuaded by petitioner’s arguments that our articulation of the privilege fundamentally alters the power of the Government to compel an accused to assist in his prosecution. There are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts. The vast majority of verbal statements thus will'be testimonial and, to that extent at least, will fall within the privilege. Furthermore, it should be remembered that there are many restrictions on the government’s prosecuto-rial practices in addition to the Self-Incrimination Clause. Indeed, there are other protections against governmental efforts to compel an unwilling suspect to cooperate in an investigation, including efforts to obtain information from him. We are confident that these provisions, together with the Self-Incrimination Clause, will continue to prevent abusive investigative techniques.

B

The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case. Fisher, 425 U. S., at 410. This case is no exception. We turn, then, to consider whether Doe’s execution of the consent directive at issue here would have testimonial significance. We agree with the Court of Appeals that it would not, because neither the form, nor its execution, communicates any factual assertions, implicit or explicit, or conveys any information to the Government.

The consent directive itself is not “testimonial.” It is carefully drafted not to make reference to a specific account, but only to speak in the hypothetical. Thus, the form does not acknowledge that an account in a foreign financial institution is in existence or that it is controlled by petitioner. Nor does the form indicate whether documents or any other information relating to petitioner are present at the foreign bank, assuming that such an account does exist. Cf. United States v. Ghidoni, 732 F. 2d, at 818; In re Grand Jury Proceedings (Ranauro), 814 F. 2d 791, 793 (CA1 1987); In re Grand Jury Subpoena, 826 F. 2d 1166, 1170 (CA2 1987), cert. pending sub nom. Coe v. United States, No. 87-517; In re United States Grand Jury Proceedings (Cid), 767 F. 2d, at 1132. The form does not even identify the relevant bank. Although the executed form allows the Government access to a potential source of evidence, the directive itself does not point the Government toward hidden accounts or otherwise provide information that will assist the prosecution in uncovering evidence. The Government must locate that evidence “‘by the independent labor of its officers,’” Estelle v. Smith, 451 U. S. 454, 462 (1981), quoting Culombe v. Connecticut, 367 U. S. 568, 582 (1961) (opinion announcing the judgment). As in Fisher, the Government is not relying upon the “‘truth-telling’” of Doe’s directive to show the existence of, or his control over, foreign bank account records. See 425 U. S., at 411, quoting 8 Wigmore §2264, p. 380.

Given the consent directive’s phraseology, petitioner’s compelled act of executing the form has no testimonial significance either. By signing the form; Doe makes no statement, explicit or implicit, regarding the existence of a foreign bank account or his control over any such account. Nor would his execution of the form admit the authenticity of any records produced by the bank. Cf. United States v. Ghidoni, 732 F. 2d, at 818-819; In re Grand Jury Subpoena, 826 F. 2d, at 1170. Not only does the directive express no view on the issue, but because petitioner did not prepare the document, any statement by Doe to the effect that it is authentic would not establish that the records are genuine. Cf. Fisher, 425 U. S., at 413. Authentication evidence would have to be provided by bank officials.

Finally, we cannot agree with petitioner’s contention that his execution of the directive admits or asserts Doe’s consent. The form does not state that Doe “consents” to the release of bank records. Instead, it states that the directive “shall be construed as consent” with respect to Cayman Islands and Bermuda bank-secrecy laws. Because the directive explicitly indicates that it was signed pursuant to a court order, Doe’s compelled execution of the form sheds no light on his actual intent or state of mind. The form does “direct” the bank to disclose account information and release any records that “may” exist and for which Doe “may” be a relevant principal. But directing the recipient of a communication to do something is not an assertion of fact or, at least in this context, a disclosure of information. In its testimonial significance, the execution of such a directive is analogous to the production of a handwriting sample or voice exemplar: it is a nontestimonial act. In neither case is the suspect’s action compelled to obtain “any knowledge he might have.” Wade, 388 U. S., at 222.

We read the directive as equivalent to a statement by Doe that, although he expresses no opinion about the existence of, or his control over, any such account, he is authorizing the bank to disclose information relating to accounts over which, in the bank’s opinion, Doe can exercise the right of withdrawal. Cf. Ghidoni, 732 F. 2d, at 818, n. 8 (similarly interpreting a nearly identical consent directive). When forwarded to the bank along with a subpoena, the executed directive, if effective under local law, will simply make it possible for the recipient bank to comply with the Government’s request to produce such records. As a result, if the Government obtains bank records after Doe signs the directive, the only factual statement made by anyone will be the bank’s implicit declaration, by its act of production in response to the subpoena, that it believes the accounts to be petitioner’s. Cf. Fisher, 425 U. S., at 410, 412-413. The fact that the bank’s customer has directed the disclosure of his records “would say nothing about the correctness of the bank’s representations.” Brief for United States 21-22. Indeed, the Second and Eleventh Circuits have concluded that consent directives virtually identical to the one here are inadmissible as an admission by the signator of either control or existence. In re Grand Jury Subpoena, 826 F. 2d, at 1171; Ghidoni, 732 F. 2d, at 818, and n. 9.

III

Because the consent directive is not testimonial in nature, we conclude that the District Court’s order compelling petitioner to sign the directive does not violate his Fifth Amendment privilege against self-incrimination. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Stevens,

dissenting.

A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe — by word or deed.

The document the Government seeks to extract from John Doe purports to order third parties to take action that will lead to the discovery of incriminating evidence. The directive itself may not betray any knowledge petitioner may have about the circumstances of the offenses being investigated by the grand jury, but it nevertheless purports to evidence a reasoned decision by Doe to authorize action by others. The forced execution of this document differs from the forced production of physical evidence just as human beings differ from other animals.

If John Doe can be compelled to use his mind to assist the Government in developing its case, I think he will be forced “to be a witness against himself.” The fundamental purpose of the Fifth Amendment was to mark the line between the kind of inquisition conducted by the Star Chamber and what we proudly describe as our accusatorial system of justice. It reflects “our respect for the inviolability of the human personality,” Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52, 55 (1964). “[I]t is an explicit right of a natural person, protecting the realm of human thought and expression.” Braswell v. United States, ante, at 119 (Kennedy, J., dissenting). In my opinion that protection gives John Doe the right to refuse to sign the directive authorizing access to the records of any bank account that he may control. Accordingly, I respectfully dissent.

       It is a criminal offense for a Cayman bank to divulge any confidential information with respect to a customer’s account unless the customer has consented to the disclosure. See the 1976 Confidential Relationships (Preservation) Law No. 16, as amended, 1979 CAY. IS. LAWS, ch. 26, §§ 3, 4 (Cayman Islands bank-secrecy law).
      Apparently, Bermuda common law has been interpreted as imposing an implied contract of confidentiality between a Bermuda bank and its customers, pursuant to which “no Bermuda bank may release information in its possession concerning its customers’ affairs unless (1) it is ordered to do so by a court of competent jurisdiction in Bermuda, or (2) it receives a specific written direction from its customer requesting the bank to release such information.” Letter dated August 1, 1984, from Richard A. Brad-spies, Vice President-Operations, of the Bank of Bermuda International Ltd., to David Geneson, Esq., Fraud Section, Criminal Division, U. S. Dept, of Justice, Respondent’s Exhibit 4; Respondent’s Notice of Disclosure of 6(e) Materials, 2 Record 307.
      The Government has not yet sought contempt sanctions against the banks.

       The revised consent form reads:
      “I, -, of the State of Texas in the United States of America, do hereby direct any bank or trust company at which I may have a bank account of any kind or at which a corporation has a bank account of any kind upon which I am authorized to draw, and its officers, employees and agents, to disclose all information and deliver copies of all documents of every nature in your possession or control which relate to said bank account to Grand Jury 84-2, empaneled May 7, 1984 and sitting in the Southern District of Texas, or to any attorney of the District of Texas, or to any attorney of the United States Department of Justice assisting said Grand Jury, and to give evidence relevant thereto, in the investigation conducted by Grand Jury 84-2 in the Southern District of Texas, and this shall be irrevocable authority for so doing. This direction has been executed pursuant to that certain order of the United States District Court for the Southern District of Texas issued in connection with the aforesaid investigation, dated-. This direction is intended to apply to the Confidential Relationships (Preservation) Law of the Cayman Islands, and to any implied contract of confidentiality between Bermuda banks and their customers which may be imposed by Bermuda common law, and shall be construed as consent with respect thereto as the same shall apply to any of the bank accounts for which I may be a relevant principal.” App. to Pet. for Cert. 12a, n. 5.

       The Court of Appeals, citing United States v. New York Telephone Co., 434 U. S. 159, 174 (1977), held that the All Writs Act, 28 U. S. C. § 1651(a), authorized the District Court to consider the Government’s motion to compel Doe’s execution of the consent form, since that compulsion would facilitate the enforcement of the grand jury subpoenas served on the banks. App. to Pet. for Cert. 6a-7a. Petitioner has not challenged the Court of Appeals’ conclusion regarding the District Court’s authority for entering its order, and we do not address that issue here.

       The Second and Eleventh Circuits, as did the Fifth, have held that the Fifth Amendment is not implicated by a court order compelling consent to the disclosure of foreign bank records. United States v. Ghidoni, 732 F. 2d 814 (CA11), cert. denied, 469 U. S. 932 (1984); United States v. Davis, 767 F. 2d 1025, 1039-1040 (CA21985); accord, In re Grand Jury Subpoena, 826 F. 2d 1166 (CA2 1987), cert. pending sub nom. Coe v. United States, No. 87-517. A divided panel of the First Circuit, however, has held that such an order violates the Fifth Amendment. In re Grand Jury Proceedings (Ranauro), 814 F. 2d 791 (1987).

       As noted above, the District Court concluded that the consent directive was incriminating in that it would furnish the Government with a link in the chain of evidence leading to Doe’s indictment. Because we ultimately find no testimonial significance in either the contents of the directive or Doe’s execution of it, we need not, and do not, address the incrimination element of the privilege.

      Petitioner’s blanket assertion that a statement is testimonial for Fifth Amendment purposes if its content can be used to obtain evidence confuses the requirement that the compelled communication be “testimonial” with the separate requirement that the communication be “incriminating. ” If a compelled statement is “not testimonial and for that reason not protected by the privilege, it cannot become so because it will lead to incriminating evidence.” In re Grand Jury Subpoena, 826 F. 2d, at 1172, n. 2 (concurring opinion).
      Petitioner’s heavy reliance on this Court’s decision in Kastigar v. United States, 406 U. S. 441 (1972), for a contrary proposition is misguided. Kastigar affirmed the constitutionality of 18 U. S. C. §§6002 and 6003, which permit the Government to compel testimony as long as the witness is immunized against the use in any criminal case of the “testimony or other information” provided. In holding that the immunity provided by the statute is coextensive with the Fifth Amendment privilege, the Court implicitly concluded that the privilege prohibits “the use of compelled testimony, as well as evidence derived directly and indirectly therefrom.” 406 U. S., at 453. The prohibition of derivative use is an implementation of the “link in the chain of evidence” theory for invocation of the privilege, pursuant to which the “compelled testimony” need not itself be incriminating if it would lead to the discovery of incriminating evidence. See Hoffman v. United States, 341 U. S. 479, 486 (1951). See also Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52, 79 (1964); 8 J. Wigmore, Evidence § 2260 (McNaughton rev. 1961) (Wigmore). This prohibition, however, assumes that the suspect’s initial compelled communication is testimonial.

       See In re United States Grand Jury Proceedings (Cid), 767 F. 2d 1131, 1132 (CA5 1985); In re Grand Jury Proceedings (Ranauro), 814 F. 2d, at 793; id., at 798 (dissenting opinion); United States v. Davis, 767 F. 2d, at 1040. See also United States v. Ghidoni, 732 F. 2d, at 816.

      The decisions in Fisher v. United States, 425 U. S. 391 (1976), and United States v. Doe, 465 U. S. 605 (1984), rested on the understanding that “‘the Court has never on any ground . . . applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which, in the Court’s view, did not involve compelled testimonial self-incrimination of some sort.’” Id,., at 611, n. 8, quoting Fisher, 425 U. S., at 399. The Court thus squarely held that the Fifth Amendment comes into play “only when the accused is compelled to make a testimonial communication that is incriminating.” Id., at 408 (emphasis in original); see id., at 409; Doe, 465 U. S., at 611, 613. These principles were articulated in general terms, not as confined to acts. Petitioner has articulated no cogent argument as to why the “testimonial” requirement should have one meaning in the context of acts, and another meaning in the context of verbal statements.

       We do not disagree with the dissent that “[t]he expression of the contents of an individual’s mind” is testimonial communication for purposes of the Fifth Amendment. Post, at 220, n. 1. We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it is like “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” Post, at 219.

      Petitioner’s reliance on a statement in this Court’s decision in Schmerber v. California, 384 U. S. 757 (1966), for the proposition that all verbal statements sought for their content are testimonial is misplaced. In Schmerber, the Court stated that the privilege extends to ‘‘an accused’s communications, whatever form they might take,” id., at 763-764, but it did so in the context of clarifying that the privilege may apply not only to verbal communications, as was once thought, but also to physical communications. See United States v. Wade, 388 U. S. 218, 223 (1967). Contrary to petitioner’s urging, the Schmerber line of cases does not draw a distinction between unprotected evidence sought for its physical characteristics and protected evidence sought for its content. Rather, the Court distinguished between the suspect’s being compelled himself to serve as evidence and the suspect’s being compelled to disclose or communicate information or facts that might serve as or lead to incriminating evidence. See, e. g., Schmerber, 384 U. S., at 764. See also Holt v. United States, 218 U. S. 245, 252-253 (1910); 8 Wigmore § 2265, p. 386. In order to be privileged, it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance. Fisher, 425 U. S., at 408; Gilbert v. California, 388 U. S. 263, 267 (1967); Wade, 388 U. S., at 222.

       Petitioner argues that at least some of these policies would be undermined unless the Government is required to obtain evidence against an accused from sources other than his compelled statements, whether or not the statements make a factual assertion or convey information. Petitioner accordingly maintains that the policy of striking an appropriate balance between the power of the Government and the sovereignty of the individual precludes the Government from compelling an individual to utter or write words that lead to incriminating evidence. Even if some of the policies underlying the privilege might support petitioner’s interpretation of the privilege, “it is clear that the scope of the privilege does not coincide with the complex of values it helps to protect. Despite the impact upon the inviolability of the human personality, and upon our belief in an adversary system of criminal justice in which the Government must produce the evidence against an accused through its own independent labors, the prosecution is allowed to obtain and use . . . evidence which although compelled is generally speaking not ‘testimonial,’ Schmerber v. California, 384 U. S. 757, 761.” Grosso v. United States, 390 U. S. 62, 72-73 (1968) (Brennan, J., concurring). See also Schmerber, 384 U. S., at 762-763. If the societal interests in privacy, fairness, and restraint of governmental power are not unconstitutionally offended by compelling the accused to have his body serve as evidence that leads to the development of highly incriminating testimony, as Schmerber and its progeny make clear, it is difficult to understand how compelling a suspect to make a nonfactual statement that facilitates the production of evidence by someone else offends the privilege.

       In particular, we do not agree that our articulation cuts back on the Court’s explanation in Miranda v. Arizona, 384 U. S. 436 (1966), that “the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’” Id., at 460, quoting Malloy v. Hogan, 378 U. S. 1, 8 (1964). In Miranda, the Court addressed a suspect’s Fifth Amendment privilege in the face of custodial interrogation by the government. Our test for when a communication is “testimonial” does not authorize law enforcement officials to make an unwilling suspect speak in this context. It is clear that the accused in a criminal case is exempt from giving answers altogether, for (at least on the prosecution’s assumption) they will disclose incriminating information that the suspect harbors.
      To the extent petitioner attempts to construe Miranda as establishing an absolute right against being compelled to speak, that understanding is refuted by the Court’s decision in United States v. Dionisio, 410 U. S. 1 (1973), in which the Court held that a suspect may not invoke the privilege in refusing to speak for purposes of providing a voice exemplar.

       For example, the Fourth Amendment generally prevents the government from compelling a suspect to consent to a search of his home, cf. Schneckloth v. Bustamonte, 412 U. S. 218, 248-249 (1973); the attorney-client privilege prevents the government from compelling a suspect to direct his attorney to disclose confidential communications, see generally Upjohn Co. v. United States, 449 U. S. 383, 389 (1981); 8 Wigmore § 2292; and the Due Process Clause imposes limitations on the government’s ability to coei’ee individuals into participating in criminal prosecutions, see generally Rochin v. California, 342 U. S. 165, 174 (1952).

      The consent directive at issue here differs from the form at issue in Ranauro which suggested that the witness, in fact, had consented: “I, [witness], consent to the production to the [District Court and Grand Jury] of any and all records related to any accounts held by, or banking transactions engaged in with, [bank X], which are in the name of, or on behalf of: [witness], if any such records exist.” 814 F. 2d, at 796. Further, the Ranauro form, unlike the directive here, did not indicate that it was executed under court order. Id., at 795. It is true that the First Circuit made clear that its conclusion that the Ranauro form was testimonial did not turn on these distinctions, ibid., but we are not sanguine that the differences are irrelevant. Even if the Self-Incrimination Clause was not implicated, it might be argued that the compelled signing of such a “consent” form raises due process concerns. Cf. In re Grand Jury Subpoena, 826 F. 2d, at 1171 (finding no due process violation where directive clearly states that witness is signing under compulsion of court order); United States v. Ghidoni, 732 F. 2d, at 818, n. 7 (same). Neither issue, of course, is presented by this case, and we take no position on whether such compulsion in fact would violate Fifth Amendment or due process principles.

      Petitioner apparently maintains that the performance of every compelled act carries with it an implied assertion that the act has been performed by the person who was compelled, and therefore the performance of the act is subject to the privilege. In Wade, Gilbert, and Dionisio, the Court implicitly rejected this argument. It could be said in those cases that the suspect, by providing his handwriting or voice exemplar, implicitly “acknowledged” that the writing or voice sample was his. But as the holdings make clear, this kind of simple acknowledgment — that the suspect in fact performed the compelled act — is not “sufficiently testimonial for purposes of the privilege.” Fisher, 425 U. S., at 411. Similarly, the acknowledgment that Doe directed the bank to disclose any records the bank thinks are Doe’s — an acknowledgment implicit in Doe’s placing his signature on the consent directive — is not sufficiently testimonial for purposes of the privilege.
      The dissent apparently disagrees with us on this point, although the basis for its disagreement is unclear. See post, at 221-222, n. 2. Surely, the fact that the executed form creates “a new piece of evidence that may be used against petitioner” is not relevant to whether the execution has testimonial significance, for the same could be said about the voice and writing exemplars the Court found were not testimonial in nature. Similarly irrelevant to the issue presented here is the dissent’s invocation of the First Circuit’s hypothetical of how the Government might use the directive to link petitioner to whatever documents the banks produce. That hypothetical, as the First Circuit indicated, Rana uro, 814 F. 2d, at 793, goes only to showing that the directive may be incriminating, an issue not presented in this case. See n. 5, supra. It has no bearing on whether the compelled execution of the directive is testimonial.

      The Government of the Cayman Islands maintains that a compelled consent, such as the one at issue in this case, is not sufficient to authorize the release of confidential financial records protected by Cayman law. Brief for Government of Cayman Islands as Amicus Curiae 9-11. The Grand Court of the Cayman Islands has held expressly that a consent directive signed pursuant to an order of a United States court and at the risk of contempt sanctions, could not constitute “consent” under the Cayman confidentiality law. See In re ABC Ltd., 1984 C. I. L. R. 130 (1984) (reviewing the consent directive at issue in Ghidoni). The United States observes that the cited decision has not been appealed and argues accordingly that Cayman law on the point has not been definitely settled.
      The effectiveness of the directive under foreign law has no bearing on the constitutional issue in this case. Nevertheless, we are not unaware of the international comity questions implicated by the Government’s attempts to overcome protections afforded by the laws of another nation. We are not called upon to address those questions here.

      The forced production of physical evidence, which we have condoned, see Gilbert v. California, 388 U. S. 263 (1967) (handwriting exemplar); United States v. Wade, 388 U. S. 218 (1967) (voice exemplar!; Schmerber v. California, 384 U. S. 757 (1966) (blood test): Holt v. United States, 218 U. S. 245 (1910) (lineup), involves no intrusion upon the' contents of the mind of the accused. See Schmerber, 384 U. S., at 765 (forced blood test permissible because it does not involve “even a shadow of testimonial compulsion upon or enforced communication by the accused”). The forced execution of a document that purports to convey the signer’s authority, however, does invade the dignity of the human mind; it purports to communicate a deliberate command. The intrusion on the dignity, of the individual is not diminished by the fact that the document does not reflect the true state of the signer’s mind. Indeed, that the assertions petitioner is forced to utter by executing the document are false, causes an even greater violation of human dignity. For the same reason a person cannot be forced to sign a document purporting to authorize the entry of judgment against himself, cf. Brady v. United States, 397 U. S. 742, 748 (1970), I do not believe he can be forced to sign a document purporting to authorize the disclosure of incriminating evidence. In both cases the accused is being compelled “to be a witness against himself”; indeed, here he is being compelled to bear false witness against himself.
      The expression of the contents of an individual’s mind falls squarely within the protection of the Fifth Amendment. Boyd v. United States, 116 U. S. 616, 633-635 (1886); Fisher v. United States, 425 U. S. 391, 420 (1976). Justice Holmes’ observation that “the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,” Holt v. United States, 218 U. S., at 252-253, manifests a recognition that virtually any communication reveals the contents of the mind of the speaker. Thus the Fifth Amendment privilege is fulfilled only when the person is guaranteed the right “ ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.'” Miranda v. Arizona, 384 U. S. 436, 460 (1966) (quoting Malloy v. Hogan, 378 U. S. 1, 8 (1964)). The deviation from this principle can only lead to mischievous abuse of the dignity the Fifth Amendment commands the Government afford its citizens. Cf. Schmerber v. California, 384 U. S., at 764. The instant case is illustrative. In allowing the Government to compel petitioner to execute the directive, the Court permits the Government to compel petitioner to speak against his will in answer to the question “Do you consent to the release of these documents?” Beyond this affront, however, the Government is being permitted also to demand that the answer be “yes.”

       The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a tvitness against himself.” A witness is one who “gives evidence in a cause.” T. Cunningham, 2 New and Complete Law Dictionary (2d ed. 1771). The Court carefully scrutinizes the particular directive at issue here to determine whether its “form” or “execution” “communicates any factual assertions, implicit or explicit, or conveys any information to the Government.” Ante, at 215. But the Court’s opinion errs in focusing only on whether the directive reveals historical facts, ignoring that the execution of the directive creates new facts and a new piece of evidence that may be used against petitioner. The Court determines that the document’s form has no testimonial significance because it does not reveal the identity of any particular banks or acknowledge the existence of any particular foreign accounts. This much is true. But the document does reveal exactly what it purports to reveal, which is that petitioner “directs,” see ante, at 204-205, n. 2, the release of any documents that conform to the description contained in the statement. Thus, by executing the document, petitioner admits a state of mind, a present-tense desire. That the directive asserts that it was executed “pursuant to” court order does not save petitioner from this compelled admission. Only the most sophisticated bank officer could be expected to understand the phrase “pursuant to that certain order,” ibid., to mean “executed involuntarily under pain of contempt.” But even if the directive expressly revealed its involuntary character, it would still communicate the direction that incriminating documents be produced.
      By executing the document, petitioner creates evidence that has independent significance. The Court’s opinion does not foreclose the possibility that the Government will attempt to introduce the directive itself to create a link between petitioner and whatever documents the Government is able to secure through use of the directive. This danger was fully described in an example employed by the First Circuit in its analysis of a document, which, like the one at issue here, did not assert the existence of any particular bank records or accounts:
      “Suppose that at trial the government were to introduce bank records produced in response to a subpoena that had been accompanied by the consent form and that it was not apparent from the face of the records or otherwise how [defendant] was linked to them. Suppose also that the government then introduced the subpoena and consent form, and a government witness testified that the bank records were received in response to the subpoena and consent form. . . . Would not the evidence linking [defendant] to the records be his own testimonial admission of consent?” In re Grand Jury Proceedings (Ranauro), 814 F. 2d 791, 793 (1987).
      The example reveals that the compelled execution causes the creation of evidence that did not exist before and which through the Government’s artifice may become part of the prosecution’s case against petitioner. The example also demonstrates that the “testimonial” significance of the directive can only be appreciated if the document is considered in its completed form from the perspective of an individual who knows no more about the circumstances of its creation than is revealed on its face. The fact that the document was produced under compulsion, which the Court relies on in asserting that the directive “sheds no light on [petitioner’s] actual intent or state of mind,” ante, at 216, is not relevant to consideration of the document’s testimonial significance.
      A critical issue at any trial at which the Government seeks to introduce bank records produced by a compulsory directive would be proof that the documents pertain to accounts within the control of the defendant. The directive relates the testimonial fact that the defendant ordered the production of those documents which relate to any account he has at a bank or trust company or over which he has signatory authority. Perhaps this testimony alone does not prove the fact of control, but it is certainly probative of that fact. The defendant can no longer testify without contradiction from the face of the directive that he never authorized the production of records relating to his accounts. The directive that he was compelled to create testifies against him.


author: Justice Kennedy Justice Blackmun, Justice Stevens,

text:
    FLORIDA et al. v. LONG et al.
    No. 86-1685.
    Argued February 22, 1988
    Decided June 22, 1988

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined, post, p. 240. Stevens, J., filed a dissenting opinion, post, p. 247.

      Charles T. Collette argued the cause for petitioners. With him on the briefs was Brace A. Minnick.

      Woodrow M. Melvin, Jr., argued the 'cause for respondents. . With him on the brief were David Popper and Keith Olin. Respondent David V. Kervs filed a brief pro se.

        Robert E. Williams, Douglas S. McDou'ell, and (taren E. Dodge filed a brief for the Equal Employment Advisory Council et a;, as amici curiae urging reversal.

       Compare Jacobs, The Manhart Case: Sex-Based Differentials and the Application of Title VII to Pensions, 31 Lab. L. J. 232, 237-238, 244 (1980) (noting that “should the majority have intended the plain meaning of its words, the decision in Manhart will not invalidate gender-based mortality tables and pension benefits”), and Kistler & Healy, Sex Discrimination in Pension Plans since Manhart, 32 Lab. L. J. 229 (noting that lower court decisions after Manhart “resolved the uncertainty” by extending Manhart to “prohibit the payment of sex-based pension benefits as well as the unequal contributions procedure originally proscribed”), with Kimball, Reverse Sex Discrimination: Manhart, 1979 Am. Bar Found. Research J. 83, 91-92, 138 (noting expansion of Manhart “far beyond what the Court said or even hinted,” and concluding that the effect of Manhart should be limited to unequal contribution requirement imposed on employees in employer-operated pension.plans), and Note, Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris: Mandate of Manhart, 86 W. Va. L. Rev. 437, 452 (1983-1984) {Manhart significant “for what it did not do. . . . Manhart did not reach beyond ‘men and women making unequal contributions to an employer-operated pension fund’ ”).

   Justice Kennedy

delivered the opinion of the Court.

The questions presented for decision here are the date upon which pension funds covered by Title VII of the Civil Rights Act of 1964 were required to offer benefit structures that did not discriminate on the basis of sex and whether persons who retired before that date are entitled to adjusted benefits to eliminate any sex discrimination for all future benefit payments. We revisit our decisions in Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), and Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U. S. 1073 (1983).

The issues before us turn on whether Manhaifs invalidation of discriminatory contributions necessarily apprised employers that plans which were nondiseriminatory as to contributions must in every case be nondiseriminatory as to benefits. We conclude that Manhart neither resolved the issue nor gave employers notice that benefits necessarily were embraced by the decision. The point was not resolved in a definitive way until our decision in Norris. We hold further that employees who retired before the effective date of Norris are not entitled to a readjusted benefits payment structure.

I

Since 1970, the State of Florida has operated the Florida Retirement System (Florida System) for state employees and employees of over 1,100 participating local governments. Fla. Stat. § 121.011 et seq. (1987). The Florida System is a defined benefit pension plan, which guarantees retirement benefits that may not be lowered once the employee retires and selects a pension option. The Florida System’s normal retirement benefit is a single life plan with monthly payments for the employee’s life, calculated as a percentage of the employee’s average highest salary upon retirement. § 121.091 (1). Upon retirement, an employee also may select a pension plan from one of three retirement options: (1) a joint and survivorship option providing monthly payments for the retiree’s lifetime and, in the event of the retiree’s death within 10 years after retirement, the same monthly payments to the beneficiary for the balance of the 10-year period; (2) a joint annuitant option ensuring monthly benefits for the lives of the retiree and his beneficiary; and (3) a joint annuitant option providing monthly payments for the lives of the retiree and his beneficiary, but reducing by one third, upon the death of either, the monthly benefits to the surviving individual. § 121.091(6).

The state legislature periodically reviews the Florida System’s finances and operation, and determines the appropriate contribution rates for government employers as a percentage of the gross compensation of participating employees. Fla. Stat. §§121.031, 121.061, 121.071 (1987). The State Constitution requires Florida to collect contributions sufficient to fund the System on a “sound actuarial basis.” See Fla. Const., Art. X, § 14. The Florida System was funded originally by employer and employee contributions; but, since 1975, the System has been funded entirely by contributions from state and local government employers. Contributions for male and female employees with the same length of service, age, and salary always have been equal. The normal, or single life, plan, moreover, has provided equal monthly benefits to similarly situated male and female employees since the inception of the Florida System. Only the payment structure under the three joint options is in dispute here.

Florida calculates an employee’s normal retirement benefit as a product of two variables, with the first variable a statutorily determined percentage of the employee’s average monthly compensation upon retirement and the second variable the employee’s credited years of employment. Fla. Stat. §§ 121.091(l)(a),(b) (1987). The normal retirement benefit is therefore equal for similarly situated male and female employees. If a retiring employee selects one of the optional joint annuitant plans instead of the normal plan, the Florida System then uses a third variable, the retiree’s life expectancy, to determine the present actuarial value of his or her normal retirement benefit. § 121.091 (6)(b). Until our Norris decision, Florida calculated a retiree’s life expectancy using sex-based actuarial tables. As the male’s life expectancy was less than a female’s, so too was the actuarial value of his normal retirement benefit; and, because the optional plans operated by a presumed exchange of the normal benefit for an optional plan, the lower actuarial value of the male benefit caused the male retiree to receive a joint annuitant benefit with lower monthly payments.

Immediately after our decision in Noiris, Florida acted to adopt unisex actuarial tables for all employees in the Florida System retiring after August 1, 1983. Under the unisex tables, male and female retirees similarly situated receive equal monthly pension benefits under any of the offered plans. As a result, Florida’s current retirement plans create no distinction, either in contributions or in payments, between employees or between post-Norris retirees on the basis of sex.

II

Retirees Hughlan Long and S. Dewey Haas brought this suit in the United States District Court for the Northern District of Florida against Florida and various of its officials with responsibility for management of the Florida System. They alleged that petitioners were violating Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., by operating pension plans that discriminated on the basis of sex, and requested the District Court to certify a class action under Federal Rule of Civil Procedure 23. Retirees requested retroactive compensation for underpayment of pension benefits.

On January 20, 1983, the District Court approved respondents’ class action, certifying a class consisting of male retirees who elected one of the optional plans and who retired after March 24, 1972, and before August 1, 1983. After an orderly progress to the merits, the District Court entered summary judgment in respondents’ favor, holding that Florida’s optional pension plans discriminated against male employees in violation of Title VII. The District Court determined that the effective date of our decision in Manhart was October 1, 1978. It awarded relief to class members who retired after that date and before August 1, 1983, by retroactive “topping up” of the monthly retirement benefits to Florida’s current unisex levels. The topping up was awarded for the period from October 1, 1978, to April 30, 1986, the date of the District Court’s judgment for purposes of damages calculation. It also awarded all class members topped-up future monthly benefits, commencing on the date of its judgment.

The Court of Appeals for the Eleventh Circuit affirmed. 805 F. 2d 1542, rehearing denied, 805 F. 2d 1552 (1986) (per curiam). It held, in sum, that our decision in Manhart had placed employers on notice that pension benefits, not just contributions, must be calculated without reliance on sex-based actuarial tables. Id., at 1547-1548, 1551. We granted certiorari, 484 U. S. 814 (1987), to. consider these issues, and we reverse.

Ill .

Two aspects of retroactivity análysis are presented by this case. The first is whether Manhart or Norris establishes the appropriate date for commencing liability for employer-operated pension plans that offered discriminatory payment options. We discuss below the retroactivity principles already explored in the pension cases and determine that Norris is the controlling liability date and that liability may not be imposed for pr e-Norris conduct. The second question concerns the proper implementation of our nonretroactivity determination. This requires us to determine whether benefit adjustments ordered by the District Court should be classified as retroactive or prospective. We hold the adjustments are retroactive and that pr e-Norris retirees are not entitled to adjusted benefits for the violations claimed here.

A

We have identified three criteria for determining whether retroactive awards are appropriate in Title VII pension cases involving the use of sex-based actuarial tables. Manhart, 435 U. S., at 719-723; Norris, 463 U. S., at 1105-1107; id., at 1109-1111 (O’Connor, J., concurring). See also Chevron Oil Co. v. Huson, 404 U. S. 97, 105-109 (1971). The first is to examine whether the decision established a new principle of law, focusing, in this context, on whether Manhart clearly defined the employer’s obligations under Title VII with respect to benefits payments. The second criterion is to test whether retroactive awards are necessary to the operation of Title VII principles by acting to deter deliberate violations or grudging compliance. The third is to ask whether retroactive liability will produce inequitable results for the States, employers, retirees, and pension funds affected by our decision.

The first criterion, the extent to which new principles of law have been established, is of particular significance to our holding today. The Court of Appeals held that Manhart placed Florida on notice that optional pension plans offering sex-based benefits violated Title VII, and it awarded retroactive relief accordingly. We disagree. The pension plan provision at issue in Manhart was the “requirement that men and women make unequal contributions to an employer-operated pension fund.” 435 U. S., at 717. While the language of our decision may have suggested the potential application of Title VII to unequal payments, we were careful to state that we did not reach that issue. We limited our holding to unequal contributions.

We recognized that “[t]here can be no doubt that the prohibition against sex-differentiated employee contributions represents a marked departure from past practice.” Id., at 722. Our decision stated two principal limits on the potential liability of employer-operated pension plans. First, we limited the holding to the fact pattern then before us. We stated:

“Although we conclude that the Department’s practice [of requiring discriminatory pension contributions on the basis of sex] violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries. All that is at issue today is a requirement that men and women make unequal contributions to an employer-operated pension fund.” Id., at 717.

Second, we confined the reach of our decision by recognizing the potential for interaction between an employer-operated pension plan and pension plans available in the marketplace. We said:

“Nothing in our holding implies that it would be unlawful for an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market.” Id., at 717-718.

Our references to contributions, as distinct from benefits payments, and our recognition of open market forces limited the decision and left some doubt regarding its command. Ensuing decisions expressed conflicting views of Manhart’s reach. Commentators also expressed conflicting opinions regarding the permissible and appropriate scope of the decision.

Not until Norris, decided five years after Manhart, did we address the matter of unequal benefits payments and the open market exception. Norris extended the principle of nondiscrimination to unequal benefits, stating that “the classification of employees on the basis of sex is no more permissible at the pay-out stage of a retirement plan than at the pay-in stage.” Norris, 463 U. S., at 1081. It also addressed uncertainty over the open market exception and responded to discrete issues not raised in Manhart. Granting only narrow operation to the open market exception, we excluded from it employer-operated pension plans which offered annuities that duplicated those available from private companies. 463 U. S., at 1087-1088. Norris also condemned pension plans offering male and female employee annuities with “the same present actuarial value” where sex-based differentials resulted. Id., at 1082-1083. Pension funds which offered nondiscriminatory plans with alternative discriminatory options were also held in noncompliance with Title VII’s requirements. Id., at 1081-1082, and n. 10. Thus, some questions left open by Manhart. were answered in Norris. Our close division in the later case, however, suggests that application of the earlier law to differential benefits was far from obvious.

In view of the substantial departure from existing practice that Manhart ordered, pension fund administrators could rely with reasonable assurance on its express qualifications and conclude that it was confined to cases of sex-based contributions. A few months before our decision in Norris, the United States Department of Labor completed a study of pension plans and the financial impact of an Equal Employment Opportunity Commission proposal to adopt an equal benefits rule. United States Dept, of Labor, Cost Study of the Impact of an Equal Benefits Rule on Pension Benefits (Jan. 1983) (hereinafter Cost Study). The Cost Study found that “[sjubstantial percentages of both [defined benefit and defined contribution] types of pension plans follow the customary insurance industry practice of using sex-segregated mortality tables in calculating annuity benefits.” Id., at 2. It estimated that 45% of the participants in defined benefit plans like the Florida System and 74% of the participants in defined contribution plans continued to receive benefits calculated with sex-based tables. Ibid.

The Florida experience further illustrates the difficulty of determining the requirements for full compliance. Since its inception, the Florida System not only required equal contributions for male and female employees but also provided a primary single life benefit with equal payments to similarly situated male and female employees. The primary single life benefit is of particular significance, for it complied with both Norris and Manhart. See Cost Study 11-12; Hager & Zimpleman, The Norris Decision, Its Implications and Application, 32 Drake L. Rev. 913, 938 (1982-1983) (Norris decision will “have little effect upon defined benefit plans so far as the normal form pension benefit is concerned . . . [since that benefit] already pays equal annuity incomes”).

The provision of optional annuity plans in the Florida System provided employees with a range of choices for their convenience. Before Norris, Florida could conclude reasonably that, once employees were offered a unisex primary benefit, Manhart did not prevent the offering of sex-based annuities as options. The alternative for employers who wished to control, or were unable to finance, the costs of unisex options would be to eliminate optional benefits entirely and offer the primary benefit alone. See Hager & Zimpleman, 32 Drake L. Rev., at 938-939. Employees do not benefit from the reduction of their pension plan options, and Florida may have assumed we did not intend to eliminate an employee’s flexibility in choosing a retirement option, so long as the options presented included a sex-neutral benefit.

In Norris itself we recognized that Manhart had reserved the determination of some major issues. While we narrowed the open market exception to include only pension plans where employers set aside an equal lump-sum payment and the individual employee purchased an annuity from a private pension company, 463 U. S., at 1088, we recognized that employers “reasonably could have assumed that it would be lawful to make available to its employees annuities offered by insurance companies on the open market.” Id., at 1106. The pension plan we considered in Norris reflected a reasonable application of the open market exception. While the forms of the Florida System’s plans and those considered in Norris may differ, they are the same in economic substance.

Florida’s continuance of the optional plans until the Norris decision does not justify imposition of a retroactive award. We note, moreover, that while Florida’s offer of the nondiscriminatory benefit makes its case against retroactivity more compelling, this particular feature is not essential to establish that Norris is the effective date for conforming benefit structures. The considerations discussed below are also of relevance.

The second and third criteria of retroactivity analysis also support our determination that Norris, and not Manhart, provides the appropriate date for determining liability and relief. In the pension context, we have considered whether retroactive awards are necessary to further the purposes of Title VII and to ensure compliance with our decisions, and we have concluded that retroactivity is not required. Manhart, 435 U. S., at 720-721; Norris, supra, at 1110 (O’Connor, J., concurring). We see no reason to depart from that conclusion in the case before us. Florida acted immediately after our decision in Norris and modified its optional pension plans to provide equal monthly benefits to each individual employee who retired after August 1, 1983. There is no evidence that employers in general have not complied with the Title VII requirements we announced in Man-hart and extended in Norris.

Finally, we conclude here, as in Manhart and Norris, that the imposition of retroactive liability on the States, local governments, and other employers that offered sex-based pension plans to their employees is inequitable. The effect of “drastic changes in the legal rules governing pension and insurance funds” on the provision of reserves for unexpected benefits; the complexities of pension funding in an industry that had once relied on sex-based tables, coupled with the lack of authoritative guidance from the courts or administrative agencies; the potential instability in pension and retirement programs and the resulting harm to other retirees as innocent third parties; and the absence of any reason to believe that “the threat of a backpay award” was necessary to effect pension fund compliance with our decision, all compelled our conclusion in Manhart that “the rules that apply to these funds should not be applied retroactively unless the legislature has plainly commanded that result.” Manhart, supra, at 720-723. Noting that Congress had, in fact, stressed the importance of “making only gradual and prospective changes” in the legal rules governing pension plans, 435 U. S., at 721-722, n. 40, we concluded, in general terms, that the “Albemarle presumption in favor of retroactive relief” should not be applied to this type of Title VII pension plan suit. Id., at 723. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 421 (1975).

In Norris, we reaffirmed our conclusion that retroactive liability was inappropriate in Title VII pension plan cases. 463 U. S., at 1105-1107. Retroactive awards, applied to every employer-operated pension plan that did not anticipate our decision, would impose financial costs that would threaten the security of both the funds and their’beneficiaries. Id., at 1110 (O’Connor, J., concurring); id., at 1094-1095 (Marshall, J., concurring in judgment in part). See also Buck Research Corporation, Trends in Corporate Pension Benefits: Unisex Before and After Norris 15 (Oct. 1983) (survey of Fortune 500 industrial corporations showing only 39.8% used unisex tables for their pension annuities when Norris was decided).

Respondents argue that Florida’s pension administrators had “actual notice from internal memoranda and discussions” that the continuation of the sex-based optional pension plans after Manhart violated Title VII. 805 F. 2d, at 1550. Similarly, respondents argue that the Florida System can in fact afford the District Court’s $43 million award. Our power to order appropriate relief under Title VII is equitable in nature and flexible, Manhart, supra, at 718-719; see 42 U. S. C. §2000e-5(g), but the particular circumstances of a case are not the sole determinant of relief. That Florida’s fund currently may possess a surplus or that Florida’s administrators discussed early intimations of later doctrine should not control a decision that must be based on a broad principle. 435 U. S., at 722, n. 42. We will not adopt the premise that the appropriateness of a retroactive award turns on a particular pension fund’s current financial status, so that financially successful pension funds pay but financially insecure pension funds do not. To do so imposes a penalty for prudent management. Similarly, the question whether Manhart placed employers on notice of Title VII’s requirements cannot turn on the internal debates of one pension fund’s administrators. The meaning and scope of a decision do not rest on the subjective interpretations of discrete, affected persons and their legal advisers. We have previously noted that “[ijmportant national goals would be frustrated by a regime of discretion that ‘produce[d] different results for breaches of duty in situations that cannot be differentiated in policy.’” Albemarle Paper, supra, at 417 (citing Moragne v. States Marine Lines, 398 U. S. 375, 405 (1970)).

While we hold that Manhart did not establish the date for Florida to conform its payment options to unisex standards, we do not hesitate to say that Norris did so. If Florida had continued to use sex-based actuarial tables to calculate benefits for its pension plans after Norris, the case before us would have been an altogether different one. Norris informed covered employers with pension plans of the obligation under Title VII to provide payment levels, both for contributions and for benefits, that are nondiscriminatory as to sex. We conclude that the effective date of our decision in Norris provides the appropriate limit on retroactive liability in this case.

B

We next consider implementation of our nonretroactivity determination. The District Court made two separate awards. The first, for back compensatory payments to employees who retired after Manhart and before Norris and covering the entire period from Manhart to the date of its judgment, is retroactive without doubt and is, by our decision here, impermissible. The second award required that payments after judgment be adjusted for all pr e-Norris male retirees who are receiving lower benefits. The District Court, and the Court of Appeals in affirming, labeled this latter award prospective relief. We disagree.

The distinction between retroactive and prospective relief is not always self-evident. An order requiring adjusted future payments for pr e-Norris retirees may contain the essential elements of a retroactive order. Unlike an ordinary injunction against future conduct, the effect of an order that increases pension benefits to employees who háve already retired may be retroactive in a fundamental sense if it corrects a fixed calculation based on assumptions that both the State and the retiree held when the retirement occurred. Benefits are altered despite the circumstance that past contributions were keyed to lower benefit payments, which undermines the basic financial calculus of a pension plan that determines contribution rates to support a predicted level of payments. See Norris, 463 U. S., at 1092 (Marshall, J., concurring in judgment in part). Such changes in benefits based on past contributions and actuarial assumptions may create a deficiency in the pension fund, requiring additional funds from the State and other employers to meet the increased benefits liability or forcing the pension plan to violate its contractual benefit guarantee to other retirees. In sum, an award in many cases may be retroactive In nature “[w]hen a-court directs a change in benefits based on contributions made before the court’s order.” Ibid.; see id., at 1105, n. 10.

It is not correct to consider payments of benefits based on a retirement that has already occurred as a sort of continuing violation. Our decision in Bazemore v. Friday, 478 U. S. 385 (1986), is not to the contrary. Bazemore concerned the continuing payment of discriminatory wages based on employer practices prior to Title VII. In a salary case, however, each week’s paycheck is compensation for work presently performed and completed by an employee. Further, the employer does not fund its payroll on an actuarial basis. By contrast, a pension plan, funded on an actuarial basis, provides benefits fixed under a contract between the employer and retiree based on a past assessment of an employee’s expected years of service, date of retirement, average final salary, and years of projected benefits. In the pension fund context, a continuing violation principle in every case would render employers liable for all past conduct, regardless of whether the liability principle was first announced by Man-hart, Norris, or our decision here. We cannot recognize a principle of equitable relief that ignores the essential assumptions of an actuarially funded pension plan.

We applied these principles in Norris and held that an order to adjust future annuity payments to female retirees to reach equality with payments to similarly situated men was “fundamentally retroactive in nature.” 463 U. S., at 1105, n. 10. The District Court’s award here is indistinguishable in principle from the one found retroactive in Norris. The State of Florida determined contribution rates by relying on a precise assessment of expected future pension benefits for covered state and local government employees. The Constitution of the State of Florida mandated that the fund be maintained on a sound actuarial basis. Fla. Const., Art. X, § 14. As Florida guarantees the level of benefits, the District Court’s award affects the pension fund’s ability to meet its accrued obligations.

A different case, and a different assessment of retroactivity, might result under pension plan structures which do not provide retirees with a contractual right to a fixed level of benefits or rate of return on contributions. See Spirt v. Teachers Insurance & Annuity Assn., 735 F. 2d 23, 28 (CA2 1984). There, an award for future increase may require neither additional funding by the State or employer nor violation of contractual rights of other retirees. That is not the case before us, however. It is essentially retroactive to disrupt past pension funding assumptions by requiring further adjustments based on conduct that could not reasonably have been considered violative of Title VII at the time retirements occurred and funding provisions were made. Respondents “could not have done anything after [Norris] to eliminate [the resulting disparity in the pension fund] short of expending state funds.” Norris, supra, at 1095 (Marshall, J., concurring in judgment in part).

Under the Florida plan, no adjustment in benefits payments is required for employees who retired before the effective date of our decision in Norris. As the class here consists only of employees who retired before Norris, it is not entitled to the relief ordered by the District Court.

The judgment of the Court of Appeals for the Eleventh Circuit is reversed.

It is so ordered.

Justice Blackmun,

with whom Justice Brennan and Justice Marshall join, concurring in part and dissenting in part.

The Court’s decision today denies respondents retroactive relief on the ground that equitable considerations prevent imposition of liability for Florida’s actions taken prior to the effective date of our decision in Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U. S. 1073 (1983). Because I conclude that the same equitable considerations mandate retroactive liability for Florida’s Title VII violations after this Court’s-earlier decision in Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), I dissent from that part of the Court’s judgment that categorically denies relief to the post-Manhart retirees.

I

Until its amendment in August 1983, the pension plan the State of Florida operated for its employees discriminated on the basis of sex in a manner prohibited by Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. To recapitulate briefly, the plan operated as follows: A state employee, upon retirement, could choose between two basic pension options — a single-life plan or a joint-annuitant plan. An employee selecting the single-life plan received benefits tied to the employee’s salary and length of service. Because the employee’s sex was irrelevant to the benefits paid under the single-life plan, this part of Florida’s pension plan did not run afoul of Title VII. If, however, an employee selected a joint-annuitant plan, the amount of benefits the employee received under that plan would be tied to the actuarial value of the employee’s single-life plan — a value established for this purpose by the use of sex-based actuarial tables. Because, on the average, men do not live so long as women, these tables ascribed a greater value to a female employee’s single-life plan than to a male’s, and, accordingly, the monthly benefits paid out under a female retiree’s joint-annuitant pension were greater than those paid out under a male retiree’s joint-annuitant pension. It is undisputed that Title VII prohibits this kind of sex-based distinction in the provision of retirement benefits.

The issue in this case, of course, is not whether the pension plan Florida operated is barred by Title VII, but, rather, whether retirees are entitled to retroactive relief for Florida’s discrimination. Although retroactive relief is not mandatory in a Title VII case, see § 706(g), 42 U. S. C. §2000e-5(g), the make-whole purpose of Title VII creates a “presumption in favor of retroactive liability [that] can seldom be overcome.” Manhart, 435 U. S., at 719. As the Court notes, however, in the context of pension plans that run afoul of Title VII, the presumption of retroactive liability may be defeated if the relevant law concerning Title VII was not sufficiently clear at the time of the violation. Ante, at 230. In both Manhart and Norris, we found that, although pension plans were being operated in violation of Title VII, retroactive liability was inappropriate in part because the plan administrators reasonably might have assumed that their plans were lawful.

In denying retroactive relief to the post-Manhart retirees in this case, the Court concludes that it was not until the decision in Norris in 1983 that Florida had notice that its pension plan was unlawful. It is on this point, in my view, that the Court goes astray.

In Manhart, we were faced with a plan which required female employees to make greater contributions out of their paychecks than their male counterparts in order to obtain the same monthly pension benefits upon retirement. The employer sought to justify this difference by noting that since, as a group, female employees lived longer than male employees, “[t]he cost of a pension for the average retired female is greater than for the average male retiree because more monthly payments must be made to the average woman.” 435 U. S., at 705. This difference in cost, argued, the employer, allowed the difference in contributions. The Man-hart Court accepted as true the employer’s proffered rationale for its distinction, but nonetheless concluded that the plan violated Title VII. As the Court put it: “The question ... is whether the existence or nonexistence of ‘discrimination’ is to be determined by comparison of class characteristics or individual characteristics.” 435 U. S., at 708. The Court’s conclusion in Manhart was that Congress intended that individual characteristics should control. See id., at 708-709. Therefore, Title VII required that the pension plan be funded through sex-neutral employee contributions.

It is difficult to see any important distinction between that case and this one. The Court today relies on the fact that the pension plan at issue in Manhart discriminated at the contribution stage, while in this case the discrimination surfaced at the payment stage. In my view, it was always clear that this was a distinction without a difference. In Manhart, one sex took home less pay than the other in order to receive the same benefits upon retirement. Here, the take-home pay was the same, but one sex received a greater benefit upon retirement than the other. Both plans violated Title VII because the employer discriminated between men and women as a class. I see no plausible theory on which we might have distinguished the latter situation from the former, and the Court today offers.none. In short, Manhart laid down a general rule that any employer-operated pension plan that relied on actuarial differences between women and men to the detriment of either group was prohibited by Title VII. Florida’s pension plan violated this rule as clearly as did the plan at issue in Manhart.

Manhart’s “open-market exception” cast no doubt on this fundamental holding. The majority focuses on the statement in Manhart that it might be lawful for “an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market,” 435 U. S., at 717-718. The Court ignores, however, the explanatory footnote to that statement, which clearly articulated its rationale: “Title VII. . . primarily governs] relations between employees and their employer, not between employees and third parties.” Id., at 718, n. 33. Thus, it should have been evident from the start that the open-market exception had nothing to do with a distinction between discrimination at the contribution stage and discrimination at the benefit stage. Rather, the exception involved a distinction between discrimination by an employer and discrimination by a third party, the latter being generally outside the scope of Title VII.

Our decision in Norris confirms, rather than casts doubt on, the conclusion that the unlawfulness of Florida’s pension plan was established and made manifest by our decision in Manhart. The five Justices in Norris who found the type of plan there at issue barred by Title VII considered as obvious the application of Manhart’s rationale to the payment of unequal benefits:

“We have no hesitation in holding, as have all but one of the lower courts that have considered the question, that the classification of employees on the basis of sex is no more permissible at the pay-out stage of a retirement . plan than at the pay-in stage.” 463 U. S., at 1081 (footnotes omitted).
“[I]t is just as much discrimination ‘because of. . . sex’ to pay a woman lower benefits when she has made the same contributions as a man as it is to make her pay larger contributions to obtain the same benefits.” Id., at 1086.

The Norris majority’s rejection of the contribution/benefit distinction was based almost entirely on the reasoning of Manhart, and came without mention of the open-market exception. See 463 U. S., at 1081-1086. See also id., at 1108-1109 (O’Connor, J., concurring) (“Title VII clearly does not allow an employer to offer a plan to employees under which it will collect equal contributions, hold them in a trust account, and upon retirement disburse greater monthly checks to men than women”) (emphasis added).

Similarly, Justice Powell’s opinion for those Members of the Court who thought that the pension plan at issue in Norris did not violate Title VII focused on the distinction not between contributions and benefits but between employer-operated pension funds and those, like the one in Norris, that were administered by third parties. See 463 U. S., at 1099, 1103. His opinion did not contest the conclusion reached by the Court, id., at 1086, that the plan at issue in Norris “plainly would have violated Title VII” if, like the plan under scrutiny here, it had been operated by the employers themselves.

Nor, finally, does the ultimate conclusion of five Justices in Norris that retroactive liability was inappropriate in that case call for a like conclusion here. The majority’s decision that Manhart did not provide notice that the plan at issue in Norris violated Title VII was based solely on the view that, because of the open-market exception, “an employer reasonably could have assumed that it would be lawful to make available to its employees annuities offered by insurance companies on the open market.” 463 U. S., at 1106 (Powell, J., dissenting in part and concurring in part) (emphasis added). See also id., at 1110 (O’Connor, J., concurring) (referring to “pension plan administrators, who may have thought until our decision today that Title VII did not extend to plans involving third-party insurers”) (emphasis added). The basis of the reasonable assumption of the lawfulness of the plan in Norris — the involvement of third-party insurers — simply has no application in this case.

Because I conclude that the unlawfulness of Florida’s pension plan was “clearly foreshadowed” by our decision in Manhart, and did not depend on a “new principle of law” announced in Norris, 463 U. S., at 1109 (O’Connor, J., concurring), I naturally disagree with the Court’s conclusion that retroactive liability would be “inequitable.” To the contrary, I believe such relief is clearly appropriate. See id., at 1093. Cf. Chevron Oil Co. v. Huson, 404 U. S. 97, 106 (1971) (“[T]he decision to be applied nonretroactively must establish a new principle of law”) (emphasis added). I note, in addition, that no special factors are presented here that would make an award of retroactive relief inequitable.

While I conclude that our decision in Manhart put Florida on notice that its pension plan violated Title VII, and that therefore retroactive relief is appropriate for post-Manhart retirees, I agree with the majority that those respondents who retired before our decision in Manhart are not entitled to retroactive relief. An award of retroactive relief to pre-Manhart retirees in effect would penalize Florida for its pre-Manhart use of sex-based annuity tables. A retroactive award of this kind would not be in accord with our decision in Manhart to deny such relief because, prior to that decision, the use of sex-based tables reasonably might have been assumed to be lawful.

I — I h — H

In summary: I conclude that our decision in Manhart supplies the date after which Florida should be held liable for its failure to use unisex tables in calculating retirement benefits. Accordingly, I concur in that part of the Court’s judgment that denies relief to pr e-Manhart retirees, but, for the reasons stated above, I dissent from that part of its judgment that categorically denies relief to post-Manhart retirees.

Justice Stevens,

dissenting.

All of us agree that discrimination in the collection of contributions from employees prior to our decision in Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702 (1978), cannot be remedied retroactively. A somewhat different issue is presented, however, when there is discrimination in the payment of benefits to employees who retired before Manhart was decided. The District Court and the Court of Appeals in this case agreed that it would be inequitable to grant retroactive relief that would adjust the benefits paid to pr e-Manhart retirees for the period of unlawful discrimination that occurred prior to the date the District Court entered its.judgment. Both of those courts concluded, however, that it would be appropriate to grant prospective relief that would increase the benefits payable to male retirees in the future. I agree.

It must be conceded that there is no recovery for any violation that occurred prior to our decision in Manhart. In the present case, however, I think it clear that each month’s disparate retirement check constitutes a separate violation. Unlike Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U. S. 1073, 1105, n. 10 (1983), the District Court’s order in this case does not call upon the State “to fund retroactively the deficiency in past contributions made by its . . . retirees.” (Powell, J., dissenting in part and concurring in part). Rather, even to the extent that the plan was in the past partially funded by contributions on behalf of individual employees, those contributions are not directly tied to the employees’ benefit payments. Benefits are instead calculated on the basis of a percentage of average annual compensation of the participating employee. App. to Pet. for Cert. A39. As the Court of Appeals correctly concluded, given the fact that the order of relief is accordingly prospective in nature, the defendants should not be permitted to “continue to discriminate” in violation of the statute. 805 F. 2d 1542, 1548 (CA11 1986). The failure to “top up” the pré-Manhart retirees’ future benefit payments is akin to the perpetuation of past discrimination that we condemned in Bazemore v. Friday, 478 U. S. 385 (1986). Moreover, as both the District Court and the Court of Appeals concluded, there are no special equities in this case militating against the award of this type of prospective relief.

I am in complete accord with the result reached by the District Court and the Court of Appeals. Accordingly, while I also agree with Justice Blackmun’s exposition of the flaws in this Court’s analysis, I would affirm the judgment of the Court of Appeals in its entirety.

       March 24, 1972, is the effective date of the Equal Employment Opportunity Act of 1972, which, for the first time, made public employers like Florida and its local governments an “employer” within the meaning of Title VII. 86 Stat. 103. See 42 U. S. C. § 2000e. We do not determine whether this is the appropriate date for public employers’ liability under Title VII.

       “Topping up” compensates for the difference between the benefits male retirees did receive and the benefits they would have received if the Florida System had used unisex mortality tables, but would not provide male retirees with benefits equal to those female retirees received under the sex-based tables. App. to Pet. for Cert. A65. See Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 719-720, n. 36 (1978) (full equalization “may give the victims of the discrimination more than their due”).

       The parties raise other issues regarding whether 42 U. S. C. §2000e-5(g) limits petitioners’ liability for retroactive compensation to no more than two years prior to the filing of a proper Equal Employment Opportunity Commission (EEOC) charge of discrimination and whether 42 U. S. C. §2000e-5(e) requires that the plaintiff class be restricted to include only those individuals who retired no more than 300 days prior to the filing of such an EEOC charge. We do not address these issues because, in either case, the relevant liability limitations would be prior to our decision in Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U. S. 1073 (1983), which sets the controlling date for liability.

      Compare Peters v. Wayne State University, 691 F. 2d 235 (CA6 1982) (use of sex-based tables does not violate Title VII if actuarial value of pension plans for similarly situated males and females is equal), and EEOC v. Colby College, 589 F. 2d 1139, 1146 (CA1 1978) (Coffin, J., concurring)
        (Manhart does not necessarily preclude pension system that offers employees equal benefit plans as well as optional “actuarially sound” plans, with unequal benefits, based on sex-based tables), with Spirt v. Teachers Insurance and Annuity Assn., 691 F. 2d 1054 (CA2 1982) (unequal benefits as well as unequal contributions barred under Manhart), vacated and remanded, 463 U. S. 1223 (1983), and Sobel v. Yeshiva University, 566 F. Supp. 1166, 1192 (SDNV 1983) (following Spirt as binding Circuit law, but noting that the Court’s decision to review Norris should end uncertainty regarding “[w]hether the Supreme Court will retreat from its Manhart holding or offer some reasonable means of applying it in a nondiscriminatory fashion . . . [and] the Court is almost certain to comment upon several types of distribution options which have been offered to avoid a Manhart problem” (footnote omitted)), rev’d and remanded, 797 F. 2d 1478 (CA2 1986), later decision, 656 F. Supp. 587 (SDNY 1987).

       The parties raise other issues regarding the scope of Florida’s retroactive liability. See ante, at 229-230, n. 3. Like the Court, I take no position on these issues.

       1 agree with the Court’s conclusion that all the relief approved by the Court of Appeals properly is characterized as retroactive.

       The majority also places some reliance on a Department of Labor study dated nearly five years after our decision in Manhart, which estimated: “In the defined benefit plan sector, 45 percent of participants are in plans using sex-based tables. In the defined contribution plan sector, 74 percent of participants are in plans using sex-based tables.” United States Dept, of Labor, Cost Study of the Impact of an Equal Benefits Rule on Pension Benefits 2 (Jan. 1983). See ante, at 233-234. As Florida concedes, however, the Department of Labor’s survey made no distinction between employer-operated plans, like the plan in this case, and employer-sponsored plans, like the plan in Nort'is. See Brief for Petitioners 33, n. 27. Yet it is only the former category of plans that Manhart established was in violation of Title VII. The study thus throws little light on the issue in this case.
      Nor do I find persuasive the Court’s emphasis on the fact that Florida also offered a nondiscriminatory single-annuitant option. See ante, at 234. The Court explained in Norris: “Title VII forbids all discrimination concerning ‘compensation, terms, conditions, or privileges of employment'.... An employer that offers one fringe benefit on a discriminatory basis cannot escape liability because he also offers other benefits on a nondiscriminatory basis.” 463 U. S., at 1081-1682, n. 10. Neither the language of Title VII nor precedents of this Court provided a basis for the contrary conclusion, even prior to the decision in Norris.

       As the Court of Appeals explained:
      “[B]enefits in the [Florida Retirement System] are not based on individual contributions for individual employees. Instead the legislature sets a contribution rate for the employer based on the pension plan’s financial needs. The Florida legislature has the power and responsibility to increase the contribution rates periodically to cover operating costs and the unfunded accrued actuarial liability.” 805 F. 2d 1542, 1551 (CA11 1986).
      During the period from 1970 to 1975, the plan was funded by a combination of contributions from employees and employers, but since 1975 has been funded entirely with public funds. Id., at 1545-1546.

       In Bazemore, we held that a public employer has a duty to eradicate salary differentials created as a result of a pattern or practice of racial discrimination engaged in prior to the extension of Title VII to public employers, but perpetuated thereafter. We wrote:
      “The error of the Court of Appeals with respect to salary disparities created prior .to 1972 and perpetuated thereafter is too obvious to warrant extended discussion: that the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VII. . . . While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed.
      “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII.” 478 U. S., at 395-396 (Brennan, J., for a unanimous Court, concurring in part).