concurring specially:
I agree with the result reached by the majority, but the application of laches to a backpay claim deserves some discussion.
The delays in this case are astounding. They deserve a detailed recital.
Gifford filed charges with the EEOC in January 1968. Santa Fe received a copy of those charges in June 1968. The EEOC completed its field investigation by February 1969. Then ended any effort to attend promptly to the matter. Almost two years passed before the EEOC determined that reasonable cause supported Gifford’s charges. Gifford and Santa Fe received notice of the reasonable cause determination in January 1971.
In October 1971, the EEOC notified Gifford that a representative would be in Bakersfield soon to meet with her and Santa Fe. No one came. Almost a year and a half later, in February 1973, Gifford wrote to the EEOC inquiring about her case. She received no answer.
Gifford employed counsel in January 1974, and some efforts at conciliation followed. But in February 1974 Santa Fe notified the EEOC that under no circumstances would it reinstate her. Santa Fe last heard from the EEOC in October 1974, when the agency officially notified it that conciliation had ended.
In April 1974, Gifford’s attorney requested that a right to sue letter be issued. When he called the EEOC in June 1974, he was told that it was considering filing suit itself and that, if it did so, Gifford could intervene at little additional cost. Gifford and her attorney then awaited the EEOC’s decision.
From June 1974 to June 1977 the EEOC continually misassigned and mishandled Gifford’s file. It was sent to the wrong places, forgotten on desks, and transferred through numerous personnel changes. An affidavit filed with the district court by Gifford’s attorney details his calls and letters to the EEOC urging action. The saga *1158was indeed, as one EEOC analyst stated, a “flying dutchman odyssey.”
Despite the efforts of Gifford’s attorney, the EEOC took three years to decide that it would not file suit. Had it done so in 1977, it faced a strong possibility of dismissal for laches. See EEOC v. Alioto Fish Co., 623 F.2d 86 (9th Cir. 1980) (delay of 20 months after conciliation ended before EEOC filed suit and 62-month delay in total from when charges were filed found unreasonable).
The EEOC finally issued Gifford a notice of right to sue in August 1977, and she brought action soon thereafter. By then, the events underlying the suit were almost ten years old. The clock has not stopped running. After remand here, the case returns for trial. Even with expeditious handling, the trial could not be held before 1983 or later. The prospect of litigation over 15 or 16 year-old facts must give pause, as must the prospect of 15 or 16 years of backpay should Gifford prove her claims.
Viewed abstractly, and without assigning blame, the delay clearly is shocking. But laches is an equitable defense, and cannot be applied in the abstract. Nor can it be decided, as Santa Fe urges, as a matter of law on a record that presents unresolved issues of fact.
Affidavits from both sides chronicle the defendant’s prejudice and plaintiff’s actions to expedite the case. But these merely reveal factual disputes and, of greater importance, are insufficient to resolve a laches claim.
Dismissal for laches requires inexcusable delay by the plaintiff and resulting prejudice to the defendant. Boone v. Mechanical Specialties Co., 609 F.2d 956 (9th Cir. 1979). Laches applies both to suits brought by the EEOC, EEOC v. Alioto Fish Co. Ltd., 623 F.2d 86 (9th Cir. 1980), and to those brought by private plaintiffs. Boone v. Mechanical Specialties Co., supra.
It may bar the entire complaint or only certain claims, the whole remedy sought or only a portion of it. Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 372-73, 97 S.Ct. 2447, 2457-58, 53 L.Ed.2d 402 (1977) (may bar backpay); Albermarle Paper Co. v. Moody, 422 U.S. 405, 424, 95 S.Ct. 2362, 2374, 45 L.Ed.2d 280 (1975) (may bar backpay); EEOC v. Massey-Ferguson, Inc., 622 F.2d 271, 276 (7th Cir. 1980) (may bar entire complaint, certain claims, or backpay); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 469 (D.C. Cir. 1976) (may limit or preclude backpay); Lynn v. Western Gillette, Inc., 564 F.2d 1282, 1288 (9th Cir. 1977) (may bar or limit backpay); Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974), rev’d on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.3d 444 (1976) (may bar entire claim or only portion or just backpay).
A district court must examine each claim alleged and remedy sought to determine if sufficient prejudice and delay support defendant’s request for dismissal or limitation.
Issues of delay and prejudice are intertwined closely. Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 807 (8th Cir. 1979). Shorter delays require greater prejudice. Longer delays require less. Id. Similarly, greater prejudice requires more reason for delay, and less prejudice will allow longer delays for less compelling reasons.
A defendant’s showing of prejudice will necessarily differ for each claim or remedy it seeks to bar or limit. For example, if a defendant asserts laches to bar a claim of disparate treatment, the court will ordinarily examine the availability of witnesses and records to counter that claim. See, e.g., Boone v. Mechanical Specialties Co., 609 F.2d 956 (9th Cir. 1979).
Proof of the reasonableness of delay will not necessarily differ for the various claims and remedies sought. But, because of delay’s relationship to prejudice, if delay in seeking a certain type of claim or remedy causes more prejudice than normal, the proof of excuse required may vary accordingly.
In addition to the usual prejudice from lost records and dimmed memories associated with defending substantive claims, delay *1159in asserting backpay claims present the defendant with a distinct prejudice. After allegedly discriminatory discharge or failure to hire, an employer soon loses touch with the plaintiff. The plaintiff must mitigate any damage, but the defendant bears the burden of proving a failure to mitigate. Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980). As time passes, meeting this burden becomes progressively more difficult, if not impossible.
To prove failure to mitigate, the defendant must show the availability of suitable positions and plaintiff’s lack of due diligence in seeking them. Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978). Once an employer has lost contact with the plaintiff, showing availability of positions and plaintiff’s lack of diligence could become nearly impossible.
Nor is this prejudice to the defendant’s burden of proof balanced by a similar prejudice to the plaintiff’s proof, as occurs with the plaintiff’s substantive claims. A long delay may prejudice a plaintiff in proving her claims as much as a defendant in countering them. See Harris v. Ford Motor Co., 487 F.Supp. 429 (W.D. Mo. 1980).
But once the substantive claim is made, little additional proof is needed for a back-pay claim. He or she need only introduce pay scales to show what he or she should have earned. To defend, however, an employer must show other jobs were available and that the plaintiff could have located them. The defendant is unlikely to have any of this information in its files.
The Seventh Circuit may have assumed prejudice to the defendant when it reduced a Title VII plaintiff’s backpay award by the four years from the time she could have requested a right to sue letter and the time of filing suit. Kamberos v. GTE Automatic Electric, Inc., 603 F.2d 598, 603 (7th Cir. 1979), cert. denied, 454 U.S. 1060, 102 S.Ct. 612, 70 L.Ed.2d 599 (1981). Because the plaintiff knew she could request a right to sue letter 180 days after she filed charges, the court concluded that she could not increase her award by taking advantage of the EEOC’s slowness in processing claims. Id. The court did not discuss prejudice.
Kamberos at least suggests that the analysis of laches in asserting backpay claims differs from that in asserting substantive claims. See also Powell v. Zuckert, 366 F.2d 634, 639 (D.C. Cir. 1966). The potential for prejudice to the defendant is great and the plaintiff bears little additional prejudice over and above the burden of proving the underlying claim. Should this defendant reassert laches on remand, as it is free to do, the court should have the distinction in mind.
In addition, it should consider whether a plaintiff’s delay after conciliation, pending EEOC decision to sue, is reasonable. Gifford argues that she waited for the EEOC because if it filed suit, she could intervene at little or no extra cost. Her affidavit states that she had limited funds for a law suit. Inability to pay legal fees normally does not excuse a delay in filing suit. Powell v. Zuckert, 366 F.2d 634, 636 (D.C. Cir. 1966). Because Title VII provides for attorney’s fees, the excuse is even less persuasive.
I concur in the remand because the record is inadequate to support finding laches as a matter of law. But I stress that the issue remains open. Should Gifford prove her substantive claims of discrimination, the district court may feel compelled to award backpay for 15 or 16 years. I cannot believe Congress intended such a result.