joins, specially concurring in the result only:
In writing for the court, Judge Anderson has done a scholarly job of assembling those authorities and pieces of legislative history which hint, imply, suggest or allow one to infer from silence that the 180-day filing requirement of the ADEA is subject to equitable tolling. An overwhelming majority of our en banc court agrees with our brother and consequently, until the Supreme Court deals directly with the issue, we have a clear statement of the law within our circuit. This is good.
As I stated in my partial dissent from the original panel opinion, 616 F.2d at 790, it concerned me that panels of our court ignored the clear (to me) holding of our en banc opinion in McArthur v. Southern Airways, Inc., 569 F.2d 276 (5th Cir. 1978). That case has now been overruled.
Although I am unable to find in the cited Supreme Court opinions the support necessary to conclude that Congress did not mean what it said, I have no stomach for continuing to urge the harshness of an absolute condition precedent (timely notice) to such claims. My brothers and sisters find that equitable tolling has a place in the presentation of such claims. This will most certainly allow many more to be decided on the merits. Abstract justice is not always inappropriate.