concurring in part, and dissenting in part:
I respectfully dissent to that part of the opinion which holds that the § 626(d) 180-day statute of limitations barred Hamilton from pursuing his pay discrimination claim. I concur in the rest of the opinion.
I, of course, agree that statutes of limitations are indispensable components of the judicial system. I think it is equally self-evident that such statutes become more useful tools when, in appropriate cases, they are complemented by a discovery rule. In my view, this is such a case, and we have the opportunity to establish a rule which would affect the underlying purpose of controlling litigation in this civil rights area as well as advancing the remedial purposes of the ADEA without reducing statute of limitations principles to mere mechanical exercises. While recognizing that a limitations statute is designed to operate with some rigidity, courts have nonetheless avoided purely mechanical applications when the results would be solely to advantage superiorly positioned litigants. In my view, a rigid application of the 180-day rule of § 626(d) in pay discrimination cases achieves precisely those results that the equitable nature of “discovery” rules discourages. Recognition of a discovery rule in this § 626(d) context, on the other hand, would balance the underlying objectives of statutes of limitations, by not subjecting a defendant to suit once evidence to rebut the suit has become stale, yet advancing the congressional policy that disadvantaged plaintiffs not be artificially hindered from pressing civil rights claims.
The majority opines, with justification, that Congress is capable of specifically en-*91grafting a notice requirement on statutes of limitations if it is so desired. Of course, I do not dispute that notion, and I agree that Congress declined to specify a discovery requirement in drafting § 626(d). It is equally clear, however, that Congress has declined to include specific notice requirements in other statutes that have, nonetheless, been interpreted as impliedly containing them. For example, § 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), reads in relevant part:
no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with Board____
(Emphasis added.) Yet, in NLRB v. Allied Prod. Corp. Richard Bros. Div., 548 F.2d 644 (6th Cir.1977), the Sixth Circuit held that the limitations period for an action under the National Labor Relations Act begins to run “ ‘when the claimant discovers or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged [violation].’ ” Id. at 650 (quoting Hungerford v. United States, 307 F.2d 99, 102 (9th Cir.1962), overruled on other grounds, Ramirez v. United States, 567 F.2d 854, 857 (9th Cir. 1977)). The statute at issue in Allied employed language similar to § 626(d)’s “practice occurred ” and yet the court held the time limitation subject to a discovery rule.
In my view, the majority’s focus on a plain language analysis to bar a “discovery” approach to the § 626(d) limitations period conflicts with the Supreme Court’s analysis in both Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981). In Ricks, the Court continually emphasized that Ricks’ notice of the discriminatory action was an essential underpinning of the opinion. The majority here stresses that a plaintiff’s acquisition of knowledge by notice is a continuing process which does not fit neatly into an emphasis on occurrence as a bare tangible event. The majority opinion, however, fails to explain why advance notice of the bare event fits neatly into the plain meaning of “occurrence” when it results in constriction of the statutory time (as in Ricks), but an absence of notice would be antithetical to “occurrence” when the inclusion of notice in the meaning of occurrence would result in the expansion of the statutory time.
In support of the position that a discovery rule would be out of place in § 626(d), the majority relies on the Supreme Court eases of Lorance v. A T & T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261, 104 L.Ed.2d 961 (1989); Chardon, supra; and Ricks, supra, and on our decision in Felty v. Graves-Humphreys Co., 785 F.2d 516 (4th Cir.1986). I think the reliance is misplaced.
In Ricks, the Supreme Court instructed “that the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Id. 449 U.S. at 262 n. 16, 101 S.Ct. at 506 n. 16. The Court found it significant that Ricks was adequately forewarned and a fair reading of the opinion indicates that notice is important in preserving the tenor of statutes like the ADEA which were enacted “in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761, 99 S.Ct. 2066, 2074, 60 L.Ed.2d 609 (1979) (quoting Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972)).
Chardon involved termination of employment, contrasted to the denial of tenure considered in Ricks. As far as Chardon is implicated here, however, the Court reiterated that notice was an integral part of the operative decision.
In Lorance, the Supreme Court indicated that the limitations period for a suit alleging discrimination flowing from application of a seniority system, nondiscriminatory in form and application, but adopted for discriminatory purposes, begins to run at the time of its adoption. Lorance involved a collective bargaining provision implemented on a specific and ascertainable date. While the harm from the resulting policy— the demotion of female employees — result*92ed much later, the policy was a product of collective bargaining and perforce available for the inspection of all employees.
Felty involved an allegation of age discrimination in a discharge. Felty contended that he was not aware until after his termination that his employer was engaged in a discriminatory practice of dismissing its older employees. There is no question, however, that at termination Felty was aware of the operative facts which implemented the discrimination — i.e., his discharge, the discriminatory act. The operative fact in this pay discrimination case is the act of paying Hamilton less than younger employees. Unlike the discharge in Felty, the mere receipt of a paycheck simply did not make him aware of the operative fact which constituted the discriminatory act.
It is likewise true that Ricks focuses on the discriminatory act rather than the consequences that follow from the discrimination, but that focus, directed here, reinforces rather than weakens Hamilton’s contention that unawareness vel non of a pay discrimination is critical. While the discrimination was underpaying Hamilton in violation of the ADEA, the Bank’s discriminatory act was not the delivery of Hamilton’s paycheck to him, but the decision to pay him less than younger employees doing comparable work. Upon receipt of the paycheck, Hamilton, of course, knew that the Bank was paying him but he did not know that it was paying him less and he was not aware of the Bank’s discrimination until pretrial discovery. The issuance of the paycheck is itself only an act that flows from the discrimination — and which, without more, does not communicate the discrimination. Adherence to Ricks requires that the start of the statute of limitations be when Hamilton should have been aware of the discrimination — not merely aware of an act in the chain of discrimination. Ricks and Chardon support an approach that notice of the decision to take a discriminatory pay action is the key and recognition of a discovery rule in this case is consistent with that approach.
I am also convinced that the decision to apply a “discovery” rule vel non should not be mechanically considered in the same manner in all civil rights litigation. I think, for example, that policy differences inherent in discharge cases, as contrasted to pay discrimination cases, compel application of different general rules, i.e., recognizing a notice requirement in pay cases but not in discharge cases. In discharge cases, the adverse nature of the act is inherent and obvious. Termination of employment communicates to a discharged employee that he is being treated differently from other employees, for he or she realizes that other co-workers have been retained and he or she has not. Termination prompts immediate inquiry into the employer’s rationale for taking such adverse action. That adverseness is not inherent in the issuance of a paycheck especially when the paycheck was not unlike those Hamilton had previously received. Due to its confidential nature, a paycheck does not automatically trigger the requisite act of contrast and comparison to tell whether its conveyance is even potentially the adverse act the majority considers the catalyst for the running of the statute. Importantly, the Bank concedes its policy of avoiding exchange of pay information between its employees and it is uncontradicted that Hamilton did not know of the discriminatory underpayment until the Bank revealed the discrimination during pretrial discovery conducted in his discharge case.
To focus on the nature of the protected civil right in deciding whether to apply a discovery rule is to follow the same modern approach developed by courts in applying statutes of limitations generally. Discouraging litigants from sleeping on their rights, avoiding stale claims, and expediting litigation — the immediate objectives of statutes of limitations — help ensure that the fruits of justice are distributed evenhandedly. For some causes of action, this requires an unadorned application of time restrictions. Congress and the courts recognize, however, that it is often necessary to protect the unwary and the unsophisticated from a harsh application of such time restrictions. This depends in large *93part on the substantive remedy grounding the litigation and, of course, varies from one jurisdiction to another. Courts have recognized the concept for some time, however, and in appropriate circumstances have applied it to prevent the limitations concept from becoming a mere tool of expediency. For example, in Burnett v. New York Cent. R.R., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), the Supreme Court in a “tolling” case stated:
Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Moreover, the courts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights.
This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiffs rights____
Id. at 428, 85 S.Ct. at 1054 (citations omitted).
The Court of Appeals for the District of Columbia Circuit applied the same reasoning in determining the applicability vel non of a discovery rule in an asbestos action involving a latent disease. Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982).* In that context, the D.C. Circuit said:
Finally, we believe the discovery rule is sensibly based. Courts have long recognized that “[the] policy of repose, designed to protect defendants, is frequently outweighed ... where the interests of justice require vindication of the plaintiff’s rights.” Burnett v. New York Central Railroad, 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965).
Id. at 117. Finally, the Supreme Court’s instruction in Ricks is worth repeating: “the limitations periods should not commence to run so soon that it becomes difficult for a layman to invoke the protection of the civil rights statutes.” Ricks, 449 U.S. at 262 n. 16, 101 S.Ct. 506 n. 16. It is clear that statutes of limitations should not be so rigidly applied in civil rights causes of action as to hinder their invocation by those that remedial legislative acts are designed to protect.
Judge Phillips, Judge Murnaghan, and Judge Butzner authorize me to say that they join in this dissent.
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For comments on cases supporting various views, see, e.g., Note, Wilson v. Johns-Manville Sales Corp. and Statutes of Limitations in Latent Injury Litigation: An Equitable Expansion of the Discovery Rule, 32 Cath.U.L.Rev. 471 (1983); see also Annotation, Limitation of Actions: Time of Discovery of Defamation as determining Accrual of Action, 35 A.L.R.4th 1002 (1985), and cases cited therein; Annotation, Time of Discovery as Affecting Running of Statute of Limitations in Wrongful Death Action, 49 A.L.R.4th 972 (1986) and cases cited therein.