Lyes v. City of Riviera Beach

CARNES, Circuit Judge:

We granted the defendant’s petition for rehearing en banc in this employment discrimination case to decide two issues. The first is whether women are a protected class for 42 U.S.C. § 1985(3) purposes, so that a sex-based conspiracy against women is actionable under that provision. We hold that they are and it is. We also hold that Congress has the constitutional authority to prohibit such conspiracies, at least where they involve state action.

The second issue concerns the test applicable for deciding whether the employees of two employers are to be aggregated for determining if the minimum number of employees exist for Title VII coverage. We hold that the “single employer” aggregation test adapted from cases involving the NLRB, in which the employers are always private entities, is not applicable to those Title VII cases in which the employers are state and local government entities. For those cases we adopt a different test, one which presumes public entities that are separate under state law will not be aggregated for Title VII purposes. The plaintiff may rebut that presumption, however, by showing either: 1) that the state’s purpose for separating the entities under state law was to evade Title VII, or 2) that the entities are so closely related with respect to the fundamental aspects of employment relationships that the presumption in favor of the state law’s denomination is clearly outweighed.

Applying that test to the public entity that employed the plaintiff in this case, we find there is not enough evidence of interrelatedness to allow a reasonable fact finder to conclude that the presumption in favor of the state’s denomination of the entity as separate and distinct from any other state or local body is clearly outweighed.

I. FACTS AND BACKGROUND

Because the factual and legal background of this case is more fully set forth in the panel opinion, Lyes v. City of Riviera Beach, Florida, 126 F.3d 1380 (11th Cir.1997), vacated and reh’g en banc granted, 136 F.3d 1295 (1998), we outline it only briefly here. The plaintiff, Shari Lyes, was hired by the City of Riviera Beach Community Redevelopment Agency (the “CRA”) in 1989. Four years later, the position of Executive Director of the CRA became vacant. The CRA Board of Commissioners awarded the position to Neil Crilly, a male employee. When Lyes asked why she was not offered the position, she allegedly was told by a Board member that she was not qualified because of her sex. Lyes sued the City, the CRA, the members of the City Council, and Crilly, alleging that they had discriminated against her on the basis of her sex in violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), Title VII, and Florida law.

The district court granted summary judgment for the defendants on all. of the federal claims, and dismissed the state law claims without prejudice under 28 U.S.C. § 1367(c)(3). The judgment against Lyes on the federal claims was based on the district court’s conclusions that: (1) Lyes’ 42 U.S.C. § 1983 claims were foreclosed by our decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994); (2) women are not a protected class under 42 U.S.C. § 1985(3), therefore, sex-based conspiracy claims are not actionable under that provision; and (3) the CRA did not employ fifteen or more people itself as is required for Title VII coverage, and under the NLRA’s single employer aggregation test the CRA and the City should not be aggregated. Lyes appealed the district court’s grant of summary judgment, and the panel reversed.

The panel held that Lyes’ §.1983 claims were based at least in part on the Equal Protection Clause, not solely on the Due Process Clause as the district court had thought. Accordingly, the panel remanded the § 1983 claims for reconsideration in light of equal protection principles. See Lyes, 126 F.3d at 1387-89. We adhere to the panel’s reasoning and result on the § 1983 claim, and reinstate that portion of the panel opinion.

With regard to Lyes’ § 1985(3) claim, the panel held that women are a protected class under that provision, so that sex-based conspiracies against them are actionable under it. See id. at 1389-91. We address that issue in Part II of this opinion.

As to the Title VII claim, the panel agreed with the district court that the single employer aggregation test developed in the NLRB context should be used to determine whether the CRA and the City are a single employer for Title VII jurisdictional purposes. See id. at 1385-86. However, the panel disagreed with the district court on the result of applying that test to the facts of this case and concluded there was a genuine issue of material fact as to whether the CRA and the City are a single employer. See id. at 1386. We discuss those issues in Part III of this opinion.

II. WHETHER WOMEN ARE A PROTECTED CLASS UNDER 42 U.S.C. § 1985(3), SO THAT SEX-BASED CONSPIRACIES AGAINST THEM ARE ACTIONABLE UNDER THAT PROVISION

Lyes claims that the defendants’ actions constituted a conspiracy to deprive her of equal protection of the laws in violation of 42 U.S.C. § 1985(3). The district court granted summary judgment in favor of the defendants on that claim, because it believed that § 1985(3) prohibits only those conspiracies motivated by racial animus and does not extend to those motivated by sex-based animus against women. We disagree, at least where, as in this case, the conspirators are acting under color of state law.

We begin our discussion by addressing the question of whether women are a “class of persons” within the meaning of § 1985(3). Because we conclude that they are, we then address the issue, raised in a dissenting opinion, about the source of Congress’ authority to protect women from sex-based conspiracies against them by persons acting under color of state law.

With regard to the scope of § 1985(3), the language of the statutory provision is clear and broad. It unequivocally states that:

If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws..., the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3) (emphasis added). The question, then, is whether women are “any class of persons” within the meaning of the statute.

Lyes argues that the textual similarity between the statute and the Equal Protection Clause of the Fourteenth Amendment, coupled with the fact that the statute was passed just three years after the Fourteenth Amendment was ratified, indicates Congress intended the scope of the statute to be coextensive with that of the Fourteenth Amendment, which prohibits sex-based classifications unless they “serve important governmental objectives and [are] substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397 (1976). We need not determine the outer limits of § 1985(3) coverage, nor the precise relationship between the statute and the Equal Protection Clause, in order to decide this case. For present purposes, all we need to decide is whether § 1985(3) protects women as a class of persons from sex-based conspiracies against them where the conspirators were acting under color of state law. We conclude that it does, for the following reasons.

“In construing a statute we must begin, and often should end as well, with the language of the statute itself.” United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.1998) (en banc)(internal quotation and citation omitted). Here, the text of the statute indicates that women are a protected class within its domain, because the statute’s prohibition of conspiracies against “any person or class of persons” certainly is broad enough to encompass women, and no other language in the statute excludes them from its coverage. As we noted in Merritt v. Dillard, 120 F.3d 1181, 1186 (11th Cir.1997), “the adjective ‘any’ is not ambiguous; it has a well-established meaning.” Quoting the Supreme Court’s decision in United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997), we said in Merritt that “the word ‘an/ has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” Merritt, 120 F.3d at 1186. In this case, as in Gonzales and Memtt, “Congress did not add any language limiting the breadth of that word, so ‘an/ means all.” Id. at 1186 (quoting Gonzales Xinternal citation omitted). Thus, women are within the plain meaning of “any ... class of persons,” which describes the statutory scope of coverage.

Our enthusiasm for applying the plain meaning canon to § 1985(3) is tempered, however, by the Supreme Court’s decisions in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), and United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). In Griffin, the Court glossed the statutory language with a caution against reading § 1985(3) so broadly (literally) as to turn it into “a general federal tort law” that would “apply to all tortious, conspiratorial interferences with the rights of others.” 403 U.S. at 101-02, 91 S.Ct. at 1798. In order to avoid such a result, the Griffin Court held that the statute prohibits only those conspiracies motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus.... ” Id. at 102, 91 S.Ct. at 1798 (emphasis added). The Court declined to elaborate on the “perhaps” qualifier, however, stating in a footnote that it “need not decide, given the facts of this case, whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable_” Id. at 102 n. 9, 91 S.Ct. at 1798 n. 9.

Consistent with the gloss it placed on the statutory language in Griffin, the Court held in Scott that § 1985(3) does not reach “conspiracies motivated by bias towards others on account of their economic views, status, or activities,” 463 U.S. at 837, 103 S.Ct. at 3361, the “others” in that case being nonunion members. As it had in Griffin, the Court in Scott withheld judgment on whether § 1985(3) extends beyond “its central concern” of combating conspiracies driven by race-based animus. See id. at 837, 103 S.Ct. at 3360.

Thus, Griffin and Scott left open the issue we confront today, namely, whether a conspiracy motivated by sex-based animus against women is actionable under § 1985(3). It is clear to us, however, that if Griffin’s “perhaps otherwise class-based, invidiously discriminatory animus” means anything at all&emdash;and we think it does&emdash;-it includes sex-based animus against women. Sex-based classifications receive heightened scrutiny under the Equal Protection Clause, see Craig, 429 U.S. at 197, 97 S.Ct. at 457, and discrimination based on sex frequently has been characterized as “invidious.” See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686-87, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973) (“[Sjtatutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.”); United States v. Chandler, 996 F.2d 1073, 1083 (11th Cir.1993) (“Invidious factors, such as race or sex, cannot influence a jury’s recommendation of the death penalty.”).

Because the statutory language of § 1985(3) is unambiguous, ordinarily we would not consult legislative history to discern its meaning. See, e.g., United States v. Gonzales, 520 U.S. 1, 117 S.Ct. 1032, 1035, 137 L.Ed.2d 132 (1997) (“Given the straightforward statutory command, there is no reason to resort to legislative history.”); Ratzlaf v. United States, 510 U.S. 135, 147-48, 114 S.Ct. 655, 662, 126 L.Ed.2d 615 (1994) (“we do not resort to legislative history to cloud a statutory text that is clear”). In view of the Supreme Court’s Griffin and Scott decisions, however, we think it prudent to note that the legislative history of § 1985(3) is not manifestly inconsistent with our holding. Although “[t]he legislative history of the Act confirms the conclusion that ... it was primarily motivated by the lawless conduct directed at the recently emancipated citizens,” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 319, 113 S.Ct. 753, 785, 122 L.Ed.2d 34 (1993) (Stevens, J., dissenting), it also reveals that at least some members of Congress believed actionable conspiracies would include those “against a person because he was a Democrat, ... or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter....” Id. at 296, 113 S.Ct. at 773 (Souter, J., concurring in part and dissenting in part) (discussing remarks of Senator Edmunds, who managed the bill on the Senate floor) (citations and quotations omitted). See also Scott, 463 U.S. at 837, 103 S.Ct. at 3360 (although the operative provision originated in a House bill, “Senator Edmunds’ views, since he managed the bill on the floor of the Senate, are not without weight.”).

Given prevailing attitudes at the time § 1985(3) was enacted, it is certainly possible, if not probable, that many legislators who voted for the statute were not concerned about affording legal protection to women as a class. Nonetheless, we follow the plain meaning of the statute, because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998).

Any conclusion that women are not a protected class under § 1985(3) would run into a solid wall of contrary precedent. Relying primarily on the statutory language and the Supreme Court’s statement in Griffin, the seven other circuits that have actually decided the issue are unanimous in then* view that § 1985(3) applies to conspiracies motivated by sex-based animus against women. See Libertad v. Welch, 53 F.3d 428, 448-49 (1st Cir.1995) (“[I]t is logical that, at the very least, the classes protected by § 1985(3) must encompass those classifications that merit heightened scrutiny under Equal Protection Clause analysis, of which gender is one.”); National Org. For Women v. Operation Rescue, 914 F.2d 582, 585 (4th Cir.1990) (collecting circuit cases), rev’d in part, vacated in part on other grounds, Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993); New York State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir.1989) (“By its very language § 1985(3) is necessarily tied to evolving notions of equality and citizenship. As conspiracies directed against women are inherently invidious, and repugnant to the notion of equality of rights for all citizens, they are therefore encompassed under the Act.”); Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir.1988) (“[Section] 1985(3) extends beyond conspiracies to discriminate against persons based on race to conspiracies to discriminate against persons based on sex, religion, ethnicity or political loyalty.”); Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d 499, 505 (9th Cir.1979) (“[W]e conclude that women purchasers of disability insurance are a sufficient class [under § 1985(3) ].”); Novotny v. Great Am. Fed. Sav. & Loan Assoc., 584 F.2d 1235, 1243 (3d Cir.1978) (“The fact that a person bears no responsibility for gender, combined with the pervasive discrimination practiced against women, and the emerging rejection of sexual stereotyping as incompatible with our ideals of equality convince us that whatever the outer boundaries of the concept, an animus against women includes the elements of a ‘class-based invidiously discriminatory’ motivation.”), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Conroy v. Conroy, 575 F.2d 175, 177 (8th Cir.1978) (concluding that the district court properly exercised jurisdiction where plaintiff had alleged a cause of action under § 1985(3) based in part on sex discrimination).

In addition to the holdings of the circuits we have set out above, one other circuit has said in dicta that sex-based animus is actionable under § 1985(3). See Haverstick Enters., Inc. v. Financial Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir.1994). Only two circuits have indicated&emdash;and then only in dicta&emdash;that they would hold women do not constitute a protected class under § 1985(3). See Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir.1987); Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176 (10th Cir.1983).¹

The grand tally is this. Of the circuits that have squarely confronted and decided the issue, seven have held that women are a protected class of persons under § 1985(3), and none have held that they are not. If both holdings and dicta are counted, eight of the circuits that have taken a position have said that women are a protected class under § 1985(3); only two have said that they are not.

Even though the views of individual Justices are not binding on us, see, e.g., United States v. Stewart, 65 F.3d 918, 924 (11th Cir.1995), it is appropriate in a case of first impression in this circuit to consider the views of those Justices who have expressed themselves on the issue. In Bray, Justices Souter, Stevens, and O’Connor all stated independently and unequivocally that they believe women are a protected class under § 1985(3). See Bray, 506 U.S. at 295-96, 113 S.Ct. at 769-75 (Souter, J., concurring in the judgment in part and dissenting in part); id. at 322, 113 S.Ct. at 787 (Stevens, J., dissenting); id. at 350, 113 S.Ct. at 802 (O’Connor, J., dissenting). We give the views of those three Justices weight and add them to the decisional mix.

In addition, although the majority opinion in Bray does not explicitly hold that women are a protected class under § 1985(3), some of its analysis seems to suggest that they are. The issue in Bray was whether attempts to blockade abortion clinics to keep people from going inside constituted a conspiracy to deprive a person or a class of persons of equal protection of the laws in violation of § 1985(3). See Bray, 506 U.S. at 266, 113 S.Ct. at 757-58. The Court rejected “the claim that petitioners’ opposition to abortion reflects an animus against women in general,” and explained that “[w]e do not think that the ‘animus’ requirement can be met only by maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women. It does demand, however, at least a purpose that focuses upon women by reason of their sex....” Bray, 506 U.S. at 269-70, 113 S.Ct. at 759. Although Bray did not hold § 1985(3) outlaws conspiracies driven by sex-based animus against women, language from the opinion at least hints that it does. We take the hint.

For all of the stated reasons, we conclude that women are a “class of persons” within the meaning of § 1985(3), and therefore are protected by that provision from conspiracies against them motivated by sex-based animus. We respond now to a point raised by Judge Tjoflat in his dissenting opinion.

Judge Tjoflat concedes that the Thirteenth Amendment provides Congress with a valid basis for enacting § 1985(3) insofar as that statutory provision involves race, but questions the constitutional foundation for the provision insofar as it involves sex. We need not answer that question as it applies to private actor conspiracies against' women, because those are not the facts of this case. This case involves alleged action under color of state law. All of the individual defendants are state or local officials, and it is undisputed that any action they took involving the plaintiff was action under color of state law. Thus, the only constitutional issue this case presents is whether Congress had a valid basis for proscribing conspiratorial discrimination against women by persons acting under color of state law.

Section 1985(3) does apply to conspiracies under color of state law, as well as private conspiracies. See, e.g., Bray, 506 U.S. at 268, 113 S.Ct. at 758 (“In Griffin this Court held, reversing a 20-year-old precedent, see Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), that § 1985(3) reaches not only conspiracies under color of state law, but also purely private conspiracies.”). The Equal Protection Clause of the Fourteenth Amendment protects women from sex discrimination by persons acting under color of state law. See Craig, 429 U.S. at 197, 97 S.Ct. at 457. Moreover, section 5 of the Fourteenth Amendment empowers Congress “to enforce, by appropriate legislation, the provisions” of that amendment, including the Equal Protection Clause. We believe that Congress had ample authority under section 5 of the Fourteenth Amendment to include women within the scope of § 1985(3)’s protection, at least where conspiracies to discriminate against them through action under color of state law are involved.²

For all of the reasons stated, we hold that sex-based conspiracies against women are actionable under § 1985(3), and that where the conspiracies involve state action, as the one alleged in this case did, Congress clearly had the constitutional authority to make them actionable. We reverse that portion of the district court’s summary judgment that is to the contrary.

III. WHETHER THE COMMUNITY REDEVELOPMENT AGENCY AND THE CITY SHOULD BE COUNTED TOGETHER AS AN “EMPLOYER” UNDER TITLE VII

A.

We turn now to the question whether the Community Redevelopment Agency (the “CRA”) and the City should be aggregated and considered as a single “employer” under Title VII’s definition of that term. Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....” See 42 U.S.C. § 2000e(b). “Person” is defined as including “one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.” See 42 U.S.C. § 2000e(a). Because we have treated the question of whether a defendant meets the statutory definition of “employer” as a threshold jurisdictional matter under Title VII, see Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1359 (11th Cir.1994),³ a plaintiff must show that her “employer” had fifteen or more employees for the requisite period provided under the statute before her Title VII claims can be reached.

It is undisputed that the CRA itself, during the relevant time, did not employ a sufficient number of individuals to fall within the statutory definition of “employer.” It is also undisputed that if the CRA and the City are counted as one, collectively they employ enough people to meet that definition. Lyes argues that the two entities should be aggregated and treated as a single “employer” under Title VII, because the CRA and the City are interrelated in their operations and both entities exercised substantial control over her conditions of employment. By contrast, the CRA and the City contend that they are separate and distinct legal entities and should be treated as such, which would remove the CRA from Title VII’s definition of “employer” and effectively deprive us of jurisdiction over that claim in this case. We must therefore decide what test applies in determining whether separate state or local governmental entities should be counted as a single “employer” for purposes of meeting the statutory definition under Title VII.

B.

We accord a liberal construction to the term “employer” under Title VII. See Virgo, 30 F.3d at 1359; McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th Cir.1987); Williams v. City of Montgomery, 742 F.2d 586, 588 (11th Cir.1984). In keeping with this liberal construction, we sometimes look beyond the nominal independence of an entity and ask whether two or more ostensibly separate entities should be treated as a single, integrated enterprise when determining whether a plaintiffs “employer” comes within the coverage of Title VII.

We have identified three circumstances in which it is appropriate to aggregate multiple entities for the purposes of counting employees. First, where two ostensibly separate entities are “ ‘highly integrated with respect to ownership and operations,’ ” we may count them together under Title VII. McKenzie, 834 F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D.Ala.), aff'd, 664 F.2d 295 (11th Cir.1981)). This is the “single employer” or “integrated enterprise” test. Second, where two entities contract with each other for the performance of some task, and one company retains sufficient control over the terms and conditions of employment of the other company’s employees, we may treat the entities as “joint employers” and aggregate them. See Virgo, 30 F.3d at 1359-60. This is the “joint employer” test. Third, where an employer delegates sufficient control of some traditional rights over employees to a third party, we may treat the third party as an agent of the employer and aggregate the two when counting employees. See Williams, 742 F.2d at 589. This is the “agency” test. See generally 2 Barbara Lin-demann & Paul Grossman, Employment Discrimination Law 1309-17 (3rd ed.1996).

The issue before us involves the “single employer” test.⁴ In determining whether two non-governmental entities should be consolidated and counted as a single employer, we have applied the standard promulgated in NLRA cases by the National Labor Relations Board. See, e.g., McKenzie, 834 F.2d at 933. This standard sets out four criteria for determining whether nominally separate entities should be treated as an integrated enterprise. Under the so-called “NLRB test,” we look for “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Id.See also Radio and Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965).⁵

The four-factor NLRB “single employer” test was first applied in the Title VII context in Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir.1977). Since that time, most of the circuits considering whether to integrate multiple entities under Title VII have seized upon that test. See, e.g., Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 764 (5th Cir.1997); Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir.1995); Childs v. Local 18, Int'l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir.1983); Armbruster, 711 F.2d at 1337-38 (6th Cir.). We, too, have applied the NLRB test. See McKenzie, 834 F.2d at 933. As one court employing the test noted, the similarity in language between the NLRA and Title VII, and the fact that statute served as a model for Title VII, makes decisions under the NLRA a useful resource for interpreting the language of Title VII. See 29 U.S.C. § 152(2); Armbruster, 711 F.2d at 1336 (“Since it is clear that the framers of Title VII used the NLRA as its model, ... we find the similarity in language of the Acts indicative of a willingness to allow the broad construction of the NLRA to provide guidance in the determination of whether, under Title VII, two companies should be deemed to have substantial identity and treated as a single employer.”).

C.

However useful the four-factor NLRB “single employer” test may be in Title VII cases where private entities are concerned, the question we face is the different one of whether that test should be applied where state and local governmental entities are concerned. In answering that question, we are aware of Congress’s unmistakable intent that “Title VII principles be applied to governmental and private employers alike.” Dothard v. Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 2728 n. 14, 53 L.Ed.2d 786 (1977). See also Owens v. Rush, 636 F.2d 283, 287 (10th Cir.1980) (“Governmental subdivisions were brought within the reach of Title VII” in the 1972 amendments to Title VII “so that ‘[a]ll state and local government employees would ... have access to the remedies available under the Act.’ ”) (quoting 1972 U.S.C.C.A.N. 2137, 2152).

But we are also aware of the unmistakable reality that in certain key respects, governmental entities aré different from private ones. We will discuss some of those differences later. For now, it is worth noting that equal treatment consists not only of treáting like things alike, but also of treating unlike things differently according to their differences. This is a proposition whose provenance stretches back to antiquity, see, e.g., Aristotle, The Nicomachean Ethics, E.6.1131a-1131b (M. Ostwald trans.1962), and it has as much logical force now as it had in Aristotle’s day. If we are to apply Title VII’s principles equally to governmental and private employers in a fair and intelligible manner, we must apply those principles in a way that respects the differences between private and public entities. See also Riley v. County of Pike, 761 F.Supp. 74, 76 (C.D.Ill.1991) (applying the NLRB factors but noting that “[i]n addition to these factors, when the employers in question are government entities, additional criteria come into play.”).

The four NLRB factors are useful for counting employees of private entities under Title VII, precisely because the test was “developed by the National Labor Relations Board to determine whether consolidation of separate private corporations is proper in determining the relevant employer” under the NLRA. Owens, 636 F.2d at 286 n. 2 (emphasis added). Of course, the NLRA does not cover public employers, see 29 U.S.C. § 152(2), and it is hardly surprising that a test designed to operate in the context of private entities does not fit well cases involving governmental entities. States are not the equivalent of corporations or companies, and local government bodies are not the same as subsidiaries. With this in mind, we join those courts that have concluded that “the [four-part NLRB] standard is not readily applicable to governmental subdivisions^]” Trevino v. Celanese Corp., 701 F.2d 397, 404 n. 10 (5th Cir.1983); Piper v. Junction City Hous. Auth., 1995 WL 88232, at *3 (D.Kan. Feb.1, 1995). See also Massey v. Emergency Assistance, Inc., 724 F.2d 690, 692 (8th Cir.1984) (Lay, C. J., dissenting) (“I think it clear such test is not applicable to a factual situation concerning governmental entities.”).⁶ But see*Artis v. Francis Howell North Band Booster Ass’n, Inc., 1998 WL 846889, at *6, 161 F.3d 1178 (8th Cir.1998) (applying, without discussion, the NLRB test to a private entity and a government entity and deciding that they should not be combined); Massey, 724 F.2d at 690-91 (affirming, without discussion, the district court’s application of the NLRB test to a government entity and the decision that it should not be aggregated with a private entity); Vandermeer v. Douglas Cty., 15 F.Supp.2d 970, 974-75 (D.Nev.1998) (applying NLRB test to county and local fire and paramedic districts, but noting that “[t]he fact that Nevada may consider Douglas County and the Districts to be separate political subdivisions, while relevant, does not control.”); Rivera, 922 F.Supp. at 949; County of Pike, 761 F.Supp. at 76-77 (applying NLRB test to Pike County and Pike County State’s Attorney’s office in ADEA case, but concluding that they should not be treated as an integrated enterprise).

The most obvious way in which the NLRB “single employer” test is incompatible with cases involving governmental entities involves the test’s fourth factor&emdash;“common ownership or financial control.” McKenzie, 834 F.2d at 933. Governmental subdivisions such as counties or towns, or smaller subdivisions such as local agencies, may share sources of ultimate political control or funding, yet be wholly distinct with respect to their day-to-day operations or their control over relationships with employees. Thus, the “common ownership or financial control” factor of the NLRB test has no application to the usual case involving governmental subdivisions.

Nor is the NLRB test’s third factor, “common management,” McKenzie, 834 F.2d at 933, readily applicable in the case of governmental entities. While it may be an appropriate yardstick in some instances, in others two public entities may share managers or other employees while remaining politically separate and distinct. In the present case, for example, each member of the City Council also serves as a member of the CRA Board of Commissioners, but those city coun-cillors in their different capacity as commissioners comprise, by law, a distinct and independent body. The Florida legislation that permits the members of a local governing body to declare themselves a community redevelopment agency, explicitly provides that “such members constitute the head of a legal entity, separate, distinct, and independent from the governing body of the county or municipality.” Fla. Stat. Ann. § 163.357(b) (West 1990). So the common management factor, too, is not applicable in the context of governmental entities, at least not in a case like this one.⁷

In addition to the fact that these two prongs do not make sense in the context of state and local governmental entities, there is another, perhaps more fundamental reason for not applying the NLRB test. That reason involves federalism and comity concerns, which should play a significant role in determining whether to treat as one body two governmental entities that are separate and distinct under state law. When it comes to creating subordinate public bodies and defining their relationship to one another and to itself, “ ‘the state is supreme and its legislative body, conforming its action to the state Constitution, may do as it will.’” City of Trenton v. State of New Jersey, 262 U.S. 182, 186-87, 43 S.Ct. 534, 536, 67 L.Ed. 937 (1923) (quoting Hunter v. Pittsburgh, 207 U.S. 161, 178, 28 S.Ct. 40, 46, 52 L.Ed. 151 (1907)). Defining the nature and relationship of such bodies, no less than determining their level of funding, is “uniquely an exercise of state sovereignty.” DeKalb Cty. Sch. Dist. v. Schrenko, 109 F.3d 680, 689 (11th Cir.) (quoting Stanley v. Darlington Cty. Sch. Dist., 84 F.3d 707, 716 (4th Cir.1996)), cert. denied, 118 S.Ct. 601 (1997). We owe such determinations by the state legislature not only deference, but great deference.

In rejecting the four-factor NLRB test as a means of determining whether two or more governmental entities should be aggregated for the purposes of determining if they are an “employer” under Title VII, we do not mean to suggest that the two remaining prongs of the test, interrelation of operations and centralized control of labor relations, are not relevant to our inquiry in any way. But where state or local governmental entities are involved, any indicia of integration must be considered in a framework that is sensitive to the differences between governmental subdivisions and private entities. See Trevino, 701 F.2d at 404 n. 10.

D.

Given our conclusion that the traditional NLRB four-factor test is not readily applicable to the question of whether to aggregate state and local governmental entities for Title VII purposes, we must decide what standard or test should apply in its place.⁸ Our inquiry must be guided by a combination of “respect [for] the way a state chooses to structure its government^]” McMillian v. Johnson, 88 F.3d 1573, 1580-81 (11th Cir.1996), aff'd, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108 S.Ct. 915, 925, 99 L.Ed.2d 107 (1988)), as well as recognition of our obligation to accord a liberal construction to the terms of Title VII. See, e.g., Virgo, 30 F.3d at 1359.

The strong comity and federalism concerns we have mentioned require that we accord substantial deference to a state lawmaking body’s determination of whether two or more governmental entities are separate and distinct. We should not brush aside a state’s own distinctions between its governmental subdivisions, because even ostensibly formal distinctions are part of a government’s ability to shape its own institutions within constitutional bounds, and we are obligated to respect a state’s right to do so. See McMillian, 88 F.3d at 1581 (“[W]e heed the Supreme Court’s admonition that federal cohrts respect the way a state chooses to structure its government.”). There are few things closer to the core of a state’s political being and its sovereignty than the authority and right to define itself and its institutions in relation to each other. Of course, states cannot abuse that power to evade federal law, but it is unlikely that a state would structure its state and local entities with that purpose in mind. Such an evasive purpose is especially unlikely in a state like Florida, which has enacted its own anti-discrimination legislation and made it applicable to local governmental agencies. See Fla. Stat. Ann. § 760.02(6) (West 1997) (defining “person” under the Florida Civil Rights Act of 1992 to include “any governmental entity or agency.”).

We think that where a state legislative body creates a public entity and declares it to be separate and distinct, that declaration should be entitled to a significant degree of deference, amounting to a presumption that the public entity is indeed separate and distinct for purposes of Title VII. The presumption may be rebutted in some instances. In particular, if it is established that a state’s purpose in creating or maintaining nominally separate entities was to evade the reach of the federal employment discrimination laws, that alone is enough for those entities to be aggregated when counting employees.

Even absent an intent to evade the application of federal law, we will aggregate two or more governmental entities and treat them as a single Title VII “employer” where other factors so plainly indicate integration that they clearly outweigh the presumption that the entities are distinct. In order to determine which factors should be considered in deciding whether the plaintiff has carried her burden of showing that the presumption has been clearly outweighed, we look to the factors courts have considered in Title VII eases involving private employers.

Despite the primacy of the NLRB test as applied to private employers under Title VII, “[c]ourts have used numerous formulations in assessing whether a defendant is an ‘employer’ within the meaning of Title VII and other employment discrimination statutes.” Rivera, 922 F.Supp. at 949. Our review of the different factors that have been considered convinces us that they all share a common focus: all of them seek to determine who (or which entity) is in control of the fundamental aspects of the employment relationship that gave rise to the claim. See, e.g., id. at 949 (“[The different tests] all have in common a focus on one factor at issue here: the amount of control or supervision a defendant exerts.”); Armbruster, 711 F.2d at 1337 (“[CJontrol over the elements of labor relations is a central concern” of the NLRB test); Trevino, 701 F.2d at 404 (centralized control of labor relations test “has been further refined to the point that [t]he critical question to be answered then is: What entity made the final decisions regarding employment matters related to the person claiming discrimination?”) (internal quotation and citation omitted); Chester v. Northwest Iowa Youth Emergency Servs. Ctr., 869 F.Supp. 700, 717-18 & n. 10 (N.D.Iowa 1994) (collecting cases and noting that “control of employment decisions and environment” is one of the central features of the tests).

Thus, two or more state or local governmental entities will be treated as a single “employer” under Title VII where one entity exerts or shares control over the fundamental aspects of the employment relationships of another entity, to such a substantial extent that it clearly outweighs the presumption that the entities are distinct. Several factors will guide our determination of whether the presumption in favor of the distinctness of the public entities is clearly outweighed&emdash;or, at the summary judgment stage, whether a finder of fact could reasonably conclude that it is clearly outweighed. As we have already noted, the NLRB factors of “interrelation of operations” and “centralized control of labor operations,” McKenzie, 834 F.2d at 933, may continue to be helpful in the inquiry. Useful “indicia of control” may be drawn from the agency context, including: “ ‘the authority to hire, transfer, promote, discipline or discharge; the authority to establish work schedules or direct work assignments; [and] the obligation to pay or the duty to train the charging party.’ ” Oaks v. City of Fairhope, Ala., 515 F.Supp. 1004, 1035 (S.D.Ala.1981) (quoting Barbara Schlei and Paul Grossmann, Employment Discrimination Law 846 (1st ed.1976)). Our list of factors is not intended to be all inclusive, and consideration must be given to the totality of the circumstances.

To summarize, we hold that when assessing whether multiple governmental entities are a single “employer” under Title VII, we begin with the presumption that governmental subdivisions denominated as separate and distinct under state law should not be aggregated for purposes of Title VII. That presumption may be rebutted by evidence establishing that a governmental entity was structured with the purpose of evading the reach of federal employment discrimination law. Absent an evasive purpose, the presumption, against aggregating-separate public entities will control the inquiry, unless it is clearly outweighed by factors manifestly indicating that the public entities are so closely interrelated with respect to control of the fundamental aspects of the employment relationship that they should be counted together under Title VII.

The standard we adopt is not whether a fact finder reasonably could conclude the plaintiff has overcome the presumption. Instead, the standard is whether the fact finder reasonably could conclude the plaintiff has clearly overcome the presumption. The adverb “clearly,” which derives from the federalism concerns we have discussed, is meant to be limiting. It is a thumb on the scale, and sometimes it will be decisive because federalism concerns should sometimes be decisive. Absent evidence of evasive purpose, in order to survive a motion for summary judgment, a plaintiff will have to show that a reasonable fact finder could conclude that the presumption of distinctness is clearly outweighed.

E.

Applying this test to the present case, we conclude that Lyes has not adduced sufficient evidence to allow a reasonable fact finder to conclude that the City and the CRA should be treated as a single “employer,” bringing them within the coverage of Title VII.⁹ See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 262, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986) (the court must ask “whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict....”); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1198 (11th Cir.1997) (“[T]he plaintiff is effectively required to put forth her entire case at summary judgment [to] persuade the court that a reasonable fact finder could rule in the plaintiffs favor.”) (internal quotation and citation omitted).

Florida law establishes a presumption that the CRA and the City are separate and distinct bodies. As the district court noted, the State legislature created community redevelopment agencies as independent legal bodies, iSee Fla. Stat. Ann. § 163.356 et seq. (West 1990 & Supp.1999). With the exception of certain enumerated powers, they are granted “all the powers necessary or convenient to carry out and effectuate the purposes and provisions of [the community redevelopment agency legislation]_” Fla. Stat. Ann. § 163.358 (West 1990 & Supp. 1999). The five City Council members also serve as the Board of Commissioners of the CRA. But Fla. Stat. § 163.367, which permits this arrangement, also states that “[t]he members of the governing body shall be the members of the agency, but such members constitute the head of a legal entity, separate, distinct, and independent from the governing body of the county or municipality.” Fla. Stat. Ann. § 162.357(l)(b) (West 1990). See also 1991 Fla. Op. Att’y. Gen. 148 (No. 91-49, 1991). The clear distinction Florida law draws between the CRA and the City raises the presumption that they are separate and distinct entities.¹⁰

Looking at the nature of Lyes’s employment relationship itself, we conclude that she has not produced evidence of interrelatedness with regard to control over employment sufficient to permit a reasonable fact finder to conclude that the presumption that the governmental entities are distinct is clearly outweighed. The CRA Board of Commissioners and its Executive Director control the fundamental aspects of employment of the CRA’s staff. The Executive Director hires and supervises the staff, and the Board may hire, fire, and establish work schedules and assignments. The Executive Director is employed by the CRA, and he serves at the pleasure of the CRA Board, not at the pleasure of the City. Employees of the CRA receive their medical benefits, life insurance and pension plans from the CRA, not from the City. Lyes was disciplined, suspended and eventually terminated by the Executive Director of the CRA, and that decision was upheld by the CRA Board, not by the City. All of these circumstances establish that the CRA retained and exercised control over the fundamental aspects of its employee relations.

The panel below cited some evidence in support of its conclusion that the CRA and City should be treated as a single employer. See 126 F.3d at 1386-87. Of that evidence, two matters deserve discussion. First, the panel pointed to a performance review of Lyes which was completed by the Executive Director on a City form, listing the CRA as a department of the City. The performance review was performed by Tony Smith, who was serving at the time as both City Manager and interim Executive Director of the CRA. Given his dual duties, we do not think the fact that he used City stationery has much, if any, significance. State law cannot be amended by inferences drawn from printed forms.

Second, the panel noted that Neil Crilly, the CRA Executive Director, sought review from the City’s personnel director of his decision to discipline Lyes. We agree with the district court’s conclusion that there was no indication that this review had any binding effect. Instead, it appears to have been an effort to seek the opinion of a third party as to whether Crilly had acted fairly in disciplining Lyes. In this sense, Crilly’s action is not unlike seeking advice from an expert in employee relations.¹¹

Viewing the totality of the circumstances, we readily conclude that Lyes has not produced evidence sufficient to allow a reasonable fact finder to conclude that the presumption that the CRA and the City are separate entities is clearly outweighed and that they should therefore be treated as a single employer under Title VII.

F.

Having decided the issues upon which we granted en banc review, we REMAND this case to the panel for further proceedings not inconsistent with this decision.

TJOFLAT, Circuit Judge, concurring in part and dissenting in part, in which BIRCH, Circuit Judge, joins:

This case requires us to interpret the scope of 42 U.S.C. § 1985(3). Two possible interpretations will sustain the majority’s holding that the plaintiff in this case has a prima facie claim. One is that section 1985(3) applies to all conspiracies involving sex-based discriminatory animus. The other is that it applies to conspiracies involving sex-based discriminatory animus in which the conspirators are state actors.¹ The former interpretation is unconstitutional; the latter interpretation is ridiculous. I therefore dissent.

I.

The broad reading of the majority’s holding is that any person injured by a conspiracy to commit a tort arising out of sex-based animus has a cause of action under section 1985(3).² Section 1985(3), as so interpreted, would be beyond Congress’ power and thus unconstitutional.

The Supreme Court has warned us about “[t]he constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law.” Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). A broad reading of the majority’s holding founders on those shoals. Specifically, a rale that a conspiracy to commit a tort plus an injury plus sex-based animus equals a section 1985(3) violation opens the door to substantial federal intrusion into areas of law previously handled exclusively by state courts. For instance, every rape involving more than one perpetrator would create a federal cause of action— the underlying tort would be battery, and sex discrimination would be inherent in the con: duct. Every domestic abuse case in which the abuser was somehow aided by a friend would be actionable under the statute. A gang of muggers who target women would also be amenable to suit under the statute. Indeed, even a group of schoolboys who taunt a female classmate during recess would be subject to suit under section 1985(3).³

The greatest potential intrusion, however, would be in the area of workplace discrimination and sexual harassment. The federal courts are already involved in these areas through Title VII. The reach of Title VII, however, is limited in a variety of ways — for instance, it creates liability only for “employers” as defined under the statute, see 42 U.S.C. § 2000e(b) (1994), and requires an aggrieved party to file a complaint with the EEOC, see 42 U.S.C. § 2000e-5 (1994). The majority’s holding effectively casts aside these limitations.⁴ Every employee who is fired because of her sex, assuming that more than one person was involved in the firing decision, would have a federal cause of action. Male employees who touch women inappropriately — and any superiors who know about it and do nothing — could be held jointly and severally liable if they acted in concert. Every group of men that makes vulgar comments to women could be taken to federal court.⁵

This federal usurpation of state sovereignty implicates the core constitutional idea of federalism. Under our constitutional system, the federal government is a government of limited powers, and all powers not given to the federal government are reserved to the states. See U.S. Const, amend. X. Federalism requires that any law enacted by the federal government must be grounded in a specific grant of power under the Constitution.

It is clear that section 1985(3) was enacted, at least in part, under Congress’ authority to eliminate the “badges and incidents” of slavery pursuant to section 2 of the Thirteenth Amendment. See U.S. Const. amend. XIII, § 2; Griffin, 403 U.S. at 104-05, 91 S.Ct. at 1799; see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437-44, 88 S.Ct. 2186, 2202-05, 20 L.Ed.2d 1189 (1968) (describing Congress’ Thirteenth Amendment powers). Congress’ authority under the Thirteenth Amendment is limited, however, to the prevention of discrimination on the basis of race. Thus, if we are to interpret section 1985(3) as preventing sex discrimination, we must find some other constitutional grounding.

One possibility is to base 1985(3) on Congress’ power under section 5 of the Fourteenth Amendment to enforce that amendment’s guarantee of equal protection.⁶ See U.S. Const, amend. XIV, §§ 1, 5. The Equal Protection Clause, however, is a guarantee of protection against unjust state action; it does not reach the conduct of private individuals. Section 1985(3), under a broad reading of the majority’s holding, would reach all individuals regardless of whether they are private or public actors. Thus, section 1985(3), read broadly, cannot be grounded in Congress’ power under section 5 of the Fourteenth Amendment.⁷

The other usual suspect for legislation of this sort is the Commerce Clause. See U.S. Const, art. I, § 8. There are, however, at least four good reasons why section 1985(3) cannot be grounded in Congress’ power to regulate interstate commerce. First, there is nothing in the legislative history of section 1985(3) to suggest that Congress was acting pursuant to that power. Second, there is nothing in the statute itself that ties it to the Commerce Clause — it does not, for instance, create a cause of action for only those conspiracies that affect interstate commerce. Third, it is hard to imagine how private tortious behavior of the sort that section 1985(3) prohibits (under a broad reading of the majority’s holding) could — at least in most cases — reasonably be said to involve “Commerce ... among the several States.” U.S. Const, art. I, § 8; see, also United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Finally, the Supreme Court has already unequivocally stated that section 1985(3) is not grounded in the Commerce Clause. See United Brotherhood of Carpenters and Joiners of Am. v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d 1049 (1983).

No other constitutional provisions appear to be colorable candidates. Thus, I am forced to conclude that Congress does not have the authority to create a remedy for all persons harmed by conspiratorial tortious conduct arising from sex-based animus.⁸ Consequently, section 1985(3), insofar as it is interpreted to create such a remedy, is unconstitutional.

II.

The majority’s holding may be read more narrowly to mean that section 1985(3), at least when applied to cases involving sex-based discriminatory animus, covers only those conspiracies in which the conspirators are state actors. Such a reading of the statute brings it within Congress’ Fourteenth Amendment powers and thus avoids the constitutional problems outlined in the previous section. However, it also reads a state action requirement into section 1985(3), thereby contravening nearly every imaginable canon of statutory interpretation.⁹

The plain language of the statute says absolutely nothing about a state action requirement.¹⁰ The statute does not use the terms “state actors,” “persons acting under color of state law,” or any other language that would suggest that section _ 1985(3) applies only to agents of the state. Instead, the statute applies to conspiracies involving “persons,” without qualification.¹¹ Turning to the legislative history, the statements of various representatives and senators regarding the enactment of section 1985(3) clearly indicate that the statute’s reach was in no way intended to be limited to state action— on the contrary, them statements make clear that they deliberately chose to target “individuals” (regardless of governmental affiliation) in contrast to states. See Griffin, 403 U.S. at 99-101, 91 S.Ct. at 1797-98.

Most importantly, the Supreme Court precedent interpreting section 1985(3) unequivocally forecloses any attempt to read a state action requirement into the statute. In the words of that Court, “all indicators — text, companion provisions, and legislative history-point unwaveringly to § 1985(3)’s coverage of private conspiracies.” Griffin, 403 U.S. at 101, 91 S.Ct. at 1798; see also Scott, 463 U.S. at 834, 103 S.Ct. at 3359 (“[T]he Griffin opinion emphatically declared that [section 1985(3) ] was intended to reach private conspiracies that in no way involved the state.”). It would be hard to imagine a more unequivocal statement that a plaintiff alleging a violation of section 1985(3) need not allege state action.¹²

In sum, imposing a state action requirement on section 1985(3) is absurd.¹³ It is abundantly clear that the presence or absence of state action is completely irrelevant to the existence of a claim under section 1985(3). It may be true that Congress has the power, pursuant to section 5 of the Fourteenth Amendment, to pass a statute providing a remedy for women injured as a result of a conspiracy to commit a tort arising out of sex-based animus where the conspirators are state actors. Section 1985(3) is not that statute. Therefore, the fact that the defendants in this case are state actors provides no basis for a section 1985(3) claim by the plaintiff.¹⁴

III.

The majority says that it will “leave for another day and case the issue of whether [section 1985(3)] may be applied constitutionally to other sex-based animus conspiracies [besides those involving state actors].” Ante at 1340. The majority fails to consider what will happen on that day and in that case. A plaintiff complaining of sex discrimination will bring a section 1985(3) suit against private persons; the court will be forced to decide whether the plaintiff has stated a claim. If the court determines that the plaintiff has a claim, then it ignores the Constitution by sustaining a remedy that Congress did not have the power to create. If the court determines that the plaintiff does not have a claim because the defendants are not state actors, then that holding — combined with the holding in this ease — imposes a state action requirement on section 1985(3), in blatant violation of statutory language, legislative history, and Supreme Court precedent. There are no other options.

The majority boxes us into this corner by trying to decide this case without defining the scope of section 1985(3). Section 1985(3) clearly covers conspiracies (involving either private or public actors) motivated by race-based animus. I leave open — as the Supreme Court has consistently done — the possibility that some form of animus other than race-based animus may be covered by the statute. See Bray, 506 U.S. at 268-69, 113 S.Ct. at 759; Scott, 463 U.S. at 836-37, 103 S.Ct. at 3360; Griffin, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9. I cannot, however, discern any reasoning that is true to both the statute and the Constitution under which I may hold that section 1985(3) covers conspiracies motivated by sex-based animus. I am therefore persuaded that the plaintiff in this ease does not have a prima facie case under section 1985(3). Insofar as the majority holds that she does, I dissent. As for the remaining portions of the majority opinion (Parts I and III), I wholeheartedly concur.

1 . While the views of other circuits are not binding upon us in any event, we do accord them respect. But we give views espoused as mere dicta less respect than we give those that are forged as part of the holding in a case. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir.1998) (Carnes, J., concurring) (explaining why conclusions stated as dicta are less reliable than those that are part of a holding).

2 . In his dissenting opinion, Judge Tjoflat flails away at two strawmen he has constructed. One he labels "the broad reading of the majority's holding” and describes as the application of § 1985(3) to all conspiracies to commit torts arising out of sex-based animus. That broad reading strawman goes beyond the facts of this case and our holding in it. This case does not involve all such conspiracies; it involves only conspiracies by state actors utilizing state action. As Judge Tjoflat himself concedes, § 1985(3) may be applied constitutionally to such a conspiracy. We leave for another day and case the issue of whether it may be applied constitutionally to other sex-based animus conspiracies.

Judge Tjoflat’s dissenting opinion also attacks tire "read more narrowly” strawman, which he characterizes as inserting a state action requirement into § 1985(3). We do not insert such a requirement into the statute. Instead, we simply recognize that where a conspiracy that is covered by the statute does involve state action, the issue of whether Congress had authority to prohibit that conspiracy is an easy one. The conspiracy alleged in this case was motivated by sex-based animus, and such conspiracies fall within the scope of § 1985(3); the conspiracy also involved state action, so Congress clearly had the authority to prohibit it. We need not and do not go beyond those two holdings to decide this case.

3 . Some judges in other circuits have doubted whether the number of employees is a jurisdictional question. See Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677-78 (7th Cir.1998) (Easterbrook, J.) (dicta) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 1009-12, 140 L.Ed.2d 210 (1998)); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). The parties were not asked to brief this issue, and we will not take this occasion to re-examine our circuit precedent holding that counting employees is a jurisdictional inquiry-

4 . Lyes argued before the district court and the panel that the “agency” test might also be relevant in this case. Maybe, but some of the same factors discussed below that make the usual “single employer" test (the NLRB test) difficult to apply in cases involving related governmental entities may also make the usual agency test a poor fit where public entities are concerned. In any event, we do not decide any agency issues, because the panel did not reach them, see. 126 F.3d at 1385 n. 6, and we limited our briefing request to the "single employer” issue.

5 . Courts applying the NLRB "single employer” test to private entities in Title VII cases have held that not every factor need be present, and no single factor is controlling. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1337-38 (6th Cir.1983); Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 F.Supp. 943, 949 (S.D.N.Y.1996). See also Sakrete of N. Cal., Inc. v. NLRB, 332 F.2d 902, 905 n. 4 (9th Cir.1964) (stating the same rule in an NLRB case).

6 . In Dumas v. Town of Mt. Vernon, Ala., 612 F.2d 974, 980 n. 9 (5th Cir.1980), our predecessor court declined without explanation to apply the NLRB test in a governmental context. While we are not as sanguine as the panel about distinguishing Dumas, see 126 F.3d at 1385-86, unlike the panel we are not bound by a prior panel decision. We consider the matter anew.

7 . See also Massey, 724 F.2d at 692 (Lay, C.J., dissenting) (arguing that the "centralized control of labor relations” factor also is not relevant to an analysis involving local government entities).

8 . We are not required to decide in this case, and we express no view about, whether this or some different test should apply to aggregation issues involving federal governmental entities.

9 . In treating the question of whether the City and the CRA are a single Title VII "employer” as a question of fact, we follow the practice of this Court in analogous Title VII cases involving private employers. See, e.g., McKenzie, 834 F.2d at 933 ("Our role is to decide whether McKenzie presented sufficient evidence to create a genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity.”). See also Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1262-65 (11th Cir.1997) (drawing on Title VII cases to hold that “the question of whether or not a defendant is an 'employer' is a substantive element of an ADEA claim and [is] intertwined with the question of jurisdiction. That being the case, the resolution of the question must be made by the fact finder deciding the merits of the claim.").

10 . Moreover, these two entities are more than formally distinct. As the district court pointed out, the CRA maintains separate bank accounts and records, and files its own tax returns. It prepares its own budget and keeps its own offices. It is true that the City provides the majority of die CRA’s funding, but we have already concluded here that the source of a governmental entity's funding is a poor indication of whether it should be aggregated with another; in any event, the CRA still receives close to one-third of its funds from a source other than the City.

11 . In reaching its conclusion, the panel also relied heavily on the NLRB factors of common management and financial control. See 126 F.3d at 1387. We have already concluded, however, that these factors are not applicable to governmental entities.

1 . The majority avoids choosing between these two interpretations by holding that "sex-based conspiracies against women are actionable under § 1985(3), and that where the conspiracies involve state action ... Congress clearly had the constitutional authority to malee them actionable.” Ante at 1340. The majority thus reserves the question of whether all sex-based conspiracies against women are actionable under § 1985(3), or only those in which the conspirators are state actors. As I will demonstrate, however, neither interpretation can be sustained, and therefore the question reserved by the majority is nothing more than a choice between two erroneous statements of law.

2 . The statute creates a remedy for persons injured by a conspiracy to "depriv[e] ... any person or class of persons of the equal protection of the laws." 42 U.S.C. § 1985(3) (1994). The idea that an individual can deprive another individual of the equal protection of the laws is somewhat confusing. Our cases have made clear, however, that a person deprives another person of the equal protection of the laws by committing a tort — any tort — against that person. See United States v. Harris, 106 U.S. 629, 643, 1 S.Ct. 601, 612, 27 L.Ed. 290 (1883) ("The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder.”); McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925 (5th Cir.1977) (en banc).

3 . I realize that i£, under these factual scenarios, females were replaced with African Americans, there would be no question that section 1985(3) would provide the victims with a cause of action. As I demonstrate infra, however, there is a constitutional basis for applying section 1985(3) in cases of racial animus (the Thirteenth Amendment), while no such basis exists for extending the statute to cases of sex-based animus.

4 . The potential use of section 1985(3) to get around the limitations of Title VII was explicitly criticized in Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 375-76, 99 S.Ct. 2345, 2350-51, 60 L.Ed.2d 957 (1979).

5 . The underlying torts in these three examples are, respectively, wrongful termination, battery, and intentional infliction of emotional distress.

6 . In Griffin, the Supreme Court explicitly avoided the question of whether section 1985(3) was within Congress' power under section 5 of the Fourteenth Amendment. See Griffin, 403 U.S. at 107, 91 S.Ct. at 1801.

7 . The only way in which section 1985(3), read broadly, could be understood as being based on Congress’ section 5 powers is if Congress had concluded that state deprivations of equal protection were so rampant that, as an extreme prophylactic measure, it needed to pass a statute sweeping broadly enough to reach private individuals involved in any tortious behavior. The majority makes no showing — and I seriously doubt that it could make a showing — that this was the case.

8 . As the majority points out, see ante at 1338-39, a number of other circuits have interpreted section 1985(3) as providing a remedy in federal court for conspiracies arising out of a sex-based animus. None of these circuits, however, has explained whence Congress derives the authority to create such a remedy.

9 . Indeed, such a reading of section 1985(3) would be so far removed from true statutory interpretation as to be nothing more than pure judicial activism, and consequently a violation of the constitutional doctrine of separation of powers.

10 . Of course, the plain language of the statute also says nothing about discriminatory animus; nevertheless, the Supreme Court has read a discriminatory animus requirement into the statute. See Griffin, 403 U.S. at 102, 91 S.Ct. at 1798 (holding that proof of a violation of section 1985(3) requires a showing of “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”). This limitation on section 1985(3) — like the state action limitation that the majority suggests — was based on a need to keep the statute within Congress' constitutional authority. See id. at 101-02, 91 S.Ct. at 1798. The discriminatory animus requirement, however, was well grounded in section 1985(3)’s legislative history. In contrast, as I will discuss in this section, the majority's state action requirement is in direct conflict with the statute's legislative history and the dictates of the Supreme Court.

11 . The statutory language argument is made even more powerful when § 1985(3) is viewed in its original context. Section 1985(3) was enacted as § 2 of the Civil Rights Act of 1871, 17 Stat. 13. Section 1 of that Act — now codified as 42 U.S.C. § 1983 — explicitly requires that the alleged deprivation of constitutional rights be "under color of state law.” Not only does this indicate that Congress was perfectly capable of including a state action requirement if it so desired, but it also suggests a statutory scheme in which § 1 (now § 1983) was aimed at state action while § 2 (now § 1985(3)) was aimed primarily at private conduct. Under such a scheme, reading a state action requirement into section 1985(3) would radically undermine congressional intent.

12 . The majority opinion is notably bereft of precedent for the proposition that state action has any relevance in a section 1985(3) claim — because, at least after Griffin, there is no such precedent to be found.

13 . I also note the patent inconsistency of reading a single statute as requiring state action in one situation (sex discrimination) but not another (race discrimination). Such a reading in essence converts section 1985(3) into two statutes — one for race-based animus that applies to all persons, and one for sex-based animus that applies only to state actors.

14 . The majority steadfastly resists the idea that it might be reading a state action requirement into section 1985(3). See ante at 1340 n. 2. This resistance results from a failure by the majority to consider the consequences of its reasoning. The majority's reasoning seems to operate as follows: Section 1985(3) applies to all conspiracies motivated by sex-based animus; this may be unconstitutional as applied to private conspiracies, but the defendants lack standing to challenge the statute on that ground because they are state actors. Private defendants would of course have standing to raise such a challenge; if that challenge were successful, we would have created a scheme in which section 1985(3) could be used against state actors but not against private conspirators. I cannot see the difference between creating such a scheme and imposing a state action requirement on section 1985(3). The fact that the majority creates only half of the scheme today does not alter the nature of the scheme it is creating.