*1 OF TEAMSTERS INTERNATIONAL BROTHERHOOD UNITED STATES et al. January 10, 1977 31, 1977* Argued May 75-636.
No. Decided *Together 75-672, T. I. M. C., with No. E.-D. Inc. United States et al., also on certiorari the same court. *3 Wells, Jr., argued
L. D. N. petitioner for in No. the cause Previant on the briefs were David him 75-636. With G. William Baab. Robert Shuler for D. argued the cause him on the brief was John W. petitioner No. 75-672. With Ester. Solicitor General
Deputy Wallace cause argued him on the brief the United et al. both cases. With States *4 Pot Bork, Attorney General General were Solicitor Assistant Rose, Martin, Landsberg, David tinger, Thomas S. Brian K. L. Fenton, Silver, Abner W. Dunsay B. Jessica William and Sibal.† Barry Goldstein, Sherwood, Eric Greenberg, L. and 0. Peter
†Jack Legal Defense and Educational Schnapper brief the NAACP filed a for urging affirmance. Fund, Inc., curiae as amicus Warner, by E. Michael A. Robert were filed of amici curiae Briefs Advisory Equal Employment Douglas the McDowell for Williams, S. and Assn., the the Road Drivers by Garrett Over Council; and W. Walton for Inc. the of Court. opinion delivered the
Mr. Justice Stewart This litigation brings important questions here several under Title VII of of Rights the Civil Act Stat. seg. C. 2000e et amended, (1970 Supp. V). § U. S. ed. and The practices of grow employment issues out unlawful alleged engaged by employer employer an and The is a union. a freight common carrier motor operations, of with nationwide and the union The represents large group employees. a of its District Appeals Court and the held the em- Court that ployer by engaging pattern had violated Title a VII practice against Negroes Spanish-surnamed union Americans, and that the had violated byAct agreeing employer the the to create and maintain "seniority system a perpetuated past effects of racial and ethnic discrimination. questions addition to the basic presented by subsidiary these two other issues rulings, must be resolved if Title violations of VII occurred —issues concerning nature of the relief to aggrieved which in- may dividuals be entitled.
I brought United States an action a Tennessee federal against petitioner court I. M. E.-D. Inc. (com- T. C., pany), pursuant Rights (a) § the Civil Act of (a).1 complaint charged S. C. 2000e-6 provided At the time of suit the statute as follows: “(a) Attorney has Whenever General reasonable cause believe any person group persons engaged practice or is pattern in a or enjoyment rights by the full resistance to secured sub- chapter, pattern practice and that the or of such a nature and is intended deny rights described, Attorney the full exercise of the herein may bring appropriate a General civil action district court by filing complaint (1) (or United with it signed States him in his Acting Attorney General), (2) setting pertaining absence forth facts pattern (3) practice, to such or requesting relief, including such application permanent temporary injunction, restraining or order or against person persons other order responsible pattern or for such *5 company had followed discriminatory hiring, assignment, promotion and policies against Negroes its in terminal Nashville, Tenn.2 The brought Government a ac- second tion against the company years almost three later in a Federal in District Court charging pattern a Texas, practice of employment discrimination against Negroes and Spanish-surnamed persons throughout company’s trans- portation system. petitioner International Brotherhood of Teamsters (union) joined was as a in that defendant suit. The two actions were consolidated for in the trial Northern District of Texas.
The central claim in both lawsuits was company had engaged pattern practice a or discriminating against minorities in hiring so-called line Negroes drivers. Those Spanish-surnamed persons who had been the Govern- hired, given ment alleged, lower paying, jobs less desirable city servicemen or local and were drivers, thereafter discrim- against respect promotions inated In and transfers.3 practice, necessary enjoyment rights as he deems insure full described.” herein Equal amended Employment Opportunity
Section 5 of the § (c) (1970 Act ed., Supp. V), 86 Stat. 42 U. C. 2000e-6 S. § give Equal Employment Opportunity Commission, rather than the General, Attorney authority bring “pattern practice” under suits against private-sector employers. that section an order was substituting entered in this action the EEOC the United but for States retaining party purposes jurisdiction, appeal- the United States as a ability, (1970 ed., (d) matters. related See U. S. C. 2000e-6 Y). Supp. Freight, Inc., The named defendant this suit was T. I. M. E. predecessor C., C., Inc., of T. I. M. Inc. T. I. M. E.-D. is a nation E.-D. produced by 17-year system mergers period. wide over a United See C., Inc., 299, 304, (CA5). States v. T. I. M. E.-D. 2d 517 F. and n. 6 It currently operates has 51 'and terminals States and three Canadian Provinces. drivers, Line drivers, engage long- also known as over-the-road hauling company They distance between compose separate terminals. bargaining company. Other bargaining unit at distinct units include *6 this connection complaint seniority- the challenged also the system by established the collective-bargaining agreements between the employer and the union. The Government sought general injunctive remedy a specific and “make whole” relief for all individual discriminatees, which would allow them opportunity to transfer jobs to full line-driver company seniority for all purposes.
The cases went to trial4 and the District Court found that servicemen, trucks, who service trailers, perform unhook tractors and and tasks; city operations, composed similar dockmen, hostlers, and of and city pick up freight drivers who and within the deliver immediate area of particular a represented terminal. All of by these were the petitioner union. 4 Following receipt evidence, the decision, but before the Government company entry and the consented to of a Decree in Partial Resolution of Suit. The consent decree did not adjudication constitute an on the however, company agreed, merits. minority to recruiting undertake a program; accept applications Negroes to from all Spanish-surnamed and inquired employment, Americans who about whether or not vacancies existed, keep applications and to such notify on file and applicants job openings; keep specific to recruiting open records to inspection by the Government and to quarterly reports submit to the Court; District and to adhere to certain employment qualifications uniform respecting hiring promotion to line jobs. driver and other provided The decree job further any future company vacancies at “ y terminal would be persons filled first may those who [b] be found by Court, any, if individual or class suffering the discriminatees present past effects of origin because race or national prohibited by Title Rights VII of the Civil Any Act of remaining 1964.” “any vacancies could be filled by persons,” other company but the obligated Negro Spanish-surnamed itself to hire one person every person white any hired at terminal until the percentage minority workers at that equaled terminal percentage minority group popula- members metropolitan tion of the surrounding area Finally, terminal. company agreed pay $89,600 in full settlement backpay obliga- sum, tions. Of this payments individual exceeding $1,600 were to be paid “alleged individual and class discriminatees” identified Government. The Decree in Partial Resolution of Suit narrowed scope litigation, but the District Court still had to determine whether unlawful “by preponderance
the Government had shown the evi- predecessor dence that T. I. E.-D. and its companies M. C. engaged plan practice of discrimination Title . violation of VII . .” The court further found that . seniority system the collective-bargaining contained in company contracts between the and the union violated Title impede VII because it free transfer of “operate [d] Both the minority groups company.” into and within the *7 committing enjoined from company and the union were further Title violations of VII. accepted the respect to individual relief the court
With class” that the “affected Government’s basic contention in- Spanish-surnamed discriminatees included all Negro operations city fill had hired to cumbent who been a line-driver jobs every that had or serviceman at terminal hired before All whether operation.6 employees, of these entitled thereby became VII, date of Title after the effective to consid- respect with over other preference applicants all Finding jobs.7 future in line-driver eration for vacancies de- injured in different class had been members of the affected who Thirty persons three subclasses. grees, the court created of discrimination convincing evidence produced “the most had The injury.” “severe found to have suffered and harm” were to fill line- opportunity they be offered the court ordered that July 2, seniority dating back competitive with jobs driver identify the actual so, If court had to had occurred. discrimination The the decree. job under fill future vacancies entitled to discriminatees seniority system re- also collective-bargaining validity contract’s should question decision, any whether discriminatees did the as mained for seniority. equitable as retroactive relief such be awarded additional Cases reported FEP decision memorandum District Court’s The (1973-1974). 6 EPD 8979 (1974) and ¶ Spanish-surnamed Negroes seek relief 'for The did not Government date on which after particular terminal hired Americans line minority group member as a driver. employed first terminal supra. 4, See n. A in the effective date of Title VII.8 second subclass “very persons possibly objects four who were cluded likely harmed,” “were but as to discrimination” and who whom there evidence specific had been no en injury. persons The court these were decreed that fill line-driving jobs competitive titled to vacancies in January as of the date on which the Gov were systemwide ernment had its lawsuit. there Finally, filed remaining over 300 members of the affected class as to whom there was “no evidence to show that these individuals court or- individually.” either harmed or not harmed they jobs line-driver ahead dered considered for two from but behind the applicants general public no in the third received other subclasses. Those subclass drivers seniority; competitive seniority their line retroactive they as line drivers. begin would with the date were hired any class member right court further decreed that the vacancy subject prior to the recall to fill a line-driver which under the collective-bar- rights drivers, of laid-off line years.10 extended for three gaining agreements then effect *8 8 July 2, 1965, joined company employee in this had the after If an class employment his initial rather than the effective date then the date of seniority. competitive determine his Title VII towas 9 subclasses, were a with the other there few individuals the third As against respect to group who were found to have been discriminated with separately jobs line driver. There is no need to discuss them other than opinion. in this 10 qualified provision significant respect. in one This of the decree was Supplemental Agree the Conference Area Over-the-Road Under Southern employer union, employed and the line ment between the drivers seniority under terminals in certain Southern States work a “modified” system system. employee’s seniority Under the modified is not confined strictly If to his home terminal. he is laid off at his home terminal he can by Agreement another terminal covered and retain move to his by vacancy by seniority, filling “bumping” at the other terminal or either a job vacancy. junior line out of his if there is no The driver modified Fifth Appeals agreed The Court of for the Circuit had company District Court: that the basic conclusions engaged pattern practice employment in a collective-bargaining seniority system and that prior agreements applied violated Title VII as to victims held, appellate 2d 299. court discrimination. 517 F. was by Court the relief ordered the District however, trisect inadequate. Rejecting attempt the District Court's Negro all Appeals the Court of held that class, the affected entitled Spanish-surnamed incumbent and company jobs their bid for future line-driver on the basis of he job, that once a class member had filled a and seniority, seniority predated the company full if it use his could —even bidding including Title VII —for all purposes, effective date be of retroactive This award layoff. under which by “qualification formula, date” limited for to the date periods prior be awarded seniority could (2) position was line-driving vacant,11 (1) a when given opportunity) (or met, would have met member class Finally, as a line driver.12 qualifications vacancy be offered any at a covered terminal requires new system also by it is fiEed covered terminals before at all other line drivers to laid-off slightly decree, final as amended District Court’s any person. other system by 299, 323, 517 F. 2d altered this Appeals, by the Court all three subclasses vacancy offered to members of all be requiring that from line drivers other terminals. may fiEed laid-off before it did not Appeals in this case opinion of Court Although the vacancy exist, it is clear requirement that a specifically mention requirement is a court that opinions of that later from earlier g., See, e. “qualification date” formula. Circuit’s Fifth part of the 29, Freight, rev’d on F. 2d n. Rodriguez Texas Motor East Sagers 35; 2d, n. in 517 F. post, p. cited grounds, other Inc., 2d 731-734. Freight System, F. Yellow company began his tenure with the member if a class *9 example, For quahfied as a line driver he was January which time on upon becoming a competitive seniority vacancy existed, his line-driving qualified 1, 1966. If he became January back to date would line driver the Appeals Court of modified of part the District Court's subjected decree that had of rights the class members to fill future rights employees. vacancies- to recall the laid-off laid-qff Holding three-year priority that the in favor of work- ers unduly impede “would the past eradication of discrimina- id., tion,'' the Appeals Court of ordered that class members be compete allowed to laid-off vacancies with employees on the basis the members' senior- retroactive class ity. Laid-off line prior rights drivers would their retain recall with respect only “purely temporary'' vacancies. Ibid.13
The of Appeals Court remanded case to District the the Court to hold evidentiary hearings necessary apply these principles. remedial granted company's We both the petitions the union's sig- for certiorari to consider the questions nificant presented Rights under the Civil Act of 1964, 425 S.U. 990.
II In this Court company union contend that their conduct did any respect, not violate Title VII as- serting first that the evidence introduced at trial was insuf- ficient to company show that engaged a “pattern or practice” discrimination. union further the.seniority system contends that contained the collective- agreements bargaining no way If violated Title these VII. are contentions it is correct, unnecessary, of to reach course, concerning issues that so occupied remedies attention Appeals. Court of
A question company Consideration whether en- pattern gaged practice in a or of discriminatory hiring prac- vacancy date, opened up if at a then later later date would be used. Appeals approved (with slight modification) Court also part of the District Court's order allowed class members to fill
335 relatively are legal tices controlling principles involves simply theory clear. The Government’s of was of (a) VII,14 703 Title § violation company, Spanish purposefully Negroes treated regularly persons. than favorably Americans less white surnamed recruit, involved the refusal to allegedly in treatment disparity equal on promote minority group members an or hire, transfer, respect to line- particularly with jaeople, basis with white simply driving The ultimate factual issues are thus positions. disparate treat pattern practice was or such whether there “racially differences were ment if whether and, so, Douglas v. 411 Corp. McDonnell U. S. premised.” Green, n. 805 18.15 laid other terminal of line drivers off at particular ahead
vacancies at a 10, supra. n. terminals. See 14 (1970 (a) (a) VII, 42 C. ed. and Title U. 2000e-2 S. Section V), Supp. provides: practice employer— for an
“(a) unlawful It shall be an individual, discharge any or otherwise “(1) to hire or to to fail or refuse compensation, any respect to his against individual with discriminate of such individual’s terms, conditions, privileges employment, because or religion, sex, origin; or race, color, or national classify applicants “(2) limit, segregate, or his or any deprive deprive way or tend to employment which would adversely his employment opportunities or otherwise affect individual of sex, race, color, religion, employee, because such individual’s status as an origin.” or national most alleged in present such as case is “Disparate treatment” is simply employer treats some easily type discrimination. understood sex, color, race, religion, favorably their others because of people less than although it discriminatory critical, origin. motive is national Proof of of differences inferred from the mere fact can in situations be some Housing Dev. Arlington Heights Metropolitan See, g., e. treatment. Undoubtedly disparate treatment Corp., 265-266. S.U. Title VII. Congress mind it enacted had in when the most obvious evil (remarks Humphrey) Cong. (1964) of Sen. g., See, Rec. e. illegal practice use simply malee it (“What does bill ... denying provides men employment. It race as a factor plaintiff, As Government bore the initial burden making prima out facie case of discrimination. Albemarle Paper Moody, Co. 405, 425; Douglas S. McDonnell *11 Green, Corp. supra, v. 802. And, alleged because a systemwide pattern practice or of resistance the full en- of joyment Title VII rights, ultimately the Government had prove more than the mere occurrence isolated or “acci- sporadic discriminatory dental” or acts. had It to establish by preponderance a of the evidence that racial discrimination company's operating was the standard procedure regular —the than practice.16 rather the unusual employed women shall be on the qualifications, basis of their not as citizens, citizens, citizens, Catholic not as Protestant not Jewish not as citizens, States”). colored but as citizens of the United disparate may Claims of distinguished treatment be claims from that “disparate impact.” stress The latter practices involve that facially are groups neutral in their treatment different but fact harshly group fall more on one justified by than another and cannot be infra, necessity. business discriminatory motive, See at 349. we Proof required held, have is not disparate-impact theory. Compare, g., under a e. Griggs Co., Duke Power Douglas v. 430-432, U. S. with McDonnell Corp. Green, 411 U. S. generally 802-806. See B. Schlei P.& Grossman, Employment (1976); Blumrosen, Discrimination Law 1-12 Strangers Griggs Concept Paradise: Duke Power Co. and the Employment Discrimination, (1972). theory 71 Mich. L. Rev. 59 Either may, course, applied particular ato set of facts. “pattern practice” or language (a) supra, VII, of Title art, 328 n. only intended as a term of and the words reflect meaning. Humphrey their usual explained: Senator pattern practice only present would be "[A] or where the denial of rights something isolated, consists sporadic than an incident, more but repeated, routine, generalized is of a or nature. There be pattern would a if, practice example, or companies persons a number of in the same industry or discriminated, line of business if chain of a motels or restaurants practiced throughout racial discrimination significant part all or a of its system, company or if a repeatedly regularly engaged prohibited in acts by the statute. point single, insignificant, “The isolated acts of discrimination agree
We with the District Court and the of Appeals Court its proof. Government carried burden of As shortly 31, 1971, March after the Government filed com- its plaint systemwide company alleging discrimination, had 6,472 Negroes were and 257 employees. these, Of (5%) line Of the (4%) Spanish-surnamed 1,828 were Americans. and 5 Negroes there drivers, (0.4%) however, Negroes and all of the (0.3%) Spanish-surnamed persons, one had commenced. With litigation had been hired after the Chicago driver at the exception man a line who worked as —a predecessors company and its terminal from 1950 to 1959—the line driver until a regular on basis as employ Negro did not even in there showed, as the Government And, 1969. where Negro population in areas of substantial were terminals *12 A great major- white.17 were company’s line drivers all of the Americans Spanish-surnamed Negroes (83%) and ity of the . . practice . .” justify finding pattern or a of a single would a business (1964). Cong. 14270 110 Rec. throughout practice” appears “pattern or interpretation
This understanding of (a), and is consistent with history of 707 legislative § Cong. 110 legislation. See in similar federal as used the identical words (a) (referring 206 Magnuson) (1964) (remarks of Sen. § Rec. 12946 Cong. 13081 2000a-5); Rec. 110 1964, 42 Rights Act of U. S. C. Civil Humphrey); (remarks of Case); id., at 14239 Sen. (1964) (remarks of Sen. Jackson also United States Celler). v. (remarks id., at 15895 Rep. See v. Iron (CA5); United States Co., 418, 438, 441 ville Terminal F. 2d 451 West Peach States United (CA9); 86, 544, 2d workers Local 552 443 F. Mayton, (CA5); United States Corp., 221, 227 Tenth F. 2d tree 437 (CA5). 153, 2d 158-159 F. 335 composed population of the Negroes Atlanta, instance, In for 22.35% in the population of the surrounding metropolitan area and in the 51.31% employed drivers. 57 line terminal city company’s Atlanta proper. The greater metropolitan Angeles, All In were white. Los 10.84% Negro. But at city were population population and 17.88% among single Negro Angeles was not company’s terminals there two Los Francisco, disparities in proof similar San showed the 374 fine drivers. other terminals. Chicago, Dallas, at several Denver, Nashville, (78%) who did company work for the held paying the lower city operations jobs,18 and serviceman whereas 39% nonminority employees held jobs those categories.
The Government bolstered its statistical evidence with the testimony of individuals who in- specific recounted over Upon testimony stances of discrimination. the basis of this “[njumerous the District Court found that qualified black applicants and Spanish-surnamed sought American who line jobs at the driving company over the years, either had their requests ignored, given misleading false information requirements, about opportunities, application procedures, or were not considered and hired on the same basis that whites Minority were considered and hired.” employees who wanted jobs to transfer to line-driver met similar difficulties.19 18Although jobs pay jobs, more than other line-driver and the District Court them driving jobs,” found to be “considered most desirable employees, no employees, it is means clear that all even driver would prefer infra, 369-370, line drivers. See course, and n. 55. Of Title equal provides opportunity compete any job, VII for whether it is thought See, g., Hayes better or worse than another. e. United States v. Corp., (CA5); Int’l 456 F. 2d Co., United States v. National Lead (CA8). F. 2d examples Two are illustrative: Taylor,
George Negro, company worked for the as a city driver in Angeles, beginning Los late 1966. hearing after that a white city job, driver had transferred to a line-driver he told the terminal manager he would like driving. also to consider manager line replied that there “a problems would be lot of on the road . . . with *13 people, Caucasian, cetera,” different et and stated: “I don’t feel that company ready is right for this . now. . . Give us a little time. It will you Taylor around, come Mr. requests know.” made similar some months got responses. later and similar He was never line-driving offered a job application. anor Trujillo
Feliberto worked as a dockman at the company’s Denver applied he job When for a terminal. line-driver in 1967, he told by a personnel he against officer that had one strike him. He asked what Chicano, was and was “You’re told: a as far as we know, there isn’t system.” a in Chicano driver company’s principal response to this evidence
statistics can in never and of prove themselves the existence of a pattern practice or or even discrimination, establish prima facie case shifting to the employer the burden re- butting the inference raised figures. But, even our brief summary of the evidence this shows, was not a case in which the Government relied on “statistics alone.” The in- dividuals who testified about personal their experiences with the company brought the cold numbers convincingly to life.
In any
our
event,
cases
unmistakably
make it
clear that
analyses have served
“[statistical
and will continue to serve
important
an
role” in cases in which the
existence
discrim
ination is a disputed
Mayor
issue.
Philadelphia v. Educa
Equality League,
tional
U. S.
620. See also McDon
Douglas
nell
Corp. Green,
v.
S.,U.
805.
Washing
at
Cf.
Davis,
ton v.
We they evidence, any other kind of variety and, like in infinite on all of depends In their usefulness may short, rebutted. be g., Hester v. e. circumstances. See, facts and surrounding Co., Southern R. 1374, 1379-1381 (CA5). 497 2dF. protest against the use of statistics general
In to its addition in this company claims that case Title VII cases, misleading because revealing imbalance are racial statistics busi- company’s particular into they fail take account requires theory that Title VII support or used to an erroneous offered racially showing racial or be balanced. employer’s work force to Statistics only probative such in a case such as this one because imbalance are ethnic discrimination; sign purposeful absent imbalance is a telltale often ordinarily nondiscriminatory hiring expected be explanation, it is representative of practices will in time result in a force more or less work community composition population in from the racial and ethnic disparity longlasting gross hired. which are Evidence general popula composition of force and that of the between the a work may significant though (j) Title tion be even 703 makes clear that thus requirement imposes general popula VTI no that work force mirror the 36, g., See, e. States v. Sheet Metal Workers Local 416 F. 2d tion. United (CA8). may, sample 7 size 123, 127 n. Considerations such as small Mayor course, evidence, see, Phila g., detract from the of such e. value 620-621, delphia Equality League, 605, Educational 415 U. S. figures general might showing population for the evidence accurately pool qualified job applicants reflect the would also relevant. supra, generally Grossman, 15, n. 1161-1193. Ibid. See Schlei & Rights 1964, passage of the Civil Act of the courts have “Since frequently upon prove statistical evidence to ... relied violation. many proof available of racial statistics cases the avenue the use employer or union to uncover clandestine covert discrimination 2d, 86, Ironworkers Local at 551. involved.” United States v. 443 F. Pettway Pipe Co., 211, also, g., Iron 2d e. v. American Cast 494 F. See (CA5); County Dyeing Co., Brown 2d v. Gaston Mach. 457 F. n. (CA4); Co., 2d, United Terminal States v. Jacksonville 451 F. 442; Co., (CA8); Parham Southwestern Bell Tel. 2dF. Way Freight, (CA10). Inc., Lee Motor 431 F. Jones v. 2d *15 ness situation as of the effective date of Title VII. The com- pany concedes that line its drivers were virtually all white in July 1965, but it claims that thereafter business conditions were such that its work force dropped. Its argument is that personnel low turnover, rather post-Act than discrimination, accounts more recent disparities. statistical points It substantial minority hiring in later years, especially after 1971, showing as pre-Act patterns of discrimination were broken. argument
The would be a forceful one if this were an em- ployer who, the time of virtually had done suit, no new hiring since the effective date of Title VII. But it is not. Although company’s total employees apparently number of dropped during somewhat the late 1960’s, the record shows many line drivers continued to be throughout hired and that almost all of period, sure, them were white.21 To be improvements company’s in hiring practices. there were of Appeals The Court commented that C.’s “T. I. M. E.-D. minority hiring progress good faith recent stands a laudable eradicate past effort to the effects of the area 22 hiring assignment.” of and initial 316. But 2d, F. Appeals upon the District Court and Court of found sub- company engaged evidence had in a course stantial that continued well after the date of discrimination effective company’s VII. later changes hiring of its and Title July 2, January 1969, and hundreds of line drivers Between systemwide, hired either from the outside or from ranks of were filling jobs company. Negro. other within the None was a Exhibit 204. Government example, company drivers, in 1971 the hired 116 For new line of Spanish-surnamed Minority Negro Americans. em whom systemwide company’s composed ployees work force in. 7.1% Minority hiring greatly in 1972. increased and 10.5% part existence presumably due at least of the consent decree. 2d, at 316 n. See 517 F. 31. could
promotion policies be of little comfort to the victims post-Act earlier could not erase its discrimination, previous conduct or its to those illegal obligation afford relief Co. v. Paper who suffered because it. Cf. Albemarle Moody, 422 S., at 413-423.23 Court and the on basis Appeals, District Court proved had held that the Government evidence, substantial systematic purposeful prima facie case effective date continuing beyond well
discrimination, *16 conclusion to rebut that company’s attempts Title VII. The have sum- inadequate.24 the reasons we held to be For were 23 upon the evidence—that statistical company’s narrower attacks general the to in precise delineation of the areas referred there was no statistics, not demonstrate that population that did Government transportation or minority close to terminals that populations were located portion what available, the statistics failed show was that health, qualifications to minority age, other population suited equally jobs, lacking best, At trucking etc.—are in force. these hold accuracy composition go only comparison between the attacks to the popula company’s general and the work force at various terminals They surrounding little from the tion of the communities. detract Govern showing Negroes Spanish-surnamed and Americans who ment’s further jobs. overwhelmingly were hired excluded from Such were line-driver healthy work, terminal, willing to had access to were were sufficiently working age, qualified hold and of and often were least they frequency city-driver jobs. far Yet became line drivers with less 2d, g., Stipulation 14, 517 See, e. F. than Pretrial summarized whites. 2,919 1,802 (of driving jobs 1971, (62%) at 312 n. 24 whites held who (38%) city drivers; Negroes 1,117 line and were drivers and were Spanish-surnamed driving jobs, (7%) line Americans who held were (93%) city drivers). and 167 drivers any event, tuning fine of the statistics could not obscured have minority Appeals
glaring
line
As the Court of
re-
absence of
drivers.
marked,
inability
company’s
to rebut the inference of discrimination
Id.,
came not from a misuse of statistics but from
inexorable
“the
zero."
at 315.
evidence,
showing
company’s
apart
changes
from the
recent
mainly
hiring
general
promotion policies,
and
consisted
statements
marized,
there
no
for this Court to disturb
find
warrant
ings of the District Court and the
Appeals
Court of
on this
Lehman,
Blau
basic issue.
See
v.
408-409;
368 U.
S.
Gibbs,
Faulkner v.
United
Dick
States v.
268;
U. S.
inson, 331 U.
United States
Credit
745, 751;
S.
v. Commercial
Co., 286 U.
Foundation,
United States v. Chemical
63, 67;
S.
Inc., Schofield,
Baker
14;
1,S.
118;
U. S.
Moore,
Towson
B The District Court and the found Appeals Court of also system collective-bargain- contained ing agreements operated between the and the union company to violate Title VII of the Act.
For purposes calculating pen- benefits, vacations, such as other fringe employee’s seniority under sions, benefits, system joins runs from company, the date he jobs takes into account his total service in bargaining all units. For deter- competitive purposes, such as however, mining employees may particular the order in which bid for off, bargaining- are laid or are recalled from it is jobs, layoff, *17 seniority seniority, unit that controls. a line driver’s Thus, qualified good only applicants. of it hired the best But “affirmations making dispel prima facie faith in individual selections are insufficient to systematic Louisiana, case of exclusion.” Alexander 405 U. S. 632. attempted to all the who company The also show that of witnesses specific either discriminated testified to instances were not against injury. correctly Appeals or suffered no The Court of ruled that testimony judge accept bound this com- the trial was not and that it by relying overpowering mitted no error instead on other evidence 2d, Appeals Court of correct in the case. 517 F. at 315. The was also proof concerning individual each class member’s view specific injury appropriately proceedings in- left to determine was by (a) brought In a suit under dividual relief. Government deciding is in of the Act the District Court’s initial concern whether engaged the defendant has in a proved has Government discriminatory infra, pattern practice conduct. See at 360-362. purposes bidding particular protection for for and runs25 against layoff, length takes account he into time particular prac has been a line driver The terminal.26 city tical effect is that a driver or serviceman who transfers job seniority to a competitive line-driver forfeit all the must he has previous bargaining accumulated in his unit and start at the bottom of the line drivers’ “board.” by
The vice of this as found the District arrangement, minority and the “locked” Appeals, Court Court was that it jobs perpetuated prior workers into inferior discrimina- by jobs tion While discouraging transfers as line drivers. including applied workers, disincentive to all whites, Negroes Spanish-surnamed was those courts persons who, been many suffered the most because of them had found, they equal when opportunity denied to become line drivers initially sought or hired, whereas whites either had not positions were refused line-driver unrelated to their reasons origin. race or national linchpin theory by embraced the District Court must Appeals
and the Court of was that a discriminatee who seniority competitive finally forfeit his in order to obtain a seniority job up” will never be able to “catch to the line-driver contemporary subject level of his who was not to discrimina- disadvantage tion.27 built-in Accordingly, continued, reasons, long-distance runs, variety for a are Certain more desirable by top line runs are chosen drivers than others. best arranged bargaining-unit in order of the “board” —a list of drivers their seniority. seniority bargaining-unit company rights Both are terminal, particular generally except limited to service at one as modified Supplemental Agreement. Conference Area Over-the-Road Southern supra. n. See qualified Negro be a who example An would to be a line driver *18 race, assigned job city who, in his was 1958 but because of instead as driver, and to become a line driver in he is allowed 1971. Because seniority competitive jobs, junior his when he is loses transfers forever he prior the discriminatee who job transfers to a line-driver held to continuing constitute a violation of Title for VII, which both employer the and the jointly union who created system and maintain the seniority were liable. acknowledging seniority sys- while union, may tem in perpetuate some sense prior the effects of discrim- ination, system asserts that finding is from a immunized illegality by (h) reason VII, §of Title C.S. 2000e-2 provides § which (h), part:
“Notwithstanding any subchap- other provision of this ter, employment practice shall not be an unlawful employer apply compensation, different standards of employ- or different terms, privileges or conditions,' . pursuant seniority ment to a . system, bona fide . . . . in- provided that such differences are the result of an not tention to or national discriminate because of race ... origin . . .”. system in is “bona argues seniority
It this case judged light meaning (h) within the of 703 when § fide” all of the circumstances intent, application, and history, of its spe- and is maintained. More which it was created under purpose union central cifically, claims dis- perpetuation pre-Act mere to ensure that (h) § And, under Title VII. whether is not unlawful crimination dis- perpetuation post-Act immunizes (h) seniority system union claims that crimination, Court, position Its this no such effect. litigation has this litigation, is that throughout position its has been hurdle to post-Act no discrim- system presents whites, 1958 and 1970. The rather hired between line drivers to white enjoy preferable greater runs and the Negro, henceforth than the will original Although the occurred against layoff. protection seniority system of Title VII —the effective date in 1958—before the present. the earlier discrimination into the carry the effects operates to *19 n 346 seniority they date would who seek retroactive to the
inatees discrimina- company’s become line drivers but for the have Indeed, the union asserts that under its collective-bar- tion. up the cause of agreements the union will itself take gaining procedures, through grievance victim and post-Act attempt, including appropri- him full whole” gain relief, “make seniority. ate seniority system per- that responds
The Government that a pre-Act post- or petuates prior the effects of discrimination — (h); 703 a minimum Act—can never be “bona fide” under at § seniority system prohibits applications VII those of a Title prior perpetuate the effects on incumbent that . assignments. discriminatory job joined open are ones in this Court.28 We
The issues thus Co., Transportation in Franks Bowman (h) 703 § considered v. 703 747, (h) 424 but that does not § U. S. there decided seniority job applicants who bar award retroactive employer’s post-Act relief from an hiring seek discrimination. (h)] stated that “the thrust of 703 is directed We toward [§ 28Concededly, (h) seniority the view that 703 does not immunize systems perpetuate prior that the effects of discrimination has much Quarles Philip Morris, Inc., support. apparently adopted It first (ED Va.). Supp. departmental held 279 F. The court there that “a genesis seniority system that has its in racial bona not a Quarles seniority Id., (first added). system.” emphasis at fide enjoyed See, adoption Appeals. view has since wholesale the Courts of g., Papermakers 189, Paperworkers States, e. Local United & United 980, (CA5); 36, F. 2d 987-988 United v. Sheet States Metal Workers Local 2d, 133-134, 20; Corp., 416 F. n. United States v. Bethlehem Steel (CA2); Chesapeake F. 2d 658-659 United Co., States v. & Ohio R. Quarles (CA4). 471 F. 2d 587-588 Insofar as the result in and in the depended upon findings seniority systems cases followed “racially discriminatory” “genesis were themselves had their in racial discrimination,” Supp., F. decisions can be viewed resting upon proposition seniority system that a perpetuates pre-Act the effects of discrimination cannot be bona fide if an intent very adoption. discriminate entered into its defining what is and what is not illegal discriminatory prac- post-Act tice instances in which the operation of a system is challenged as perpetuating the effects of discrimina- tion occurring prior to the effective date the Act.” *20 S., Beyond U. at 761. noting general purpose of the statute, we not however, did of undertake the task statutory construction in required this litigation.
(1) company Because the discriminated both before and after the enactment of Title VII, seniority system is said to operated perpetuate have the effects pre- of both post- and Act may discrimination. Post-Act discriminatees, however, obtain full whole” seniority “make relief, including retroactive Bowman, under Franks supra, attacking legal without ity seniority system as applied to made them. Franks clear the union acknowledges seniority and that retroactive may as from employer’s discriminatory be awarded relief hiring policies seniority system and if assignment even no agreement provision itself makes such for relief.29 proved 778-779. has Here Government S.,U. post-Act pattern of company engaged discriminatory promotion Any policies. hiring, assignment, transfer, Spanish-surnamed Negro injured by policies or American those Agreement Freight 29 Article National Master between the company systemwide and the union effect of the date of the lawsuit provided: Employer any agree against
“The the Union to discriminate respect hiring, compensation, individual his terms or conditions color, religion, sex, race, because such individual’s or they origin, limit, segregate classify employees will national nor way deprive any employee employment opportunities individual race, color, religion, sex, his origin.” because of or national Any company “grievable” apparently would provision of the breach of this contract. appropriate relief as a
may remedy receive all direct discrimination.30 ^ judgment seniority that the remains for review is the
What pre-Act system Unlawfully perpetuated the effects discrim- (h) whether vali- decide, short, ination. We must systems that seniority afford no con- dates otherwise bona fide against prior to structive discriminated victims it is to that issue date of Title that we VII, the effective now turn. equality “to assure purpose of Title VII was primary and to eliminate those discrim- employment opportunities racially which have fostered
inatory practices and devices minority disadvantage to the job stratified environments Green, 411 Douglas Corp. McDonnell U. atS., citizens.” Moody, 422 Co. v. Paper S., also Albemarle 800.31 See *21 30 seniority system perpetuates post-Act as it legality insofar case, light this in remains at issue in of the in discrimination nonetheless supra, today Our junction against the union. See at 331. decision entered Evans, p. 553, largely dispositive Lines, post, is this in Air Inc. v. United seniority system operation of a is not unlawful Evans holds that issue. post-Act though perpetuates discrimination that under Title even VII by Here, subject charge of a the discriminatee. timely has not been the remedy post-Act course, has sued to the Government there is no claim that relief would be time barred. But directly, and seniority system reason not to hold the simply an additional this is way enlarge unlawful, holding would in no the relief to be since such a Transportation Co., Franks Bowman 424 U. 778- v. S. awarded. See seniority systems, (h) immunizes all bona fide 703 on its face 779. Section perpetuation pre- post-Act distinguish not between and does discrimination. Douglas: in McDonnell alsoWe noted personal interests on both sides of this
“There are societal as well as equation. overriding interest, broad, shared [employer-employee] consumer, trustworthy workman- employer, employee, and is efficient racially personnel through employment ship assured fair and neutral abundantly decisions, clear implementation of such it is decisions. discrimination, no racial subtle or otherwise.” Title VII tolerates S.,U. at 801.
417-418; Alexander v. Co., Gardner-Denver 44; U. S. Griggs Duke Co., Power atS.,U. 429-431. To achieve this Congress purpose, “proscribe [d] overt discrimi- practices nation also but are fair in discrimi- form, but in operation.” Id., natory at 431. Thus, the Court has repeatedly held that prima facie may Title VII violation by policies established or practices that are neutral on their in face and intent but that nonetheless discriminate in effect particular against Gilbert, group. General Electric Co. v. 125, 137; Washington U. S. v. Davis, 426 246- S.,U. 247; Paper Albemarle Co. v. Moody, supra, 422, 425; Douglas McDonnell Corp. Green, supra, 14; at 802 n. Griggs Co., Power supra. v. Duke practice
One kind of discriminatory “fair but form, operation” is which perpetuates prior the effects of As Griggs: discrimination.32 the Court held in “Under Act, practices, procedures, face, neutral tests on their and even neutral terms of if intent, cannot be maintained they discriminatory 'freeze’ the status operate quo prior practices.” S.,Ü. at 430. seniority system not for 703 case (h),
Were it
Griggs
under the
would seem fall
rationale. The heart
system its allocation of the
jobs,
greatest
choicest
against
layoffs,
advantages
and other
to those
protection
longest
have been line drivers for the
time.
employees who
employer’s prior
because of
intentional discrim-
Where,
*22
32
Vogler,
Local 53 (CA5), provides
Asbestos Workers
350 longest the line drivers with the tenure are without
ination, advantages seniority system of the flow exception white, disproportionately away Negro Span- them and from by enjoyed now have might ish-surnamed who before advantages employer those had not the discriminated passage disproportionate distribution Act. This 'freeze’ advantages very “operate does in a real sense prior discriminatory employment practices.” quo status legislative (h) But literal 703 both the terms Congress history of Title VII demonstrate that considered very many seniority systems and extended effect of immunity measure of to them. of H. later
Throughout the initial consideration R. bill as the Civil Act of critics Rights enacted destroy seniority existing rights.33 charged that would congressional proponents response consistent of Title VII’s seniority rights would Department and of the Justice was that had discriminated employer not be even where the affected, placed An prior interpretive to the Act.34 memorandum Congressional Record Clark and Case stated: Senators “Title VII would have no effect on established retrospective. rights. prospective Its effect and not discriminating been a business has Thus, example, if working in the as a has an all-white past and result employer’s when the title comes into ob- force, effect non- would be vacancies on a ligation simply fill future obliged in- discriminatory basis. He would not be —or Sess., 65-66, (1963) g., E. Rep. Cong., 1st H. R. No. 88th (remarks Hill); (1964) (minority report); Cong. Rec. 486-488 of Sen. id., (remarks id., (remarks Rep. Dowdy); at 7091 of Sen. at Stennis). Transportation cited in Franks Bowman In addition to the material (remarks Co., 759-762, Cong. S., (1964) Rec. 1518 424 U. see id., id., (remarks Celler); Humphrey); at 6564 Rep. of Sen. (remarks Kuchel). of Sen. *23 deed, permitted fire in order hire whites Negroes, —-to or to prefer Negroes for future vacancies, or, Negroes once are hired, give special seniority them rights at expense of the white hired Cong. workers earlier.” 7213 (1964) (emphasis added).35 Rec.
A Justice Department statement concerning Title placed VII, in Congressional by Record Senator voiced Clark, the same conclusion:
“Title VII would have effect on rights no exist- ing at the time for If, example, it takes effect. a collec- tive bargaining provides contract the event of layoffs, those who were hired last be laid off must first, provision such a by would not be affected the least title would VII. This be true even in the case where owing to prior to the date effective title, Negroes.” white workers had more seniority than 7207 (emphasis added).36 Id., “bipartisan captains” responsible Senators Clark and Case were the during for Title Bipartisan captains VII the Senate debate. were selected by Rights leading proponents for each title of the Act Act Civil They parties. responsible detail, in both explaining for their title defending leading it, id., (remarks discussion on it. See at 6528 Humphrey); Vaas, Legislative History, Sen. Title VII: C. & B. Ind. (1966). Com. L. Rev. 444-445 text The full of the statement is set in Franks Bowman Trans out portation Co., supra, n. 16. Clark introduced a set Senator also questions propounded by Dirksen, answers to Senator which included following exchange:
“Question. prevail respect promotions, the same situation Would management governed by calling when that function is a labor contract promotions seniority? Normally, on the basis of What of dismissals? hired, labor contracts call Negroes, for ‘last first fired.’ If hired are the last employer discriminating requires they is the if his contract fired be first remaining employees and the are white? Seniority rights way
“Answer. are in no the bill. If affected under hired, agreement Negro happens hired,’ ‘last first fired’ be the ‘last long he can still be ‘first fired’ as is done because of his status as ‘last *24 While these (h) statements made before 703 § was added they to Title VII, are authoritative indicators of that section’s purpose. Section 703 (h) part enacted as of the Mansfield-Dirksen compromise substitute bill that cleared the way for the passage Title VII.37 The drafters of the com- promise bill stated that one of its principal goals was resolve the ambiguities in House-passed version of R. 7152. H. See, g., e. 110 Cong. Rec. 11935-11937 (1964) (remarks of Sen. id., Dirksen); (remarks at 12707 Humphrey). Sen. As the debates indicate, one of ambiguities those concerned Title impact VII’s on existing collectively bargained seniority rights. It is apparent (h) § 703 eye was drafted with an toward meeting the earlier criticism on this explicit pro- issue with an embodying vision the understanding and assurances Act’s proponents, namely, Title VII would not outlaw such differences in among employees treatment from as flowed seniority system a bona fide that allowed for full exercise seniority before the accumulated effective date of the Act. It is part inconceivable that of compromise bill, (h), was intended to representations vitiate the earlier of the Act’s supporters by increasing impact sys- Title VII’s on seniority Franks, tems. The statement of Senator noted in Humphrey, 424 U. S., (h) confirms that the addition of 703§ “merely clarifies present [Title intent and effect.” VII’s] Cong. (1964). Rec. 12723 sum, purpose unmistakable make (h) §of 703 was to
clear that application the routine of a bona fide system legis- would not be unlawful under Title VII. theAs history lative this was result where shows, the intended even the employer’s pre-Act discrimination resulted in whites hav- ing greater existing seniority rights Negroes. Although than seniority system inevitably perpetuate the effects of tends Cong. (1964). hired’ and his race.” not because of See Rec. Franks, supra, at 760 n. 16. Transportation supra, Co., supra, Franks v. Bowman 761; Vaas, See 35, at 435. n.
pre-Act discrimination in such cases, congressional judg- ment was that Title VII should not outlaw the use of existing seniority lists thereby destroy or water down the vested seniority rights of employees simply employer because their had engaged prior passage of the Act.
To be (h) sure, § does not seniority sys- immunize all tems. It refers to “bona fide” proviso and a systems, requires differences in treatment not be “the result of an intention to discriminate because of race ... or national origin . . .” But reading legislative history . our com- *25 pels reject us to the Government’s argument broad that no seniority system perpetuate pre-Act that tends to discrimina- tion can be “bona accept argument fide.” To would re- quire seniority system us to hold illegal simply that a becomes seniority because it allows the full pre-Act exercise of the rights employees company a that discriminated before place obliga- Title VII was enacted. It would an affirmative parties seniority tion on the agreement to to subordinate rights pre-Act those in favor of the claims of discriminatees seniority. consequence without would perversion be a congressional purpose. accept We cannot the invitation to by (h) reading disembowel 703 the words “bona fide” as § would have us do.38 we hold that Accordingly, Government legitimate seniority system does not be- neutral, otherwise simply may per- unlawful under Title VII because it come reason, reject proviso For the same we contention that in (h), resulting in treatment which bars differences from “an intention discriminate,” any application seniority system may applies of a regard perpetuate past language discrimination. this of the Justice supra, Department legislative hearings, memorandum introduced at the see perfectly especially pertinent: “It is clear that when worker is promotion off denied a chance for laid because under established pole’ the totem seniority being rules is 'low man on he is not he discrimi . against his race. . . Any nated because of differences in treatment based seniority rights would not be on based on established race and would by Cong. (1964). forbidden the title.” Rec. petuate pre-Act Congress discrimination. did not intend to illegal seniority make it for rights with vested expense continue to exercise those even at the rights, pre- Act discriminatees.39 in inescapable
That conclusion is
even
such as
case,
one,
pre-Act
employ-
where the
are incumbent
discriminatees
Al-
seniority
bargaining
ees who accumulated
in other
units.
though
explicit
there seems to be no
in the legislative
reference
history
pre-Act
already
employed
discriminatees
less
jobs,
distinguishing
desirable
there can be no rational basis for
their claims
persons initially
any job
from those of
denied
but
they
later with
might
hired
less
than
have had in the
pre-Act
rejected
absence of
discrimination.40 We
such
history
legislative
VII,
the 1972 amendments
to Title
sum
Franks,
S.,
764-765,
21; id.,
marized and discussed in
424 U.
n.
at 796-
J., concurring
part-and
n. 18
dissenting
part),
in no
(Powell,
way points
indicates,
to a different result.
As the discussion
Franks
history
susceptible
is itself
readings.
of different
The few broad
perpetuation
jacto
references to
pre-Act
segre
discrimination or “de
gated job ladders,” see,
g., Rep.
92-415,
e.
pp. 5, 9 (1971);
S.
No.
H. R.
Rep.
92-238, pp. 8,
No.
(1971),
did
specific
not address the
issue
presented by
assumption
this case. And the
of the
authors
Con
Report
ference
present
that “the
developed
case law as
the courts
*26
govern
applicability
would continue to
VII,”
and construction of Title
Franks, supra,
21,
see
n.
765
of course does not foreclose our considera
that
importantly,
tion of
issue. More
the section of Title VII that we
here,
(h),
construe
was
in 1964,
enacted
not 1972. The views of
§703
Congress,
members of a later
concerning
VII,
different sections of Title
litigation
enacted after this
commenced,
was
any
are entitled to little if
weight.
It
Congress
is the intent
(h)
1964,
that enacted 703
in
case,
unmistakable in this
that controls.
40
proscribe
That Title VII did not
seniority
the denial of fictional
to
pre-Act
got
job
Quarles
discriminatees
recognized
who
no
even in
Philip Morris, Inc.,
(ED
Supp.
279 F.
Va.),
505
progeny.
its
Quarles stressed the fact that in
legislative history
references
'employment seniority
to
departmental seniority.
rather than
Id., at 516.
Papermakers
In Local
Paperworkers
United
&
States,
v. United
416
(CA5),
F. 2d
leading
980
another
area,
case in this
the court observed:
Franks,
in
distinction
that
it
“no
finding
support any
had
where in
VII or
Title
its
legislative history,”
S.,
that,
Congress
768. As discussed above,
in 1964 made clear
seniority system
a
is not
it
unlawful because
honors em
ployees’ existing
employer
even where the
rights,
has en
gaged
pre-Act discriminatory hiring or promotion practices.
It
contrary
be as
to
would
that mandate to forbid the exercise
rights
of seniority
respect
with
to
who
discriminatees
held
jobs
inferior
with respect
minority
as
later
hired
who previously
job.
If
any
were denied
anything,
the latter
“
Franks,
group
more disadvantaged.
is
As
fit would
if
surprising
indeed
for
Congress gave
remedy
the one
”
Ibid.,
[group] which it
denied for the
quoting
other.’
Phelps Dodge Corp. NLRB,
(3) seniority system litigation entirely bona fide. applies It equally to all and ethnic To groups. races the ex- tent “locks” employees that it into jobs, non-line-driver doubt, Congress, prevent “No protect 'reverse discrimination’ meant to rights certain previous could have existed but racial example Negro rejected by discrimination. For who had been employer grounds passage not, on being racial before of the Act after could hired, claim to outrank whites had been him who hired before but after his original rejection, though Negro might even had senior have status Id., past but for the discrimination.” at 994. addition, suppose Congress there is no reason to intended protection legitimate departmental 1964 to seniority systems extend less plantwide seniority systems. Then, now, seniority than to was meas ways, length including ured in employer, a number of time in a particular in a plant, department, job, in a progression. in a line of Aaron, Legal Enforceability See on the Seniority Reflections Nature and Rights, (1962); Cooper Sobol, Harv. L. Rev. Seniority & Testing Employment under Fair Approach Laws: A General Objective Hiring Promotion, Criteria of L. Harv. Rev. (1969). legislative history suggestion contains no system one *27 preferred. was city for does so all. The drivers and servicemen who are dis- couraged transferring jobs from to line-driver not all are Negroes Spanish-surnamed Americans; to the the contrary, drivers overwhelming majority placing are of line white. separate rational, bargaining employees unit from other is industry with practice, accord with the and consistent National Labor is conceded precedents.42 Relation Board It seniority system the not its in racial genesis did have main- negotiated it was and been discrimination, has circumstances, free from In illegal purpose. tained these single system fact that the extends no retroactive pre-Act discriminatees does make it unlawful. seniority system protected (h), Because the system maintaining the union’s conduct in agreeing to On Court’s remand, did not violate Title the District VII. injunction against union must be vacated.43
Ill seniority system does not violate Our conclusion remedy granted necessarily VII will affect Title litigation of this employees individual on remand only pre-Act employees District who suffered Court. Those may person and no relief, discrimination are not entitled to Georgia Highway Express, “The 150 N. L. R. B. 1651: See long drivers constitute Board has held that local drivers and over-the-road defined, clearly separate they be appropriate units where are shown to functionally groups separate homogeneous, and distinct interests which effectively bargaining purposes. represented separately can ... functions, separate supervision, and different view the duties different divergent payment, have bases of clear that over-the-road drivers operations] . . and [city interests from those of unit . should included in that unit.” not be litigation properly will The union remain as a defendant so may employer’s post-Act that full relief be awarded victims of the (a). discrimination. Fed. Proc. 19 EEOC Rule Civ. See v. Mac Inc., (CA6). Containers, Millan 2d Bloedel F. *28 given
be seniority retroactive to a date earlier than effec- tive date of Act. questions Several other relating to the appropriate of measure individual relief for remain, however, our consideration. petitioners argue did generally that the trial court in tailoring
not err the remedy injury” to the of suf- “degree fered each individual and that employee, the Court Appeals’ “qualification sweeps date” formula broad with too by granting a brush remedy a to who were shown Spe- actual victims unlawful discrimination. cifically, petitioners assert that no be en- employee should to relief titled until the Government demonstrates he was victim of actual the company’s discriminatory practices; no employee who apply job did not a line-driver granted should be competitive retroactive seniority; and that employee no should be job elevated to a line-driver ahead layoff current driver each line on status. We consider separately. of these contentions
A petitioners’ first contention is substance that burden in a case proof pattern-or-practice Government’s Douglas equivalent must be to that outlined in McDonnell specific Green. Since Government introduced evidence company against only employ some 40 they argue properly the District Court refused ees, class of award retroactive remainder minority employees. incumbent Douglas
In McDonnell the Court considered order “the proof private, challeng- in a non-class action and allocation We ing S., discrimination.” at 800. carry VII complainant an individual Title held that must proof by establishing prima a facie case of initial burden of specific On discrimination. facts there involved, racial by showing was met that a concluded that this burden we minority- qualified applicant, who was a member of a racial unsuccessfully job had for which there was group, sought vacancy continued thereafter employer and for which the initial applicants qualifications. seek with similar This showing justified minority applicant the inference that *29 employment opportunity prohibited was denied an for reasons by employer Title VII, therefore shifted the burden to the by to offering rebut that inference nondis- legitimate, some criminatory Id., rejection. reason for the at 802. company upon Douglas
The and union seize the McDonnell pattern prima as the establishing means a facie case in individual discrimination. Our decision that how- case, did purport not to create an inflexible formulation. We ever, expressly in necessarily vary noted that facts Title will “[t]he specification VII cases, prima proof and the ... of the facie required from plaintiff] necessarily applicable is not in [a every respect differing Id., to factual situations.” at 802 n. importance 13. Douglas of McDonnell in its not lies, specification of the discrete proof required, elements of there but in its recognition general Title principle that plaintiff carry VII must the initial offering burden of evidence adequate to create an inference that an decision discriminatory illegal was based on a criterion under the Act.44 Co., In Franks Transportation v. Bowman applied the Court Douglas complainant The McDonnell case an involved individual seeking prove one instance of employer’s unlawful discrimination. An reject applicant belongs minority isolated an decision to who a racial rejection racially does not the Although show that was based. Douglas require proof McDonnell formula does not direct of discrimina tion, alleged demand that does discriminates demonstrate least rejection that did not result from legitimate his the two most common employer might rely reject reasons on job which an applicant: a qualifications absolute or relative lack of vacancy the absence of a job sought. Elimination of these reasons for the refusal to hire is sufficient, explanation, absent other to create an inference that the decision discriminatory a one. principle this the context of a class action. Franks plaintiffs proved, satisfaction of a District Court, Transportation Bowman “had pattern engaged a Co. company racial discrimination in policies, including various hiring, transfer, discharge employees.” S., 424 U. Despite 751. trial court denied showing, relief to certain members of the class discriminatees because every not individual had shown that qualified he was job sought he vacancy and that a had been available. We held the trial court erred in on the had this burden placing plaintiffs. individual By “demonstrating the existence of discriminatory pattern practice” hiring plaintiffs had prima made out against facie of discrimination case individual class members; the burden shifted to therefore employer prove “to who reapply individuals fact victims of previous hiring Id., at 772. discrimination.” The Franks case thus illustrates another which means plaintiff’s a Title VII proof initial met. The burden can be *30 class there a alleged employment broad-based policy of dis- ; upon proof crimination allegation of that there were reason- grounds able to infer that individual decisions hiring pursuit made in discriminatory the to policy require and employer the to come forth dispelling with evidence that inference.45 holding in Franks that proof discriminatory pattern prac of a and presumption
tice a creates rebuttable favor of individual relief is consist ent with manner presumptions generally. the which are created Pre sumptions shifting proof judicial the burden of are often created to reflect probabilities party’s superior evaluations and to conform with a access proof. the McCormick, (2d See C. 337, Law of Evidence ed. §§ 1972); James, Proof, 51, (1961). Burdens of 47 Va. L. Rev. See also Keyes School Dist. No. 413 U. S. 208-209. These factors were present in Franks. Although prima conclusively the did facie case employer’s part demonstrate of the proved all decisions were discriminatory pattern practice, greater it did create a likelihood that single component decision a pattern. Moreover, was of the overall the necessarily Although not all actions will follow the class brings model, pattern-or-practice Franks the nature of a suit it squarely holding plaintiff within our Franks. The a pattern-or-practice is initial Government, action the and its burden is to demonstrate that unlawful discrimination has procedure policy or or regular employer been a followed an employers. supra, See 16. At group n. “liability” suit Gov- initial, stage pattern-or-practice of a person ernment is not to offer that each for required evidence ultimately whom it relief was a victim of the em- will seek a ployer’s discriminatory policy. Its burden is to establish policy The burden prima facie that such a existed. then case employer prima showing to defeat the facie of a shifts to practice by demonstrating or the Government’s pattern might An insignificant. employer inaccurate or proof either discriminatory pattern is example, that the claimed show, hiring post-Act rather than unlawful product pre-Act during period alleged it is to have or that discrimination, discriminatory policy it made too few pursued a had justify engaged the inference in a decisions discrimination46 regular practice of employer practice changed position of the finding pattern or Finally, employer position proved wrongdoer. was in the best that of a employment oppor- why any employee was individual to show denied tunity. the reasons related available vacancies Insofar as qualifications, company’s applicant’s employer’s evaluation of proof. If the refusal to hire items of were the most relevant records factors, employer agents knew best what those its on other based they decisionmaking which influenced the the extent to factors were and process. *31 must, course, designed prima meet employer’s defense of the The suggest do not mean to there are We facie case of the Government. may type employer of an The any the evidence use. particular limits on liability stage pattern-or-practice a of the focus point is that at the trial hiring decisions, pattern but individual on a of not be on often will pattern decisionmaking. might a discriminatory While be demonstrated of it composed, decisions which by examining the is the discrete Govern- If an employer fails rebut the inference that arises from prima the Government’s case, facie a may trial court then conclude that a violation has occurred ap- and determine the propriate remedy. any Without further evidence from the Government, a court’s of or finding pattern practice justifies a an of prospective award might relief. Such relief take the form of injunctive against order continuation the dis- criminatory practice, employer an order that keep the records employment its future periodic reports decisions and file with the or court, “necessary other order the ensure full enjoyment rights” protected of the Title VII.47
When the Government seeks individual relief for victims discriminatory usually a district court must practice, conduct phase additional after the proceedings liability scope trial to determine peti- individual relief. tioners’ contention is that if case has Government not, course of pattern already proving practice, brought specific forth evidence that each individual was dis- criminatorily employment denied an must it opportunity, carry the second, stage burden “remedial” of trial. rejected basic That contention was the Franks case. As true particular was of the in Franks, typical facts VII pattern-or-practice Title suits, question of individual proved relief does not employer arise until has been that the has followed an policy of unlawful discrimination. proof dissipate The force of that does not stage at the remedial commonly proof merit’s suits have more expected involved result discriminatory policy. of a regularly employer’s followed In such cases the provide nondiseriminatory explanation burden is to apparently supra, discriminatory See n. result. cases cited therein. freely equitable federal courts have exercised their broad discre designed tion to prospective devise relief employers assure that found (a) to be in discriminatory violation eliminate their practices g., e. See, effects therefrom. cases cited in n. In this case infra. prospective incorporated parties’ relief consent decree. See supra. n. *32 (cid:127) The claim there employer cannot, of the trial. that therefore, employment that its individual deci- is no reason believe to already been to discriminatorily sions were has shown based; discriminatory policy decisionmaking. a have maintained proof pattern practice supports The of the an inference period in employment during that particular decision, discriminatory policy was in was made force, which the that policy. that need show pursuit of Government unsuccessfully applied for alleged individual discriminatee proved job potential was a victim of a and therefore As in burden rests on the then Franks, discrimination. was employer applicant to demonstrate individual opportunity denied an lawful reasons. See 424 U. at 773 n. S., 32. supra, District Court II-A, Part we have held that Appeals finding in error in
and Court of were not practice proved systemwide pattern had Government part company. ethnic on the of the of racial and post-Act appli every minority group therefore, On remand, position presumptively for a will be entitled cant line-driver subject showing by company to that its earlier relief, job place applicant refusal in a line-driver was policy on its based of discrimination.50
B re- “qualification date” formula for Appeals’ Court distinguish employees who lief did not between incumbent III-B, are Nonapplicants discussed Part infra. jobs initially applied Employees and were hired in who for line-driver Act, apply jobs date of the and who did not later the effective other before group jobs, part nonapplicants are for transfer line-driver discussed infra. 50 Any justification by company nondiscriminatory offered will be purported subject evidence the Government reason further rejection pretext applicant’s fact a for unlawful for an discrimina Douglas Corp. Green, S., tion. McDonnell 411 U. 804-806. *33 applied had for line-driver jobs and those who had not. The appellate court held that where there has been a showing of classwide discriminatory practices coupled seniority a system perpetuates that the effects of that discrimination, an individual member of the class need not show that he unsuc- cessfully applied for the position from which the class had been In excluded. support of its award of relief to all non- applicants, the Court suggested practical that “as a matter . .. a member may of the affected class well have concluded that an application for transfer an all position to such White was [line not worth the candle.” driver] 517 F. at 320. 2d, The company seniority contends that a grant of retroactive to these nonapplicants is inconsistent with the make-whole purpose of a Title VII and remedy impermissibly require will to company give preferential to treatment solely because their race. The the company’s thrust of contention actually is that unless minority-group employee applied for job, a line-driver either initial hire for or for injury he has suffered transfer, no from whatever discrimina- tion might have been involved of such jobs refusal actually applied those who for them. argues response
The Government that there should be rule” nonapplicants no “immutable that are nonvictims, nonapplicants contends that determination whether have vary necessarily unlawful will suffered from particular depending on the circumstances of each case. specific further that under the facts Government asserts correctly Appeals Court of determined that all case, likely nonapplicants were victims and therefore qualified entitled to relief. presumptively whether relief be awarded question may Franks, open by left our since nonapplicants was decision that case limited “identifiable the class at issue in . . . after the were denied effec- applicants who of Title VII.” at 750. We now S., date tive ... employee’s decide that an incumbent failure to apply joba is not an inexorable an seniority. bar to award retroactive nonapplicants Individual must be given opportunity they undertake their proving difficult task should as applicants treated presumptively therefore are entitled accordingly. to relief
(1) Analysis problem premise of this must begin with the scope powers of a district court’s under remedial Title VII purposes determined Act. Albemarle Paper Co., Co. Moody, Griggs Duke Power S.,U. at 417. again Albemarle, noted a primary Court *34 objective of Title VII prophylactic: equal is to achieve em ployment opportunity and remove the barriers that have operated to favor white employees. male over other 401 U. at S., 429-430; 417. The S., prospect U. at retroactive for relief victims of discrimination serves “ purpose by providing 'spur catalyst which causes employers and unions to self-examine and to self-evaluate employment practices their endeavor to so eliminate, ” far as possible, vestiges’ last discriminatory their practices. Id., An at 417-418. equally important purpose the Act “to make persons injuries whole suffered on account of unlawful employment Id., discrimination.” at 418. determining specific remedies to be afforded, district court is “to such relief as particular fashion cir- may cumstances of a require case to effect restitution.” Franks, 424 S.,U. at 764.
Thus, the Court has purpose held that Congress equitable vesting powers broad in Title VII courts “to possible [ing] the 'fashion make complete most relief [of] ” “ possible,’ and that the district courts have 'not merely the duty power but the render a decree which will so as far eliminate the possible discriminatory effects past as ” well bar like discrimination in the Albemarle, as future.’ supra, 418. More specifically, Franks we decided ordinarily must seniority remedy court award a unless “ there denying reasons for relief if applied exist gen- 'which, would not frustrate the central statutory purposes of erally, eradicating discrimination . . . making persons whole for ” injuries Albemarle, suffered.’ S., at quoting supra, 421. against
Measured these assertion standards, company’s person that a actually who has applied job for a can never be awarded relief prevail. cannot The effects injuries and the suffered discriminatory employment from practices always are not expressly confined to those who were requested employment consistently denied a A opportunity. discriminatory policy enforced surely job applica- can deter tions from unwilling those who are aware of it and are to sub- ject themselves to the explicit humiliation of and certain rejection.
If employer should policy announce his of discrimina- Only” tion a sign reading hiring-office door, “Whites on the his victims would ignored not be limited to the few who sign subjected personal themselves to rebuffs. The same message potential applicants can be communicated to more subtly just clearly by but an employer’s practices— actual *35 by discriminatory appli- his consistent treatment of actual by publicizes the manner in which he re- cants, vacancies, his responses cruitment his techniques, casual or tentative composition and even racial or ethnic of that inquiries, discriminatorily work force from which part of his he has minority groups.51 person’s members of a excluded When 51 far-ranging discriminatory practices subtle effects of have not scrutiny courts, escaped provided of the federal which have relief job designed discourage applications minority-group practices from from g., Transportation See, Co., e. Franks Bowman v. 495 F. 2d members. (CA5) (public 398, advertising), 418-419 recruitment and rev’d on other 747; Gallagher, (CA8) grounds, 315, 424 Carter v. 452 F. 2d U. S. 319 366 for job application not translated into a formal
desire his solely unwillingness engage gesture because of in a futile is much a victim of discrimination as is he who goes he submitting application. the motions of an through In Act, cases decided under the National Labor Relations Albemarle, model for Title VIPs remedial provisions, supra, at 419; supra, at Labor Rela- National Franks, tions rec- and the courts its have enforcing Board, orders, ognized application the failure to submit a futile does person claiming not bar an that he award relief to a activity. denied because of union affiliation 316 S. NLRB Nevada Copper Corp., v. Consolidated an directing 105, this enforced an Board Court order employer to hire, with retroactive benefits, former who had applied newly jobs for available because of employer’s well-known policy of to hire union mem- refusing bers. See In re Nevada Consolidated Copper Corp., N. L. R. 1231. B. when application Similarly, have no would been more than vain gesture light of em- ployer of Appeals Courts have enforced discrimination, Board orders reinstating striking despite workers the failure of individual apply strikers to reinstatement when Edge Meats, strike ended. E. NLRB g., v. Park Sheridan Inc., Corp., NLRB (CA2); P. 2d v. Cast Valley Die Eagle-Picher F. 2d 64 (CA6); Mining v. Smelting & Co. NLRB, 119 F. (CA8). 2d 903 Corp. See also Piasecki Aircraft NLRB, v. Mills, 280 F. NLRB (CA3); 2d 575 Anchor Rome (recruitment); United States Co., v. Jacksonville Terminal 2d, F. qualification (posting job job requirements); vacancies and United 86, Ironworkers, States Local No. Supp. 1202, 1238, 315 F. 1245-1246 (WD Wash.) (dissemination information), aff’d, (CA9). 2d 544 F. may While these preventing measures effective in deterrence they applicants, future persons afford no relief to those who in past jobs discouraged desired but were intimidated by employment discrimination.
367 Co., 228 2d (CA5); F. NLRB v. Lummus F. 2d 377 (CA5). Consistent-with the NLRA several Courts of model, Appeals have held Title VII cases a nonapplicant that can be a victim of unlawful entitled to make-whole when application relief would have a act been useless serv ing only to confirm a knowledge job discriminatee’s that he wanted was him. unavailable to v. 2d Acha F. Beame, 648, 656 (CA2); Trucking Hairston Co., McLean F. 2d v. (CA4); Bing 231-233 Roadway Express, Inc., 485 F. 2d 451 (CA5); United Inc., States v. N. L. Industries, F. (CA8). 2d
The denial of Title VII relief on ground that the claim- not formally ant had applied job from could exclude the Act’s coverage the of victims entrenched forms most gross discrimination. pervasive Victims of discrimina- tion could precisely prac- be denied relief because the unlawful had totally applica- tices been as job so successful to deter A minority tions from groups. per prohibition members se to nonapplicants beyond of relief could reach put thus equity the most invidious effects discrimina- tion —those that extend very hope to the self-realization. per powers se equitable Such on the granted limitation with the manifestly courts Title VII would inconsistent ” purpose complete equity justice’ “historic to 'secur[e] “ duty with the VII 'to a decree of courts Title render cases possible discriminatory will so far eliminate which ” Moody, past.’ effects Albemarle Paper Co. 418. S.,
(2) person’s application conclude failure to submit an To ' job his entitle- inevitably does not forever foreclose for a is a however, relief under Title VII far cry, ment always are to such holding nonapplicants entitled from potential A show he must was a nonapplicant relief. necessarily Because he is of unlawful victim discrimination. *37 job that he was deterred from for claiming applying employer’s discriminatory easy is always his the not practices, burden of that he would proving applied job have for the had it not been for practices. Healthy those Cf. Mt. City Board Doyle, Education v. is S. 274. burden When this of met, nonapplicant of position analogous is a to that an applicant in Part presumption and is entitled to the discussed supra. III-A, presented
The Government contends the evidence it that liability stage case at the of the trial identified all non- applicants “with a fair as victims of unlawful discrimination Appeals’ of of degree specificity,” that deter- and Court en- qualified nonapplicants presumptively mination that are titled to an award of should be affirmed. accordingly In support proof of this contention the Government cites its pattern practice an extended and discrimination as evi- application minority employee dence that an from a for a job would have been a line-driver vain and useless act. It argues nonapplicant further that since the class of discrimi- likely natees is limited to incumbent it employees, is every class member was aware of the futility seeking a line- job was filing driver and therefore deterred from both an ini- followup application.52 tial a employees incumbent is said serve limitation to also the same job applications providing
function that actual in Franks: served means distinguishing minority minority group members of the excluded from public large. incumbency members of the While is true that applications this case and actual in Franks both serve to narrow what might impossible task, otherwise be an the statuses of nonincumbent applicant nonapplicant substantially. incumbent differ The refused clearly applicants opportunity they sought, in Franks had been denied only pursuant issue to resolved was whether the denial practice. proved discriminatory claim, Resolution the nonapplicant’s however, requires two distinct determinations: that he applied would have he discriminatorily but for discrimination and that would have been rejected applied. incumbency he The mere fact of had does not resolve agree. scope
We While the and duration of cannot company’s discriminatory policy can leave little doubt the futility seeking jobs line-driver was communicated to company’s minority employees, that itself insufficient. prospect discriminatory rejection The known shows jobs may who wanted been line-driving have applying deterred from It them. does not show which of *38 nonapplicants actually pos- the wanted such which jobs, or requisite qualifications.53 sessed the There are differences city- jobs.54 between and line-driving example, but the desirability of the latter is so self-evident as to warrant not prefer a conclusion that all to be drivers employees would line if given a free choice.55 a substantial number of white Indeed, issue, although may support nónapplicant’s the it tend claim to first to driver, willing competent he the extent that it shows was to work as a drivers, was familiar with the of line etc. An incumbent’s tasks he job certainly applied for a claim that he would have line-driver would be plausible general superficially more than a similar claim a member of the public may industry trucking who never have worked in the heard of or company prior the suit. to purpose nonapplicant’s proof as the will be Inasmuch burden of applicant, that his is to establish status similar to that of the he must bear quali coming the burden of forward with the information his basic about Franks, presented application. he fications that would have As supra, III-A, and in accord with Part the burden then will be on nonapplicant that the employer to show nevertheless not victim employer example, might discrimination. For show that there were qualified other, persons more particular who would have been chosen for a vacancy, qualifications nonapplicant’s that the stated were insufficient. Franks, S., See 773 32. at n. sought theOf for whom the Government transfer to line- jobs, driving nearly city-driver positions. one-third held company’s generally annually line drivers earned its more than city drivers, $1,000 $5,000 but the differencevaried from under more than to depending year. on the terminal and city In 1971 drivers at two terminals, Francisco, substantially California “LOS” and San earned more than line drivers at those In earnings, terminals. addition to line advantage required being have the drivers not to load and unload their subjected company's city who were not to dis- drivers apparently criminatory practices content to retain their city jobs.56 argues evidentiary to fill this Government order gap, current into a nonapplicant's willingness
that a to transfer An job. his position past confirms desire for the line-driver employee's response to the court-ordered notice of his entitle- demonstrates, according argument, ment relief57 City drivers, however, regular working hours, not trucks. have are required spend periods away family, do extended from home and long-distance driving speeds. high face not the hazards As the Gov- acknowledged argument, jobs “parallel”— ernment are some sense job may prefer may prefer one and some some another. generally jobs Court found
The District that line-driver “are considered jobs.” driving finding challenged most desirable That here, we no see reason to disturb it. We observe city driving and line differences between were not can said such that minority employees confidence that all free from the of dis- threat criminatory give up city driving. treatment would have chosen for line *39 futility application, In the Appeals addition to the Court of seems to minority seniority employees’ have relied on the accumulated in non-line- concluding positions unlawfully driver nonapplieants that had been de applying. 2d, adopts terred from See 517 The at 320. F. Government theory here, arguing nonapplicant that a who has time accrued the at company unlikely applied would be to have for transfer because he would competitive have had to forfeit all his seniority job security and the with it. II-B, supra, went view of our conclusion in Part argument from supports nonapplicant’s detracts rather than a entitlement relief. To extent to the that an by incumbent was deterred applying from competitive his desire to seniority, retain his simply he did not a want job requiring line-driver him to start the at bottom the “board.” Those nonapplicants apply who did they not for unwilling transfer because give acquired up previously seniority to their only suffered from a lawful imposed employees deterrent on regardless all ethnicity. of race or nonapplicant’s remedy solely in such relief, any, cases limited to the if may which he to be entitled because of discrimination he encountered the aat time when he wanted to take starting job. line-driver 57The District required Court’s final order company the notify each minority employee of the relief he was entitled to employee claim. The employee job would have he sought
the a line-driver when to fill for qualified first became his of the one, knowledge but company’s discriminatory policy. falls assumption
This short of satisfying appropriate employee An proof. burden who transfers line- into a normally placed bottom unit is at the driver being “board.” He is thus laid off jeopardy must, suffer best, through period bidding at initial on supra, desirable See Non- 343-344, least runs. and n. 25. hoc applicants accept who chose to appellate post court’s would enter the unit with invitation, line-driving however, seniority dating they retroactive from the time were first A qualified. accept job bid willingness security and power by ding seniority says afforded retroactive little about employee previously what choice an would made he have had given opportunity freely been to choose a line- starting job. may many nonappli driver While it be true that of the applied cant desired and would have line-driver for for jobs knowledge company’s but their of dis policy carry crimination, proof, the Government must its burden of specific respect to each individual, the remedial hear ings to be conducted Court District on remand.58
C remaining task the District Court on remand one. simple will court will have Initially, make a substantial number of individual determinations deciding minority employees which of the were actual victims required indicate, days, willingness within 60 accept then his the relief. Appeals, qualifica- of the Court of Under decision relief would be *40 seniority. tion-date convincing proof While the be most would some overt act as a such application may a pre-Act job, for line-driver the District find Court employee’s inquiry, expression of an informal interest, evidence or even unexpressed question and convincing. desire credible is a one factual by judge. determination trial company’s discriminatory practices. After the victims have been the court nearly as must, possible, identified, “ 'recreate the conditions and relationships would have ” Franks, been had no’ there been unlawful discrimination. process S., recreating at 769. This past will necessarily degree of approximation imprecision. involve a Because the may class of victims include some who did not apply for line-driver as well jobs did, as those who and because minority more employee than one may have been denied each line-driver the court will vacancy, required be to balance the equities minority employee’s each in allocating situation the limited number discriminatorily vacancies that were refused to members. class after victims have been identified and their
Moreover, rightful place again District Court determined, will be with the task of adjusting faced delicate the remedial interests the legitimate expectations discriminatees and of other employees any wrongdoing. prejudgment innocent consent n. supra, decree, company see and the Gov- agreed minority ernment employees would assume positions line-driver that had discriminatorily been denied to by first-priority them a exercising right job vacancies at the company’s terminals. decree did not determine what vacancy, constituted a but in its final the trial court order “vacancy” any position defined to exclude that became avail- while laid-off employees awaiting oppor- able there were an tunity to Employees layoff return to work. given on preference to openings fill whatever occur at might their ter- three-year they minals during period after were laid off.59 59Paragraph (a) provided: trial court’s final order ‘vacancy’ Order, “A opening as used in shall include which is by promotion position bargaining caused transfer or to a outside the unit, death, resignation discharge incumbent, final or of an operations where, ordinarily, increase or business additional vacancy put A work. shall exist where would there are laid employees on the roster opening off where the occurs. Such laid *41 Appeals rejected preference the and that all The Court held temporary” but vacancies were to “purely according be filled as employee’s seniority, to an whether a member the class positions employees preference off shall fill such have a to laid off when again open competition granted become from individuals these without the However, layoff relief in case. if such continues for three consecutive years position right will be deemed as with the of all 'vacant’ concerned compete position, using seniority dates, respective including to for the their provided for in those this Order.” three-year right apparently court’s a trial use of recall is derived provisions collective-bargaining agreements.
from in the Article 5 of the Freight Agreement (NMFA) Master seniority National establishes the “ rights employees by Agreement. 5, eniority covered Under Art. [s] rights employees prevail Seniority only by for shall .... be shall broken discharge, voluntary quit, layoff.” (3) year a than three 1. more [or] § three-year layoff provision evident, As is the NMFA determines employee seniority; when an all shall of his lose accumulated does not layoff Subject the order of determine either or order of recall. to NMFA, 2, §2, other seniority terms Art. which extent to “[t]he applied procedures shall be application” as well as the methods and of such Supplemental Agreements. left 5, are Art. 1. The Southern § Supplemental Agreement, Conference Area Over-the-Road covering fine Conference, complete drivers in the Southern provides also for a loss of three-year seniority rights layoff, 42, 1, after a provides and Art. further § that in the event of a “the employee reduction force last hired shall be again laid off first and when increased, the force employees are returned work in off,” order in reverse which laid they were Art. §3. layoff recall, order of however, by This and is limited the NMFA in at involving employees least two situations an influx of outside ter- from (a)(1) (merger minal. (b)(2) Art. with company), a solvent §3 §5 (branch closing operations branch). transfer to another In these provides cases “dovetailing” rights the NMFA seniority of active Ibid.; laid-off two facilities involved. also see NMFA, Military (honoring Art 15 1967). Selective Service Act recognizes “questions NMFA accrual, interpretation also applica- seniority rights may tion of arise general which are not covered forth,” provides rules procedure set for resolution of unforeseen seniority problems. 5, 7. Presumably persons Art. applies claim- § discriminatory ing jobs denial of violation Art. layoff. driver against or an incumbent line on discriminated *42 517 F. 322-323. at 2d, com- final contention the the concerning remedy,
As their correctly pany union that the made argue and the trial court the discrim- adjustment competing the between interests of to laid- employees by preference other a granting inatees and off Court in disturb- Appeals of erred and the employees, petitioners it. of ing The therefore the reinstatement urge part of trial court’s final the rate pertaining order to at which places victims will in line- rightful assume their hierarchy.60 driver not
Although directly by controlled the extent to Act,61 prohibits employees hiring which discrimination in as well as classification of deprive opportunities so them of race or of on account origin. 29, supra. national apparently See n. Court did not District provisions employees consider rights these when it determined recall layoff. on petitioners challenge their briefs also the trial modifica court’s tion rights of the interterminal transfer of line drivers in the Southern 10, supra. question presented in Conference. See This either n. petition properly for and is not Court’s certiorari therefore before us. This (l)(c). disposition however, Rule 23 Our presented, the claim that is permit will trial part court to of the balance it struck any reconsider dealing in this issue. petitioners argue permit that to a to use victim discrimination rightful-place job his on to bid a before recall of line-driver layoff all employees on preference would amount to a racial ethnic (j) (j) provides violation support of the Act. Section 703 no §703 argument. provides require VII an It Title does not employer preferential grant group rectify treatment order to composition imbalance employer’s between the of the work and the force large. makeup population supra. See n. To allow identifiable- victims of participate layoff unlawful discrimination to in a recall is not “preference” prohibited by kind (j). If a discriminatee is §703 ultimately position a secure driver, before laid-off allowed line question decide, we do not now he will power do so bidding because of the rightful-place seniority, inherent in his and preference not because of a expectations which of nonvictim legitimate rightful should determine when victims are restored to their place .In principles equity. devising limited basic remedies no in for- implementing VII, under Title less than mulating any equitable a court on the must draw decree, “qualities mercy practicality equity have made [that] adjustment the instrument for nice and reconciliation between public private interest and needs as well as between com- claims.” Hecht Co. Bowles, peting private 321 U. S. Dodge NLRB, Phelps Corp. 329-330. S., Cf. 313 U. 195-196, B. modifying (CA2); 2d 202 19 N. L. R. F. Franks, 600; con- S.,U. at 798-799 (Powell, J., part dissenting curring part). Especially when *43 implementation equitable remedy of threatens immediate upon expectations parties, to of innocent the impinge the practical courts must “look realities and necessities the in inescapably reconciling competing interests,” involved in necessary, blend “special order to determine the of what is Kurtzman, Lemon is fair, what what workable.” and (opinion J.). S. 200-201 U. C. Burger, we Because facts now in the decline limited record, did to strike the balance in this Court. The District Court explain why it subordinated interests of class members the on expectations employees to the contractual recall of other layoff. it made it was determination, however, When considering minority employees, a class of more than 400 all preference been in line- granted filling whom had some vacancies. The of these were overwhelming majority driver in the District of those three, composed Court's subclass nor employees respect to whom neither the Government presented any specific ques- on the company had evidence court consid- Thus, tion of discrimination. when the unlawful “vacancy” problem ered the of what constituted a line-driver Franks, (Powell, concurring S., J., at 792 based on race. U. See part dissenting part). and may it
to be to class have influenced members, offered been by relatively proved small number of victims it no large minority employees number of whom had about Appeals information. other On the the Court of rede- hand, fined “vacancy” the context of what it believed be a class employees more had from actually than who suffered both company and the behest may its determination well influenced have been union, understanding. For in this the reasons discussed opinion, concept completely neither court's valid. evidentiary
After the on hearings be conducted remand, both the composition minority size and the of the class employees may substantially. entitled relief be altered hearings Until those num have been conducted both ber of identifiable victims and consequent extent neces sary relief been possible have is not to evaluate determined, abstract concerning equitable claims that should balance be struck statutory rights between of victims and the contractual rights employees. of nonvictim That determina tion is best in the left, instance, equitable first to the sound discretion of the trial court.62 Franks Bowman Trans See portation Co., supra, Moody, 779; Paper Albemarle Co. v. 422 at 416. S., We observe that when court exer cises its dealing problem discretion with the laid-off *44 light developed hearings in on the facts at the clearly meaningful remand, should state its reasons so that may Franks, 774; review had on appeal. supra, be See at supra, Paper Moody, Albemarle Co. v. at n. 14.
For all the reasons we have the the judgment discussed, Appeals Court of is and the cases are remanded to the vacated, victims, factors, such the number of Other the number of non- them, alternatives available and the victim affected industry may also be economic of the in the exer circumstances relevant Franks, supra, See at cise of the District Court’s discretion. 796 n. dissenting concurring part). in J., part (Powell, District this Court further proceedings consistent with opinion.
It is so ordered. Mr. Justice Marshall, whom Mr. Justice Brennan joins, concurring part and dissenting part.
I agree with the Court that proved the United States petitioner that T. I. M. E.-D. guilty pattern of a C. practice discriminating against Spanish-surnamed blacks and Americans in I hiring line drivers. also that agree incumbent minority-group employees who show they applied that for a job line-driving they or that would applied have but for the company’s unlawful acts are presumptively to the full entitled measure of relief set forth in our decision Term in Franks last Transportation Co., Bowman I 747 (1976).1 But S. agree do not that Title VII permits petitioners Negro to treat Spanish-surnamed line drivers from other differently who were hired the company drivers at the same time sim- ply because the former prevented by company drivers were acquiring seniority from over I the road. therefore dissent stating nonapplicants they In proving that the task face in should that “difficult,” ante, applicants be treated like I understand simply addressing may Court be the facts of case. There well be jobs clearly nonapplicants cases in which that seek are so more present jobs proving employer’s desirable than their but for the nonapplicants applied discrimination the would previously have will anything but difficult. case, present however, unnecessarily
Even in the I believe the Court nonapplicants’ agree adds proof to the burden. I While nonapplicant’s willingness accept job is not current line-driver dispositive question company’s discrimination deterred whether nonapplicant applying past, agree from I do not that current willingness “says little,” ante, my past see willingness. about questions view, concerning we would do well to leave of this sort weight given particular pieces courts, to be of evidence to district attempting through rather than overly resolve them broad and ulti- mately meaningless generalizations.
378
from aspect holding, of the Court’s and from the limita- scope remedy tions on the that follow from it. quite properly ante,
As 349-350, the Court acknowledges, seniority provision clearly at issue here would Title violate 42 VII absent 703 2000e-2 which ex- (h), § § S. (h), C. empts seniority systems at least from the reach some prohibits “classify [ing] Act. Title from his employer VII any way deprive or tend to which would ... other- deprive any employment opportunities individual adversely because of employee, wise affect his as an status origin.” such sex or national race, color, religion, individual’s V). “Under Supp. 42 (a) (2) (1970 ed., 2000e-2 § U. S. C. face, on their procedures, or tests neutral Act, practices, maintained intent, and even neutral cannot be terms if discriminatory they quo prior operate to the status ‘freeze’ Co., Power 401 Griggs v. Duke U. S. employment practices.” seniority sys- Petitioners’ (1971) (emphasis added). 430 other jobs precisely tem does that: it awards choicest seniority—which, possessing those benefits to credential — Spanish-surnamed past discrimination, blacks and due to acquiring. Consequently, prevented from employees were segregated under the old “[e]very Negro worker hired time the old job in his system against slot, bids a white worker Negro suffers anew and the itself, racial classification reasserts Paper Local United previous bias.” employer’s for his States, United 2dF. Paperworkers makers & v. (1970). 397 U. denied, cert. S.
(CA5 1969) J.), (Wisdom, understatement, a touch of concedes, also the Court As seniority systems immunize (h) does not “the view much has prior the effects perpetuate single dissent, Ante, 28. Without a at 346 support.” n. cases,2 held in over 30 and two Appeals have Courts of so six Bethlehem United States (CA2 1976); Beame, F. Acha 2d Corp., (CA2 1971); Nance v. Union Carbide Corp., 446 F. 2d 652 Steel Patterson pending, 76-838; 1976), 76-824, Nos. (CA4 cert. 2d 718 540 F.
379
agreement,
Appeals
also
their
indicated
have
other Courts
Equal
unbroken
cases,
line
without dissent.3
Employment
Opportunity
reached the same
has
Commission
denied,
Co.,
(CA4),
U. S. 920
F. 2d 257
429
Tobacco
535
cert.
v. American
(CA4
Co.,
1975), cert.
American
2d 357
(1976);
Tobacco
528 F.
Russell v.
Trucking Co.,
2dF.
denied,
(1976); Hairston v. McLean
520
I at 346 n. with the results & conclusion.4 And the overwhelming weight scholarly- opinion is in accord.5 Yet for the second time this see Term, Gilbert, General Electric Co. S. (1976), major- ity of this Court overturns the unanimous conclusion Courts of EEOC Appeals concerning and the scope I again, respectfully disagree. VII. Once Title Quarles today’s number of the line cases can survive decision. That *47 system rational, industry in accord with prac- instant “is tice, precedents [,] . . genesis . consistent with NLRB . . . did not have its discrimination, negotiated in . . and and . was has been racial maintained any illegal ante, 356, distinguishes purpose,” free from the facts of this many prior case from those in decisions. 4 Empl. (1976) ¶¶6481, 6448, 6441, 6400, 6399, 6395, Prac. CCH Guide 6382; (1973) ¶¶6373, 6370, CCH 6366, 6365, 6355, 6334, EEOC Decisions 6313, 6272, 6217, 6214, 6211, 6197, 6195, 6188, 6169, 6223, 6176, 6044. Equal
5 Blumrosen, Seniority Employment Opportunity: A & Glimmer Hope, (1969); Rutgers Cooper Sobol, Seniority 23 L. Rev. 268 & and Testing Employment Approach Objective Under Fair A Laws: General Promotion, of Hiring (1969); Criteria and Harv. 82 L. Rev. 1598 Fine: Seniority Minority Employees: Plant and on Layoffs, Title VIPs Effect 47 (1975); Seniority L. Gould, Colo. Rev. 73 and Black Worker: Quarles Implications, (1969); Reflections on and its 47 Texas L. Rev. 1039 Economy: Poplin, Depressed Layoff Fair Employment Problem, in a The (1975); Ross, 23 Reconciling Seniority UCLA L. Rev. 177 S. Plant University, Anti-Discrimination, Affirmative Action and New York Twenty-Eighth (1976); Developments Annual 231 Conference on Labor Employment and VII of Rights Discrimination Title the Civil Law— 1964, (1971); Act of Comment, 84 Harv. L. Rev. 1157-1164 Last Questions Hired, Seniority, Layoffs, Liability First Fired and Title VII: Remedy, and (1975); Note, 11 Colum. J. Law & Soc. Prob. 343 The Hired, Seniority Remedy Problem of Last First Fired: as a Retroactive VII, (1975); Note, Hired, Title 9 Under Ga. L. Rev. 611 Last First Fired Layoffs VII, and (1975); Note, VTI, Title Harv. 88 L. Rev. 1544 Title Seniority Discrimination, Negro, and Incumbent 80 L. 1260 Harv. Rev. (1967); Comment, Seniority Systems: Title VII Back to Foot Ky. Comment, the Line? 64 L. (1975); Layoffs Rev. 114 and Title VII: Equal Seniority Employment Opportunities, Conflict Between 791; 1091; (1968). L. Rev. 1969 Duke L. Wis. J. N. C. L. Rev.
I Initially, important it is bear mind that Title VII is a designed remedial statute to eradicate certain invidious em- ployment practices. against evils which aimed are broadly: defined “to fail discharge ... to hire or to or ... otherwise to discriminate . . respect compensa- . with . . . tion, terms, conditions, or privileges of employment,” limit, “to or classify segregate, way . . which would . or deprive deprive any employment op- tend individual of otherwise portunities adversely status.” his affect added). (1970 Supp. V) (emphasis U. C. (a) ed., S. 2000e-2 carves out from broad (h) exemption Section these Accordingly, longstanding principles prohibitions. under liberal “be statutory given the Act should construction, sweep should from its exemptions . interpretation . . [and] remedy intended.” limited to narrowed and effect ICC, 311-312 R. 286 U. & Northern v. S. Piedmont Co. States, & Co. United Spokane Inland R. see also (1932); Dickson, 15 Pet. (1916); United States 241 U. S. *48 that J.). system (1841) (Story, seniority Unless 141, unmistakably “plainly and falls perpetuates Inc. (h), Phillips, A. spirit" of 703 H. § and terms within [the] system should 490, (1945), Walling, S. 324 U. may be I else submit that whatever unprotected. deemed systems perpetuate applicability its to section, of the true unmistakably” clear. “plainly not and discrimination is past sup- clear anything (h) provides but language §of per- holding. provides, section That for the Court’s port part: tinent for practice employment be an unlawful not shall
“[I]t compensation, standards apply different employer to privileges conditions terms, or different system provided seniority . . . . fide . . bona pursuant result an intention are not such differences discriminate race, color, because religion, sex, or na- origin tional . . (Emphasis added.) .
In this case, however, “privileges different employment” n for Negroes Spanish-surnamed on Americans, the one hand, and for all on others, produced by the other hand, petitioners’ seniority system are precisely prior, the result of intentional assigning jobs; discrimination in but that dis- Negroes crimination, Spanish-surnamed Americans would system. not be disadvantaged if by Thus, proviso read literally, squarely thereby instant case it, falls within rendering (h) inapplicable. § 703 To avoid result is compelled pro- Court proviso reconstruct to read: a seniority system vided that such “did genesis not have its racial discrimination, and been negotiated that was and has Ante, maintained any illegal purpose.” free from at 356. are explicit legislative history There no statements in the Title VII this radical reconstruction warrant of the proviso. placed Congressional The three documents in the by Record concerning Senator Clark all were written many before the con- weeks Mansfield-Dirksen amendment taining (h) they Accordingly, introduced. do im- specifically meaning proviso.6 discuss the More Transpor quoted documents, Franks v. Bowman The three in full Co., 759-761, tation 747, (1976), part 424 U. nn. 15-16 and in S. substantial ante, decision, 350-351, today’s (1) at and n. are the Clark-Case Memorandum, Interpretive Cong. (1964); (2) 7212-7215 Rec. Hill, id., Reply Arguments by 7207; Department Justice Made Senator at id., (3) Response Memorandum, Senator Clark’s to the Dirksen They placed Congressional April 8, 7216-7218. were all in the Record of during but were not read aloud debates. Mansfield-Dirksen Id., May presented amendment was Dirksen on Senator 1964. *49 11926. general during
A were made few statements also the course of concerning impact seniority, debates Title VII’s on but these statements id., nothing analysis add to the contained the documents. See at 1518 id., (Rep. Cellar); (Sen. id., Humphrey); at 6563-6564 none of portantly, general prob- the documents addresses the seniority systems lem of perpetuate that discrimination. Congress Not sub- surprisingly, simply did not think such enacting tleties in pathbreaking Rights Civil comprehensive, my unambiguous Act.7 To is dispositive. Absent mind, statutory language legis- or an authoritative in the statement history systems past lative legalizing seniority that continue (h) I do not how it be wrongs, see can said that exemption “plainly unmistakably” applies.
II I Even can agree properly if were to this case I Congress’ intent, decided on the as basis inferences my. still In accept holding. view, could the Court’s legislative history sup- Rights of the 1964 Civil Act does not port Congress legalize the conclusion that intended to systems perpetuate discrimination, and administrative positively refute that legislative developments since 1964 conclusion. A per- uphold seniority systems that Court’s decision seniority systems petuate post-Act is, discrimination —that be- Spanish-sumamed Americans who Negroes treat though, new even after come line drivers as discriminatorily persons VII, effective date Title these they senior- city-driver jobs where accumulated assigned to 30. Ante, n. at 348 single in a footnote. explained ity—-is Lines, Inc. Air on United entirely almost footnote relies That id., id.., (Sen. (Rep. Keating); at 15893 (Sen. Kuchel); at 9113 McCulloch). prior acknowledged Congress its own amending Title inYII naiveté: series to be viewed tended 1964, employment “In part events, on most due ill-will distinguishable for the isolated and Experience has organization. . . . part individual or identifiable some (1971). 92-415, p. Rep. S. No. to be false.” shown this view (1971). 92-238, p. 8 Rep. H. See R. No. *50 Evans, post, p. 553. But like the instant decision, Evans is any analysis legislative
devoid history of the of 703 (h); § simply a asserts its conclusion in single paragraph. For the Court to- base its decision here on strength of Evans is sheer bootstrapping.
Had objectively the Court legislative examined the history, it would have been compelled reach opposite conclusion. just As we stated last Term, “it is apparent that the thrust (h)] is directed defining [§ toward is what and what is illegal not an discriminatory practice in instances which the post-Act operation of seniority system a is challenged per petuating the effects occurring prior of discrimination to the date Transporta Act.”8 Franks Bowman effective Co., tion S., at 761 (emphasis added). Congress with seniority expectations prior concerned developed had to the expectations arising enactment Title not with VII, thereafter to the depend extent that those expectations on ent whites benefiting from Thus, unlawful discrimination. paragraph Interpretive Clark-Case Memorandum dealing seniority systems begins: seniority
“Title VII would have no effect -on established rights. Its prospective retrospective.” and not effect Cong. added). (1964) (emphasis Rec. 7213 Similarly, Department Justice memorandum that Senator explains: Clark introduced seniority
“Title VII would have no effect rights on exist- the time it ing example takes If, for collective effect. provides bargaining lay- contract the event those who were hired last must be laid off such offs, first, provision would not be affected title ... VII. This understanding (h) underlies Franks’ holding This con presumptively remedy discriminatory correct structive is the hire, though awarding seniority necessarily disrupts even such refusals to expectations employees. of other would be true even in the owing case where to discrim- prior ination to the title, date white work- effective *51 ers had more seniority Negroes than Any .... differ- ences in treatment based on established seniority rights would not be based on race and would not be forbidden by Id., the title.” at 7207 (emphasis added).
Finally, Senator prepared questions pro- Clark’s answers to pounded by Senator Dirksen stated:
“Question. If an employer is directed to abolish his list because of discrimination happens what seniority? to The bill retroactive,
“Answer. not is and it will not require an employer to change existing seniority lists.” Id., (emphasis added).
For ignore the Court to history while conclu- reaching contrary sion to it is little short remarkable.
B legislative history (h) admittedly 703§of affords some- stronger support respect what conclusion for the Court’s seniority systems perpetuate pre-Act to that discrimination— seniority systems Negroes Spanish- that is, that treat surnamed line new em- Americans who become drivers as though discriminatorily even ployees persons these seniority assigned city-driver jobs they to where accumulated enacting (h), before the effective date of Title VII. senior- Congress protection intended to extend at least some to ity developed prior had date expectations that the effective to legislative history very Act. clear that the But the seeking to only expectations Congress to these was threat that seniority. Congress was fictional did nonremedial, avert minority group members who were hired after effec- want given superseniority simply be date of the Act to because tive minority groups, nor did they were members it want the disparate to be invalidated whenever had a use impact newly on minority employees. hired These are the evils —and the opponents evils —that of Title VII raised9 and Interpretive the Clark-Case Memorandum addressed.10 As “there acknowledges, Court seems explicit legislative history no reference pre-Act dis- Ante, already employed jobs.” criminatees less desirable at 354.
Our task, then, assuming properly still the case can on imputed legislative be decided the basis of intent, put is “to the question, likely ourselves which choice is it the more Guggenheim, Burnet Congress made,” would have seniority rights The most detailed attack on Title effect on VII’s minority report Judiciary Report, voiced House Committee *52 (1963): Rep. Cong., H. R. No. 88th 1st Sess. destroy provisions grant power “The this act to union senior-
ity. destroy . . which . extent actions would be to taken [TJhe seniority system is unknown and unknowable. power granted bill, carpenters’ in hiring hall, "... Under the if a say, awaiting call, had men in being 20 'the 10 white first car- penters, pass carpenters the union could be forced to them over in favor of seniority, stipulated Id., beneath them in but (emphasis race.” at 71 original). in opponents Senate the bill who discussed its effects on workers
generally line, although principal argument followed this advanced in require the Senate preferential hiring was that Title VII would minor- Cong. (1964) (Sen. (Sen. ities. See 110 Hill); id., Rec. 487 at 7091 Stennis); (Sen. Russell). id., at 7878 10The Clark-Case Memorandum states:
“Title seniority rights. VII would have no effect on established . . . Thus, example, if discriminating past a business been has and as a force, working result has an all-white when the title into effect the comes employer’s obligation simply would be to fill future on nondis- vacancies criminatory obliged indeed, permitted basis. He would not be fire —or —to to Negroes, prefer Negroes vacancies, whites in order hire toor for future or, Negroes hired, once give special seniority are rights to them at the expense Id., of the white workers.” at 7213. remaining documents, 6, supra, generally, phrased see while n. more entirely
are consistent with the of Senators Clark and Case. focus
387 U. S. (1933) (Cardozo, had J.), prob- it focused on the lem: would it have seniority sys- validated invalidated tems perpetuate pre-Act discrimination? To answer that question, devastating impact of today’s holding validating such systems must be fully understood. Prior to 1965 blacks and Spanish-surnamed Americans who were able find em- ployment assigned the lowest paid, jobs most menial many throughout industries the Nation especially but in the many South. factories, blacks were hired laborers while whites were trained and skilled given positions; the trans- portation industry blacks could porters; become and in plants steel assigned blacks were to the coke ovens blast ing "the hotter furnaces, places and dirtier” employment.13 The Court holds, essence, while after 1965 in these cumbent are entitled an equal opportunity more jobs, advantage advance to desirable to take op they portunity pay price: they must must surrender the seniority they have accumulated in jobs. their old Por many, they be too price will will high, be locked into their previous positions.14 willing pay price Even those will Goodyear g., Co., & (CA5
11 E.
Johnson v.
Tire
Rubber
F.
2d 1364
1974);
Industries, Inc.,
(CA8
States
N. L.
1973);
United
v.
12 E. g.,
Co.,
(CA5
Bus
1974);
In incumbent discriminatees who jobs, however, (h) assumes refused Court 703 must mean that § group given need seniority they the latter not be constructive if are (h), however, later hired. The clear effect of prevent is to §703 388 to reconcile being
have themselves forever behind subse- hired whites who were not quently discriminatorily assigned. equal opportunity Thus will remain a distant dream for in- all employees. cumbent
I nothing am aware of legislative history of the 1964 Rights Civil Act suggest Congress if on had focused this fact it nonetheless would have decided to write off an entire generation of I minority-group employees. Nor can Congress believe that that enacted Title VII would have agreed postpone generation one the achievement of equality. economic backers that Title viewed eco- equality nomic practical necessity as both a and a im- moral perative.15 They impact were well aware corrosive employment on has its and on victims, society generally.16 They “to sought, therefore, eliminate discriminatory practices those and devices which have fostered racially job stratified disadvantage environments to the minority citizens”; Douglas Green, McDonnell Corp. 411 v. 792, (1973); Griggs Co., S. 800 see U. also Duke Power v. 401 S., 429-431; Co., at Alexander Gardner-Denver 415 36, (1974); 44 persons injuries U. S. and “to make whole for suffered on account of unlawful discrimination,” Paper Moody, Albemarle Co. v. 422 U. (1975). 405, S. were persons against obtaining special who discriminated from supra, they minority rights groups. because are members of See at 385- 386, Although true, ante, notes, 354-355, and n. 10. it is as the Court at Quarles Papermakers and United 40, n. the courts concluded that jobs prior persons given refused Act seniority, to the need not be fictional EEOC, (1973) 6217, CCH EEOC commentators, Decisions ¶ several g., Cooper Sobol, supra, 5; Note, supra, e. 5, & n. Rev., n. L. Harv. rejected 1544, conclusion, have and more recent decisions have g., questioned it, e. Workers, Watkins Steel (CA5 1975). F. 2d 41 g., See, Cong. (1964) (remarks e. ; Rec. 6547 Humphrey) of Sen. id., id., (remarks Kuchel); (remarks Sen. at 7203-7204 of Sen. Rep. Clark); Cong., Sess., (1963). H. R. No. Pt. 88th 1st 26-29 supra. sources cited in See n. *54 short, wanted Congress to enable black workers to assume rightful place their society.
It is, course, Congress true willing to in- seniority systems validate aon in pursuit wholesale basis goal.17 But the United States, plaintiff suing the on behalf of minority incumbent group employees here, does not seek petitioners’ to overturn seniority system. It seeks to have actually the “time worked [minority group] jobs [recognized] as equal majority group’s] time,” [the Local Papermakers United & Paperworkers v. United States, F. 2d, within existing seniority system. Admittedly, recognition such would on impinge expectations white employees had developed prior to the effec- tive date of Act. enacting Congress But VII, Title willingness manifested a do precisely For example, that. Interpretive the Clark-Case see n. Memorandum, 6, supra, prohibits makes clear that Title VII employers unions and from using discriminatory waiting developed prior lists, to the effective in making jobs date Title, selections training after programs Cong. that date. 110 Rec. (1964). prohibition necessarily Such would disrupt expectations those on the generally, very lists. More Congress fact that made Title VII shortly effective after its expectations demonstrates that developed prior enactment Act were not passage sacrosanct, considered Title since ban on general VII’s inevitably discrimination pre-existing expectations with the interfered who whites benefiting anticipated from continued discrimination. Thus agreement I complete Judge am in Butzner’s conclusion has As stated: one commentator Congress conflicts with itself. While on the one hand statute did “[T]he seniority rights, on protect established the other it wish to intended integration end, economic expedite into the mainstream and to black all, jacto replaced slavery and for de which at the once supra, Poplin, 5,n. at 191. end of the Civil War.” *55 390 Quarles
in his seminal decision Philip Morris, v. Inc., 279 Supp. 505, F. 516 (ED 1968): “It is apparent Va. . . . that Congress did not intend to freeze an generation entire Negro employees discriminatory into patterns that existed 18 before the Act.”
C If legislative history .of (h) § 703 doubt leaves con- cerning the applicability seniority systems section’s that perpetuate pre- post-Act either that discrimination, doubt entirely dispelled subsequent developments. two I they ignores Court but submit developments; all both are critical. at beginning least in more than a score decisions
First, early 1969, Equal Employment Opportunity Com- as consistently seniority systems per- has held that mission Court discrimination are unlawful.19 petuate prior While Gilbert, 429 may General Electric v. have see Co. retreated, inter- prior 141-142 from view that the (1976), its 125, S.U. “ ” great deference,’ the EEOC are ‘entitled to pretations of Moody, Griggs supra, quoting at Paper 431, Co. v. Albemarle 18 Gould, supra, 5, 1042: n. See also force, integrated bring being work . . . Congress into
“If
intended to
Negro workers, the
plan meaningless to
merely
paper
to create a
and not
requires
past
legislative
on
discrimination is one
acceptable
intent
embodied in
past
out
employers to root
unions and
black
nondiscriminatory
arrangements
so
presently
equal
rights.”
job
workers have
advancement
white
19
4, supra.
cited
n.
See cases
has
a similar conclusion
Labor Relations Board
reached
National
seq.
151 et
Act, 29
S. C.
interpreting the National Labor Relations
enforced,
Workers,
(1964),
769
Local
Electrical
149 N. L. R. B.
(CA3
hiring hall commits
1966),
that a union
F. 2d
the Board held
experience
based on
present
discrimination when makes
acts of
referrals
opportunity
if,
denied
members
past,
in the
the union has
nonunion
Assn.,
L.
experience.
Maritime
168 N.
R. B.
develop
also Houston
See
(CA5 1970).
denied,
Second,
*56
103,
92-261, 86 Stat.
1972,
Act of
Pub. L.
Opportunity
very clear
Congress
In
made
amending
doing,
Title
so
VII.
invalidating se-
lower court
approved
it
of the
decisions
Congress
That
perpetuate
niority systems that
discrimination.
House
the
and
of such cases
evident from
Senate
was aware
is
leading decisions, as
which cite the two
Reports
Committee
Rep. No. 92-
S.
prominent law review articles.
well as several
2
p.
(1971).
8
Rep.
92-238,
No.
n.
p.
(1971);
5 n.
R.
415,
H.
other lower
respect
with
to
Congress took action
Although
made no
dissatisfied,20
it was
with which
opinions
court
both
seniority
To the contrary,
cases.
attempt
to overrule the
''per-
of the
expressed approval
Reports
and House
the Senate
systems21
seniority
and
applied to
principle” as
petuation
section of Title
definitional
Act added to
example, the 1972
the
For
(j) defining
(1970 ed., Supp. V), a
subsection
new
YII,
2000e
42 U. S. C. §
This
“religion” to
formulate
the
Metals
Williams
Cir.
challenged
define
After
Cong.
Equal Employment
1970),
subsection was added
Co., 429 F. 2d
“religion” to
guidelines on
acknowledging the naive
Rec.
Affirmed
include
Dewey
Javits). Dewey
“religious
by
324, 331 n.
(1972) (Section-by-Section
encompass religious
Reynolds
Opportunity Act of
“to
equally divided
had
observance
provide the
Metal
questioned
of the 1964
334-335
assumptions because of
Company, 429 F.
£nd
practices.
court,
statutory
(CA6 1970).
the
practice, as well as belief.”
1972, prepared
Analysis
authority
referring perpetuation to “the mechanics of . . . the of [and] present pre-act discriminatory practices” by Quarles effect of citing and Papermakers. and United 22 Reports Both that governments stated state local and had discrim past in and that “the inated existence discrimination perpetuated is by practices both discriminatory institutional and overt . . . [such as] segregated job de Rep. ladders.” 92-415, supra, 10; S. No. H. R. facto Rep. 92-238, supra, points at 17. No. The same were made in the debate in the House Cong. (1972) (remarks and Senate. 118 Rec. 1815 Sen. Williams); Cong. (1971) (remarks 117 Rec. 31961 Rep. Perkins). 23 Report The Senate stated: expected through “It process, administrative the Commission develop approaches will continue define and to handling serious problems of discrimination are employ- involved in the area seniority . (including systems).” ment . . Rep. supra, 92-415, S. No. at 19. Report argued:
The House tribunals are equipped “Administrative better to handle complicated
393 Conference bill, Committee which was prepared placed and Congressional by managers bill, Record the floor of in “language hardly stated that could explicit,” be more Co., v. Bowman Transportation 21, Franks 424 765 S., n. any “in that, specific contrary areas where a intention is indicated, it present was assumed that the case law . . . would govern applicability continue to construction of Title and Cong. (1972). perhaps VII.” 118 Rec. 7564 most 7166, And important, explaining the section 1972 Act prevent the EEOC “to from empowers any person engaging employment practice unlawful in section as set forth (1970 42 2000e-3,” (a) ed., § 2000e-2 U. S. 2000e-5 C. Supp. V), Section-by-Section Analysis declared: practices by employment encompassed
“The unlawful 704 which in 1964 sections were enumerated by the original expanded and as Act, defined courts, Rec. Cong. remain in effect.” 118 (1972) (emphasis added).24 Con- acts of repeatedly
We have held: “When several subsequent subject matter, passed touching are the same gress interpretation may be considered assist in the legislation subject.” Tiger v. Western legislation upon the same prior Bell NLRB Co., (1911); see Investment U. S. legisla- Co., (1974) (subsequent Aerospace 416 U. S. that have cases. . . . Issues issues involved pro- restructuring pay-scales and perplexed plant-wide include courts supra, 92-238, Rep. testing.” H. R. gression lines, rosters and No. at 10. reference defining powers with By enacting the EEOC’s a new section Act, Congress effectively in 1972 re-enacted 703 and 704 §§ placed upon See gloss that had been them. judicial sections, those and the Statutory 49.10 Construction Sands, Statutes 2A Sutherland’s C. *58 Paper 405, Moody, Co. cf. Albemarle cited; 422 U. S. (1973) v. and cases provision backpay (1975) (finding that re-enactment 1972 of 414 n. 8 awarding backpay to Appeals decisions of 1964 Act Courts “ratified” EEOC). charges not filed had unnamed class members who 394
tion
to “significant
entitled
Red
weight”);
Broadcasting
Lion
FCC,
Co. v.
395
S.,
380;
Stafoff,
U.
United
260
v.
States
480
477,
(1923)
U. S.
J.); New York
R.
(Holmes,
& Norfolk
Co. v. Peninsula Produce Exchange,
(1916)
240
S.
34,
U.
J.);
(Hughes,
United
Weeks,
States
8 (1809).
v.
Only Term, last we legislative concluded that the materials “completely reviewed above argument Con- [answer] gress somehow intended relief to be less available” remedy than backpay as for discrimination. Franks Co., Transportation Bowman supra, any- at 765 21. If n. thing, provide the materials complete even more answer argument Congress to the somehow intended to immunize seniority systems perpetuate past To the discrimination. today’s grants decision immunity extent that such systems, respectfully I dissent.