*1 TECHNOLOGIES, INC., al. v. AT&T LORANCE et et al. Argued March 1989 Decided June
No. 87-1428. *2 Rehnquist, Court, Scalia, J., opinion delivered Stevens, J., White, Stevens, Kennedy, JJ., joined. J., and and C. Marshall, J., dissenting a concurring opinion, post, p. 913. filed a filed Blackmun, post, JJ., joined, p. Brennan 913. in which and opinion, of the case. O’Connor, J., or decision part took no in the consideration petitioners. argued Barry With cause for Goldstein Bridget Chambers, were Julius LeVonne him the briefs on Patterson. Patrick O. Arimond, and argued the cause for the United States A. Shanor Charles urging reversal. With him on curiae et al. as amici Deputy Fried, Solicitor General were General brief Solicitor Young Gwendolyn Ayer, Reams, and Lazarus, Richard J. Donna J. Brusoski. respondents. argued Carpenter
David the cause W. Casey, Lee, Patrick S. him were Rex E. on the brief With Skoning, Hi Gottes Jackson, Michael D. Charles C. Gerald Stephen Weinberg, DAlba, J. man, M. A. Robert Joel * Feinberg. opinion of the Court. delivered Scalia Justice (AT&T), Technologies, Respondent manufac- Inc. AT&T plant. Montgomery products Works at its tures electronics petitioners, have worked women, all whom are The three early facility wage employees hourly since represented by respondent Local been have 1970’s,and Workers, AFL-CIO. Brotherhood of Electrical International competitive hourly wage se- earners accrued Until 1979 all plant, niority exclusively years spent in the on the basis of McDowell, Williams, Douglas E. and Katrina Grider filed *Robert amicus curiae urging Advisory Equal Employment for the Council as brief affirmance. highly promoted
and a to the worker more skilled and better paid positions plantwide seniority. retained “tester” this collective-bargaining agreement by respondents A executed July calculating 23, 1979, on altered manner of tester se- niority.1 seniority Thenceforth tester’s was to be deter- by length plantwide mined not service, time actu- ally spent (though possible regain as a tester it full plantwide seniority spending years five as a tester and completing prescribed training program). present ac- tion from arises that contractual modification. Dur-
Petitioners became testers between 1978and 1980. ing a 1982 economic downturn their low under the *3 agreement collective-bargaining to be caused them se- they lected would demotion; not have been demoted had plantwide seniority place. system in the former remained Claiming present seniority system product that the was the petitioners of an intent to discriminate on the of sex, basis complaints Equal Employment Opportunity filed the with (EEOC) April Commission 1983. After the EEOC issued right-to-sue petitioners September letters, 1983 filed present the lawsuit in the District Court for the Northern sought rep- District of Illinois, and certification as class employees Montgomery resentatives for women of AT&T’s plant plantwide seniority Works who had lost or whom the seeking promotions new had deterred from to tester positions. complaint alleged among hourly wage Their that traditionally positions the earners tester had been held al- exclusively by positions principally men, most and nontester increasing women, but that in the 1970’san number of necessary steps qualify posi- took the women to for tester type seniority seniority,” 1 The issue here is not “benefit “compute noncompetitive is used to benefits earned under contract of Co., Transportation employment,” Franks Bowman S.U. (1976) (emphasis added), “competitive seniority,” “used to al which is nondemotion, locate promotion entitlements to scarce benefits” such as or id., at 766-767. seniority rights tions and exercised their to become testers. They govern- claimed that the 1979 alteration of rules ing seniority product “conspir[acy] tester was the to change seniority protect rules, order to incumbent discourage male testers to promoting women from into traditionally-male jobs,” “[t]he purpose tester and that manipulation and the effect of this rules has been protect male testers from the effects of the female testers’ greater plant seniority, discourage and to women from enter- ing traditionally-male jobs.” App. tester 20, 21-22. August deciding certify 27, 1986,
On
before
whether to
proposed
granted respondents’
class, the District Court
summary judgment
ground
petition-
motion for
on the
complaints
ers had not filed their
with the EEOC within the
applicable
period.2
limitations
44 FEP
Cases
1821.
panel
Appeals
A divided
of the Court of
for the Seventh Cir-
concluding
petitioners’
cuit affirmed,
claims were time
trig-
because
barred
“the relevant
act that
gers
employee
of limitations occurs at the time an
subject
facially
becomes
to a
neutral but
employee
reasonably
that the
knows, or
discriminatory.”
should know,
2 2000e-5(e), § Under 42 charge U. S. C. be must filed with the EEOC days alleged employment practice within 180 unfair unless the com plainant proceedings has first instituted with a state or agency, local period which case the is extended to a days. maximum of 300 Neither the Appeals District nor the of applicable Court Court ruled on the limitations present case, in the since both petitioners’ courts concluded that claims were time barred even if the applicable period days. was 300 See (CA7 165, 1987). 163, 2 827 F. 2d and n. mayWe for the same reason ruling point avoid on that here.
904 (CA2 1985), denied, 646 cert.
World Airways,
635,
771 F. 2d
(1986).
Section amended, . . . shall provides charge 260, “[a] 78 Stat. within period] [the filed applicable EEOC] be [with 42 occurred.” employment unlawful alleged practice §2000e-5(e). therefore timeliness “re- Assessing U. S. C. the ‘unlawful quires identify employment us to precisely Delaware State practice’ complai[n].” of which [petitioners] (1980). 703(a) Ricks, 250, 257 Under College v. 449 U. S. it an “unlawful for VII, employment practice” of Title employer
“(1) with re- individual against any ... to discriminate conditions, or terms, privi- to his spect compensation, such individual’s leges employment, race, because of color, sex, or national or religion, origin;
“(2) limit, or his or segregate, classify employees employment any way which would de- applicants deprive any employment or tend to individual of prive otherwise affect his status adversely or opportunities race, color, of such individual’s as an because employee, §2000e- 42 national U. S. C. sex, origin.” or religion, 2(a). on men
Petitioners’ allegation disparate impact suffice to state a claim under ordinarily women would that are fair in (a)(2), “practices since that reaches provision Duke Power operation,” Griggs form, but v. Teal, Co., see Connecticut v. 424, (1971); U. S. however, “[Seniority systems,” “are Trans World VII,” treatment under Title afforded special Hardison, Airlines, Inc. 432 U. S. reason 703(h), §of which states: other of this sub-
“Notwithstanding any provision it shall not be an unlawful chapter, employment practice different standards com- apply for an employer *5 privileges of pensation, conditions, or terms, or different sys- seniority pursuant employment to a bona . . . fide provided are the re- that such differences not . tem, . . color, race, to discriminate because of an intention sult origin C. religion, . . .” or national . sex, 2000e-2(h). provision “absent a dis- to mean that this We have construed seniority system operation criminatory purpose, can- system practice employment even if the be an unlawful not supra, discriminatory consequences.” Hardison, has some Patterson, 456 Tobacco Co. v. U. American see 82; (1982). liability to be incurred “there Thus, for 63, 65, finding on intent to discriminate of actual be a must part grounds [statutorily proscribed] of those who ne- on the [seniority] system.” Pullman- gotiated maintained or (1982). 273, Swint, 456 U. S. Standard allege treats that the Petitioners do differently employees similarly that it has been or situated intentionally Rather, manner. operated in an impact unlawful they the sexes is on that its differential claim genesis “ha[d] [sex] discrimination.” its because the (1977). Spe- States, 324, 431 U. S. v. United Teamsters “conspired alleges respondents complaint to cifically, protect seniority incumbent change rules, order resulting agreement effected a that the testers,” male “purpose.” See “manipulation rules” for that added). (emphasis claim of App. This in essence a 20-22 intentionally their contractual alteration of right, Seniority Reflections rights. Aaron, is a contractual Seniority Rights, Enforceability Legal Nature and on the competitive senior- and a Rev. 75 Harv. L. “hierarchy rights] [of ... ac- ity system such establishes employment cording are dis- benefits . . . various to which Transportation Co., 424 S.U. v. Bowman tributed,” Franks collective-bargaining agree- Under 747, 768 petitioner prior had earned the each ments in effect *6 hierarchy right position in of to receive a favorable se- (if tester), niority among testers and when she became a rights alleged respondents eliminated those for to be reasons discriminatory. employment Because this diminution in sta- period tus in 1979—well outside the occurred of limitations complaint filed with in for a the EEOC 1983—the Seventh petitioners’ correct to Circuit was find claims time barred 706(e). § under recognize, possible
We of course, that it is to establish a employer regard different theoretical construct: to having guilty continuing “occurred,” been violation which §706(e), purposes only right of not when the contractual was eliminated but also each when effects the concrete possible that elimination was it felt. Or would be inter- 703(h) § pret § proviso 703 in such fashion that when the (“provided is not met that such differences are the re- sult of an intention to discriminate race, color, because of reli- gion, origin”) protec- or national sex, and that subsection’s nothing prevents against tion unavailable, becomes suits grounds disparate-impact later effects of the on 703(a)(2). ap- under The answer to these alternative proaches rejected is that our cases have them. continuing theory violation is contradicted most clear- ly College decisions, two Ricks, Delaware State Air Lines, Evans, U. S. and United Inc. v. allegedly U. S. 553 In Ricks, treated we discrimi- natory resulting denial than tenure —rather nondis- criminatory employment year termination of one later —as 706(e). triggering the act the limitations Be- cause did not claim “the Ricks manner in his em- ployment discriminatorily was terminated differed from the College professors manner which the terminated other who tenure,” also had been denied we held that “the alleged filing discrimination occurred—and the limitations periods therefore commenced—at the time the tenure deci- sion was made and communicated to Ricks.” 449 U. S., at found, we so,” “That is “even one of the though 258. effects of tenure —the eventual of the denial loss of a teaching posi Ibid, not occur until later.” (emphasis tion —did original). “ concluded that focus is the time of the proper upon ‘[t]he We acts, not time at which conse upon Ibid, of the acts became most (emphasis quences painful.’”3 Fernandez, 454 accord, Chardon v. original); *7 curiam). (1981) (per Evans,
In Air dismissed discriminatorily United Lines had several as a years the after she had worked plaintiff flight later, it some attendant, years gave when rehired her no credit for her service. Evans con- seniority her earlier distinguish attempts College 3 The dissent to Delaware v. Ricks State allegedly discriminatory of tenure ground “[t]he on the that there denial year plaintiff . . served notice to the that his termination a later would . inevitable, Post, (emphasis ‘delayed, consequence.’” a but at 917 come as omitted). original; “[o]n citation This on its earlier criticism that builds day seniority system adopted, there was no reason to be the AT&T’s plantwide seniority that a to become a lieve woman who exercised her system,” that at that tester would ever be demoted as a result of the new so “specula point prospect petitioners’ suffering harm” was “concrete] Post, (emphasis original). course the benefits of a se tive.” at 914 Of system, policy payable upon niority like those of an insurance the occur event, by speculative a noninevitable are their nature rence of —if employee’s continuing they depend upon the desire to work for because say particular employer. makes no more sense to that no “concrete But it employer provides patently a less desirable senior harm” occurs when an say requires, it does to that no con ity guarantee than what the law than company an insurance delivers accident insur crete harm occurs when $10,000, paid a policy value of when what has been for is ance with face $25,000. injury employee It is true that the to becomes face value of substantially more concrete when the less desirable demotion, just injury policyholder to the becomes sub causes his as stantially payment occurs and the more concrete when accident $15,000 to whether there was less than it should be. But that is irrelevant any injury means “concrete concrete at the outset. What the dissent Ricks, S., point to as the at which harm” is what U. referred rejected point injury painful” “most that case it as the becomes —and Accord, Fernandez, liability. Chardon v. reference for curiam). (1981) (per barred, ceded that the dismissal was time seniority system impermissibly gave “pres- that the claimed past act S., ent effect of discrimination.” U. at 558. agreeing with assessment, While we concluded under 703(h) challenge system may that “a a neutral not be predicated past on the mere fact that a event has no present legal significance has affected the calculation of se- niority past might if credit, even the event at one time have justified against employer.” Id,., a valid claim at 560. petitioners present Like Evans, in the case have asserted a wholly dependent claim that is on conduct oc- curring well outside the of limitations, and cannot complain continuing violation. theory
The second alternative mentioned above would 703(h) merely providing view an affirmative defense to a brought §703(a)(2), cause of action rather than as mak- ing any intentional discrimination an element of Title VII ac- challenging system. availability tion of this affirmative defense would not alter the fact that claim *8 as- § 703(a)(2), impact one serted is of caus- ing impact the statute of limitations to run from the time that original plausible, perhaps is felt. As an matter this is a and 703(h). (We § reading even most natural, of have con- §2000e-2(e) § 703(e), strued 42 C. U. S. deals with —which occupational qualifications bona fide this fashion. See —in (1977).) Rawlinson, Dothard v. 433 U. S. 333 But such 703(h) interpretation cases, foreclosed our proof necessary treat the intent aas ele- challenging systems. ment of Title VII actions At seniority plans, regarded least as concerns we have subsec- (h) illegality tion not as a defense to the described in subsec- (a)(2), provision tion but aas that itself “delineates which em- ployment practices illegal thereby prohibited are and Franks, which are not.” 424 S.,U. at 758. in Thus, Amer- 703(h) ican Tobacco Co. we determined to mean that “the discriminatory impact fact has a is not system; to dis- invalidate the actual intent alone sufficient (emphasis proved.” 456 at 65 S., must be U. criminate added). cognizable,” that a senior- held, we “a claim “To be accompanied discriminatory impact ity system must be has (emphasis discriminatory purpose.” by proof Id., at 69 of a added); 277, 289; at S., Pullman-Standard, 456 U. accord, Brewers S., Indeed, at 82. Hardison, 432 U. California (1980), deciding Bryant, that a Assn. v. U. S. seniority system, part challenged policy we noted was plaintiff “re- would to the District Court that on remand seniority system ... is not that . . . the main free to show employment conditions the differences ‘bona fide’ or that produced discrimi- result of an intention to it are ‘the that has petitioners’ id., Thus, at 610-611. race,’” nate because of discriminatory adop- intentionally depends proof on claim system, limitations which occurred outside tion of period. being NLRB, Machinists v. 362 U. case,
That
run from
will
that the limitations
establishes
(at
adoption
adopted
least where the
the date
was
and a cause
VII,
date of Title
occurred after the effective
available).
against
a decision
it was
Machinists
action
(NLRA),
we
Relations Act
under the National Labor
for Title
model
that the NLRA was the
often observed
have
interpreting
provisions,
cases
and have found
VII’s remedial
construing
Ford
persuasive
See
the latter.
the former
(1982); Team-
n. 8
EEOC,
219, 226,
458 U. S.
Motor Co. v.
supra,
Albe-
Franks,
768-770;
sters,
366;
S.,
431 U.
Moody,
Paper
Such
marle
Co.
presented
particularly appropriate in the context
reliance is
*9
requiring
highly
an admin-
unusual feature of
here, since the
against
complaint
filed
a civil action can be
before
istrative
party
private
NLRA’s
the two
The
is commonto
statutes.
complaint
provides
“no
of limitations—which
statute
occurring
upon any
practice
based
unfair labor
issue
shall
charge
prior
filing
the
with
six months
to the
more than
160(b)
§
substantively
the
Board,” U. C.S.
even
simi-
—is
706(e)
charge
“[a]
lar to
states that
. . . shall be filed
—which
[with
eighty days
EEOC]
the
within one hundred and
alleged
employment practice
unlawful
occurred,” 42
§2000e-5(e).
Zipes
Airlines,
U. S. C.
In
v. Trans World
specifically
Inc.,
Machinists considered and to the period limitations identical advanced here. suit practice complaint involved the timeliness of an unfair labor security required clause,” directed at so-called “union employees join days all the union within 45 of the con- precedents, agreeing tract’s execution. Under the NLRB’s majority to such a clause when the lacked union status consti- practice, tuted an unfair labor as did continued enforcement agreement S., clause. 362 U. 413-414. The at adopted issue in Machinists had been more than six months (outside complaint period), before the issued the limitations period but had been well within of limitations. enforced complaint “Conceding predicated that a on the execution agreement challenged here was barred limitations,” complaint the NLRB contended that “its was nonetheless timely upon’ parties’ it since was ‘based en- continued forcement, within the limitations, of the union secu- rity (emphasis original). Id., clause.” We found, *10 “the entire however, that foundation of the unfair labor prac the Union’s tice was lack of charged majority time-barred the original status when collective-bargaining agreement and that the absence of that fact enforcement of signed,” “[i]n union security this otherwise valid clause was be wholly Id., at 417. based nign.” “[W]here complaint upon time-barred,” reasoned, earlier event is we “to the permit event itself” cloak with which “to was other illegality in wise lawful” “in effect results defunct un reviving legally Ibid.4 is in analysis fair labor This practice.” squarely here. Because the claimed of the invalidity facially point tester nondiscriminatory neutrally applied seniority sys tem is on the wholly dependent alleged illegality signing it is the date of that which underlying agreement, signing the limitations governs period. that,
In when a holding seniority system is nondiscrimina- in form and it is the tory application, allegedly discriminatory the limitations we adoption triggers period, respect §706(e)’s not “Value general judgment concerning in at which the interests favor of valid claims point protecting the interests in outweighed by prosecu- are prohibiting Ricks, (citation [claims],’” tion of stale 449 U. at 260 omit- S., the considerations ted), “special but also underlying 703(h), treatment” accorded to see seniority systems Lines, Evans, Air Inc. Like Ricks and United 431 U. v. NLRB also rejected our decision Machinists attempt in an to cure un by asserting continuing violation: timeliness principles by invoking applicability “The of these cannot be avoided here continuing may violation. It be conceded that the contin- doctrine enforcement, execution, bargaining ued as well as the of this collective practice, logi- these are two agreement constitutes an unfair labor and that violations, they cally separate independent sense that can be de- Nevertheless, terms. the vice the enforcement of scribed discrete manifestly independent legality agreement of its execu- this tion, case, example, agreement with invalid on its would be executed, validly unlawfully with one administered.” face or S., at 422-423. U. Hardison, at 81. This treatment” strikes S., “special 432 U. *11 against a between the interests of those protected balance Title VII and those who for perhaps discrimination work — a validity facially reliance law many upon years —in There a doubt, course, ful is no seniority system. (one that treats simi facially discriminatory seniority system can be larly employees differently) challenged any situated a if it is time,5 facially system, and that even neutral adopted motive, with unlawful can be within discriminatory challenged But a adoption. allowing facially prescribed entitlements under it neutral to be and system challenged, altered, after its would those many years disrupt be adoption 703(h) In valid reliance interests that was meant to protect. the context of the case, a female tester could defeat present worked-for) (and the settled of her co-workers expectations whenever she is or under the new sys demoted not promoted be that in tem, 1983, 1993, 2003, Indeed, or beyond. given could in sue for not plaintiff theory successively being pro moted, demoted, off, for for laid and for not being being being awarded a favorable so as these sufficiently pension, long acts —even if themselves —could be at nondiscriminatory cases, tributed to the 1979 Our change seniority. past application facially equate The dissent is mistaken to of a neutral discriminatorily adopted system application system with the post, facially discriminatory. facially See at 916-917. With a neutral is adoption, act occurs at the time of for each application nondiscriminatory (seniority for men accrues and women on (e. basis). g., facially discriminatory system an identical But a one that assigns that women receive for the same amount men twice served) by applied. definition each time it is This is time discriminates in Evans purposes analysis employed we material difference timing purposes Ricks —which focuses on the acts for citation, post, why of the statute of limitations. It is also the dissent’s (1986) “[ejach Friday, of Bazemore —in similarly paycheck . than to a deliverfed] week’s . . less to black situated id., white,” misplaced. at 395—is today, approach adhere have which we declined to follow an disruptive implications. such that has
[*] [*] [*] foregoing judgment reasons, For the of the Court of Appeals is
Affirmed. Justice took no the consideration or part O’Connor decision of this case. Stevens, concurring.
Justice Although I remain convinced that the Court misconstrued *12 in American Tobacco Patterson, Title VII Co. v. 456 U. S. (1982), (dissenting opinion), see at 86-90 and in Delaware id., College Ricks, 449 U. id., State v. S. 250 see (dissenting opinion), correctly applied 265-267 the Court has to the case at And it is the those decisions hand. Court’s the statute —rather than the views of an indi- construction of part vidual becomes of the law. See Johnson Justice —that Agency, County, Transportation Santa 480 U. S. v. Clara (1987) Dougherty County concurring); J., 616, (Stevens, (1978) White, Bd. Education U. (Stevens, opinion. concurring). Accordingly, join I J., Court’s Brennan Marshall, with whom Justice and Justice Blackmun join, dissenting. Justice today majority alleged that, holds it is that an when employer negotiated adopted and a union have a new se- niority system discriminating against with the intention of §2000e seq., et VII, women violation of Title U. S. C. 706(e), §2000e-5(e), set forth in be- limitations gins immediately upon adoption system. to run of that employee This is so if Ante, 909-911. even the who subse- system quently challenges reasonably could not have ex- pected concretely by demoted or to be otherwise harmed system adoption, new at the time of its and, indeed, even if employee working was not in the affected division of the company system’s adoption. at the time of the This severe 706(e) interpretation surprise Congress, will come as a goals enacting surely whose Title VII never included con- ferring immunity discriminatorily adopted absolute on se- niority systems days.1 that survive their first 300 Because reality today’s requiring employees harsh decision, anticipatorily sue peace, glaringly or forever hold their is so purposes at odds with the of Title VII, and because it is com- pelled precedents neither the text of the statute nor our interpreting respectfully I it, dissent. practical
The facts of this case illustrate the austere conse- quences majority’s holding. day theOn AT&T’s se- niority system adopted, was there was no reason to believe plantwide that a woman who exercised her to be- come a tester would ever be demoted as a result of the new system. system, years Indeed, under the new after five regain plantwide seniority; only woman tester would her intervening years potentially endangered. five was she already Lorance, Patricia who was a tester when the new system adopted, years almost made it; after four a tester system. was she demoted under the terms of the new concretely That petitioners the new would harm Ja- Kang nice speculative. and Carol Bueschen was even more They seniority sys- *13 became testers several months the they tem adversely modified, and like Lorance, were not affected the restructured until 1982. (Indeed, early absent the nationwide in affected.) recession the 1980’s, petitioners might the Today, never have been majority however, the concludes that these women are bringing they barred from this suit because failed to antici- pate, days system’s adoption, within 300 of the new
1Or, complaint in the previously case of not filed with a state or local agency, systems that survive days. §2000e- their first 180 42 U. S. C. (5)(e); ante, 903, n. 2. day place among contingencies new would one them the these system’s casualties.
Nothing compels in the text of result. On Title VII this contrary, majority plausible the even concedes that a having reading regard employer would as vi of Title VII 2000e-2(a)(l), § § 703(a)(1), disparate- olated U. S. C. sys wing of the statute, at the time treatment adoption, each concrete effect of tem’s but also when (CA7 system 163,166 also 827 F. 2d Ante, 906; is felt. see 1987) appealing”). interpretation “logically (describing this continuing theory, each time a discrimi this violation Under natory seniority system applied, each time a discrimi like natory salary applied, independent “unlawful structure is 703(a)(1) place, trigger employment practice” under takes Friday, ing period anew. Bazemore v. the limitations See (1986) (“Each paycheck that 478 U. S. 395-396 week’s similarly white is a than to a situated delivers less to a black VII”); Realty Corp. wrong under Title cf. Havens actionable (1982) (“Where the chal Coleman, v. 455 U. lenged continuing concern one, violation is a the staleness discriminatory Viewing disappears”). application each goals system equal opportunity as a new violation serves the by ensuring are not that victims of Title VII of discrimination having day prevented their court. from example Today’s Court, this is the latest of how decision Congress, gradually flouting diminished the intent of has seniority systems. application First, of Title VII to 703(h), §2000e-2(h), requires 42 U. Court held that S. C. seniority systems special under Title for bona fide treatment operation purpose, VII so that “absent employment system cannot be an unlawful practice if has some conse- even quences.” Airlines, Hardison, v. Trans World Inc. (1977); Swint, 63, 82 see also Pullman-Standard *14 916 (1982).2 by 273,
U. S. Then, the Court held a narrow 703(h) § margin protects seniority systems that even those put place passage into of Title VII. American To- after Patterson, bacco v. Co majority today contends that the result it reaches is by precedents dictated involving these and other ill-advised seniority systems, my today’s view, decision com- pounds prior by giving the Court’s decisional errors them un- necessarily scope. particularly inap- broad This extension propriate because it forces the Court to reach such a bizarre impractical and result. Never have we held or even inti- inquiry, mated in the that, context of a statute of limitations challenges seniority system one must evaluate to a born of discriminatory adoption. intent as of the moment of its In- majority’s deed, held, had we so concessionthat a worker may any challenge facially discriminatory time 703(a)(1) § plan flatly under pre- would be contradicted Ante, cedent. goes 912. The intent that facially into seniority plan the creation of even a flawed is, all, no different than the intent that in- facially impute forms the creation ongo- neutral one. To ing intent in the former situation but the latter is un- astonishing It remains seniority systems to me that are sheltered from claims, disparate-impact States, Teamsters v. see United 431 U. S. (1977) J.). (opinion Marshall, 377-394 majority Even the concedes original that an plausible, “[a]s matter ... perhaps even the most 703(h)” natural, reading § regards that merely subsection as providing disparate-impact 703(a) affirmative defense to a brought action § under (2). Ante, at 908. But accepting precedents, even our I believe, do not majority as the does, they prohibit finding petitioners Court from have made timely disparate 703(a)(2). and colorable claim impact 2000e-2(a)(2). In Trans World U. S. C. Hardison, Airlines 432 U. S. we held that bona seniority systems fide exempted were 703(h) by § disparate-impact from Accepting claims. petitioners’ as true allegation that AT&T and its union restructured the discriminatory reasons, this qualify should not as a bona fide one immunity entitled to disparate-impact from claims. *15 majority today The distinction the erects serves tenable. employers ingenious enough those to cloak to reward facially guise, in acts of discrimination neutral identi- their system may though the effects of be to a fa- this those of cal cially discriminatory one. Air Inc. Evans, United Lines v. 431 U. S.
Neither (1977), College Ricks, nor Delaware State rejection majority premises its on which the today’s continuing theory, compels In violation result. plaintiff alleged case, the instant never Evans, unlike up seniority system in was set order to dis that the itself that Evans “does not attack Indeed, criminate. we observed seniority system” and “makes no the bona fides of United’s charge system intentionally designed that the is to discrimi at at 557. The sole dis S., 560; id., nate.” 431 U. see also alleged plaintiff’s prior in Evans was dis crimination charge, impact alleged, had been enhanced which, she !,er by seniority system upon return to work the failure of the she her she would have served had to accord credit for time challenge sys discharged. denying In to that not been her may challenge not be we held that “a to a neutral tem, prior [Evan’s predicated past fact event on the mere that legal significance discharge] present has af which has no That Id., at 560. the calculation of credit.” fected very holding plainly inapposite essence here, where the is discriminatorily adopted petitioners’ claim is that AT&T’s majority’s conclu Thus, is not neutral. “past in this case—the discrimina sion that the event” cited legal very seniority system tory adoption chal quoted lenge present legal significance,’” ibid., “‘no —has ipse ante, dixit. inapposite. allegedly Ricks is likewise plaintiff to the that denial of tenure that case served notice “delayed, year termination a later would come as a his (emphasis consequence,” 257-258 S., inevitable 449 U. added). many appropriate, involv- It was thus so areas ing statutes of limitations doctrine, set the limitations running plaintiff’s upon discovery clock harm her- King, Lorance, self. Petitioners and Bueschen, however, given warning. major- were ity no such advance them, For began running, holds, the limitations clock ran out, long apparent they before it was would be demoted system. AT&T’s Like Evans, Ricks stands proposition employment practices for the that neutral *16 passively perpetuate consequences prior, the of time-barred discrimination but are not bred themselves of wrongs intent not do constitute actionable under Title VII. suggests operation seniority sys- case Neither the of a up tem set order to discriminate should be treated the tenure) way (or legitimate seniority system, same as a born nondiscriminatory particular may of motives, which in a case passively reinforcing prior have the effect of time-barred acts of discrimination. finally, say
Nor, is it to correct that Machinists v. NLRB, period “establishes that the limitations adopted,” will run from the date the ante, was at 909, Initially, and therefore controls this case. it bears mention that Machinists a arose under different statute, the National (NLRA),
Labor Relations Act §§151-169, 29 U. S. C. and seniority system, that Machinists did involve a in- security alleged, stead a union clause which, it was had been defectively adopted. Significant though the of role the provisions, NLRA was as a model Title VII’s remedial hardly controlling precedent. these are indicia support finding Moreover, sound reasons of a time bar in Machinists, In but no time bar Machinists, here. as in challenged security Ricks, enforcement of the clause was consequence the inevitable of its execution. The clause af- employees very incep- fected all nonunion and from alike, its mystery employees tion there was no about which would be impact By affected about the it would have on them. very petitioners’ in this contrast, case, essence of claim designed to have AT&T’s new that long-range discriminatory impact, hurting employees women inception, group theoreti- but, as of the time of its aas employees. cally hurting particular Machin- woman Unlike anyone employed AT&T ists, there is no indication by majority, during so chosen was, the limitations any by plan tangibly incentive affected the new as to create sue.3 immunizing process majority today se- continues niority systems requirements In Title VII. addi- from the put place previously Court, to the other hurdles tion anticipate, prevent, employees suit to must and initiate now system, applications no matter adverse future may speculative unlikely applications This be. or these how periods com- “limitations should not observation that Court’s layman run it becomes difficult for mence to so soon that rights protection Ricks, statutes,” the civil invoke the ring. increasingly supra, hollow Be- n. has an Congress, framing VII, Title I do not believe that cause remotely contemplated putting employees into the even *17 majority today I predicament inevitable, which the makes dissent. a claim of a Appeals presented with Tellingly, none of the Courts of majority today reaches.
continuing violation has reached the result interpreted precedents Indeed, Appeals have our two of the Courts of v. Pan American World Air continuing violation. Cook permit claims of Electric, (CA2 Inc., 1985); cf. Johnson v. General ways, F. 2d 1988). (CA1 Circuit, 132, 135 finding petition Even Seventh F. 2d review, judgment adopted a far nar time barred in the claim ers’ majority, under which the limitations interpretation than the rower subject employee to the when the first becomes begins to run on date system. 827 F. 2d