Amicus Brief — California Brewers Assn. v. Bryant

Supreme Court, U. &.

FILED

AUG 20 1979 _

-

MI@HABL ROBAK, JR., CLERK

IN THE

Supreme Court of the United States

en OcToBER TERM, 1979

No. 78-1548

CALIFORNIA BREWERS ASSOCIATION, et al.,

Petitioners,

V.

ABRAM BRYANT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

Of Counsel: BRUCE A. NELSON

RAYMOND L. WHEELER

JAMES E. BoDDY

MORRISON & FOERSTER

One Market Plaza

Spear Street Tower

San Francisco, CA 94105

McCGUINESS AND WILLIAMS

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL

1747 Pennsylvania Ave., N.W.

Washington, D.C. 20006

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

II.

ITI.

INDEX

INTEREST OF THE AMICUS CURIAE ..........

PRELIMINARY STATEMENT ...

B. Proceedings Below .....................-...--2------00000--0-

C. Summary of Argument ............ '

SETTLES EE a a

A. The Court of Appeals Failed to Recognize

that “Seniority Systems” Include Not Only

the Concept of Seniority Itself, but Also a

Great Variety of Traditionally Associated

Rules Related to the Systems’ Operation......

B. The Ninth Circuit’s Test for “True” Senior-

ity Systems Impermissibly Dictates the Sub-

stantive Terms of Collective Bargaining

Agreements SESE SR ae ee ae

C. A Proposed Test for Determining What Con-

stitutes a Seniority System Within the

Meaning of Section 708(h) —...02...0220020022.

a aicekcidcnnbnesbbieedsianconcahinerstlnenssienes

qa awn =

12

12

29

TABLE OF AUTHORITIES

Cases: Page

Aeronautical Industrial District Lodge 727 v.

Campbell, 387 U.S. 521 (1949) ............. 13, 14, 17, 21,

23, 24, 29

Alexander v. Machinists, Aero Lodge 735, 565

F.2d 1864 (6th Cir.), cert. denied, 486 U.S. 946

SRR SER ae cre tics Se nr Tn 21

Bryant v. California Brewers Association, 585

F.2d 421 (9th Cir. 1978) ................... 8, 4, 5, 6, 7, 15, 24,

26, 27, 28, 31, 32, 33, 34, 35

Franks v. Bowman Transportation Co., 424 U.S.

IY wicca eiadineaiicteesacdhicsnistiennbatinciadaaieniaanieibaandhityiaitn 18, 16

Furnco Construction Corp. v. Waters, 438 U.S.

gg PARAS cree 24

Griggs Vv. Duke Power Co., 401 U.S. 424 (1971).... 6, 10,

12, 38, 35

H.K. Porter Co. v. NLRB, 397 U.S. 99 (1970) ........ 23, 24

International Brotherhood of Teamsters v. United

States, 481 U.S. 324 (1977)........ 2, 3, 6, 8, 10, 11, 12, 18,

20, 22, 24, 27, 28, 31, 32, 33, 34, 35

NLRB v. American National Insurance Co., 348

8 EE, ee eee 23

NLRB Vv. Insurance Agents’ International Union,

ey SR I HIND vane csvninninniandnniphastbniedundinensionn 23

Tilton Vv. Missouri Pacific R.R. Co., 376 U.S. 169

PERSE SET TIEE A ea reo SAO ee NE ENN 21

Trans World Airlines, Inc. v. Hardison, 432 U.S.

SRI RRR Uren Manir vere NmnOr OMI TOP ee. 2, 12, 18, 28

United Air Lines v. Evans, 431 U.S. 553 (1977) ....2, 5, 33

United Steelworkers of America v. Weber, 74

U.S.L.W. 4851 (U.S. June 27, 1979) .................... 23

Statutes:

Civil Rights Act of 1866:

I I ick sasha demand ohaesnsiieshcoinnniemsemman 2

Civil Rights Act of 1964, Title VII:

Ge Te Te ey OO Ce on ancsnnns iscsi cece 18

EB UBC. BOOB B CR) oon ncccncccecccecceeesscccseseeees passim

Ee —

TABLE OF AUTHORITIES—Continued

Selective Training and Service Act of 1940:

As amended, ch. 548, 58 Stat. 798 0.000... 13

Other Authorities:

Bureau of Labor Statistics, United States Depart-

ment of Labor, Collective Bargaining Provi-

sions: Seniority, Bulletin No. 980-11 (1949)...... 15,17

Bureau of Labor Statistics, United States Depart-

ment of Labor, Major Collective Bargaining

Agreements: Administration of Seniority, Bul-

letin No. 1425-14 (1972) 200002... 14, 17, 22, 25

Slichter, Healy, and Livernash, The Impact of Col-

lective Bargaining on Management (1960)........ 16, 17,

19, 20, 25, 27

Vaas, Title VII: Legislative History, 7 B.C. IND. &

i See es Me IND oa cicciecismcasnencononncevssertorne 13

Webster’s Third New International Dictionary of

the English Language Unabridged (1976)........ 16

Wellington, Freedom of Contract and the Collec-

tive Bargaining Agreement, 112 U. PA. L. REV.

ARERR ere a Rca cen cee i RP RCE 23

Regulations and Rules:

Federal Rules of Civil Procedure, Rule 12(b) (6).. 5

7 -— ee

SE ER oo aso.

IN THE

Sige Cart of the United States

OCTOBER TERM, 1979

No. 78-1548

CALIFORNIA BREWERS ASSOCIATION, e¢ al.,

Petitioners,

V.

ABRAM BRYANT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

The Equal Employment Advisory Council (“EE-

AC’’), with the consent of all parties, respectfully

submits this brief as Amicus Curiae.

I. INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council is a

voluntary nonprofit association organized to promote

the common interest of employers and the general

public in the development and implementation of

2

sound government policies, procedures, and require-

ments pertaining to nondiscriminatory employment

practices. Its membership comprises a broad seg-

ment of the employer community in the United States,

including both individual employers and trade as-

sociations. Its governing body is a Board of Directors

composed primarily of experts and specialists in the

field of equal employment opportunity, whose com-

bined experience gives the Council a unique depth

of understanding of the practical and legal consider-

ations relevant to the proper interpretation and ap-

plication of EEO policies and requirements.

Substantially all of EEAC’s members, or their

constituents, are subject to the provisions of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 1981

and the various other Federal orders and regulations

pertaining to nondiscriminatory employment prac-

tices. As such, they have a direct interest in the

issues presented for the Court’s consideration in this

case.

Because of this interest, EEAC has participated as

Amicus Curiae in other cases before this Court which

involved interpretations of Section 703(h) of Title

VII, the statutory provision of primary concern here.

See e.g., International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977); United Air

Lines v. Evans, 451 U.S. 553 (197TZ\;uand Trans

World Airlines v. Hardison, 432 U.S. 63 (1977).

II. PRELIMINARY STATEMENT

Amicus seeks articulation of a reasonable standard

for defining “seniority system” pursuant to the pro-

tection offered by Section 703(h) of Title VII of the

3

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(h).

That section provides:

Notwithstanding any other provision of this

title, it shall not be an unlawful employment

practice for an employer to apply different stand-

ards of compensation, or different terms, condi-

tions, or privileges of employment pursuant to a

bona fide seniority or merit system . . . provided

that such differences are not the result of an in-

tention to discriminate because of race, color,

religion, sex, or national origin. ...

Interpreting this provision, the Court held in Jnter-

national Brotherhood of Teamsters v. United States,

431 U.S. 324, 353-54 (1977), that “an otherwise

neutral, legitimate seniority system does not become

unlawful under Title VII simply because it may per-

petuate pre-Act discrimination.” While the Court had

occasion there to outline the appropriate analysis for

determining the bona fides of a seniority system un-

der Section 703(h), 431 U.S. at 355-56, it was not

required to address what constitutes a “seniority

system” to begin with, and, thus, what constitutes the

scope of the protection provided by this important

provision. The present case presents that question.

A. Facts

For over twenty years, the seniority section of the

collective bargaining agreement for the brewing in-

dustry in California has contained the provisions here

at issue.’ Bryant v. California Brewers Association,

1 See generally Sections 4 and 5 of the collective bargaining

agreement between the California Brewers Association and

Teamsters Brewery and Soft Drink Workers Joint Board re-

produced in The Appendix to Petition for Certiorari filed

herein by The California Brewers Association, et al., at 14-28

(the Appendix to the Petition is hereinafter referred to as

“Aas

—_—— ««—--—

4

585 F.2d 421, 423 (9th Cir. 1978). Those provisions

govern the definition, units, and acquisition of sen-

iority. Thus, the parties’ contract provides that “for

seniority purposes only” there shall be five classifi-

cations of employees, three of which are here signifi-

cant: new employees, temporary employees, and

permanent employees. A.P. 14. Each classification

constitutes a separate seniority roster, with such

important rights as job referral, bumping, and layoff

determined by seniority order within each classifi-

cation. A.P. 17-19, 24-26. Among the classifications,

permanent employees enjoy the greatest benefits and

protections, temporary employees come next, and new

employees are at the bottom. A.P. 17-18; Bryant,

supra, 585 F.2d at 423-24. The system also provides

rules for the advancement of employees from~ one

seniority classification to the next. A new employee

rnust work sixty days in a calendar year to become a

temporary employee, and a temporary employee must

work 45 weeks in a year to become a permanent em-

ployee. The bargaining agreement does not provide

for the carry-over from year to year of the time ac-

cumulated toward satisfying these work require-

ments. Thus, if a temporary employee does not com-

plete the 45-week requirement by the end of a given

calendar year, he must start over again the following

calendar year. A.P. 14-15; Bryant, supra, 585 F.2d

2 The two other seniority classifications are temporary bot-

tlers and apprentices. A.P., supra note 1 at 14. The distinc-

tion between temporary bottlers and temporary employees

generally is not here material, id., and the apprentice classifi-

cation does not appear to be involved in this action, see

Bryant v. California Brewers Ass’n, supra, 585 F.2d at 423-

28.

5

at 423-24. However, vis-a-vis other temporary em-

ployees, this person retains his competitive seniority.

A.P. 17-19. As a result, longer-term temporary em-

ployees enjoy superior protection against layoff and

superior rights to recall should layoff occur and,

therefore, have the best chance of becoming perma-

nent employees. A.P. 17-19, 24.

Respondent Bryant has challenged this system

on the ground that it unlawfully perpetuates prior

discrimination. Bryant, supra, 585 F.2d at 427-28.°

While direct challenge to this alleged past discrimi-

nation is now foreclosed as untimely, United Air

Lines v. Evans, 431 U.S. 553, 558, 560 (1977), re-

spondent nonetheless seeks a remedy on the theory

that the 45-week requirement, together with dimin-

ished employment opportunities in the industry, cur-

rently makes it virtually impossible for any employee,

black or white, to attain permanent status. As a

result, respondent alleges, blacks are locked into the

temporary classification and excluded altogether from

the permanent one. Bryant, supra, 585 F.2d at 424;

A. 16-17.

B. Proceedings Below

On appeal from dismissal of the complaint pursu-

ant to Fep. R. Civ. P. 12(b) (6), the court of ap-

peals below reversed, holding that respondent may

go to trial on his allegation that the 45-week pro-

vision of the collective bargaining agreement, though

neutral on its face, has a disparate impact on em-

ployment opportunities for blacks. Bryant, supra,

* See Respondent’s Second Amended Complaint, 17 13-15,

reproduced in the Appendix filed jointly herein at 16-17 (the

joint Appendix is hereinafter referred to as “A.”).

6

585 F.2d at 423, 428. In that court’s view, the

45-week provision “in effect preserves an all White

class of permanent brewery employees,” and thus may

be unlawful under the disparate impact theory of

Griggs v. Duke Power Co., 401 U.S. 424, 429-31

(1971). Bryant, supra, 585 F.2d at 423, 428.

The unions and employers had submitted that even

if the 45-week provision of the collective bargaining

agreement did have the alleged effect of perpetuating

past discrimination, it nonetheless was immune from

attack, because the provision is part of a bona fide

seniority system and protected by Section 703(h) as

construed in Teamste;e—The-eourt of appeals re-

jected this defense on the ground that the 45-week

provision is not part of a seniority system at all.

Bryant, supra, 585 F.2d at 425-27.

Starting from the premise that the “fundamental

component of a seniority system is the concept that

employment rights should increase as the length of an

employee’s service increases,” the court of appeals

found the 45-week provision not part of a seniority

system for three related reasons. Bryant, supra, 585

F.2d at 426. First, in the court’s view, “the brewery

industry’s 45-week requirement does not involve an

increase in employment rights or benefits based upon

length of the employee’s accumulated service,” since

“the acquisition of permanent status may be inde-

pendent both of total time worked or overall length of

employment.” Jd. For example, one employee might

satisfy the requirement in the very first year,

whereas another employee might have worked sev-

eral years, yet have been laid off each year prior to

attaining permanent status. As a result, the second

—_——— eee

7

employee could have both greater employment senior-

- ity (time since initial date of hire) and accumulated

service than the first, yet occupy an inferior seniority

status. This, the court concluded, is inconsistent with

how a “true” seniority system should operate.

Bryant, supra, 585 F.2d at 426-27. Second, the court

also regarded the 45-week provision as not part of a

seniority system because, rather than providing for

incremental increases in employment rights or bene-

fits based on overall length of service, the provision

was viewed by the court as “an all-or-nothing proposi-

tion.” Again, this was viewed as inconsistent with

the “fundamental” concept of seniority. Bryant,

supra, 585 F.2d at 427. Third, the court stated that

“seniority rights under a true seniority system us-

ually accumulate automatically over time,” whereas

under the 45-week provision, “an employee’s chances

of satisfying the provision automatically terminate at

the end of each year.” Jd. In the court’s view, this

made “the system particularly susceptible to discrimi-

natory application since employers and unions can

manipulate their manpower requirements and em-

ployment patterns to prevent individuals who are

disfavored from ever achieving permanent status.”

Id. For all these reasons, the court of appeals below

concluded that the 45-week provision was not part of

a seniority system and that Section 703(h), there-

fore, did not apply. Zd.

C. Summary of Argument

In enacting Section 703(h), Congress sought to

preserve employees’ seniority expectations as em-

bodied in the various seniority systems of American

industry. Congress did not specify the type of sen-

8

iority system entitled to protection other than that

the system be bona fide. Rather, in recognition of the

myriad conditions existing in the American work

place, Congress chose to rely on what has heretofore

been a basic tenet of our national labor policy to

provide employers and unions broad freedom to arrive

at collective bargaining provisions that best suit their.

individual needs. Traditionally, that policy has coun-

seled restraint from dictating to employers and unions

what the terms of their agreement must be. The ap-

proach of the Ninth Circuit in this case to the de-

termination of what constitutes a “true” seniority

system is in fundamental conflict with that national

policy as incorporated into Section 703(h).

The conflict arises from two distinct but related

errors in the analysis of the court of appeals. First,

the court mistakenly has regarded a narrow and

particular concept of seniority as coterminous with

the breadth of seniority systems. What it thereby

failed to recognize is that a seniority system not only

consists of some core seniority~principle, such as the

increase in employment rights or benefits with serv-

ice, but also includes a host of integrally related

provisions that are necessary for the operation of the

system as a whole. These rules determine, among

other things, how seniority is defined, measured,

acquired, transferred, lost, regained and applied. To-

gether the core seniority principle and the related

rules form the seniority system.

In disregarding this unity, the Ninth Circuit has

excluded from the reach of Section 703(h) the major

components of vast numbers of seniority systems

nationwide. Indeed, the unit-definition and transfer

rules involved in Teamsters would in ali likelihood not

9

survive the Ninth Circuit’s narrow test. If this test

were adopted generally, great numbers of similar

seniority rules would be exposed to attack, and the

seniority expectations of millions of workers whom

Congress sought to protect through Section 703(h)

would be in jeopardy.

The second and related error in the Ninth Circuit’s

approach is that it has dictated a particular way in

which seniority systems must operate. Only if such

systems involve (1) an increase in employment rights

with service that occurs (2) incrementally as op-

posed to in an all-or-nothing fashion and (3) auto-

matically with time rather than depending on other

facts as well, will such arrangements be regarded as

“true” seniority systems and eligible for Section

703(h) protection, regardless of their bona fides.

Thus, contrary to the important and long-standing

national policy noted above, to refrain from dictating

the terms of parties’ collective bargaining agree-

ments, the rule of the Ninth Circuit would require

that the seniority provisions of collective bargaining

agreements, regardless of the circumstances under

which they arose or their bona fides, conform to a

particular, monolithic type. Again, all those deviating

from the dictated pattern would lose the benefits of

congressional protection, as would employee seniority

expectations that had developed under them.

The approach of the Ninth Circuit is not only

impermissibly narrow and particularistic, in conflict

with national labor policy, but also unnecessary and

in conflict with policies of Title VII as well. To be

sure, Congress did not intend to provide a talismanic

immunity to every provision remotely related to sen-

iority, regardless of the nature of its impact upon

10

equal employment opportunities. At the same time,

Congress clearly did intend to protect certain senior-

ity expectations of incumbent employees, at least to

the extent that these expectations are placed in jeop-

ardy simply because the seniority system from which

they derive tends to perpetuate past discrimination.

This suggests an accommodation between the na-

tional labor policy of respecting bargaining freedom

on the one hand, and giving full reach to the intended

remedial policies of Title VII on the other. Thus,

where a provision arguably part of a seniority sys-

tem is challenged under the Griggs doctrine for dis-

parate impact, Amicus respectfully urges the follow-

ing test be adopted for coverage under Section

703(h): First, in order to determine whether the

provision is in fact part of a seniority system, the

courts should look only for a nexus between the pro-

vision in question and the operation of the system as

a whole. The customary types of rules for the defi-

nition, measurement, acquisition, transfer, and ap-

plication of seniority, among others, would provide

guidance in locating this nexus. Only if the provision

could be said to have no relation to seniority, should

it not be regarded as part of a seniority system under

Section 703(h). In this way, arbitrary limitations

upon the customary freedom accorded to collective

bargaining can be avoided.

Second, once the provision is thus determined to

be part of a seniority system, the analysis should

proceed to a determination of bona fides as outlined

in Teamsters. It was in confusing the two analyses

—the existence of a seniority system with the bona

fides of that system—that the Ninth Circuit com-

mitted error. While the court’s confusion, caused by

11

its concern that Section 703(h) not sweep too broadly,

is perhaps understandable, it is nonetheless unneces-

sary. The approach suggested here would provide an

appropriate limitation to the reach of Section 703 (h)

without arbitrarily limiting as well the freedom of

the collective bargaining process.

Through the enactment of Section 703(h), Con-

gress sought to protect employees’ seniority expecta-

tions that might otherwise be subject to Title VII

attack simply because the seniority systems under

which they have worked may perpetuate some past

practice on the part of the employer. However, there

is no ‘ndication that Congress intended this same

provision to insulate employment practices which are

independently discriminatory, apart from the per-

petuation of the past, simply because such practices

may be written into a seniority system. This sug-

gests that in the unusual circumstance where a sen-

iority system results in disparate impact other than

through the perpetuation of some past practice, the

Teamsters bona fides analysis should be supplemented

by a consideration of the source of the disparate

impact alleged. If, and to the extent that, the dis-

parate impact results merely from the perpetuation

of some past condition, then, consistent with the legis-

lative intent underlying Section 703(h), the provi-

sion should not be subject to Title VII attack so long

as it is otherwise bona fide. However, if, and to the

extent that, the provision itself has a disparate impact

independent of any past practices of the employer,

as might be involved with an educational requirement

or test, then the protection should not automatically

apply, whether the provision is part of a seniority

system or not. Rather, in such a case, the provision

with disparate impact should be immune from attack

12

only if justified by valid business necessity or job

relatedness as required by Griggs. In this way, the

balance between freedom of bargaining and the

remedial goals of Title VII would be preserved.

The 45-week provision would appear to meet both

prongs of the suggested test. As a seniority acquisi-

tion rule, it has the required nexus to seniority, and,

since its alleged disparate impact occurs solely through

the perpetuation of alleged prior discrimination, it

comes within the intended Congressional protection.

There remains to be determined, however, whether

the provision and the seniority system of which it is

a part otherwise comply with the bona fides require-

ments of Teamsters, and a remand would appear

appropriate for that determination.

Ill. ARGUMENT

A. The Court of Appeals Failed to Recognize that “Sen-

iority Systems” Include Not Only the Concept of

Seniority Itself, but Also a Great Variety of Tradi-

tionally Associated Rules Related to the Systems’

Operation

In the enactment of Section 703(h) “the congres-

sional judgment was that Title VII should not outlaw

the use of existing seniority lists and thereby destroy

or water down the vested seniority rights of employ-

ees... .” Teamsters supra, 431 U.S. at 353. While

intending to provide broad protection for the seniority

expectations of employees, Teamsters, supra, 431 U.S.

at 352-53, 355; Trans World Airlines, Inc. v. Hardi-

son, 432 U.S. 68, 79-83 (1977), Congress did not

attempt to spell out in detail the type of seniority

rights entitled to protection. See 42 U.S.C. § 2000e-

2(h). Rather, Title VII leaves the term “seniority

13

system,” as used in Section 703(h), undefined.* See

42 U.S.C. § 2000e. The situation is therefore analo-

gous to that faced by the Court in Aeronautical In-

dustrial District Lodge 727 v. Campbell, 337 U.S. 521

(1949), where it was necessary to construe the term

“seniority” as used in Section 8 of the Selective Train-

ing and Service Act of 1940, ch. 720, § 8, 54 Stat.

885 (1940), as amended by ch. 548, 58 Stat. 798,

which provided that a veteran returning from mili-

tary service was to be reinstated to his former posi-

tion “without loss of seniority.” In the course of

determining what Congress there meant by “seni-

ority,” Mr. Justice Frankfurter outlined the ap-

proach appropriate here as well:

[T]he Act uses the term “seniority” without

definition. It is thus apparent that Congress was

not creating a system of seniority but recog-

nizing its operation as part of the process of

collective bargaining. We must therefore look to

the conventional uses of the seniority system in

the process of collective bargaining in order to

determine the rights of seniority . . . guaranteed

[by the Act].

337 U.S. at 526 (emphasis added).

* Likewise, the legislative history gives no indication that

Congress attributed any special definition to the term. See

Teamsters, supra, 431 U.S. at 355 n.41. For discussions of the

legislative history to Section 708(h), see Teamsters, supra,

~~ ="“°431 U.S. 352-58; Trans World Airlines, Inc. v. Hardison,

supra, 432 U.S. at 79-83; Franks v. Bowman Transportation

Co., 424 U.S. 747, 758-62 (1976); and see generally Vaas,

Title VII: Legislative History, 7 B.C. IND. & Com. L. REv. 481,

444-45 (1966).

14

In “looking to the conventional uses of the senior-

ity system in the process of collective bargaining,”

one immediately notes their enormous complexity and

variety. As the Court observed in Campbell:

There are great variations in the use of the

seniority principle through collective bargaining

bearing on the time when seniority begins, de-

termination of the units subject to the same

seniority, and the consequences which flow from

seniority. All these variations disclose limita-

tions upon the dogmatic use of the principle of

seniority in the interest of the ultimate aims of

collective bargaining. Thus, probationary condi-

tions must often be met before seniority begins

to operate; sometimes it becomes retroactive to

the date of employment; in other instances it is

effective only as from the qualifying date; in

some industries it is determined on a company

basis, in others the occupation or the plant is

taken as the unit for seniority determination;

sometimes special provisions are made for work-

ers in key positions; and then again these factors

are found in varying combinations. See William-

son & Harris, Trends in Collective Bargaining

100-102 (1945); Harbison, Seniority Policies &

Procedures as Developed through Collective Bar-

gaining 1-10 (1941).

337 U.S. at 526-27.°

5 Accord, Bureau of Labor Statistics, United States Depart-

ment of Labor, Major Collective Bargaining Agreements:

Administration of Seniority, Bulletin No. 1425-14 (1972)

(hereinafter referred to as the “1972 BLS Seniority Bul-

letin”), which notes:

Of the many provisions found in collective bargaining

agreements, those governing the operation of seniority

15

Without regard for the congressional purpose to

preserve this variety, the Ninth Circuit has at-

tempted to reduce seniority systems to their bare

bones, namely, “the concept that employment rights

should increase as the length of an employee’s service

increases.” Bryant, supra, 585 F.2d at 426. This

Court has previously warned against such an ap-

proach:

To draw from the... Act an implication that

date of employment is the inflexible basis for

determining seniority rights as reflected in lay-

offs is te ignore a vast body of long established

controlling practices in the process of collective

systems are among the most important and the most

complex. They are important because seniority is a set

of rights and privileges which normally becomes increas-

ingly valuable to an employee over time. They are com-

plex because seniority may have many applications, each

subject to many conditions.

Id. at 1. In this study, the Bureau reports the results of its

examination of 1,974 major collective bargaining agreements,

each covering 1,000 workers or more, for a total coverage of

some 8.2 million workers. Of these, some 1,501 agreements

covering 6.1 million workers referred to seniority. “With the

exception of agreements in the apparel and leather goods

industries, all or nearly all the agreements in manufacturing

established the principle of seniority.” Jd. at 2. In addition to

numerous statistics on the prevalence of various types of

seniority provisions, the Bureau’s report also reproduces from

the agreements examined some 182 different types of seniority

clauses. See also Bureau of Labor Statistics, United States

Department of Labor, Collective Bargaining Provisions: Sen-

iority, Bulletin No. 980-11 (1949) (hereinafter referred to as

the “1949 BLS Seniority Bulletin’), where some 269 differ-

ent seniority provisions are reproduced.

16

bargaining of which the seniority systems to

which the Act refers is a part.

Campbell, supra, 337 U.S. at 527. The commentators

as well have admonished that seniority systems are

not the function of any single variable:

Up to this point the word seniority has been de-

fined arbitrarily as an employee’s length of con-

tinuous service with the company. This broad

definition is reasonably accurate insofar as eligi-

bility for benefit programs is concerned. It

serves well in the application of benefit seniority.

However, the definition may be entirely inade-

quate and misleading for those items involving

the use of competitive status seniority to de-

termine order of layoff, recall, promotion, and

other preferential treatment. For these areas

the definitions are almost too varied to enu-

merate.

Slichter, Healy, and Livernash, The Impact of Col-

lective Bargaining on Management 116 (1960) (em-

phasis added) (hereinafter referred to as “Slitch-

ter’”’).°

In addition to the bare bones acknowledged by the

court below, it is necessary to recognize that seniority

operates within the context of a “system,” as noted

by the terminology in Section 703(h). Webster’s

Third New International Dictionary of the English

Language Unabridged 2322 (1976) defines “system”

® The Court has relied on this treatise previously, citing it in

Franks v. Bowman Transportation Co., supra, 424 U.S. at

766, in support of the Court’s observation that “[s]eniority

systems and the entitlements conferred by credits earned

thereunder are of vast and increasing importance in the

economic system of this Nation.”

17

as a “complex unity formed of many often diverse

parts subject to a common plan or serving a common

purpose.” The court below recognized a particular

“common plan” but failed to appreciate the “diverse

parts.” To remedy this omission, and in order to

arrive at a workable guide for what constitutes a

seniority system for purposes of Section 703(h), the

directive of Campbell to look to “the conventional

uses of the seniority system in the process of collec-

tive bargaining,” 337 U.S. at 526, provides useful

guidance. Such an inspection reveals that the opera-

tion of the seniority principle in the context of collec-

tive bargaining involves both the “fundamental con-

cept” of employment rights increasing with service,

as well as a vast array of associated “ground rules.”

Together, the fundamental concept and these ground

rules form the “seniority system.” ”

While there is no customary set of particular

ground rules constituting a seniority system, the

rules do fall into recognizable types. ..Slichter, supra,

at 115, provides a useful list: *

7 See generally 1949 BLS Seniority Bulletin, supra note 5;

1972 BLS Seniority Bulletin, supra note 5; and Slichter, supra

text accompanying note 6 at 104-139.

8 Cf. 1972 BLS Seniority Bulletin, supra note 5 at 1, where

the Bureau describes the provisions there studied in the

following terms:

In addition to describing the applications of seniority,

the provisions usually define the circumstances under

which seniority may be acquired, transferred, modified,

lost, and, if such is permitted, regained.

See also 1949 BLS Seniority Bulletin, supra note 5 at viii,

where the table of contents divides the seniority clauses there

reproduced into the following types:

[Footnote continued on page 18]

18

(1) definition and measurement of seniority of

service,

(2) acquisition of seniority,

(3) loss of seniority,

(4) use of superseniority,

(5) effect of merger and succession on seniority

rights

(6) seniority of employees outside the bargain-

ing unit, and

(7) special arrangements in administering sen-

iority rosters.

Among each of these types, there is substantial

variation, with no single rule being characteristic of

any “true” seniority system. For example, among

the rules relating to “definition and measurement,”

distinctions are often drawn between the measure-

ment of seniority and the scope of its application.

Seniority may be measured by length of service with

an employer, in a plant, department, or job, or ac-

cording to length of time within a given seniority

classification, such as the new-employee, temporary-

employee, and permanent-employee divisions at issue

here. There may also be distinctions between sea-

sonal and “year-round” employees. However meas-

ured, other rules may then determine the unit to

8[ Continued]

Definition and objectives of seniority, ... Acquisition and

calculation of seniority, . . . The seniority unit, ... Ex-

ceptions to seniority rules, .. . Seniority status in intra-

plant transfers or mergers, . . . Retention and loss of

seniority, . . . Special preference based on seniority, .. .

fand] Seniority lists and administration of seniority.

19

which seniority is to be applied. For example, senior-

ity may be measured on a plant-wide basis, but

layoffs governed by the application of this plant-wide

seniority on a departmental basis. Further, the unit

for measurement and the scope of application can

vary according to the particular right or benefit in-

volved. The possible variations are virtually endless.

See Slichter, supra, at 116-123.

Similar complexity may be found in each of the

other areas, with the variation in rules for acquiring

seniority particularly apposite here. “Under most

agreements an employee does not acquire any senior-

ity until he has worked beyond the prescribed pro-

bationary period . .. .” Slichter, supra, at 123.

However, the length of the probationary period varies

from thirty, sixty or ninety days in some agreements

to six months or more in others. Further, as Slichter

describes :

[T]he parties have learned through experience

the necessity of defining more carefully the time

credit to be given a probationer toward the satis-

faction of his period. For example, if a new em-

ployee works intermittently for a company so

that a total of 60 days are worked in a one-year

period on eight different employment occasions,

has he met the 60-day probationary require-

ment? One agreement resolves these questions

by stating that if a probationary employee re-

turns after losing ten days consecutively, he will

start as a new employee. But if he is laid off,

he will retain credit for time worked if recalled

within six months. Another company and union

have agreed that to become a seniority employee,

a probationer must have been employed three

months within the year following the date of hire

20

or last rehire, whichever is later; layoff periods

or leaves of absence for any reason are not to

count toward the three months.

Slichter, supra, at 123-24.

From these examples, drawn from only two of the

various types of seniority ground rules typically in-

volved in collective bargaining agreements, it may be

seen that a seniority system simply has no meaning

apart from these rules. They are what determine

how seniority is acquired, measured, transferred, lost,

and applied. Thus, if Section 703(h) is to provide

any meaningful immunity to the operation of senior-

ity systems at all, it can only do so in regard to these

rules.

Prior decisions of this Court have recognized the

inclusion of seniority ground rules within the concept

of a seniority system. For example, in Teamsters,

supra, the Court had to consider not only the general

question of whether a seniority system which perpe-

tuates prior discrimination is entitled to Section

703(h) protection at all, but also whether in that

case the protection extended to two particular senior-

ity ground rules alleged to have a disparate impact

upon Blacks and Hispanics. These were (1) the rule

defining seniority units along departmental lines, and

(2) the separate rule providing that an employee

transferring from one departmental unit to another

must forfeit his accumulated competitive seniority.

Properly, there was no question but that these rules

were a part of the seniority system involved. See

Teamsters, supra, 431 U.S. at 343-356.

Other decisions of the Court have also recognized

that what are here termed “ground rules” are very

21

much an integral part of seniority systems. In Aero-

nautical Industrial District Lodge 727 v. Campbell,

supra, for example, the Court noted as part of the

“seniority principle” the range of such rules, includ-

ing “the time when seniority begins,” the “determi-

nation of the units subject to . . . seniority,” the

“eonsequences which flow from seniority,” whether

“probationary conditions must be . . . met before

seniority begins,” whether “it becomes retroactive to

the date of employment” or “only as from the quali-

fying date,” and whether seniority “is determined

on a company basis,” an occupational basis, or a plant

basis, 337 U.S. at 526-27. See also Tilton v. Missourt

Pacific R.R. Co., 376 U.S. 169, 181 (1964) (recog-

nition of training requirement as a legitimate aspect

of seniority).°

® The Sixth Circuit in Alexander v. Machinists, Aero Lodge

735, 565 F.2d 1364 (6th Cir.), cert. denied, 486 U.S. 946

(1978), has also recognized that seniority ground rules are

properly included with the concept of seniority systems.

There, the collective bargaining agreement provided that em-

ployees having prior experience in a particular job, called

“job equity,” would have preference over those lacking job

equity, both in regard to promotions and bumping rights.

565 F.2d 1376-77. In rejecting a claim that this provision

was not entitled to Section 703(h) protection, the court prop-

erly observed:

With regard to the job equity features of the collective

bargaining agreements, it could be argued that they are

not a facet of the seniority system but a separate ele-

ment affecting job competition and hence not immune

under § 708(h) of the Act. The Act, however, speaks

not simply of seniority but of a bona fide seniority .. .

system. A preference to those with experience in a

given occupation is in a sense limited occupational sen-

iority and we see nothing in the statute or in Teamsters

22

In summary, a review of the “conventional uses of

the seniority system in the process of collective bar-

gaining” reveals that such systems are not limited to

any one “fundamental component,” but rather include

as well a vast array of integrally related rules that

determine how in fact seniority systems operate.

Therefore, if Section 703(h) is to provide protection

to the vested seniority rights of employees, as Con-

gress clearly intended, J'eamsters, supra, 431 U.S. at

352-53, then the term “seniority system” as used in

that provision must be understood to include such

rules. Accordingly, the Ninth Circuit’s conclusion

that the 45-week provision is not part of a “seniority

system” for purposes of Section 703(h) must be re-

jected, since this provision is clearly a rule related to

and governing the acquisition of seniority.’

to indicate that it should stand on a different footing

than traditional plant-wide or departmental seniority.

It is a contractual provision neutral on its face and is, in

our view, an integral part of Avco’s unique but nonethe-

less bona fide seniority system.

565 F.2d 1378-79.

10 According to data reported in the 1972 BLS Seniority

Bulletin, supra note 5 at 38, rules governing the acquisition

of seniority appeared in approximately 76% of the agreements

studied having seniority provisions. Of these, approximately

20% provided that if probationary service were interrupted

(for example, by layoff), the credit accumulated would be

retained, but the probationary period, as with the 45-week

requirement, had to be completed within a specified amount

of time. Such provisions were found in agreements affecting

almost 50% of the workers covered by seniority provisions.

23

B. The Ninth Circuit’s Test for “True” Seniority Sys-

tems Impermissibly Dictates the Substantive Terms

of Collective Bargaining Agreements

As recognized in numerous decisions of this Court

involving both the National Labor Relations Act and

Title VII, it is a fundamental tenet of our national

labor policy to provide broad freedom to employers

and unions to work out collective bargaining pro

visions that best suit their individual needs. Con-

comitantly, that policy counsels strongly against

dictating to employers and unions what the terms of

their agreements must be. See, e.g., Trans World

Airlines, Inc. v. Hardison, supra, 432 U.S. at 79-83;

.. Bs Pobter Co. v. NLRB, 397 U.S. 99 (1970);

NLRB v. Insurance Agents’ International Union, 361

U.S. 477 (1960); and NLRB v. American National

Insurance Co., 343 U.S. 395 (1952). See also Wel-

lington, Freedom of Contract and the Collective Bar-

gaining Agreement, 112 U. Pa. L. REv. 467 (1964)."

The same policy applies to the interpretation of

“seniority system” under Section 703(h). As with

the analogous provision under the Selective Training

and Service Act of 1940, “the Act uses the term

‘seniority’ without definition. It is thus apparent that

Congress was not creating a [particular] system of

seniority but recognizing its operation as part of the

process of collective bargaining.” Campbell, supra,

Cf. United Steelworkers of America v. Weber, 47

U.S.L.W. 4851, 4854 (U.S. June 27, 1979), where the Court

observed that Title VII is to be interpreted generally such

that “ ‘management prerogatives and union freedoms .. .

[are] left undisturbed to the greatest extent possible,’”

quoting H.R. Rep. No. 914, 88th Cong., 1st Sess., Pt. 2, at 29

(1963).

24

337 U.S. at 526. This “process of collective bargain-

ing” has produced “great variations in the use of the

seniority principle,” as the Court has noted, Camp-

bell, supra, 337 U.S. at 526, and “[t]he legislative

history [of Section 703(h)] contains no suggestion

that any one system was preferred,” Teamsters,

supra, 431 U.S. at 355 n.41.

The approach of the Ninth Circuit to the determi-

nation of what constitutes a “true” seniority system

under Section 703(h) is in fundamental conflict with

this policy. According to its view, seniority systems,

to be accepted as such, must operate in a very particu-

lar way. They must involve: (1) increases in em-

ployment rights and benefits that occur (2) “in-

crementally” as opposed to in an “all-or-nothing”

fashion and (3) be “automatically” based on service

alone rather than in combination with any other

factor that is “susceptible to discriminatory appli-

cation.” Bryant, supra, 585 F.2d at 427. Further,

a provision is not part of a “true” seniority system

if it results in later-hired employees acquiring greater

rights than other employees “regardless of whether

one measures seniority by length of employment in a

bargaining unit, plant, company, or industry.” 7d.

This attempted definition of the “true” seniority sys-

tem could not be more at odds with the national labor

policy to afford maximum “freedom of contract’ to

the collective bargaining process. See H.K. Porter

Co. v. NLRB, supra, 397 U.S. at 108.”

12 Cf. Furnco Construction Corp. v. Waters, 438 U.S. 567,

578 (1978), where the Court admonished the court of appeals

below in that case not to require “businesses to adopt what

it perceives to be the ‘best’ hiring policy” in terms of minimal

adverse impact on minorities. Analogously, employers and

25

If adopted, the lower court’s test for the “true”

seniority system would place outside Section 703 (h)

scores of provisions nationwide."* One example is a

typical probationary system. Suppose that a union

and employer have agreed that what best suits their

particular circumstances is an arrangement with the

following features: (1) a new employee must work

sixty days before acquiring seniority; * (2) there is

no contractual limitation on discharge during this

period; ** (3) in the event of a layoff or other inter-

ruption during the probationary period the time pre-

viously worked is preserved but no credit is granted

during the interruption;** and (4) the contract

unions should not be required to adopt “true” seniority sys-

tems that will minimize disparate impact. “Courts are gen-

erally less competent than employers to restructure business

practices, and unless mandated to do so by Congress they

should not attempt it.” 488 U.S. at 578. A fortiori, this ad-

monition applies to collective bargaining.

18 See note 10, supra.

14TIn the 1972 BLS Seniority Bulletin, supra note 5 at 38,

the data there reported indicate that of the collective bar-

gaining agreements studied which referred to seniority at

all, almost 75% involved some type of probationary period.

In the sample studied alone, these agreements with proba-

tionary provisions covered over one million workers. /d.,

Table 2.

15 Probationary employees typically do not enjoy the stan-

dard “just cause” limitation on discharge that applies to

permanent employees. See Slichter, supra text accompanying

note 6 at 124; 1972 BLS Seniority Bulletin, supra note 5 at 5.

16 This type of provision appeared in 88% of the BLS-

studied agreements that referred to an interruption of service

during the acquisition of seniority. Within the sample alone,

such provisions covered over 750,000 workers. 1972 BLS

Seniority Bulletin, supra note 5 at 33, Table 4.

26

specifies a time limit within which the probationary

period must be completed."

Under the Ninth Circuit’s test for “true” seniority

systems, this probationary arrangement would fail.

First, it “does not provide for incremental increases

in employment rights or benefits based on length of

overall service.” Bryant, supra, 585 F.2d 427.

Rather, it contains a disapproved “all-or-nothing”’ fea-

ture. Until the employee has worked the requisite

sixty days within the specified time period, he re-

mains a temporary, regardless of accumulated serv-

ice. Secondly, the progression from temporary to

permanent is not “automatic.” Rather, the employee’s

“chances of satisfying the provision automatically

terminate at the end” of the specified period, if not

completed. Thirdly, the arrangement is “susceptible

to discriminatory application” since the employer

may terminate the employee without cause prior to

completing the sixty-day period. Finally, if one em-

ployee works straight through and becomes perma-

nent in only sixty days, whereas another employee

previously hired has worked a greater number of

days but has not become permanent due to interven-

ing layoffs, then the first employee will have greater

rights than the second even though the first employee

was hired later and has less accumulated service.

Such a result does not comport with the Ninth Cir-

cuit’s “true” seniority system. Bryant, supra, 585

F.2d at 426-27.

17 Such time limits on gaining seniority appeared in over

72% of the BLS-studied agreements referring to an interrup-

tion of service during the acquisition of seniority. These time

limits covered some 715,000 workers. Id.

27

Standard seniority-based promotion provisions *

would fare no better if the promotion decision de-

pends upon any factor other than date of hire, since

that would make the system nonautomatic and “par-

ticularly susceptible to discriminatory application,”

both forbidden features.” Bryant, supra, 585 F.2d

at 427.

Finally, the seniority system involved in Teamsters

itself would not pass the Ninth Circuit’s test. That

system involved departmental seniority units, and

employees transferring from one department to

another had to forfeit their accumulated seniority

and start at the bottom of the new department’s list.

As a result of these rules, an employee transferring

to a new department might have both an earlier date

of hire and greater accumulated service than others

there, yet be lower on the seniority roster. Teamsters,

supra, 431 U.S. at 343-45. Such would not comport

with the operation of “true” seniority systems where

“employment rights should increase as the length of

an employee’s service increases.” Bryant, supra, 585

F.2d at 426.

While the court below attempted to distinguish

Teamsters in this regard, the effort was not convinc-

18 “Rarely does one find a contract clause in which seniority

is the exclusive criterion for deciding on promotions.” Slichter,

supra at 198.

1® This is not to suggest that reliance on the non-seniority

factor should be totally immune from Title VII scrutiny sim-

ply because that factor is used in conjunction with seniority.

The bona fide test outlined in Teamsters v. United States,

supra, 431 U.S. at 355-366, serves to protect against abuse.

See Section III(C), infra.

28

ing. Referring to Teamsters, the court of appeals

said that the “fundamental” test of increasing em-

ployment rights with increasing service was there

satisfied, because “employees with fewer weeks of

service in a particular area (company or bargaining

unit) could never acquire greater benefits within

that area than employees with longer service there.”

Bryant, supra, 585 F.2d at 427. This observation

does not effectively distinguish the Teamsters system

from the one in the brewing industry, however, since

it is true in the latter as well that “employees with

fewer weeks of service in a particular [classification,

e.g., temporary or permanent] could never acquire

greater benefits within that [classification] than em-

ployees with longer service there.” Bryant, supra,

585 F.2d at 427. Thus, once the Ninth Circuit’s

manner of classification is accepted, the matter is

resolved, yet the court offers no reason why the classi-

fication between departments is permissible but that

between temporary and permanent is not. The com-

ment in Teamsters that “[t]he legislative history [of

Section 703(h)] contains no suggestion that any one

system was preferred,” Teamsters, supra, 431 U.S.

at 355 n.41, would appear to indicate otherwise.

In summary, the court below has adopted a narrow

and not altogether consistent view of what constitutes

a “true” seniority system. But whether consistent

or not, the Ninth Circuit’s concept of the “true”

seniority system is antithetical to the freedom ac-

corded the collective bargaining process by our na-

tional labor policy. It places in jeopardy the seniority

expectations of the countless employees that work

under all of the non-“true” systems. In the enact-

ment of the protections of Section 703(h), there is no

29

evidence whatsoever that Congress intended any such

result.

C. A Proposed Test for Determining What Constitutes a

Seniority System Within the Meaning of Section

703(h)

The Ninth Circuit’s test for determining the exist-

ence of a “seniority system” under Section 703(h)

is both too narrow (focusing on core seniority to the

exclusion of the associated rules) and too specific

(permitting only a particular type or “true” seniority

system). A careful examination of the policies at

work in Section 703(h) suggests both an appropriate

definition of “seniority system” and an acceptable

principle of limitation.

As noted in preceding sections, Congress has not

defined “seniority system” in the statute, and it has

thus been necessary to “look to the conventional uses

of the seniority system in the process of collective

bargaining.” Campbell, supra, 337 U.S. at 526. That

“look” in turn has revealed two important criteria

that any definition of seniority system must meet.

First, the definition must be sufficiently broad ty in-

clude not only core concepts of seniority, i.e., employ-

ment rights increasing with service, but also the cus-

tomarily associated rules that determine, among other

things, how seniority is defined, measured, acquired,

transferred, lost, regained, and applied. Second, any

definition of seniority should be consistent with the

fundamental tenet of national labor policy to provide

unions and employers broad freedom to work out

their own collective bargaining agreements, and to

avoid dictating the substantive terms of those agree-

ments.

30

Thus, a proper definition of seniority should not

restrict employers and unions to any particular

arrangement, “true” or otherwise. Together, these

principles indicate that “seniority systems,” for pur-

poses of Section 703(h), should be construed broadly

and consistently with the great variety of arrange-

ments in existence when Congress enacted the statute.

Accordingly, the following test for Section 703(h)

“seniority systems” is suggested:

The provisions of a collective bargaining agree-

ment or employment policy ® shall be deemed a

seniority system so long as, in some fashion, em-

ployment rights or benefits increase with some

measure of time worked or employed. Further,

a particular provision shall be regarded as a

part of a seniority system so long as there is a

nexus between the provision and the operation

of that seniority system. Specifically included,

among others, are the “ground rules” of senior-

ity systems which determine how seniority is

defined, measured, acquired, transferred, lost,

regained, and applied. Length of service need

not be the sole determinant of the employee

rights or benefits in question.

While this test would appear to encompass the

national labor policy considerations just noted, it is

not here suggested that this be the end of the anal-

ysis. Another policy that must be taken into con-

sideration as well is the policy to construe the reme-

dial provisions of Title VII broadly. Clearly, this

requires some limitation upon the immunity granted

by Section 703(h) even to seniority systems and pro-

visions that meet the above test.

20 The language of Section 703(h) is not limited to collec-

tively bargained seniority arrangements.

eee ee Le w

31

In Teamsters, this Court has indicated the proper

approach. Thus, it should not be sufficient, in order

to acquire the immunity of Section 703(h), that the

employment practice in question simply be the result

of the operation of a seniority system. One must look

further and determine the bona fides of that system,

including: (1) whether it applies equally to all groups

without regard to race, color, religion, sex, or na-

tional origin, (2) whether it adversely affects only

one group, (3) whether it is rational, and (4)

whether it has been negotiated and maintained free

of discrimination. Teamsters, supra, 431 U.S. at

355-56.

The court below confused its concerns over the

bona fides of the 45-week rule with the question of

whether the requirement was nonetheless part of a

seniority system. As a seniority acquisition rule of

a type not uncommon in industry, the 45-week pro-

vision clearly should be regarded as part of the

seniority system. There of course remains to be

determined whether the 45-week provision, together

with the remainder of the seniority system to which

it relates, otherwise meets the bona fides requirements

of Teamsters.

The Ninth Circuit need not have feared that by

placing the 45-week rule within the definition of

“seniority system,” the result would be similarly to

immunize a whole variety of employment practices

hitherto subject to Title VII challenge. See Bryant,

supra, 585 F.2d at 427 n.11. First, it would be a

rare seniority system indeed which contained the pro-

visions envisioned by the Ninth Circuit. Certainly

educational requirements generally would not be en-

titled to section 703(h) protection since they would

32

normally lack the essential nexus to the operation of

a seniority system. Further, virtually no seniority

systems actually in existence contain educational re-

quirements. See generally Schlicter, supra; 1972

B.L.S. Seniority Bulletin, supra. The hypothetical of

the court of appeals thus bears little relationship to

industrial reality. Second, were such provisions to be

included in a seniority system with any intention of

favoring a particular race or sex, they would not

meet the “bona fides” test of Teamsters and would

thus not be entitled to Section 703(h) protection. In

the rare case where such a provision had the required

nexus to seniority and met the Teamsters bona fide

test, but resulted in disparate impact independent of

any past practices of the employer, then the policies

underlying Section 703(h) suggest a limiting prin-

ciple.

Congress enacted Section 703(h) in response to the

concern that Title VII would “destroy existing senior-

ity rights,” if the tendency of even bona fide seniority

systems to perpetuate prior discrimination were

deemed unlawful. Teamsters, supra, 431 U.S. at 350,

352. However, there is nothing in the legislative

history to suggest that Congress likewise intended to

insulate employment practices which had an adverse

impact independent of any past practices of the em-

ployer which would not be permitted elsewhere,

simply because such practices might be written into

a seniority system. This suggests that in the rare

circumstance noted above the Teamsters bona fides

analysis be supplemented by an examination of the

source of the disparate impact allegedly caused by the

operation of the seniority system. If, and to the ex-

tent that, the disparate impact results solely from the

83

perpetuation of some past condition, then, consistent

with the congressional purpose, the seniority expecta-

tions of employees who have worked under that sys-

tem should be protected. Conversely, if, and to the

extent that, the alleged disparate impact is inde-

pendent of any past practice on the part of the em-

ployer, then the discriminatory provision should not

be immune from Title VII attack, simply because it

happens to be a part of the seniority system.

A comparison between the Teamsters interdepart-

mental transfer rule and the hypothetical educational

requirement posed by the court below illustrates both

the application of the proposed test and why the

Ninth Circuit’s concerns were unfounded. In Team-

sters, the transfer rule discouraged movement from

the less desirable city-driver jobs to the more desir-

able long-haul jobs because it required that a trans-

feree forfeit his accumulated seniority and start at

the bottom of the roster in the new department. Be-

cause of prior discrimination, this transfer rule had

the effect of locking blacks and Hispanics into the less

desirable city-driver unit.” While the rule thus per-

21 While the pattern perpetuated in Teamsters—that of a

disproportionately white long-haul unit and a disproportion-

ately black and Hispanic city-driver unit—was the result of

prior discrimination by the employer, there would not appear

to be any basis under Section 703(h) for requiring that the

pattern perpetuated by a seniority system be discriminatorily

caused. Otherwise, the result would be an anomalous rule

whereby seniority expectations resting upon past discrimina-

tion would be protected, whereas those resting upon patterns

lawfully originated would not be. Cf. United Airlines v.

Evans, supra, 431 U.S. at 558-560. Accordingly, a seniority

system which perpetuates any past practice, lawful or un-

lawful, should be entitled to Section 703(h) protection.

34

petuated past discrimination, it was not discrimina-

tory in and of itself. That is, as the Court observed,

it equally discouraged whites as well as blacks and

Hispanics within the city-driver unit from transfer-

ring. Teamsters, supra, 431 U.S. at 344-55. Accord-

ingly, under the proposed test, the seniority system

would be entitled to Section 703(h) protection, since

the disparate impact results solely from the perpetua-

tion of some past condition.

By comparison, consider the same Teamsters sen-

iority system, but assume that instead of the par-

ticular transfer rule involved there, the agreement

had provided that only employees with high school

diplomas could become long-haul drivers.” Further,

assume that there was a substantially lower incidence

of high school diplomas among black and Hispanic

city drivers than among white city drivers. Given

these conditions, the diploma rule would not apply

equally to all city drivers attempting to transfer, but

instead would disproportionately screen out blacks

and Hispanics. As such, the diploma rule would not

be entitled to Section 703(h) protection under the

test proposed here, since the disparate impact in-

volved would be caused not by a mere perpetuation

of some past practice on the part of the employer,

but through a present adverse impact caused by the

provision itself.” |

22 This assumes arguendo, of course, that the lower court’s

hypothetical educational requirement for entry into a seniority

line, Bryant, supra, 585 F.2d 427 n.11, would satisfy the test

proposed above for what constitutes part of a seniority sys-

tem to begin with.

23 That such an educational requirement would not qualify

for Section 703(h) protection would not necessarily mean

35

In contrast to the diploma requirement, the 45-

week provision would meet both prongs of the sug-

gested test. First, as a seniority acquisition rule of

a type not uncommon in industry, it has the required

nexus to seniority and thus comes within the meaning

of “seniority systems” for purposes of Section

703(h). Second, the alleged discriminatory effect of

the 45-week provision results solely from the perpe-

tuation of alleged prior discrimination. In and of

itself, apart from its connection with the seniority

system, it has no discriminatory effect. As the court

below found, it prevents blacks and whites equally

from advancing to the permanent classification.

Bryant, supra, 585 F.2d at 424. Accordingly, if the

45-week provision and the seniority system of which

it is a part otherwise meet the bona fides require

ments of Teamsters, then no violation would have

been shown. Thus, a remand would appear appro-

priate for that determination.”

IV. CONCLUSION

Amicus respectfully urges the Court to reject the

approach adopted by the Ninth Circuit below to the

determination of what constitutes a “seniority sys-

that it would be unlawful, since the job-relatedness and

business-necessity defenses under Griggs would still be avail-

able.

**If the standard proposed here is adopted, the lower

courts should be cautioned not to use the suggested analysis

of disparate impact as a back door out of Section 703(h) and

into Griggs. Only in rare cases will a seniority system in-

volve disparate impact that is caused other than by a per-

petuation of some past practice.

36

tem” under Section 703(h) of Title VII. As shown,

the lower court’s approach conflicts fundamentally

both with our national labor policy to afford broad

freedom to the collective bargaining process and with

the policy of Title VII to protect the seniority

expectations of incumbent employees. It does so by

impermissibly excluding seniority administration

rules from the definition of seniority systems, by

dictating that seniority systems must operate in a

very particular way, and by failing to distinguish

between disparate impact caused merely by perpetua-

tion of past discrimination and that caused otherwise.

As an alternative, Amicus has suggested to the

Court an approach respecting the policies underlying

the collective bargaining process as well as the broad

remedial goals of Title VII. We respectfully urge

the Court to adopt that approach.

Respectfully submitted,

Of Counsel: BrucE A. NELSON

McGUINESS AND WILLIAMS porch gaa

RoBERT E. WILLIAMS

Douc.as S. MCDOWELL ae —

1747 Pennsylvania Ave., N.W. ne Market Plaza

: Spear Street Tower

Washington, D.C. 20006

August, 1979

San Francisco, CA 94105