Amicus Brief — American Tobacco Co. v. Patterson

THE AMERICAN TOBACCO COMPANY,

ToBACCO WORKERS’ INTERNATIONAL UNION, AND

LOCAL 182 oF TOBACCO WORKERS’

INTERNATIONAL UNION,

Petitioners,

V.

JOHN PATTERSON, MARION MOSHOE,

EDMUND PAGE, JAMES RANDOLPH

AND Percy TAYLOR,

Respondents.

AMERICAN BRANDS, INC.,

5 Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

RoBerT E. WILLIAMS

Douac.as S. MCDOWELL

Davin H. LARRY

McGuINngEss & WILLIAMS

1015 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for the Amicus Curiae

Equal Employment

Advisory Council

Wasen Eres Printine Co.. Inc. + 789-0096 d WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....

INTEREST OF THE AMICUS CURIAE E

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

THE FOURTH CIRCUIT’S CONCLUSION THAT

SECTION 708 (h) APPLIES ONLY TO PRE-ACT

SENIORITY SYSTEMS IS DIRECTLY CON-

TRARY TO THE STATUTORY LANGUAGE,

THE LEGISLATIVE HISTORY AND THIS

COURT’S HOLDINGS

A. The Language of Section 703 (h) Is Unambigu-

ously Applicable To All Bona Fide Seniority

Systems, And This Court Has Emphasized

That Prospective Application Of That Section

Is Required By The Nation’s Labor Policy ......

B. There Is No Support In This Court’s Decisions

Or In The Legislative History For Applying

a Different Legal Standard To Post-Act Than

To Pre-Act Seniority Systems

K S&S WwW

15

ii

TABLE OF AUTHORITIES CITED

Cases: Page

Aeronautical Lodge v. Campbell, 387 U.S. 521

(1949) 8, 11

Alexander v. Gardner-Denver, 415 U.S. 36 (1974).. 6, 15

California Brewers Association v. Bryant, 444 U.S.

e, renne 3, 5, 11, 12, 18, 16, 20

Ford Motor Co., 28 LA 296 (1954) .. 10

Ford Motor Co. v. Huffman, 345 U.S. 880 (1953). 11

Franks v. Bowman Transportation Co., Inc., 424

U.S. 747 (1976) 5, 8, 9, 16, 17, 18, 19

Furnco Construction Corp. v. Waters, 488 U.S.

567 (1978) 18

Greyhound Corp. v. Mt. Hood Stages, Inc., 487 U.S.

(1978) 8

Griggs v. Duke Power Co., 401 U.S, 424 (1971)... 4,5,

18, 17, 18, 20

International Brotherhood of Teamsters v. United

States, 481 U.S, 824 (1977) passim

Patterson v. American Tobacco Co., 634 F.2d 744

(4th Cir. 1980) (en banc) 8,4

H. K. Porter Co. v. NLRB, 897 U.S. 99 (1970) 11

Pullman - Standard v. Swint, U.S. Nos. 80-1190 and

80-1198 3

Swint v. Pullman- Standard, 624 F.2d 525 (5th

Cir. 1980), pet. for cert. granted, Nos. 80-1190

and 80-1198 8

Texas Dept. of Community Affairs v. Burdine, 101

S. Ct. 1089 (1981) 18

Trans Alaska Pipeline Rate Cases, 486 U.S. 631

(1978) 8

Trans World Airlines, Inc. v. Hardison, 482 U.S.

68 (1977) 8, 8, 12, 16, 17

United Air Lines, Inc. v. Evans, 481 U.S. 533

(1977) 8, 9, 16, 17

United States of America and Equal Employment

Opportunity Commission v. Trucking Manage-

ment, Inc., No. 79-2102 (D.C. Cir., August 14,

1981), Slip Opinion 8

United Steelworkers of America, AFL-CIO-CLC v.

Weber, 443 U.S. 198 (1979) 6, 11, 18, 19

iii

TABLE OF AUTHORITIES CITED—Continued

Statutes: Page

Title VII of the Civil Rights Act of 1964, as

amended (42 U.S.C, 656 20000, et se. passim

Section 708 (h) passim

Miscellaneous :

Elkouri & Elkouri, How Arbitration Works, 3d

Edition (19738) 10

Slichter, Healy & Livernash, The Impact of Col-

lective Bargaining on Management (1960)........ 10, 14

7

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No. 80-1199

THE AMERICAN TOBACCO COMPANY,

TOBACCO WORKERS’ INTERNATIONAL UNION, AND

LOCAL 182 oF TOBACCO WORKERS’

INTERNATIONAL UNION,

1 Petitioners,

JOHN PATTERSON, MARION MOSHOBR,

EDMUND PAGE, JAMES RANDOLPH

AND PERcY TAYLOR,

Respondents.

" AMERICAN BRANDS, INC.,

„ Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE FOR THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITIONERS

The Equal Employment Advisory Council (EEAC),

with the written consent of all parties,’ respectfully

submits this brief as Amicus Curiae in support of

the Petitioners.

INTEREST OF THE AMICUS CURIAE

EEAC is a voluntary nonprofit association or-

ganized to promote the common interest of employ-

ers and the general public in sound government poli-

cies, procedures and requirements pertaining to non-

discriminatory employment practices. Its member-

ship comprises a broad segment of the employer

community in the United States, including both in-

dividual employers and trade and industry associa-

tions. 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 considera-

tions relevant to the proper interpretation and appli-

cation of EEO policies and requirements.

Substantially all of EEAC’s members or their con-

stituents are subject to the provisions of Title VII

of the Civil Rights Act of 1964, as amended (42

U.S.C. §§ 2000e et seg.). As such, EEAC’s members

have a direct interest in the issue presented for the

Court’s consideration; that is, whether the Court of

Appeals for the Fourth Circuit has erred in conclud-

ing that Congress intended that the immunity from

Title VII liability afforded bona fide seniority sys-

tems by Section 703 (h) of Title VII should extend

1 Their consents have been filed with the Clerk of the

Court.

only to seniority practices instituted before the Act’s

effective date.’

At issue in this case, as in Pullman-Standard v.

Swint, U.S. Nos. 80-1190 and 80-1198, is the continued

viability of the protection Congress extended to bona

fide seniority systems in g 708(h). The Fourth Cir-

cuit in Patterson and the Fifth Circuit in Pullman-

Standard have advanced interpretations of that sec-

tion which are at odds with this Court’s holding in

International Brotherhood of Teamsters v. United

States, 481 U.S. 324 (1977), and which would im-

properly restrict the protections of 5 703 (h). Ac-

cordingly, because of the potentially enormous impact

upon seniority systems and the rights and benefits

accrued thereunder, this Court’s disposition of those

cases is of vital concern to the nation’s employers,

employees, and unions.

STATEMENT OF THE CASE

Plaintiffs in this employment discrimination case

allege that the operation of a lines of progression

* Because of its interest in issues involving interpretation

of Section 708(h) of Title VII, EEAC has filed briefs as

Amicus Curiae with this Court in Pullman-Standard v. Swint,

Nos, 80-1190 and 80-1198; California Brewers Association v.

Bryant, 444 U.S. 598 (1980); International Brotherhood of

Teamsters v. United States, 481 U.S. 824 (1977); United

Airlines v. Evans, 431 U.S. 553 (1977); and Trans World

Airlines v. Hardison, 482 U.S, 63 (1977).

* Patterson v. American Tobacco Co., 684 F.2d 744 (an

Cir. 1980) (en banc).

* Swint v. Pullman Standard, 624 F.2d 525 (6th Cir. 1980).

4

promotional policy instituted in 1968 violates Title

VII.“

In the en banc opinion before this Court, the circuit

court held that Congress intended the protections of

§ 703(h) to apply only to those systems in existence

on the effective date of Title VII and to routine post-

Act applications of such systems. Because the lines

of progression policy was adopted after the effective

date of Title VII, § 703 (h) was found to have no

application, whether or not the policy was considered

a seniority system. As a result, the Fourth Circuit

held that the discriminatory effect of that policy was

properly evaluated by the district court under the

disparate impact test of Griggs v. Duke Power Co.,

401 U.S. 424 (1971).

In other words, the Fourth Circuit has concluded

that it was the intent of Congress te immunize from

Title VII liability only those seniority systems in ex-

istence prior to the Act’s effective date and to re-

quire that the legality of pre-Act and post-Act sys-

tems be evaluated pursuant to widely, and often

crucially, differing legal standards. |

SUMMARY OF ARGUMENT

The Fourth Circuit’s holding would implicitly re-

peal § 703 (h) for all post-Act seniority systems and

make the validity of such systems depend upon

There is a dispute regarding whether the lines of progres-

sion policy was implemented in 1968 or at an earlier time,

prior to the effective date of Title VII. Compare Patterson,

684 F.2d 744, 757-766, dissent of Judge Widener, with the

whether or not they perpetuated the effects of past

employment practices. Griggs v. Duke Power Co.,

401 U.S. 424 (1971). Moreover, the court’s opinion

would effectively discourage employers and unions

from changing seniority systems. That standard and

result are directly contrary to this Court’s holdings

and the intent of Congress.

As this Court has acknowledged, “[s]eniority sys-

tems and the entitlements conferred by credits earned

thereunder are of vast and increasing importance in

the economic employment system of this Nation.”

Franks v. Bowman Transportation Co., Inc., 424 US.

747, 766 (1976). In § 703 (h) of Title VII, Congress

the importance of seniority systems, as

well as the process of independent collective bargain-

ing in which they are negotiated, by providing that

unless intentional discrimination is involved, the oper-

ation of such systems “shall not be an unlawful em-

ployment practice.” it is apparent from this Court’s

decision in California Brewers Association v. Bryant,

444 U.S. 598 (1980), that the immunity from Title

VII liability extended by § 703(h) is prospective, and

protects any neutral, bona fide seniority system,

whenever adopted.

Congress recognized that neutral bona fide senior-

ity policies could have a “disparate impact” upon

more recently hired minority group members, but

determined that the protection of bona fide seniority

systems was of overriding importance. As its resolu-

tion of competing interests, Congress determined that

“[p]ost-Act discriminatees . . . may obtain full ‘make

whole’ relief, including retroactive seniority under

Franks v. Bowman [424 U.S. 747 (1976) )

without attacking the legality of the seniority system

as applied to them” (emphasis added). Teamsters

v. United States, 431 U.S. at 347.

The circuit court’s reading of § 703 (h) contradicts

the unambiguous language of the section, which un-

qualifiedly applies to all bona fide systems. More-

over, the legislative history of § 703 (h) indicates

that Congress intended that Title VII would not re-

sult in setting aside, or making illegal in the future,

neutral, bona fide seniority systems. Statements of

the sponsors of the bill were inserted into the record

to respond to objections of the opponents to Title VII

that bona fide seniority systems would be set aside.

It is unthinkable that legislative statements intended

to protect seniority systems could be construed as

evidence of a Congressional intent to prohibit upon

enactment precisely the types of pre-Act systems the

bill’s opponents vigorously sought to protect. Indeed,

because Title VII would not have passed without sup-

port of legislators who resisted federal encroachment

upon traditional management prerogatives and union

freedoms (United Steelworkers v. Weber, 443 U.S.

193, 206 (1979)), the only logical conclusion is that

post-Act systems were intended to be given the same

protections at pre-Act systems.

Moreover, under the Fourth Circuit’s interpreta-

tion, § 703 (h) would no longer protect seniority sys-

tems modified by collective bargaining, conciliation

agreements or consent decrees, even if the changes

were intended to soften the effects of past employment

practices. Although voluntary change in employment

practices is the preferred means for carrying out the

purposes of Title VII, Alexander v. Gardner-Denver,

415 U.S. 36, 44 (1974), the circuit court’s approach

7

would penalize and, therefore, discourage such volun-

tary attempts to ameliorate the application of past

systems. Thus, the opinion of the court. below flies

in the face of the statutory language, is at odds with

this Court’s decisions and poses a significant threat

to the proper administration of the Federal labor and

antidiscrimination laws.

ARGUMENT

THE FOURTH CIRCUIT'S CONCLUSION THAT

SECTION 703(h) APPLIES ONLY TO PRE-ACT

SENIORITY SYSTEMS IS DIRECTLY CONTRARY

TO THE STATUTORY LANGUAGE, THE LEGISLA-

TIVE HISTORY AND THIS COURT’S HOLDINGS

A. The Language Of Section 703(h) Is Unambiguously

Applicable To All Bona Fide Seniority Systems, And

This Court Has Emphasized That Prospective Appli-

cation Of That Section Is Required By The Nation’s

Labor Policy

The Court has long recognized that differing indus-

trial circumstances and bargaining goals have given

rise to a wide variety of seniority systems and com-

ponents of those systems. Indeed:

It is the essence of collective bargaining that it

is a continuous process. Neither the conditions

to which it addresses itself nor the benefits to be

secured by it remain static.

* * * *

There are great variations in the use of the sen-

iority 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. Aeronautical Lodge v.

Campbell, 387 U.S. 621, 525-26 (1949).

Title VII, of course, was modeled in large part on this

pre-existing national labor policy. Franks v. Bowman

Transportation Co., Inc., 424 U.S. 747, 769 (1976).

The Fourth Circuit’s construction of § 703 (h) as ap-

plying only to those particular seniority systems in

place as of the effective date of Title VII, however,

is antithetical to this labor policy and at odds with

the intent of Congress when it passed Title VII.

As this Court has observed, “seniority systems are

afforded special treatment under Title VII.” Trans

World Airlines, Inc. v. Hardison, 432 U.S. 63, 81

(1977). In unambiguous language, applicable to all

bona fide seniority systems,“ § 708 (h) of Title VII

provides, in pertinent part:

Notwithstanding any other provision of this sub-

chapter, it shall not be an unlawful employment

*The “starting point” in statutory construction is, of

course, the language of the statute itself. Greyhound Corp.

v. Mt. Hood Stages, Inc., 487 U.S. 322, 330 (1978). Further-

more, the “literal or usual meaning” of a statute's words

should be accepted as controlling unless to do so would “lead

to absurd results” or “thwart the obvious purpose of the

statute.” In re Trans Alaska Pipeline Rate Cases, 436 U.S.

631, 643 (1978).

As noted recently by the District of Columbia Circuit, the

language of §708(h) “suggests Congress’ simple, but un-

equivocal, intent to preserve the lawfulness of bona fide

seniority systems even after the passage of Title VII.” United

States of America and Equal Employment Opportunity Com-

mission v. Trucking Management, Inc., No. 79-2102 (D.C.

Cir., August 14, 1981), slip op. at 16 (emphasis in original).

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 . . . system, . . provided that

such differences are not the result of an inten-

tion to discriminate because of race. (Emphasis

added. )

It is well settled that § 703(h) is a “definitional pro-

vision” delineating which employment practices are

illegal and thereby prohibited and which are not.“

Nothing in the statutory language suggests that the

immunity extended thereby is to be conditioned upon

the date a seniority system is implemented. On the

contrary, the only prerequisite to the statute’s pro-

tection is the absence of discriminatory intent in the

negotiation or application of the seniority rule.“

Not only does the language of § 703(h) embrace all

bona fide seniority systems, it is also clear from this

Court’s decisions that the section is to be applied to

systems negotiated or changed after the effective date

of the Act. In Franks, this Court discussed the im-

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

747, 768 (1976). Accord, Intl Bhd. of Teamsters v. United

States, 481 U.S. at 346-47 United Air Lines, Inc. v. Evans,

431 U.S. 558, 559 (1977).

* As the dissent below pointed out, the majority opinion

has transformed the unqualified language of § 703 (h) into a

“grandfather” clause, 684 F.2d at 757 n.1. We concur with

the dissent and the arguments of the appellants that Con-

gress undoubtedly knows how to write a “grandfather” clause

if it wishes. For example, Congress could have drafted

§708(h) by adding either the word “existing” or “estab-

lished” to modify the term seniority system, It is inappropri-

ate to read such qualifying language into an unambiguous

statutory provision.

10

portance of seniority systems as being a part of an

evolutionary process that looks to future changes and

developments as a necessary condition for its contin-

ued viability. As the Court stated: “Seniority sys-

tems and the entitlements conferred by credits earned

thereunder are of vast and increasing importance in

the economic employment system of this nation.

S. Slichter, J. Healy, & E. Livernash, The Impact of

Collective Bargaining on Management 104-05 (1960).

Seniority principles are increasingly used to allocate

scarce benefits among competing employees. . and

to compute noncompetitive benefits earned under the

contract of employment.” 424 U.S. at 766, emphasis

added.

In this same regard, the Court in Teamsters

stressed that “Section 703(h) on its face immunizes

all bona fide seniority systems” (431 U.S. at 348

n. 30, emphasis added), and later added that:

there is no reason to suppose that Congress in-

tended in 1964 to extend less protection to legiti-

mate departmental seniority systems than to

plant wide seniority systems. Then, as now

[1977], seniority was measured in a number of

ways, including length of time with the employer,

in a particular plant, in a department, in a job,

* See Elkouri & Elkouri, How Arbitration Works, 3d Edition

555 (1973) (“Modification of prior seniority provisions in

subsequent Agreements is a fairly common feature of collec-

tive bargaining,” quoting Ford Motor Co., 23 LA 296, 297

(1954)). Indeed, “consideration of seniority looms so im-

portantly that it has been said that ‘one of the principle

purposes for entering into a collective bargaining agreement

is usually to secure for the employees the prized right of

seniority in case of layoff and promotion.’” Elkouri and

Elkouri at 555 (citation omitted).

11

or in a line of progression. 431 U.S. at 354 n. 41

(emphasis added).

In no sense did this Court suggest that the statute is

limited in the manner adopted by the Fourth Circuit;

rather, in a very real sense, the Court indicated the

ongoing and developing nature of seniority systems

that Congress sought to preserve.

Similarly, this Court’s opinion in California Brew-

ers“ repeatedly reflects Congressional appreciation

of the evolutionary nature of collective bargaining

and of the inevitable diversity of seniority systems

that have been and will be developed by parties to

collective bargaining in diverse circumstances:

Congress passed the Civil Rights Act of 1964

against the backdrop of this Nation’s long-

standing labor policy of leaving to the chosen

representatives of employers and employees the

freedom through collective bargaining to estab-

lish conditions of employment applicable to a par-

ticular business or industrial environment. See

generally United Steelworkers v. Weber, 443 U.S.

193, 99 S. Ct. 2721, 61 L.Ed.2d 480. It does not

behoove a court to second-guess either that proc-

ess or its products. H. K. Porter Co. v. NLRB,

897 U.S. 99, 90 S. Ct. 821, 25 L.Ed.2d 146. Sen-

iority systems, reflecting as they do, not only the

give and take of free collective bargaining, but

also the specific characteristics of a particular

business or industry, inevitably come in all sizes

and shapes. See Ford Motor Co. v. Huffman, 345

U.S. 330, 73 8. Ct. 681, 97 L.Ed. 1048; Aero-

nautical Lodge v. Campbell, 387 U.S. 521, 69

10 California Brewers Association v. Bryant, 444 U.S. 598

(1980).

12

S. Ct. 1287, 98 L.Ed. 1518. As we made clear in

the Teamsters case, seniority may be “measured

in a number of ways” and the legislative history

of § 703 (h) does not suggest that it was enacted

to prefer any particular variety of seniority sys-

tem over any other. 431 U.S., at 355, n.41, 97

S. Ct., at 1865. 444 U.S. at 608."

While cautioning that 5 703 (h) would not im-

munize rules that depart fundamentally from com-

monly accepted notions concerning the acceptable con-

tours of a seniority system,” * this Court emphasized

in California Brewers that Is J ignificant freedom

must be afforded employers and unions to create dif-

fering seniority systems.“ This language, written

u Congressional deference to the rights secured by seniority

systems has been recognized by the Court in a variety of

Title VII contexts. Trans World Airlines, Inc. v. Hardison,

482 U.S. 68 (1977) (requirement of § 701 () of Title VII

that employers and unions reasonably accommodate employ-

ees’ religious practices, absent undue hardship, does not re-

quire abrogation of other employees’ collectively-bargained

seniority rights); International Brotherhood of Teamsters

v. United States, 481 U.S. 824 (1977) (a bona fide seniority

system that perpetuates the effects the employer’s past dis-

crimination is nonetheless protected by §708(h) ol Title

VII) ; California Brewers Association v. Bryant, 444 U.S.

598 (a seniority system’s “ancillary rules” do not fall out-

side the protections of § 708 (h) simply because they do not

“operate on the basis of some factor involving the passage

of time.“)

1 444 U.S. at 608.

48 Id., emphasis supplied. As has been stressed repeatedly,

Congress did not want the courts to “second guess” the

parties to a collective agreement, but insisted instead that

seniority rights vested under any bona fide seniority system

be respected, even if the system perpetuated the effects of

18

almost 15 years after the effective date of Title VII,

demonstrates that the Court considers § 703(h) to be

applicable, now and in the future, to the “differing

seniortiy systems” that parties to collective bargain-

ing can be expected to create." |

The predictable consequences of the Fourth Cir-

cuit’s holding are at odds with the intent of Congress

to encourage the continued resolution of seniority is-

sues by the bargaining process. Section 703 (h) effec-

tively would be written out of the statute for parties

who negotiate new seniority systems. All new or

modified seniority systems would be judged by the

Griggs standard—a result manifestly at odds with

Teamsters. See below, pp. 15-18. Consequently, to

avoid losing the protections of § 703(h), employers

and unions would have a strong incentive to keep the

pre-Act systems intact without making necessary or

desirable adjustments. Collective bargaining would

be stultified in a manner contrary to the teachings of

the California Brewers decision.

The disruptive potential of the decision below is

better understood when one considers a few of the

prior discrimination. See, California Brewers Ass’n v. Bryant,

444 US. at 608; Teamsters, 481 U.S. at 350-51. And see

Furnco Constr. Corp. v. Waters, 488 U.S. 567, 578 (1978)

(“Courts are generally less competent than employers to

restructure business practices, and unless mandated to do so

by Congress they should not attempt it.“); Steelworkers v.

Weber, 448 U.S. 198, 205-206 (1979); and Texas Dept. of

Community Affairs v. Burdine, 101 8. Ct. 1089, 1096 (1981)

(Title VII “was not intended to ‘diminish traditional manage-

ment prerogatives.’ ”’).

% Inexplicably, the Fourth Circuit failed even to mention

the California Brewers decision, even though it was decided

almost one year before the Fourth Circuit’s decision.

14

seniority issues that must be resolved by the bargain-

ing process, each of which can be extremely im-

portant for the relations between the employer and

employees and between the employees themselves. As

pointed out in Slichter, Healy & Livernash, The Im-

pact of Collective Bargaining on Management 118

(1960), initial contract language dealing with senior-

ity may give vise to administrative or interpretive

problems that must be clarified, modified or changed

over time. Questions which arise include: (1)

whether periods of absence from work count toward

total service (Id. at 118-19); (2) what methods

should be used to determine the priority among em-

ployees with the same seniority date (Id., at 119);

(3) what time credit shouid be given a probationary

employee for satisfying his probationary period (Jd.

at 123); (4) on what bases may seniority be lost (Id.

at 125); (5) whether and to what extent to protect

recall and other rights after long or indefinite periods

of unemployment (Id. at 127); (6) how to adjust

seniority for workforces merged during the consolida-

tion of two or more plants of the same or separate

companies (Id. at 130-31); (7) how to deal with

the employment rights of employees who have never

worked in the bargaining unit as they relate to unit

employees (Id. at 182); (8) how to determine the

rights of an employee who moves from a bargaining

to nonbargaining unit (Id. at 132); (9) how to pre-

serve the seniority rights of supervisory personnel

who come back to or initially enter the bargaining or

seniority unit (Id. at 132-33); or (10) how to estab-

lish the rights of an employee who moves from one

seniority unit to another within the same plant (Jd.

at 184). The peaceful resolution of such basic em-

ployment relations questions is the cornerstone of the

15

country’s labor relations policy. The decision below,

however, would undercut this policy and create a

disincentive to the creative ordering of the relative

rights of employees.

In addition, it would be more difficult for parties

to Title VII or other employment discrimination liti-

gation to settle cases, because any seniority modifica-

tion made as part of the settlement would pose a

definite risk that the employer’s entire seniority sys-

tem would lose its statutory protection. See footnote

22, below. The Fourth Circuit’s opinion thus would

undermine one of the most important policies under-

lying Title VII. In enacting Title VII, Congress ex-

pressed a strong preference for encouraging volun-

tary settlement of employment discrimination claims.

Indeed, “[c]ooperation and voluntary compliance were

selected as the preferred means for achieving this

goal.” Alexander v. Gardner-Denver Co., 415 U.S.

36, 44 (1974). Yet, if 5 703 (h) protection does not

extend to new agreements, collective bargaining par-

ticipants and litigants will have less incentive to nego-

tiate arrangements which, in many cases, could

greatly ameliorate the disparate effects of past em-

ployment practices, legal or othe 1

B. There Is No Support In This Court's Decisions Or

In The Legislative History For Applying A Different

Legal Standard To Post-Act Than To Pre-Act Senior-

ity Systems

Aside from its predictable “chilling effect” on the

negotiation and modification of seniority agreements,

the circuit court’s bifurcated approach to seniority

% The negative effect of the decision below on affirmative

action is fully set out in the petitioners’ brief.

16

under § 7038 (h) would lead to non-uniform adminis-

trative and judicial application of that section. Thus,

as the Fourth Circuit interprets § 703(h), the same

bona fide seniority system, neutral on its face and

as applied, would be lawful in spite of its perpetua-

tion of prior discrimination if it were implemented

before July 2, 1965, but it would be held unlawful

because of such perpetuation if implemented after the

effective date of the Act. Indeed, if the Fourth Cir-

cuit’s view were correct, the neutral seniority sys-

tems in Franks, Teamsters, Evans and California

Brewers would have been unlawful had they been

adopted after 1965 if they perpetuated the effects

of pre-Act discrimination. Also, the same employer

could have similar pre- and post-Act systems in

the same plant for different bargaining units which

would be judged under different legal standards. This

inconsistent result would hinge upon the time of im-

plementation of the system and not upon any charac-

teristics of the neutral system itself. Not only would

this anomaly be unprecedented labor policy, as we now

show it would render ineffective this Court’s prior

decisions and nullify the intent of the Congress that

enacted Title VII.

Although this Court has analyzed the applicability

of § 708(h) in cases involving seniority systems’ per-

petuation of both pre-Act and post-Act discrimina-

tion,“ the Court never has suggested, as the Fourth

Circuit would have it, that post-Act systems should be

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

747; International Brotherhood of Teamsters v. United States,

481 U.S. 824; and United Air Lines v. Evans, 431 U.S. 558;

Trans World Airlines; Inc. v. Hardison, 482 U.S. 68.

N

judged under the Griggs disparate impact test, or

that the Court’s holding depended upon the pre-Act

implementation of the seniority systems at issue.

Rather, from Franks, Teamsters, Evans and Hardi-

son, it is evident that the Court views Congress’s

mandate as requiring that analysis of the legal effect

of a seniority system proceed differently than in tra-

ditional “disparate impact“ cases. For as stated in

Teamsters, “[w]ere it not for § 703 (h) the seniority

system in this case would seem to fall under the

Griggs rationale.“ While the Griggs (disparate

impact) approach would require that an employment

practice fair in form but discriminatory in operation

must be justified by business necessity to avoid Title

VII liability [Griggs v. Duke Power Company, 401

U.S. at 429-82], „ 703 (h) unequivocally mandates

that there is no statutory violation in the absence of

a showing of discriminatory purpose.” Trans World

Airlines, Inc. v. Hardison, 482 U.S. at 82, n.13.

“{A]bsent a discriminatory purpose, the operation of

a seniority system cannot be an unlawful employ-

ment practice even if the system has some discrimi-

natory consequences.” Id. at 82.

Moreover, the remedial purposes of Title VII can

be served fully without changing or setting aside

bona fide, neutral seniority systems. As the Court

emphasized in Teamsters, “Post-Act discriminatees

... may obtain full ‘make whole’ relief, including

retroactive seniority under Franks v. Bowman... .

M Teamsters, 481 U.S. at 349.

18

without attacking the legality of the seniority sys-

tem as applied to them.” 431 U.S. at 347. The fact

that the relief available to discriminatees would not

be enlarged by holding unlawful a seniority system

that perpetuated the effects of the employer’s post-

Act discrimination is, as the Court has stated, “sim-

ply an additional reason not to hold the seniority

system unlawful.” Teamsters, 431 U.S. at 348, n.30.

For the numerous reasons stated above, there is no

basis for the Fourth Circuit’s holding that effectively

reads out of § 703 (h) the intentional discrimination

language and substitutes the Griggs standard.

Because the language of the § 703(h) is clear and

unqualified in defining the protections that it affords

all seniority systems, it is unnecessary to look to the

legislative history which, as this Court has stated, is

unusual in light of the absence of the usual legisla-

tive materials” surrounding its adoption. See Franks

v. Bowman, 424 U.S. at 761. There is nothing in

the history, however, that would prevent the applica-

tion of § 703 (h) to post-Act seniority systems. As

noted in this Court’s discussions in Teamsters and

Franks, the main thrust of the legislative materials

was to assure critics of the legislation that it would

not disrupt the various types of existing seniority sys-

tems, or the rights of employees vested under those

systems, which had accrued prior to the enactment of

Title VII.

Specifically, the legislative record contains a Justice

Department statement and a series of Dirksen-Clark

questions and answers to the effect that the statute

would not affect bona fide neutral seniority systems

19

and would not require an employer to change exist-

ing seniority lists even though the negative impact

of such systems on minority employees was clearly

recognized by Congress. Franks, 424 U.S. at 759-60

& nn.15 and 16. As set forth fully in the petitioners’

brief, the legislative history demonstrates that these

statements designed to protect existing seniority sys-

tems were not in any way intended to be construed as

limitations that somehow imply that post-Act systems

were to be judged by a different legal standard.

To the contrary, because the legislative statements

were designed to satisfy objections by opponents of

Title VII that bona fide seniority systems could be

attacked if the proposed legislation were enacted,

there is neither logic nor common sense in the Fourth

Circuit’s reading of such statements as evidence of

Congressional intent to invalidate post-Act seniority

systems. It is unthinkable that the opponents of

Title VII would have supported a bill that would pro-

hibit upon enactment precisely the types of pre-Act

seniority systems they so assiduously sought to pro-

tect. Rather, the contrary Congressional intent has

been recognized by this Court:

Title VII could not have been enacted into law

without substantial support from legislators in

both Houses who traditionally resisted federal

regulation of private business. Those legislators

demanded as a price for their support that “man-

agement prerogatives, and union freedoms. . .

be left undisturbed to the greatest extent possi-

pol United Steelworkers v. Weber, 443 U.S. at

2

Thus, the history of § 703(h) specifically limits the

reach of the statute as it pertains to neutral, bona

fide seniority systems. There is not one word evi-

dencing an intent to invalidate otherwise neutral

post-Act systems, or to restrict severely managerial

prerogatives in the manning suggested by the Fourth

Circuit."

In sum, consigning post-Act seniority systems to

the Griggs analysis would, with regard to such sys-

tems, revive the discredited pre-Teamsters principles

that discriminatory intent may be inferred, and a

Title VII violation found, from a seniority system’s

perpetuation of the effects of prior discrimination.

Because there is no expression of Congressional in-

tent to apply widely disparate legal analyses to post-

Act and pre-Act seniority systems, there is no rea-

son to interpret § 703 (h) in a manner that causes

the section to “self-destruct,” and which is, moreover,

inharmonious with Title \II’s basic goals. It is ap-

parent from the inconsistent and anomalous results

that would flow from application of the Fourth Cir-

cuit’s holding, that Congress did not intend that

§ 703 (h) should apply only to pre-Act systems.

10 The Circuit Court’s opinion is open-ended and could be

construed to invalidate an entire seniority system if a com-

ponent of that system were modified after the effective date

of the Act. Take, for example, an employer whose “existing”

system was modified on July 3, 1965, to include a probation

component of the type approved by the Court in California

Brewers. If the remaining basic components of the seniority

system were then to be judged by the Griggs standard because

of the post-Act modification, the legislative history approving

existing systems would be rendered meaningless. Moreover,

as the Brewers decision makes clear, our construction of

§ 703 (h) would still permit the proper application of the

Griggs standard to “practices, procedures and tests” without

“swallowing up” Title VII's otherwise broad protections. 444

US. at 608-09.

21

CONCLUSION

Congress intended §703(h) to immunize from

Title VII liability the operation of bona fide seniority

systems, even when those systems tend to perpetuate

the effects of prior discrimination. Nonetheless, Title

VII's remedial provisions permit, and § 703 (h) does

not bar, an award of retroactive seniority to remedy

timely-charged post-Act discrimination. Victims of

such discrimination may thus be “made whole” with-

out judicial invalidation or modification of neutral

seniority systems which, in their application, have

perpetuated the discriminatory effects. Within this

context, it is clear that the Fourth Circuit’s attempt

to limit § 703(h)’s applicability to pre-Act systems

not only is unsupported by legislative history and this

Court’s holdings, it would undermine important tenets

of the national labor policy reflected in Title VII as a

whole. This Court should, therefore, reject the Fourth

Cireuit's reading of § 703 (h) and make it clear that

any seniority system, whenever negotiated, is pro-

tected by that section unless it is demonstrated that

intent to discriminate entered into the system’s nego-

tiation or maintenance.

Respectfully submitted,

Ropert E. WILLIAMS

Dovuatas S. MCDOWELL

Davip H. LARRY

McGuIness & WILLIAMS

1015 15th Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for the Amicus Curiae

Equal Employment

Advisory Council

August 20, 1981