Amicus Curiae Brief — Bazemore v. Friday

BEST ARILABLE COPY

Supreme Court, VS.

rb i . & Db

Nos. 85-93 & 85-428 “vate 10 1986

IN THE

Supreme Court of the United

OCTOBER TERM, 1985

P. E. BAZEMORE, et al.

. Petitioners,

WILLIAM C. FRIDAY, et al.,

Respondents.

UNITED STATES OF AMERICA, et al.,

» Petitioners,

WILLIAM C. FRIDAY, et al.,

ee Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

AMERICAN FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS AND THE

INDUSTRIAL UNION DEPARTMENT, AFL-CIO

AS AMICI CURIAE SUPPORTING PETITIONERS

MICHAEL H. GOTTESMAN

ROBERT M. WEINBERG

CYNTHIA L. ESTLUND

1000 Connecticut Ave., N.W.

Washington, D.C. 20036

DAVID M. SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20036

(202) 637-5390

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

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TABLE OF CONTENTS

ARGUMENT

CONCLUSION

TABLE OF AUTHORITIES

Cases

Arizona Governing Committee v. Norris, 463 U.S.

1073 (1983)

Corning Glass Works v. Brennan, 417 U.S. 188

(1974)

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

567 (1978)

Hazelwood School District v. United States, 433

U.S. 299 (1977)

Los Angeles Dept. of Water & Power v. Manhart,

435 U.S. 702 (1978)

Machinists Local v. Labor Board, 362 U.S. 411

5,

8

4, 9-11

7

(1960) : 4, 14-15

Teamsters v. United States, 431 U.S. 324 (1977)

Texas Department of Community Affatrs v. Bur-

dine, 450 U.S. 248 (1981)

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

5

8

4-6,

9-10, 12

United States Postal Service v. Atkens, 460 U.S.

711 (1983)

Statutes

Equal Pay Act, 29 U.S.C. § 206 (d)

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e

National Labor Relations Act, § 10(b), 29 U.S.C.

8

passim

§ 160(b) 4, 14-15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

Nos. 85-93 & 85-428

P. E. BAZEMORE, et al.,

Petitioners,

V.

WILLIAM C. FRIDAY, et al.,

Responden ts.

UNITED STATES OF AMERICA, ef al.,

Petitioners.

v.

WILLIAM C. FRIDAY, et ai.,

Responds nts.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

AMERICAN FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS AND THE

INDUSTRIAL UNION DEPARTMENT, AFL-CIO

AS AMICI CURIAE SUPPORTING PETITIONERS

This brief amici curiae is filed by the American Fed-

eration of Labor and Congress of Industrial Organiza-

tions (“AFL-CIO”) and the Industrial Union Depart-

ment AFL-CIO (“IUD”) with the consent of the parties.

The AFL-CIO is a federation of 95 national and inter-

2

national unions having a total membership of over

13,000,000 working men and women. The IUD is com-

posed of 54 national and international unions having a

total membership of approximately 5,000,000 industrial

workers.

ARGUMENT

Introduction and Summary

Amici submit this brief for the sole purpose of ad-

dressing the question presented by the United States et

al., which is also encompassed in the first question pre-

sented by Bazemore et al. That question is stated by the

United States as follows:

Whether black state employees establish a claim un-

der Section 703(a) of the Civil Rights Act of 1964,

42 U.S.C. 2000e-2(a), by identifying current salary

disparities between themselves and white employees

holding the same jobs, when such disparities result

from a state policy before 1965 of paying blacks

lower salaries than whites. [United States’ Petition

for Certiorari, p. I.] ’

In addressing this question, we do not enter the vigor-

ous controversy over whether this question is properly

presented on this record. See, e.g., Respondents’ Brief in

Opposition To the Petition of the United States, pp. 6-16.

Instead, we assume that the record (and the findings

below, insofar as the record evidence is conflicting) estab-

lish the following, which we understand to be the factuai

1 The first question in the Bazemore petition is stated as follows:

Did the court of appeals err in holding that it is both legal and

constitutional for a state to intentionally pay black employees

less than white employees in the same job, so long as the origi-

nal decision establishing that discriminatory wage differential

was not itself the subject of a timely charge or action. [Peti-

tion for Certiorari in No. 85-93, p. i.|

Recause we believe the court below erred in its resolution of this

Title VII issue, we do not address the constitutional issue raised

in the Bazemore petition.

3

predicates for the United States petition’s question pre-

sented :

1. It was the employer’s stated policy and practice,

prior to 1965, to pay newly-hired blacks lower

initial salaries than those paid whites hired at

the same time to do the same job.

2. Within the relevant time period (here, following

Congress’ extension of Title VII to public em-

ployers in 1972), the employer has continued to

pay blacks hired prior to 1965 less than whites

hired at the same time for doing the same job.

8. That continuing disparity is not due to the in-

tervention of neutral considerations such as a

change in the employees’ respective job duties, but

rather, reflects that the emplover simply is pres-

ently unwilling to incur the additional cost that

would result from paying the blacks at the same

level as the whites doing the same job.’

On these facts, we believe it is clear that the employer

has committed a present violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e. Our argu-

ment proceeds as follows:

In Part I, we show that an employer who initially cre-

ated a salary disparity between blacks and whites doing

the same job because of their races, and who is presently

maintaining that disparity because unwilling to spend

the additional money that would be required to pay the

blacks as much as the whites, is engaged in a present act

of race discrimination. It is irrelevant that the employer

2 In the instant case, it appears to be common gs round that current

salaries are determined, at least in part, by decisionmakers in each

of 100 counties, so that blacks and whites holding the same job are

paid differently in different counties. For analytical purposes, we

have isolated the paradigmatic case; viz., one in which blacks are

currently paid less than whites holding the same job in the same

county. We have done so because as the petitioners present the

case the current disparaties between blacks and whites are not the

product of race-nevtral differences in the criteria for salary-deter-

mination applied by different counties.

4

may not presently possess the racial hostility that fueled

the creation of the differential; to pay blacks less than

whites doing the same job simply to save money is itself

a discriminatory purpose.

In Part II, we show that the reliance of the court

below on United Airlines v. Evans, 431 U.S. 553 (1977)

and Hazelwood School District v. United_States, 433 USS.

299 (1977), is misplaced; in neither of those cases was

there a current act of differential treatment undertaken

with a discriminatory purpose, as there is here.

In Part III, we suggest that alternative approaches

advanced by the petitioners for reversal are more difficult

than the approach suggested above, and ought not to be

reached. The Bazemore petitioners’ reliance on a “contin-

uing violation” theory—which we assume is aimed at

overcoming the fact that the employer no longer has the

racial hostility that originally actuated the salary differ-

ential—is unnecessary, for as we have shown the employ-

er’s present motive is discriminatory ; and it is misleading

insofar as it focuses attention on the mere fact of conti-

nuity of employment practice rather than on the present

basis for that practice. And the United States’ reliance

on an analog’ to the treatment of racially motivated sen-

iority systems should not be considered, because it would

unnecessarily require this Court to decide a difficult, un-

related iegal issue simply to determine that the analogy

is apt, viz. whether the limitations principle announced

for the NLRA in Machinists Lodge v. Labor Board, 362

U.S. 411 (1960), is, as the United States implicitly as-

sumes, inapplicable to Title VII.

I

Plaintiffs’ claim in this case is that the employer is

intentionally discriminating against black employees in

violation of Section 703 (a) (1) of Title VII, 42 U.S.C.

§ 2000e-2(a) (1). That section makes it unlawful for

an employer to “discriminate against any individual with

respect to his compensation . . . because of such individu-

al’s race... .”’ And, of course, to be actionable such dis-

crimination must have occurred within the limitations

period established by Title VII, which requires would-be-

plaintiffs to file a charge with the Equal Employment Op-

portunity Commission “within one hundred and eighty

days after the alleged unlawful employment practice oc-

curred,” § 706(e), 42 U.S.C. § 2000-5(e). Given that

limitations period, “the critical question is whether any

vresent violation exists,” United Air Lines v. Evans, 431

U.S. 5538, 558 (1977) (emphasis added)—whether at

present (i.e., within 180 days of the filing of the charge)

the employer is treating blacks differently than whites

“because of”’ their race.

In the instant case, on the facts we set out at p. 3,

supra, there is no question that blacks are presently be-

ing paid less than whites doing the same job. The deter-

minative question, therefore, is whether race is the rea-

son that presently accounts for that differential or wheth-

er the employer is acting on race-neutral grounds in fix-

ing the compensation of his employes.

This Court has made clear that where an employer

treats black employees less favorably than white employ-

ees who are in all relevant respects similarly situated,

an intent to discriminate on the basis of race can “be

inferred from the mere fact of differences in treatment.”

Teamsters v. United States, 481 U.S. 324, 335 n. 15

(1977). This is true because “we know from our experi-

ence that more often than not people do not act in a

totally arbitrary manner, without any underlying rea-

sons, especially in a business setting,” and therefore

“when all legitimate reasons” for differentiating between

employees “have been eliminated as possible reasons for

the employer’s actions, it is more likely than not the

employer, who we generally assume acts only with some

reason, based his decision on an impermissible consid-

eration such as race.” Furnco Construction Corp. v.

Waters, 438 U.S. 567, 577 (1978).

6

In this case, on the facts we have assumed to be es-

tablished, plaintiffs have shown the type of “difference

in treatment” from which it may be inferred that the

employer is presently discriminating on the basis of race:

plaintiffs have proved that black employees who were

hired at the same time as whites presently are being

paid less than those whites for performing the same jobs.

Moreover, plaintiffs have proved that the pay differential

between blacks and whites was originally created, prior

to 1965, because of race,* and that there have been no

intervening “neutral” factors (such as changes in the

employees’ respective job duties) that explain the ex-

istence of the differential at present. Unless rebutted,

this evidence would provide the most compelling basis

for concluding that it is their race that currently explains

why blacks are being paid less than whites.

The employer, however, has demonstrated (we have

assumed) that the racial animus that initially prompted

the salary differential—the blind hostility toward blacks

as blacks—no longer obtains, and that the differential

has been maintained by the employer out of concern for

the “prohibitively costly budgetary alterations,” Pet. App.

121a-122a, that would be required to pay blacks hired

prior to 1965 the same salary as is paid to whites hired

prior to 1965 for doing the same job. But this change

in the employer’s reason for treating blacks and whites

differently does not lead to a change in the legai result:

paying blacks less than comparably situated whites in

3 Plaintiffs of course were entitled to introduce evidence showing

that the employer had a dual salary scale for black and white hires

prior to 1965. This Court has made clear that evidence of a “dis-

criminatory act which occurred before the statute was passed...

may constitute relevant background evidence in a proceeding in

which the status of a current practice is at issue.” United Air Lines

v. Evans, supra, 431 U.S. at 558.

7

order to save money is itself a present act of discrimina-

tion on the basis of race.*

The financial burden of paying blacks the same as

whites is no more a “neutral” explanation for continuing

an existing pay disparity than it would be for creating

a new one by paying blacks hired today less than simi-

larly-situated whites hired today. It may well be that

social forces make it possible te attract or retain black

employees at lower salaries than whites (because, for ex-

ample, blacks have fewer job opportunities elsewhere),

but that surely cannot serve as a justification for paying

blacks less than whites to do the same job. To permit

such a defense would render Title VII’s ban on compen-

sation discrimination a nullity. This Court noted in

Los Angeles Dept. of Water & Power v. Manhart, 435

U.S. 702, 716-717 (1978), that “neither Congress nor the

courts have recognized” a “cost-justification defense” un-

der Title VII to liability for deliberately treating women

less favorably than men. The same surely is true as

to race discrimination.® See also, Corning Glass Works

* Because the consideration in text is dispositive, we relegate to

a footnote the observation that in the context of this case a pro-

fessed concern for “prohibitively costly budgetary alterations”

can not survive scrutiny. The employer has not held the salaries of

its employees constant but has instead periodically raised those

salaries. The employer has thus chosen to increase the salaries of

white employees rather than aplying those same revenues to raising

blacks’ salaries to the level of the whites’. And if the response is

that the employer feared whites would quit unless furnished those

increases, whereas equalization was not necessary to induce blacks

to remain, that is merely confirmation that present social conditions

enable the employer to discriminate on the basis of race.

5 As this Court has established, the fact that an employer may

have been actuated not by racial or gender-based hostility but by

self-interest or even by some altruistic consideration is not a de-

fense under § 703(a) (1) to treating blacks differently from whites

or men or women. See, for example, Arizona Governing Com-

mittee v. Norris, 463 U.S. 1073, 1083-85 (1983) ; Manhart, 435 U.S.

at 709.

8

vy. Brennan, 417 U.S. 188, 205 (1974) (Congress did not

intend the availability of women at lower wages to con-

stitute a justification for paying unequal wages for equal

work under the Equal Pay Act.) Thus, the employer’s

invocation of budgetary considerations is not a non-

discriminatory basis for the pay differential; it is merely

an explanation of why the employer is presently discrimi-

nating on the basis of race.°

6 While the analysis in text is sufficient to dispose of the instant

case, we wish to note our disagreement with the suggestion in the

United States petition (at p. 18, n.20) that pay discrimination under

Title VII cannot be proved circumstantially from the fact that

blacks are paid less than comparably situated whites but can be

proved only by some more direct form of evidence of discriminatory

intent. Such a notion conflicts with the uniform approach of this

Court.

As this Court has recognized, “[t]here will seldom be ‘eyewitness’

testimony” as to the employer’s basis fer differentiating between

employees. United States Postal Service v. Aikens, 460 U.S. 711,

716 (1983). Consequently, “[a]s in any lawsuit, the [Title VII}

plaintiff may prove his case by direct or circumstantial evidence,”

and the courts are to “consider all the evidence, giving it whatever

weight and credence it deserves”; indeed it is error to require a

Title VII plaintiff to submit direct evidence of discriminatorv in-

tent because it is a “general principle that any Title VII plaintiff

[may] carry the initial burden of offering evidence adequate

to create an inference that an employment decision was based

on a discriminatory criterion illegal under the Act,” Teamsters v.

United States, supra, 431 U.S. at 358 (emphasis added.)

This lesson is fully applicable in the context of claims of dis-

crimination in compensation. Where blacks show that they are

paid less than similarly-situated whites, and negate “the most com-

mon non-discriminatory reasons” for the differential, Texas De-

partment of Community Affairs v. Burdine, 450 U.S. 248, 254

(1981), that proof raises an inference of discrimination for the very

reason such inferences have been drawn in other Title VII cases:

that discrimination between comparably-situated blacks and whites,

“if otherwise unexplained, [is] more likely than not based on the

consideration of impermissible factors.” Furnco Construction Corp.

v. Waters, supra, 438 U.S. at 577. In such a case, if the employer

proffers no innocent explanation for the differential, or proffers

an explanation that is found to be pretextual, the plaintiff is en-

9

Il

The court below believed that this Court’s holdings

in United Air Lines v. Evans, supra, and Hazelwood

School District v. United States, 483 U.S. 299 (1977)

compel the conclusion that Title VII does not render the

current wage disparity between whites and blacks un-

lawful. That belief is erroneous.

In Evans, the Court held that an employer did not vio-

late Title VII by applying to the respondent employee its

uniform rule—regularly applied to men and women alike

—that employees who are discharged and later rehired

are treated as new employees for all purposes and ac-

corded no credit for their prior service. The plaintiff

contended that the rule was discriminatory as applied to

her, because her discharge several years before had been

discriminetorily motivated. This Court held that a chal-

lenge to the discharge was time-barred, and accordingly

the discharge was “an unfortunate event in history which

has no present legal consequences,” 431 U.S. at 558.

Plaintiff’s status thus was no different than that of any

other employee discharged and later rehired. And plain-

tiff did not allege, let lone prove, that the employer dis-

criminated on the basis of sex as between such employees:

Nothing alleged in the complaint indicates that

United’s seniority system treats existing female em-

ployees differently from existing male employees, or

that the failure to credit prior service differentiates

in any way between prior service by males and prior

service by females. Respondent has failed to allege

that United’s seniority system differentiates between

similarly situated males and females on the basis of

sex. [Jd. at 557-558.)

ee

titled to prevail. Burdine, 450 U.S. at 254; Aikens, 460 U.S. at 714.

It is our view, accordingly, that plaintiffs could have prevailed in

the instant case even had they not introduced evidence of the pre-

1965 discriminatory salary practices (assuming the facts to be

those we set out at p. 3, supra, in all other respects).

10

By contrast, the claim in the instant case is precisely

that the employer’s current pay practice “treats existing

[black] employees differently from existing [white] em-

ployees” and “differentiates between similarly ‘ situated

{blacks and whites] on the basis of [race].” Here, plain-

tiffs do not seek to infuse a facially neutral practice, not

itself unlawful, with illegality by reference to a time-

barred or pre-Act wrong. Rather here, the present prac-

tice under attack—paying black employees less than white

employees doing the same job—is not “neutral in its

operation,” id. at 558, and plaintiffs have shown that

the employer has maintained this race-skewed differen-

tial with discriminatory intent (pp. 6-7, supra).

In Hazelwood, the issue was whether the employer, a

publie school district, had engaged in a pattern or prac-

tice of race discrimination in the hiring decisions made

after Title VII became applicable to public employers.

The plaintiff sought to establish such a pattern or prac-

tice by introducing statistics showing that the present

racial composition of the employer’s workforce did not

reflect the racial composition of the workforce from which

the employer hired. In the passage of the Hazelwood

opinion that the court below thought significant for the

instant case, this Court discussed the weight to be ac-

corded such evidence:

The Court of Appeals totally disregarded the pos-

sibility that this prima facie statistical proof in the

record might at the trial court level be rebutted by

statistics dealing with Hazelwood’s hiring after it

became subject to Title VII. Racial discrimination

by public employers was not made illegal under Title

VII until March 24, 1972. A public employer who

from that date forward made all its employment de-

cisions in a wholly nondiscriminatory way would not

violate Title VII even if it had formerly maintained

an all-white work force by purposefully excluding

Negroes. For this reason, the Court cautioned in the

Teamsters opinion that once a prima facie case has

been established by statistical workforce disparities,

11

the employer must be given an opportunity to show

that “the claimed discriminatory pattern is a prod-

uct of pre-Act hiring rather than unlawful post-Act

discrimination.” 431 U.S., at 360. [453 U.S. at 309-

310, emphasis added, footnote omitted. ]

The court below believed that the sentence in Hazelwood

italicized above (quoted, 751 F.2d at 760) dictated the

resolution of this case. But the difference between that

ease and this is self-evident. An empié¥er who had fol-

lowed a discriminatory hiring policy prior to Title VII’s

effective date and who embarked on a nondiscriminatory

hiring policy on that date would have done nothing that

could constitute a violation of Title VII. In contrast, the

employer in the instant case has, subsequent to the effec-

tive date of the Act, repeatedly paid blacks less than

similarly-situated whites for performing the same work—

indeed, has done so every payday. What is more, the em-

ployer in the instant case has periodically reevaluated

and adjusted its payscale subsequent to the effective date

of the Act, and each time, without having any nondiscrimi-

natory reason for so doing, has settled upon a payscale

that contains a disparity between black’s wages and the

wages of whites doing the same job. And, as shown, the

basis for that current disparity is the race of the em-

ployees. Thus, unlike the hypothesized employer in

Hazelwood whose current practices were “wholly non-

discriminatory,” the practice of the employer here is not.

And it is this current, discriminatory practice that is at

issue here.

Ill

What we have said to this point represents, we believe,

the proper analytical approach to the disposition of the

question presented. Petitioners have advanced alternative

approaches that we believe do not provide a sound basis

for resolving that question.

A. The Bazemore petitioners have analyzed the ques-

tion in terms of whether there is here a “continuing” vio-

lation (Bazemore Pet. at 17-24). We believe that label

misfocuses analysis, and should be avoided.

12

Plaintiffs’ effort has been undertaken, we assume, to

counter the employer’s claim that while the pay differ-

ential was originally created for reasons of racial animus,

the differential has been maintained in the relevant time

period for “economic” reasons, 7.e., the financial burden

of paying blacks and whites the same salaries. As we

have shown, pp. 6-7, supra, the current practice is il-

legal if that is the employer’s rationale, for even on that

rationale the employer is presently treating blacks differ-

ently than similarly situated whites because of their race.

If, however, the employee had a lawful basis, unrelated

to race, for the current pay differential, there would not

be a violation simply because the practice (as distinct

from the motive actuating it) was “continuing.” Conse-

quently, “the emphasis should not be placed on mere con-

tinuity; the critical question is whether any present vio-

ation exists.” United Air Lines v. Evans, supra, 431

U.S. at 558 (emphasis in original) .’

B. The United States has suggested that the correct

answer to this case can be derived by analogy to the

‘If an employer is found to have engaged in a present violation,

at the remedy stage of the case it may become necessary to deter-

mine whether that violation is “continuing.” This is because of the

conjunction of section 703(e), which requires that a Title VII

charge be filed within 180 days of the act complained of, and section

706(g), which authorizes an award of backpay for two years prior

to the filing of the charge. It is unlikely that Congress intended

that if one wrongful act is timely challenged the employee can

recover backpay for unrelated wrongs committed by the employer

that were not themselves the subpect of a timely change. If, as

seems likelier, Congress intended to provide a remedy for acts

prior to the relevant time period only for earlier injuries resulting

from a course of conduct that continued into the relevant time

period, it becomes necessary for that purpose to distinguish be-

tween violations that have been “continuing” and those that have

not. Indeed, in a disparate pay case such as that presented here,

once it is determined that a current (i.e., timely challenged) vio-

lation has been committed, the Bazemore petitioners’ analysis would

surely demonstrate that backpay is authorized for two years prior

to the filing of the charge.

13

treatment of “intentionally discriminatory seniority sys-

tem[s]”’:

[J]ust as an intentionally discriminatory seniority

system, even one that was adopted before the Act

became effective, is unlawful (Pullman-Standard v.

Swint, 456 U.S. 273, 276-277 (1982) ; American To-

bacco Co. v. Patterson, 456 U.S. 63, 76 (1982)), so

that it affords no justification for current employ-

ment practices that have a race-based effect, so the

courts of appeals have correctly recognized that an

intentionally discriminatory pre-Act salary system

affords no justification for current salary practices

that have a race-based effect [U.S. Pet. at 18].

But the two practices that the United States would com-

pare are conceptually different, and require different

analyses for their resolution; indeed, the seniority case is

by far the harder of the two and, contrary to the asser-

tion of the United States, it has not been resolved by this

Court.

The cases cited by the United States stand for the

proposition that discriminatorily motivated seniority sys-

tems do not enjoy the protection accorded by § 703(h) to

bona fide seniority systems. And in Swint, the Court ad-

dressed on its merits, without suggesting that there

might be a timeliness problem, a claim that a seniority

system was unlawful because allegedly negotiated in

1954 with discriminatory intent. But the question

whether such systems are indefinitely subject to chal-

lenge was not presented in those cases, for no challenge

to the timeliness of the plaintiffs’ claims was asserted.

And resolution of that timeliness question turns upon a

consideration not present in the instant case: whether a

practice that is neutral on its face, and that is not shown

to have been maintained in the relevant time period for

discriminatory reasons, may be challenged solely on the

ground that the practice was initially adopted (in a time-

barred period) with discriminatory motive. This Court

14

has not addressed that question under Title VII, but the

identical question has been answered by this Court under

the National Labor Relations Act in a manner contrary

to the United States’ position.

In Machinists Local v. Labor Board, 362 U.S. 411

(1960), the Court addressed the timeliness of a challenge

to the maintenance of a collective bargaining agreement

that was alleged to be unlawful because adopted at a

time when the union did not represent a majority of the

employees. Under existing Board law, which the Court

assumed to be correct, “the continued enforcement, as

well as the execution, of this collective bargaining agree-

ment constituted an unfair labor practice, and . . . these

are two logically separate violations, independent in the

sense that they can be described in discrete terms.” 362

U.S. at 422. Nevertheless, the Court held that in light

of the NLRA’s six-month time limit for filing charges

(Section 10(b), 29 U.S.C. § 160(b)), “the enforcement

. of such an agreement as this constitutes a suable

unfair labor practice only for six months following the

making of the agreement.” 362 U.S. at 423 (emphasis

in Court’s opinion.)* The Court, noting that a contrary

holding “would mean that the statute of limitations

would never run in a case of this kind,” id. at 416, rea-

soned as follows:

Where, as here, a collective bargaining agreement

and its enforcement are both perfectly lawful on the

face of things, and an unfair labor practice cannot

be made out except by reliance on the fact of the

agreement’s original unlawful execution, an event

which, because of limitations, cannot itself be made

the subject of an unfair labor practice complaint, we

8 See also, id. at 422: “a finding of violation which is inescapably

grounded on events predating the limitations period is directly at

odds with the purposes of the §10(b) proviso” (emphasis added,

footnote omitted). The Court also held, of course, that the erecu-

tion of the agreement could be challenged as an unfair labor prac-

tice only within six months of the date of execution, id. at 415, 419.

15

think that permitting resort to the principle that

§ 10(b) is not a rule of evidence, in order to convert

what is otherwise legal into something illegal, would

vitiate the policies underlying that section. These

policies are to bar litigation over past events “after

records have been destroyed, witnesses have gone

elsewhere, and recollections of the events in question

have become dim and confused,” . . . and of course to

stabilize existing bargaining relationships. [Jd. at

419, footnote omitted.] °

The Machinists Local Court was careful to distinguish

the case at hand from two hypothetical cases:

[T]he vice in the enforcement of this agreement is

not independent of the legality of its execution, as

would be the case, for example, with an agreement

invalid on its face or with one validity executed but

unlawfully administered. [/d. at 423.]

The instant case involves a pay practice that is “in-

valid on its face,” and that is being maintained currently

for a reason that is not permissible under Title VII.

There is thus no occasion here to decide whether the anal-

ysis of Machinists Local is applicable under Title VII, or

whether the contrary analysis implicit in the govern-

ment’s attempted analogy should apply under Title VII.

®In Machinists Local, the agreement was executed subsequent

to the enactment of the NLRA. We assume, however, that the

Court would have held a challenge to the post-Act enforcement of

an agreement executed with a minority union prior to the effective

date of the Act to be actionable if filed within six months of the

Act’s effective date. For like reasons, if the holding of Machinists

Local were applicable to Title VII, we assume that facially neutral

seniority systems negotiated with discriminatory intent prior to

the effective date of Title VII were subject to challenge promptly—

within the length of the limitations period—after Title VII became

effective.

16

CONCLUSION

For the reasons set forth above, the decision below on

the question presented by the United States petitioners

and the first question presented by the Bazemore peti-

tioners should be reversed.

Respectfully submitted,

MICHAEL H. GOTTESMAN

ROBERT M. WEINBERG

CYNTHIA L. ESTLUND

1000 Connecticut Ave., N.W.

Washington, D.C. 20036

DAVID M. SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20036

(202) 637-5390