Patterson v. The American Tobacco Company Opinion

    UNITED STATES GOilITT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 75-1259

JOHN PATTERSON, MARION MOSHOE,
EDMUND PAGE, JAMES RANDOLPH, and 
PERCY TAYLOR, each individually and 
on behalf of all other persons
similarly situated, Appellees,

THE AMERICAN TOBACCO COMPANY, a
Division of American Brands, Incorporated, Appellant.

No. 75-1260

JOHN PATTERSON, MARION MOSHOE,
EDMUND PAGE, JAMES RANDOLPH, and 
PERCY TAYLOR, each individually and 
on behalf of all other persons
similarly situated, Appellees,

-v-
Tobacco Workers' International Union, 
an unincorporated association;
Local 182, Tobacco Workers* Inter­
national Union, an unincorporated
association, Appellants

No. 75-1261

JOHN PATTERSON, MARION MOSHOE,
EDMUND PAGE, JAMES RANDOLPH, and PERCY TAYLOR, each individually and 
on behalf of all other persons
similarly situated, Appellants

-v-
THE AMERICAN TOBACCO COMPANY, a 
Division of American Brands, Incorporated;Tobacco Workers' International Union, 
an unincorporated association;
Local 182, Tobacco Workers' International 
Union, an unincorporated association, Appellees.



EQUAL EMPLOYMENT OPPORTUNITYCOMMISSION, Appellee,
-v-

Local 18 2, Tobacco Workers'International Union (AFL-CIO), Appellant.

No. 75-1263

EQUAL EMPLOYMENT OPPORTUNITYCOMMISSION, Appellee,
-v-

AMERICAN BRANDS, INC., d/b/aAmerican Tobacco Company, Inc., Appellant.

Appeals from the United States District Court for the 
Eastern District of Virginia, at Richmond. Albert V. 
Bryan, Jr., District Judge.

(Argued May 7, 1975. Decided Feb. 23, 1976

Before WINTER, BUTZNER, and WIDENER, Circuit Judges.

Henry L. Marsh, III; (S. W. Tucker; John W. Scott, Jr.; 
Randall G. Johnson; Hill, Tucker and Marsh; Jack Greenberg; 
Elaine R. Jones; Barry L. Goldstein; and Morris J. Bailer 
on brief) for John Patterson, et al.; Henry T. Wickham 
(John F. Kay, Jr.; Kenneth V. Farino; Mays, Valentine, 
Davenport and Moore; Chadbourne, Parke, Whiteside and 
Wolff; Paul G. Pennoyer, Jr.; Arnold Henson; Bernard W. 
McCarthy; and Bernard J. Dushman on brief) for The Ameri­
can Tobacco Company and American Brands, Incorporated;
(cont.)



Herbert L. Segal (Irwin H. Cutler, Jr.; Walter Lapp 
Sales; Segal, Isenberg, Sales and Stewart; Jay J. Levit 
Stallard and Levit; and James F. Carroll on brief for 
Tobacco Workers' International Union and Local 182); 
Margaret C. Poles, Attorney, Equal Employment Oppor­
tunity Commission, (Julia P. Cooper, General Counsel; 
Joseph T. Eddins, Associate General Counsel; and 
Beatrice'Rosenberg and Charles L. Reischel, Attorneys, 
on brief) for the Equal Employment Opportunity .Commis­
sion.



BUTZNER, Circuit Judge:
These appeals and cross appeals question certain

provisions of a judgment entered in consolidated actions
brought by the Equal Employment Opportunity Commission and
several black employees of the American Tobacco Co. against
the company, the Tobacco Workers International Union, and
its Local 182. The case concerns the application of Title
VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et
seq.] and 42 U.S.C. § 1981 to redress race and sex discrim-

1
ination in working conditions. Following is a summary of 
the district court's decision and our disposition of the 
assignments of error:

I. The district court defined the class of black 
employees as those, whether currently employed or not, who 
-worked on or after July 2, 1965, the date Title VII became 
effective. It found no discrimination in hiring but ruled 
that the company and the labor organizations had engaged in 
unlawful employment practices by racial discrimination in 
the promotion of employees. It ordered American to institute 
company-wide seniority, eliminate certain lines of progression

1. 42 U.S.C. § 2000e2 prohibits both employers and
labor organizations from engaging in employment 
practices that discriminate on the basis of race 
or sex.

42 U.S.C. § 1981 assures all persons the same 
right to make and enforce contracts as is enjoyed by 
white citizens.

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from lower to higher paying jobs, post definite job descrip­
tions, grant back pay, and adjust pensions and profit 
sharing plans in amounts to be determined at a subsequent 
hearing. The court also ordered that white incumbents be 
bumped from jobs for which senior black employees were 
qualified.

Neither party has assigned error to the court's 
finding of no discrimination in hiring. We find no error in 
the designation of the class. We affirm the finding of 
discrimination in promotions and approve the relief ordered 
by the court, except for provisions of the judgment dealing 
with company-wide seniority and bumping.

II. The district court ruled that the EEOC was 
empowered to bring suit to eliminate discrimination against 
women, although the initial charge dealt only with discrimi­
nation against men. It defined the class of aggrieved women 
in terms similar to those used to describe the class of 
black employees. The court found discrimination in pro­
motions but not in hiring, and it ordered relief similar to 
that afforded black employees.

On these issues we affirm the district court, 
modifying only its grant of relief.

III. The district court found discrimination in 
the selection of supervisors and ordered the company to 
prepare written job descriptions and objective criteria

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for appointments. It also ordered preferential hiring of 
blacks and women to fill supervisory vacancies.

We affirm these aspects of the court's judgment 
except for those dealing with preferential- hiring.

IV. The district court held that the actions were 
timely filed, that the statute of limitations for an action 
brought under § 1981 is five years, and that the statute is 
not tolled by filing a charge with the EEOC. It also held 
that back pay for discrimination against women should accrue 
from two years before the charge was filed.

Except for the application of the five-year 
statute of limitations and the accrual of liability for the 
women's back pay, we affirm these rulings. The proper 
limitation, we hold, is two years, and.the accrual date for 
back pay must be reexamined in light of EEOC v. General
Electric Co., ____F.2d ____, No. 74-1974 (4th Cir. 1975),
which was decided after the district court wrote its opinion.

I
American operates three facilities in Richmond, 

Virginia. The "Virginia Branch" makes cigarettes; the 
"Richmond Branch" makes pipe tobacco; and the "Richmond 
Office" keeps accounts and records for both branches. 
Approximately 250 of the 1,280 employees at both branches 
are black, and in the Richmond office 13 of the 62 employees 
are black. In each branch the prefabrication department 
blends and prepares tobacco before sending it to the fabrication

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department, which manufactures the finished products. Workers 
in prefabrication generally earn less than those in fabrication, 
and .most employees at the Richmond branch make less than 
those at the Virginia branch.

Before 1963 the union and the company overtly 
segregated employees by race with respect to job assignments, 
cafeterias, restrooms, lockers, and plant entrances. White 
employees were represented by Local 182 of the Tobacco 
Workers International Union, while black employees were re­
presented by Local 216. Blacks were generally assigned to 
positions in the prefabrication departments. The higher 
paying jobs in fabrication were largely reserved for white 
employees. Each department had its own seniority roster, on 
which promotions depended. Employees could not transfer 
from one department to another without forfeiting their
seniority. •

In September 1963 the black union was assimilated 
by the white Local 182 to comply with an executive order 
relating to the government's purchase of supplies. Simul­
taneously, the company abolished departmental seniority, but 
it continued to maintain separate rosters at the two branches. 
The 1963 changes did not eliminate racial discrimination 
from the company's promotion practices. The district court 
found that until 1968 the company utilized a system of 
unwritten qualifications which denied black employees access



to the higher paying jobs at the Virginia branch. For 
certain positions an employee had to be familiar with the 
duties of the new job in the opinion of his supervisor.
Also, he had to work a minimum number of hours on a temporary 
basis to qualify as an operator of a making or packing 
machine. Consequently, black employees not working in 
proximity to the higher paying jobs had limited opportunity 
to qualify, regardless of their seniority. Combined with 
static employment in the tobacco industry, this system 
allowed little advancement of black employees from jobs in 
prefabrication to those in fabrication. Indeed, from 1963 
to 1968 there was an increase of only four blacks in the 
fabrication department at the Virginia branch.

The Richmond branch had no qualification restric­
tions on promotions. Instead, supervisors canvassed employees, 
seeking the senior worker willing to fill a vacancy. There 
were, however, no written job descriptions. This system 
provided slight opportunity for black employees to move from 
prefabrication to fabrication, and from 1963 to 1968, there 
was an increase of only six black employees in the latter 
department. As of 1968, only three of the 26 machine operators 
were black.

In January 1968 the company discontinued its 
qualifications system. Instead, it posted vacancies and



promoted the senior employee who bid for the job. The district 
court found that this innovation was "facially fair and 
neutral" but ordered that it be implemented by posting 
written job descriptions. Furthermore, the district court 
found that access to certain jobs was barred to black 
employees by lines of progression and the maintenance of 
separate seniority rosters for each branch.

Although the company and the union have taken 
steps in recent years to correct some of the inequalities of 
the past, the lines of progression, the lack of definite 
written job descriptions, and barriers to transfer between 
the branches remain impediments to fair and neutral employ­
ment practices. Much must still be done to eradicate any 
taint of racial discrimination at the plant. The most 
recent figures available indicate that as of the end of 
1973, more than 80 percent of all the employees in the 
Virginia branch's prefabrication department were black, 
while in the fabrication department only-about 14 percent 
were black. At the Richmond branch, black employees' 
penetration into the fabrication department was greater, 
with blacks comprising more than 38 percent of the workforce. 
But the lower paying prefabrication department remained 
almost completely segregated; 92 percent of its employees 
were black. These figures provide ample support for the 
district court's findings that "[t]raditionally, at both



branches there have been more blacks in the prefabrication 
• department than whites, and more whites in the fabrication 
department than blacks."

The company emphasizes that from July 2, 1964, to 
March 1, 1974, 25 percent of all employees promoted and 20 
percent of those advanced to operate automatic machinery at 
the Virginia branch were black. Also, since the initiation 
in January 1968 of the posting and bidding procedure, 51.5 
percent of the successful bidders have been black. These 
gross figures, however, include promotions in both prefabri­
cation and fabrication departments, and, while laudable, 
they do not address the crucial issue of the case— the entry 
of black employees into the historically white fabrication 
department. Apart from the fact that many of these pro­
motions were made after charges were filed with the EEOC, 
the company's reliance on the overall promotion rate in both 
departments misses the mark because blacks have always been 
promoted in the historically black prefabrication department. 
Moreover, as late as 1973, of the approximately 200 hourly- 
paid, non-craft job classifications at Virginia, 18 had never 
been held by whites and 10 had never been held by blacks.
Even more rigid segregation characterized the Richmond 
branch; of the approximately 43 hourly—paid, non—craft job 
classifications, 21 had never been held by whites and nine
had never been held by blacks.



We conclude, therefore, that the record amply
supports the district court’s finding that after the effective
date'of Title VII the company and the union discriminated in
the promotional policies of their bargaining agreements and
practices. Tested by familiar standards, the court's findings

2
must be sustained.

We next consider the assignments of error that 
challenge the relief ordered by the district court. The 
directive that definite job descriptions must be provided in 
order to implement a fair method of promotion was clearly 
warranted. Cf^ Brown v. Gaston County Dyeing Machine Co.,
457 F.2d 1377 (4th Cir. 1972).

In those jobs that were filled according to lines
of progression, an employee had to work, in the first job 
before proceeding to the next, and so on up to the highest 
job in the line. Most of these jobs were in the fabrication 
departments. Since black employees had been largely excluded 
from the fabrication departments, they held few jobs in most 
of these lines and could not advance despite their seniority. 
In this respect, the lines of progression perpetuated the 
effects of past discrimination in a manner similar to the 
formerly segregated departmental seniority rosters. On the

2. Federal Rule of Civil Procedure 52(a) pro­
vides in part that "[fjindings of fact [by the court] shall not be set aside unless clearly 
erroneous . . . "

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basis of its evaluation of conflicting expert testimony, the
district court held that only three of the nine lines are

3
ju-stified by business necessity. For the others, alternative 
means such as on-the-job training are available to provide 
competent workers.

Addressing the discrimination caused by lines of
progression, we pointed out in Robinson v. Lorillard Corp.,
444 F.2d 791, 799 (4th Cir. 1971), that the vagaries of
chance inherent in this promotion system might bar a qualified
worker from advancement for years, although he could learn
to perform the job competently in a relatively short time.
To deal with such situations, we formulated the following
standard for ascertaining whether a condition of employment
-was justified by business necessity:

”[T]he applicable test is not merely 
whether there exists a business purpose 
for adhering to a challenged practice.
The test is whether there exists an 
overriding legitimate business purpose such that the practice is necessary to 
the safe and efficient operation of the 
business. Thus, the business purpose 
must be sufficiently compelling to over­
ride any racial impact; the challenged 
practice must effectively carry out the 
business purpose it is alleged to serve; 
and there must be available no acceptable 
alternative policies or practices which 
would better accomplish the business pur­
pose advanced, or accomplish it equally 
well with a lesser differential racial 
impact." 444 F.2d at 798.

3. The three positions for which lines of progression
can be maintained are adjuster, overhaul adjuster, 
and adjuster prefabrication.

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Measured by this test, the district court's elimination' 
of the six lines of progression was correct.

The district court also ordered a single seniority 
roster for the Virginia and Richmond branches to enable 
employees in each branch to bid for posted jobs in 'the 
other. The order is designed to correct the present effect 
of past discrimination, which denied black employees entry 
into the higher paying jobs of the fabrication departments, 
particularly at the Virginia branch. For example, under the 
present method of job assignments, a black employee hired in 
1955 at the Richmond branch prefabrication department has no 
realistic opportunity to secure a higher paying job in the 
formerly white Virginia fabrication department because he 
cannot transfer his company seniority to the Virginia branch.
If he seeks a new job there, he must forfeit his seniority 
and start as a new hire.

The district court correctly found that the denial 
of transfer between the branches without retention of 
company seniority perpetuates the effect of past discrimination. 
We believe, however, that the relief ordered by the district 
judge is broader than necessary. Title VII does not require 
the company or the union to forego the benefits of separate, 
nondiscriminatory seniority rosters. "Application of the 
Act normally involves two steps. First, identification of 
the employees who are victims of discrimination, and second, 
prescription of a remedy to correct the violation disclosed

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The Act does not require the applicationby the first step, 
of the remedy to employees who are not subject to discrim­
ination." United States v. Chesapeake and Ohio Ry., 471 
F.2d 532, 593 (4th Cir. 1972). The only employees who 
suffered discrimination were blacks who could not obtain 
jobs in the fabrication departments because of their race. 
Consequently, they are the only employees who should be 
allowed to transfer under the posting and bidding system 
from one branch to' the fabrication department in the other 
branch on the basis of their company seniority. Black 
employees need not be allowed to transfer with company 
seniority to jobs in prefabrication, because the^ were
never barred from these jobs in the first place. Similarly, 
white employees seeking transfers are not entitled to utilize 
company seniority, because they were never barred from fabrica­
tion departments. Finally, no employee hired after the 
cessation of discrimination in job assignments need be allowed 
to transfer with seniority intact. See, e.g., Russell v.
American Tobacco Company, ____F.2d ____, No. 74-1650 (4th
Cir. 1975); Robinson v. Lorillard Corp., 444 F.2d 791 (4th 
Cir. 1971); Quarles v. Philip Morris, Inc., 279 F.Supp. 505
(E.D. Va. 1968).

The company and the union assert that this case is 
distinguishable from departmental seniority cases like 
Robinson because the Richmond and Virginia branches are in 
different locations. They emphasize that the branches make

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different products, have different managements, hire separately, 
•and are some distance apart. For these reasons, they argue, 
the case falls within 42 U.S.C. § 2000e-2(h), which provides 
that:

"Notwithstanding any other provision of 
this subchapter, it shall not be an un­
lawful employment practice for an employer 
to apply different standards of compensa­
tion, or different terms, conditions, or 
privileges of employment pursuant to a 
bona fide seniority or merit system . . .
or to employees who work in different loca­
tions, provided that such differences are 
not the result of an intention to discrimi­
nate because of race, color, religion, sex, 
or national origin . . . . "
Noting that neither the Act nor the regulations 

define the statutory term "employees who work in different 
. locations," we recently construed § 2000e-2(h) in Russell
v. American Tobacco Co., ____F.2d ____, No. 74-1650
(4th Cir. 1975) . We pointed out that the labor market 
is the most important factor in determining whether a 
company's employees work in different locations. A company 
operating two or more of its plants with employees who are 
from the same geographic area and who are unskilled or 
possess the same skills can assign an applicant to an entry 
level position in either plant. Therefore, employees the 
company hired from the same labor market would not generally
fall within the statutory class of "employees who work in 
different locations." £ ' :

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On the other hand, even though a company's plants 
are in the same city, as they are here, their proximity does 
not conclusively show that they are in the same location.
If one plant requires labor possessing skills different from 
those of workers at another plant, the company cannot draw 
from the same labor market to man its plants. Under these 
circumstances, employees would work at different locations, 
even though they reside and work in the same geographic
area.

American hires employees for both branches from 
the same labor market. The branches are only a few city 
blocks apart. There are entry level jobs at both places 
that require neither particular skills nor experience, and 
jobs in fabrication can be filled just as well by trans­
ferees as by persons hired off the street.

Other facts support the district court's finding
that these plants are not in different locations. The same 
bargaining agreement covers employees at both plants, and 
the company has contractually reserved the right to shift 
employees from one plant to the other without depriving them 
of seniority. The Richmond office, located in a building at 
the Virginia branch, serves both branches, and the Virginia 
branch ships the Richmond branch's products.

There is another reason why the exemption granted 
in § 2000e-2(h) is not available to American. As we noted

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in Russell, supra, slip op. at 10, that section contains a 
proviso that restricts its application to situations where 
differences in the conditions of employment "are not the 
result of an intention to discriminate." Past intentional 
segregation that is perpetuated by a company’s seniority 
system precludes it from claiming that its system is bona 
fide within the meaning of § 2000e-2 (h.) , Robinson v. Lorillard 
Corp., 444 F.2d 791 (4th Cir. 1971). Similarly, "where 
present differences in working conditions are remnants of 
past intentional discrimination, the proviso of § 2000e-2(h) 
bars a company from defending its employment practices on 
the ground that its employees work in different locations."
Russell v. American Tobacco Co., ____ F.2d ____, ____, No.
74-1650 (4th Cir. 1975), slip op. at 11.

We therefore affirm the district court on this 
issue but note that on remand it should vacate the provision 
of its judgment requiring a single seniority roster for both 
branches. It should substitute an order allowing those
black employees who formerly could not obtain jobs in the 
fabrication departments because of discrimination to utilize 
their company seniority to bid for such jobs in the fabrica­
tion department of either branch. Of course, an employee 
who transfers must have the capacity to perform the job 
after receiving a reasonable amount of training.

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Title VII nor its legislative history requires bumping in 
this case.

Relief under § 1981 is limited to correcting 
racial discrimination. See Delavigne v. Delavigne, No.
75-2203, ____ F.2d ____ (4th Cir. 1976); Willingham v. Macon
Telegraph Publishing Co., 482 F.2d 535, 537 n. 1 (5th Cir. 
1973). But apart from this, Title VII and § 1981 provide 
complementary remedies for employment discrimination, Johnson 
v. Railway Express Agency, Inc., 421 U.S. 454, 459-60 (1975). 
Although the legislative history of Title VII cannot support 
a decision that bumping relief is unavailable under § 1981, 
the pragmatic considerations we advance apply with equal 
force to the § 1981 claim. Moreover, "in fashioning a 
substantive body of law under § 1981 the courts should, in 
an effort to avoid undesirable substantive law conflicts, 
look to the principles of law created under Title VII for 
direction." Waters v. Wisconsin Steel Works of International 
Harvester Co., 502 F.2d 1309, 1316 (7th Cir. 1974). For 
these reasons, we hold that bumping relief is not available 
to American's black employees under § 1981.

On remand, therefore, the district court should 
modify its decree to eliminate bumping, but it should take 
steps to assure that back pay will be computed to include 
compensation for the entire time that a minority employee is

i denied a promotion for which he or she is qualified by
I

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continuing jurisdiction over the case and make periodic back 
pay awards until the workers are promoted to the jobs their 
seniority and qualifications merit. Or perhaps counsel and 
the court can devise some other convenient method of taking 
all the effects of past discrimination into account. In any 
event, the compensation must include, as the district court 
properly noted, increments for pensions and profit sharing.

Compensatory pay and adjustment of benefits provide 
monetary relief for discrimination against minority employees 
but do not afford the satisfaction that comes from being 
promoted to a more responsible job. Nevertheless, such an 
intangible benefit does not justify injunctive relief mandating 
bumping. Weighed against a minority employee's sense of 
achievement are the harm that demotion will cause to incumbents 
who have done no wrong and the disruption of the company's 
business that bumping entails. The survey of employees 
referred to in footnote 8, supra, indicates that 39 minority 
employees are seeking jobs held by 8 white men and 31 other 
minority employees. This survey, however, does not prove 
that the employees seeking different jobs were motivated 
even in part by non-monetary factors, for it was conducted on 
the assumption that bumping was the only way they could 
receive better pay and fringe benefits. Since full monetary 
compensation and the removal of barriers to promotion provide 
adequate relief to minority employees without disruption to 
other employees and management, we conclude that neither

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I

economy and making persons whole for injuries suffered 
through past discrimination." 422 U.S. at 421.

To satisfy these objectives, back pay must be i

allowed an employee from the time he is unlawfully denied a 
promotion, subject to the applicable statute of limitations, 
un._il he actually receives it. Some employees who have been 
victims of discrimination will be unable to move immediately )
into jobs to which their seniority and ability entitle them.
The back pay award should be fashioned to compensate them 
until they can obtain a job commensurate with their status.
This may be accomplished by allowing back pay for a period 
commencing at the time the employee was unlawfully denied a 
position until the date of judgment, subject to the applicable 
statute of limitations. This compensation should be supple­
mented by an award equal to the estimated present value of 
lost earnings that are reasonably likely to occur between 
the date of judgment and the time when the employee can 
assume his new position. See Bush v. Lone Star Steel Co.,
373 F.Supp. 526, 538 (E.D. Tex. 1974); United States v.
United States Steel Corp., 371 F.Supp. 1045, 1060 n. 38

10
(N.D. Ala. 1973). Alternatively, the court may exercise

This measure of compensation is analogous to that awarded in an ordinary tort case, where compensation 
is assessed for one's loss of earnings whether the loss 
occurs before or after the judgment is entered. The 
analogy is apt because a statutory action attacking

discrimination is fundamentally for the redress of a tort. See Curtis v. Loether, 415 U.S. 189, 195



is no reason to suppose that this process will soon abate. 
Bumping could mean that employers and workers would likely 
have their businesses and their working lives rearranged by 
court decrees from time to time, as various unlawful employment 
practices are identified. See generally Note, Title VII, 
Seniority Discrimination, and the Incumbent Negro, 80 Harv.
L. Rev.. 1260, 1274-75 (1967).

V • Finally, although Congress did not intend the Act
i '

to be used as a vehicle for displacing incumbents, it did 
not leave the victims of discrimination without a remedy. 
Section 2000e-5(g) expressly authorizes a district court to 

: award them back pay. While an employee who has been unlawfully
denied a promotion must await a vacancy before advancing, he 

[ need not prove that a vacancy exists in order to qualify for
back pay. Hairston v. McLean Trucking Co., 520 F.2d 226 

I (4th Cir. 1975); Robinson v. Lorillard Corp., 444 F.2d 791
(4th Cir. 1971).

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 408
i (1975), the Court explained the standards a district court 

should follow in awarding back pay to employees who "havei '*
lost the opportunity to earn wages because an employer has

f

| engaged in an unlawful discriminatory employment practice."
The Court said that the back pay provision must be applied|

{ in a manner that is "consonant with the twin statutoryI
objectives" of "eradicating discrimination throughout thei ;

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are not responsible for wrongdoing, undoubtedly would
. encounter more resistance than deferring their future
expectancies. As this case illustrates, bumping is an
unsettling process. Its domino effect adversely affects
employees who have done no wrong and who, indeed, may have

8been the victims of discrimination.
The effects of bumping are exacerbated by another

aspect of Title VII. The Act does not provide a definitive
catalogue of unlawful employment practices. Congress placed
this responsibility on the EEOC and, ultimately, the courts.
It soon became obvious that overt discrimination is not the

. 9only obstacle to equal employment opportunity. As a result
of litigation, many practices, procedures, or tests neutral 
on their face, and even neutral in terms of intent" have 
been exposed as discriminatory and condemned. See Griggs v. 
Duke Power Co., 401 U.S. 424, 430 (1971); United States v. 
Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970). There

As part of its compliance with the district court1s decree, American conducted a canvass of its employees 
to determine the effect of bumping. The results of 
that survey are contained in a report filed with this 
court to supplement the record. The report showed that 
40 employees requested jobs to which their plant-wide 
seniority would entitle them. One of these has already 
obtained the job he requested. The others would bump 
eight white male employees and 31 minority employees 
out of the jobs they now occupy. We stayed the provision 
of the decree that required bumping pending this appeal.

See generally Introduction, The Second Decade of 
Title VII: Refinement of the Remedies, 16 Wm. & Mary L Rev. 433, 436-37 (1975).

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Since the Act should not be applied retroactively, 
it is, of course, much easier to justify the retention of 
incumbents who obtained their positions before the ei.fective 
date of the Act than the retention of those who were unlaw­
fully preferred after this date. Nevertheless, neither 
Congress not the EEOC nor the courts have drawn a distinction 
between pre-Act and post-Act incumbents. The reasons for 
applying the Act uniformly are largely pragmatic. The 
enactment of Title VII was the result of many concessions, 
including the unequivocal assertion by proponents of the
legislation that it was not intended to be used to displace

7incumbent workers. A primary goal of Title VII is to 
induce voluntary compliance by employers and unions. Section 
2000e-5; see EEOC v. Hickey-Mitchell Co., 507 F.2d 944, 948 
(8th Cir. 1974). Demoting employees, especially those who

6. This principle is established by the legislative
history. Senators Clark and Case, two of the bill's sponsors, circulated an interpretative memorandum 
stating that Title VII's operation was "prospective and not retrospective . . . (T)he employer's obligation
would be simply to fill future vacancies on a non- 
discriminatory basis." 110 Cong. Rec. 6992 (daily ed. 
April 8, 1964), quoted in Quarles v. Philip Morris, 
Inc., 279 F.Supp. 505, 516 (E.D. Va. 1968).

7. The Clark-Case memorandum, note 6 supra, states 
that an employer "would not be obliged--or, indeed, 
permitted— to fire whites in order to hire Negroes, or 
to prefer Negroes for future vacancies, or, once 
Negroes are hired, to give them special seniority 
rights at the expense of white workers hired earlier." 
110 Cong. Rec. 6992 (daily ed. April 8, 1964).

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{has accepted this interpretation. Equally important, when 
Congress was considering the 1972 amendments to Title VII,

5
it approvingly noted Papermakers' construction of the Act.

These precedents cannot be satisfactorily distin­
guished on the ground that bumping would be required only 
when the proof discloses a static industry that has few 
vacancies. The difference between static and dynamic indus­
tries is not always readily ascertainable because employment 
opportunities fluctuate for many reasons over long and short 
periods. Requiring bumping for static industries while 
denying it in dynamic industries would introduce into the

i'k
.administration of the Act countless variables for which 

Congress has made no provision.

4

4. E.g,, EEOC v. Detroit Edison Co., 515 F.2d 301
(6th Cir. 1975); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); United States v. 
Chesapeake & Ohio Ry., 471 F.2d 582 (4th Cir. 1972); 
United States v. Bethlehem Steel Corp., 446 F.2d 
652 (2d Cir. 1971).

5. The section-by-section analysis of the Housebill states that "it was assumed that the present 
case law as developed by the courts would continue 
to govern the applicability and construction of 
Title VII." Legislative History of Equal Employ­ment Opportunity Act of 1972, Government Printing 
Office (1972) at 1844. Papermakers, of course, was 
a prominent part of that case law.~

iTJ



branch and May 12, 1966, in the Virginia branch. Employment 
in both branches decreased from 1953 to 1973 by approxi­
mately 1300 workers.

One of the early questions about the construction 
of Title VII was whether "present consequences of past 
discrimination [are] covered by the act." Quarles v. Philip 
Morris, Inc., 279 F.Supp. 505, 510 (E.D. Va.-1968). The 
generally accepted answer is a qualified "yes": employers 
and unions using pre-Act discriminatory practices to bar 
employees from filling post-Act vacancies violate the Act. 
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971); 
Quarles, supra. On the other hand, Title VII has not been 
construed to impose a duty to demote incumbents. In Local 
189, United Papermakers and Paperworkers v. United States,
416 F.2d 980 (5th Cir. 1969), the court rejected the contention 
that "allowing junior whites to continue in their jobs 
constitutes an act of discrimination." Judge Wisdom, writing 
for the court, said:

"The Act should be construed to prohibit 
the future awarding of vacant jobs on the 
basis of a seniority system that 'locks in' 
prior racial classification. White incum­bent workers should not be bumped out of 
their present positions by Negroes with 
greater plant seniority; plant seniority 
should be asserted only with respect to new job openings. This solution accords 
with the purpose and history of the legis­
lation." 416 F.2d at 988.

Every appellate court to whom the issue has been presented

-19-

■>¥ -



The company and the union also assign error to the 
part of the district court's order that allowed senior black 
and female employees to bump junior employees from preferred 
jobs. The court ordered immediate company—wide posting and 
bidding on each non-supervisory job in the Richmond 'and 
Virginia branches. The only qualifications for advancement 
were to be seniority and a willingness to learn the job. To 
.facilitate the bidding, the court ordered that job descrip­
tions be posted. It further provided that employees who 
were displaced by senior black or female workers, and 
therefore had to move to lower paying jobs, must be paid as 
much as they were in their former jobs. The court explained 
the reason for this provision of its decree as follows:

"The present system of posting and bidding adopted in 1968 is fair, although it needs, 
in the Court's view, further implementation.
As indicated in the findings of fact, how­
ever, black and female employees in the Richmond Branch and the Virginia Branch have 
been locked in their jobs as a result 
of prior discriminatory practices. This is 
because of the static condition of the to­bacco industry generally, and American in 
particular, and the advent of automation, 
both of which have limited opportunities 
for upward movement of present employees and for new hiring." (Appendix at 37-38.)

The court's description of the lack of employment opportunities
is well supported by the evidence. No new employees were
hired to fill jobs under jurisdiction of the union from
September 12, 1955, through June 12, 1964, in the Richmond

- 18 -



£

t> •I .} We affirm the district court's award of relief
against both the local and the International, except as 
noted in Part II. The local acquiesced without protest in 
the lines of progression. Not until 1968 did it negotiate 
for the removal of the qualification.requirements for pro­
motion. In 1968, 1971, and 1974, it proposed a company-wide 
seniority system that would have allowed transfers between 

’* branches. When the company declined, the union settled for
assurances of indemnity that would protect its treasury 
against the claims of its members.

A union may not bargain away minority employees' 
rights to equal treatment, see Robinson v. Lorillard Corp.,
444 F.2d 791, 799 (4th Cir. 1971), and, indeed, it must 
"negotiate actively for nondiscriminatory treatment" of its 
minority workers. Macklin v. Spector Freight Systems, Inc.,
478 F.2d 979, 989 (D.C. Cir. 1973); see also United States 
v. N. L. Industries, Inc., 479 F.2d 354, 379 (8th Cir.
1973). The Supreme Court has recently emphasized the duty a 
union owes to its minority members by pointing out that one 
of the purposes of a back pay award is to spur unions, as 
well as employers, to evaluate employment practices and 
eliminate unlawful discrimination. Albemarle Paper Co. v.
Moody, 422 U.S. 405, 417-18 (1975). Tested by these principles, 
the district court's imposition of liability on both the 
local and the International was warranted by the law and the

i
( facts.



Nor can we accept the International's argument 
that it should not be held liable because it was not respon- 

* sible for the contracts negotiated by the local. The 
evidence disclosed that a vice president of the Interna­
tional acted as an "advisor" to the local, playing an active 
role as the president's deputy in the 1971 and 1974 negotiations 
for bargaining argeements. Moreover, the constitution of 
the International provides:

"It shall be the principal duty of the 
Local Union to secure satisfactory col­
lective bargaining and working agreements 
showing an adequate minimum wage and fair 
working conditions for workers who have 
become affiliated with the TWIU, provided, 
however, that no collective bargaining and 
working agreement shall be consummated 
until first submitted to the general presi­
dent who may approve or reject any proposed 
agreement, and no such agreement can be 
executed without the approval of the gen­
eral president or his deputy."

The district court was not obliged to accept representations 
of the vice president that contradicted the plain meaning of 
this provision. The court properly concluded that the 
International's approval of the bargaining agreement pursuant 
to this provision made it jointly responsible with the 
local. Cases dealing with an international union's exonera­
tion of Liability to an employer are inapposite where its 
duties to members of its local unions are at issue.

II
The EEOC's complaint contains allegations of 

discrimination against women employees. The company contends 
that the commission lacked authority to press this claim

-28-



because no female employee filed a charge. On the contrary, 
the company points out, the only charge of sex discrimination 

filed by a male employee. The district court overruled 
the company's motion to dismiss this aspect of the case, 
holding that the commission could institute the suit if its 
investigation of the male employee's complaint disclosed 
discrimination against women.

We affirm the district court. We recently decided 
this issue adversely to the company's position in EEOC v.
General Electric Co., ____ F.2d ____, No. 74-1974 (4th Cir.
1975). The company's argument does not persuade us to 
depart from the conclusions reached in that case.

On the merits of the claim of sex discrimination, 
we uphold the district court's finding of liability. Because 
the company's discrimination against women bears many similarities 
to its discrimination against black employees, we need not 
recite the evidence in detail. It is sufficient to note 
that for many years the company overtly segregated jobs by 
sex, discriminating against women, as the district court 
found, "with respect to wage structure, departments, seniority 
and hiring." Even after these practices were nominally 
eliminated in 1963, their discriminatory effect was perpetuated 
by- lack of definite job descriptions, lines of progression, 
and obstacles to transfers. The court found that as recently

11. see Part IV infra for a discussion of the statute
of limitations with respect to this issue.

-29-



as 1973, 23 of the approximately 200 non-craft, hourly-paid 
jobs at the Virginia branch had not been held by women, and 
six had not been held by men. At the Richmond branch, 32 of 
the 43 non-craft, hourly-paid jobs had not been held by 
women, and six had not been held by men. The company has 
not demonstrated that these segregated positions cannot be 
filled by persons of the opposite sex. The court also found 
that from 1967 through 1972 women had a lower mean income 
than men with comparable seniority.

Again, the district court's findings are supported 
by the evidence and cannot be set aside as clearly erroneous. 
The relief the court afforded women is essentially the same 
as the relief it granted black employees. Accordingly, we 
approve the relief for women employees, subject, however, to 
the same modifications of the court's decree that we mentioned 
in Part I. This relief, however, can be granted only against 
the company. The complaint against the union for sex discrim­
ination must be dismissed for reasons we' will next discuss.

The commission's complaint names the company and 
Local 182 as defendants. The commission acknowledged that s 
it had not attempted to conciliate the charges with the 
union before filing suit. While the suit was pending, it 
made an offer to conciliate, which the union accepted. In 
the course of discussion with the union, however, the 
commission's representative conceded that he had no authority 
to settle the suit. Understandably, the conciliation efforts

-30-

uf



were unsuccessful. The district court, viewing the lapse as 
technical, held that the belated offer to conciliate and its 
acceptance substantially complied with the Act.

The Act requires, however, that after receiving a 
charge and before bringing a suit the commission must take 
four steps: serve the charge on the employer and labor
organization, investigate the charge, determine that reason­
able cause exists to believe the charge is true, and endeavor 
to eliminate alleged unlawful employment practices "by in- 1
formal methods of conference, conciliation, and persuasion."
The 1972 amendments to Title VII empowered the commission to
sue if it is unable to secure an acceptable conciliation 

13agreement. This provision of the Act has been construed 
to create an express condition on the commission's power to 
sue. Consequently, a suit brought by the commission before

|

iI
I
:
\j
|

i
»
Ii

attempting conciliation is premature. EEOC v. Hickey-
Mitchell Co., 507 F.2d 944, 947-48 (8th Cir. 1974); EEOC v.
E. I. DuPont de Nemours & Co., 373 F.Supp. 1321, 1333-34 (D.
Del. 1974); EEOC v. Westvaco Corp., 372 F.Supp. 985, 991-93 

14
(D. Md. 1974) .

12. 42 U.S.C. § 2000e-5(b).
13. 42 U.S.C. § 2000e-5(f)(1).
14. We have held that the commission's failure to attempt

conciliation is not a jurisdictional bar to an employee's 
action, because the employee cannot be charged with the 
commission's failure to execute its statutory duties. 
Russell v. American Tobacco Co., ____ F. 2d ____, ____,
No. 74-1650 (4th Cir. 1975); Johnson v. Seaboard Air 
Line R.R., 405 F.2d 645 (4th Cir. 1968). These cases, 
however, are inapposite where the commission's power 
to sue is in question.

-31-

. V,.V • > / b ■ ' * V ■' ' *■: : ■
i  .. . • : - . v ■ - ■ - : t < ' V  *■’ ■ . .. . v  ■:_ I V  . • i •" f  . - jfi * «y* W •' ■ • • - . . • • * .

‘- :4  <



*vV

i

We recently emphasized that the commission's
statutory duty to attempt conciliation is among its most

15
essential functions. It is particularly important for the 
commission to attempt conciliation with a union when investi­
gation discloses that provisions of a bargaining agreement 
concerning seniority and job assignments are causing the alleged 
unfair employment practices. Then the employees who enjoy 
majority status are frequently more directly affected than 
their employer by changes that will advance minority employees.
In such cases, the success of conciliation often hinges on the 
union's response.

We do- not rule out the possibility that exceptional 
circumstances may excuse a failure to attempt conciliation, but 
that is not the case here. The union's willingness to negotiate 
even after suit was brought tends to negate any suggestion that 
timely conciliation of the sex discrimination charges would have 
been unsuccessful. When it became apparent that the commission's 
representative lacked authority to settle the case, the possi­
bility of conciliation was dealt a severe blow by the very 
circumstances Congress sought to avoid— commencement of a civil 
action before attempting conciliation. Accordingly, we conclude 
that the district court should have dismissed the part of the 
commission's complaint which alleges that Local 182 caused the 
company to discriminate unlawfully on the basis of sex.

15. EEOC v. Raymond Metal Products Co., 
_, No. 75-1007 (4th Cir. 1976).

-32-

F. 2d

m i - v



4> vTV *I
I
ftI
j' 111t •The district court also found that the company hadi
.< engaged in race and sex discrimination in appointing supervisors.

The evidence supports this finding. At both the Richmond• l
and Virginia branches, the entry level position for supervisory 
personnel is assistant foreman. The company fills about 34 
percent of the vacancies in this position by promoting 
hourly employees; it fills the balance by hiring new applicants. 
With no formal, objective, written standards for appointment, 
the company relies in part on recommendations from the
union, which also lacks objective standards. Until 1963 the 
company appointed only white males to supervisory posts, and 
the enactment of Title VII failed to effect any immediate 
change in this policy. At the Richmond branch, the first 
black supervisor was appointed in 1966 and the second in 
1971. As of June 1, 1973, there were only three, constitut­
ing 9.6 percent of the supervisory force of 31. In 1967 the 
company named its first female supervisor at the Richmond 
branch. By 1973 two (6 percent) of the 31 supervisors were 
women. At the Virginia branch, a black employee was promoted 
to assistant foreman in 1963. In the next decade four more 
were appointed, so that by 1973 7.24 percent of the 69 
supervisors were black. The first female was not appointed 
as a supervisor at this branch until 1972. Two more were 
appointed by June 1, 1973.

Before the trial of the case, neither a black 
employee nor a woman had ever been appointed to a supervisory

-33-r



• *tIposition at the Richmond office. The court noted, however,
|

that a vacancy existed, and the company proffered additional 
evidence that as of November 1, 1974, the Richmond office 
had one black supervisor and one white female supervisor on 
a staff of eight.

The district court enjoined the company from 
"implementing, maintaining, or giving effect to any criteria 
utilized for the selection of supervisory personnel which is 
designed to or has the effect of discriminating against 
black or female candidates for supervisory positions." It 
ordered the company to post job descriptions for these 
positions and to devise objective criteria for selecting new 
appointees. The propriety of these provisions of the court's 
decree is well settled. See Brown v. Gaston County Dyeing

ii
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t
rI
i

Machine Co., 457 F.2d 1377, 1383 (4th Cir. 1972); Rowe v. 
General Motors Corp., 457.F.2d 348, 358-59 (5th Cir. 1972). 
We think, however, that on.remand the court's decree should 
be enlarged to require the union to publish objective 
criteria for making its recommendations for supervisory 
appointments.

Finally, the district court ordered that vacancies 
in the assistant foreman, foreman, and office supervisory 
positions must be filled with qualified blacks and women, 
except when none can be found, until the percentage of 
blacks and women equals the percentage of these classes of 
workers in the Richmond Standard Metropolitan Statistical

-34-



Area (SMSA). The company's attack on this provision of the 
decree is two-pronged. First, it contends that Title VII

*
) condemns preferential hiring, especially when, as here, the

i

)
4

\

1 ,I*

!*

(1{t

j

ii

preferences are absolute. It relies primarily on § 703 (j) 
of the Act, 42 U.S.C. § 2000e-2(j), which provides in part:

"Nothing contained in this subchapter shall 
be interpreted to require any employer . • .
to grant preferential treatment to any indi­
vidual or to any group because of the race 
. . .  [or] sex . . .  of such individual or 
group on account of an imbalance which may 
exist with respect to the total number or 
percentage of persons of any race . . . [or]
sex . . . employed . . .  in comparison with
the total number or percentage of persons of 
such race . . . [or] sex . . .  in anycommunity . . . or in the available work
force in any community. . . . "

This section plainly bans the use of preferential hiring to
change a company's racial imbalance that cannot be attributed
to unlawful discrimination. In Griggs v. Duke Power Co.,
401 U.S. 424, 430-31 (1971), the Court said:

"Congress did not intend by Title VII, how­
ever, to guarantee a job to every person re­
gardless of qualifications. In short, the 
Act does not command that any person be hired 
simply because he was formerly the subject of discrimination, or because he is a member of 
a minority group. Discriminatory preference 
for any group, minority or majority, is pre­cisely and only what Congress has proscribed.
What is required by Congress is the removal 
of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers op­
erate invidiously to discriminate on the basis 
of racial or other impermissible classification."
Uniformly, however, Title VII has been construed

to authorize district courts to grant preferential relief as

-35-

v  -V- s > v  ■ "  j -*0



Rios v. Enterprise

I .

a remedy for unlawful discrimination. Rios v. Enterprise 
Association Steamfitters Local 638 of U.A., 501 F.2d 622, 
628-31 (2d Cir. 1974); United States v. N. L. Industries, 
Inc., 479 F.2d 354, 377 (8th Cir. 1973); Southern Illinois 
Builders Association v. Ogilvie, 471 F .2d 680, 683-86 (7th 
Cir. 1972); United States v. Ironworkers Local 86, 443 F.2d 
544, 552-53 (9th Cir. 1971); United States v. International 
Brotherhood of Electrical Workers, Local No. 38, 428 F .2d 
144, 149-51 (6th Cir. 1970); Local 53 of International Ass'n 
of Heat & Frost I. & A. Workers v. Vogler, 407 F.2d 1047, 
1053-54 (5th Cir. 1969). This construction of the Act is in 
harmony with other cases which authorize preferential relief 
from unlawful employment discrimination in situations where 
Title VII is not applicable. Associated General Contractors 
of Massachusetts, Inc. v. Altshuler, 490 F.2d 9, 16-18 (1st 
Cir. 1973); Carter v. Gallagher, 452 F.2d 315, 330 (8th Cir. 
1971); Contractors Association of Eastern Pennsylvania v. 
Secretary of Labor, 442 F.2d 159, 172, 176-77 (3d Cir.
1971). In all, eight circuits have approved some form of 
temporary preferential relief for discriminatory employment 
practices. See Sape, The Use of Numerical Quotas to Achieve 
Integration in Employment, 16 Wm. & Mary L. Rev. 481, 499
(1975)• No court of appeals has ruled to the contrary, 
although there have been dissents.

*J



a case
We have not previously ruled on the issue, but in 

involving the Civil Rights Act of 1866 and the 
thirteenth and fourteenth amendments, we declined to impose 
quotas where the district court concluded that adequate 
relief could be obtained without their use. See Harper v. 
Kloster, 486 F.2d 1134, 1136 (4th Cir. 1973). In view of 
the substantial precedent sanctioning preferential relief 
for unlawful discrimination, we reject the company's argu­
ment that Title VII forbids the remedy ordered by the 
district court. We recognize, however, that cases which 
approve such remedies caution that the necessity for prefer­
ential treatment should be carefully scrutinized and that 
such relief should be required only when there is a compelling 
need for it. See Associated General Contractors of Massachu­
setts, Inc. v. Altshuler, 490 F.2d 9, 17 (1st Cir. 1973).
This brings us to the company's second reason for vacating 
the decree's provision for preferential appointment of 
supervisors.

The company argues that its appointment of black 
and female employees to supervisory positions already 
exceeds the ratio that preferential relief would require.
Its argument rests on two premises. One, its conduct before 
the effective date of Title VII does not provide a proper 
base to measure its compliance with the Act; instead, it 
must be judged by the manner in which it filled vacancies

-37-



after this date. Two, the district court erroneously 
considered the number of blacks and women in the Richmond 
SMSA workforce as a whole to ascertain a ratio of acceptable 
performance, instead of using only the blacks and women in 
the Richmond SMSA supervisory workforce.

We believe these premises are well founded. Title 
16

VII is not retroactive. It does not provide a remedy for 
discrimination which occurred before it became effective in 
1965. Robinson v. Lorillard Corp., 444 F.2d 791, 795 (4th 
Cir. 1971). At the Virginia branch 51 of the supervisors 
were appointed before Title VII prohibited discrimination in 
their selection. They should not be counted in determining 
whether preferential hiring is required now. Between 1965 
and 1973 the company appointed 18 assistant foremen, the 
entry level position for supervisors. Of that number, five 
(27.5 percent) were black and three (16.6 percent) were 
women. At the Richmond branch, 22 of the supervisors were 
appointed before Title VII became effective and nine afterwards. 
Of the nine, three (33.3 percent) were black and two (22 
percent) were women. At the Richmond office, the evidence 
is not as clear. It has six entry level supervisory positions, 
which at the date of trial were filled by five white males 
with one vacancy. The district court found that four of the 
six positions had been filled after 1965. Subsequently, the

16. The legislative history of Title VII indicates
that it is not intended to be retroactive. See note 6 
supra.

-38'-

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f .

company proffered evidence that it has promoted one black
employee and one female to supervisory positions, constituting
for each classification 16.6 percent of the appointments 

17
since 1965.

The record discloses that 6.8 percent of the 
blacks and 1.5 percent of the women in the Richmond SMSA are 
placed in a category that includes supervisory personnel.
Those percentages furnish a more realistic measure of the 
company's conduct than the gross percentage of blacks and 
women in the whole workforce, including unskilled labor.
See Harper v. Mayor, 359 F.Supp. 1187, 1193 n.5 (D. Md.), 
aff'd sub nom. Harper v. Kloster, 486 F.2d 1134 (4th Cir.
1973).

The fact that the company's appointments since 
1965 exceed the ratio of qualified blacks and women in the 
workforce does not exonerate the company for the violations 
of the Act which the district court found. The tardy appoint­
ments of blacks and women to supervisory positions long 
after the passage of Title VII and the present lack of 
published job descriptions and objective selection procedures

17. The district court declined to reopen the record to 
consider this proffer. Under the ratio <;°urtused for comparative purposes, the evidence had but 
slight probative effect. Its import, however, is 
magnified by acceptance of the company s premise t Tts performance since 1965 is what must be examined in 
determining whether it has violated the Act. 0* remand 
the court should reexamine the situation at the Richmond
office.

-39-

r -  \ ipppf! p . /■■■-■ g p f  p p jppgjjg j I  Ip



fully justify the injunctive relief the district court 
ordered. We believe, however, that the rate at which the 
company currently appoints blacks and women to supervisory
positions is sufficient to show that^there is no compelling 
need for the imposition of a quota. But see Karst &
Horowitz,'Affirmative Action and Equal Protection, 60 Va. L. 
Rev. 955 (1974).

IV
The company contends that the charge filed with 

the EEOC on January 3, 1969, was not timely because there 
were no discriminatory practices at either branch after 
January 15, 1968. It argues that for this reason the action
should be dismissed for failure to meet the jurisdictional 
requirement of a timely charge. The district court,
however, found that the discrimination was of a continuing

18 We do not mean to suggest that the company may use 
its percentage of black and female supervisors as a 
defense to future charges of discrimination against blacks and women. It must consider each application on 
its merits. If the company discriminates against a 
black or a woman, it can be called to account for 
violating Title VII, regardless of the percentage of 
blacks and women among its supervisors.

19 Before the 1972 amendments to Title VII, a charge 
had to be filed with the EEOC within 90 days of the 
alleged unlawful employment practice. 42 U.S.c.
§ 2000e-5(d) (1964). In 1972, this period was changed
to 180 days. 42 U.S.C. § 2000e-5(e).

-40-

1 
*\

V

i

'•’A

- * • /



’4-1549
nature and properly held that the charge was timely.
Williams v. Norfolk i Western ?.y. , ____ ~. 2c ____, Nc
(4th Cir. 1975', ; llar^lin v. Freight ?ys:«s. Ir.c. ,
478 F. 2d 979 , 994 (D.C. Cir. 1973); s£e Johnson v. Railway 
F.xprcss Agency, Inc. , 421 U.S. 454, 467 n.13 (1975) (dictum) .

The district court ruled that the filing of the 
charge in 1969 did not toll the statute of limitations for 
the § 1981 action which was filed in 1973. The Supreme 
Court recently confirmed the district court s correct 
understanding of the law. Johnson v. Railway Express Agency,
Inc., 421 U.S. 454 (1975).

The district court applied the Virginia five-year 
statute of limitations to the § 1981 action. We have ruled, 
however, that the state's two-year statute applies to § 1982 
actions. Allen v. Gifford, 462 F.2d 615 (4th Cir. 1972).
Doth § 1981 and § 1982 were enacted to redress infringements 
of closely related civil rights. We conclude, therefore, 
that the same two-year statute should apply to § 1981 actions. 
Accord, Revere v. Tidewater Telephone Co., No. 73-1390 (4th 
Cir., October 2, 1973)(unpublished opinion applying the two- 
year statute to a § 1981 action); cf. Almond v. Kent, 459 
F.2d 200 (4th Cir. 1972). Accordingly, on remand, the two- 
year statute of limitations should be applied to the § 1981 
claim. Of course, the point has little practical significance



in this case in view of the fact that the § 1981 action was
not tolled by the filing of the charge' with the EEOC.

The district court ruled that back pay for sex
discrimination should accrue from April 8, 1967, two years
before the charge was filed with the EEOC. The two-year
period mentioned bv the district judge conforms with the 

20 'statute. However, this charge did not allege discrim­
ination against women. Instead, this type of discrimination

21
was initially disclosed by the EEOC's investigation.
Dealing with similar circumstances, we held in EEOC v.
General Electric Co., ____F.2d _____, No. 74-1974, slip op.
at 34-36 (4th Cir. 1975), that in the absence of countervailing 
equities a trial court should limit back pay to two years 
before the employer received notice of the results of the 
investigation. On remand the district court should reconsider 
its decree in light of this case.

The judgment is affirmed in part and modified in 
part, and the case is remanded for further proceedings con­
sistent with this opinion.

fit•?\

j
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t
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h

?. -

20. 42 U.S.C. § 2000e-5(g)

21. See Part II supra.

-42-

' H <vv/**», - fi'*?**



. r

WIDENER, Circuit Judge, concurring and dissenting,
I concur in large part with the opinion of the 

court for the reasons stated in the opinion. I differ, how­
ever, in some respects, and as to those I respectfully drs-

sent.
SO far as the opinion is based on BEOCjr^General

,.,v r i - -1 9 7 5 ) I dissent for„ ,, Mn 74-1974 (4tn Cir. »Electric Company, No. v
the^reasons set forth in my dissent in that case, our judg­
ment in which is not yet final. I should say. however, that

v, +- oingpr one than General Electric this case may be a somewhat closer one tn ----
because here, at least, sex discrimination was the subject 
o£ the EEOC complaint, while in GH^era^lectrio it was not. 
This case points up the importance of retiring the EEOC to 
comply with its own regulations as well as the statute. The 
onion here is excused from liability f o r  discrimination on 
account.of sox because the statute was not complied with.
Tht< IVll,,,„ i':!|vf in 1 ly emphasized and held is that ". . -a
suit brought by the commission before attempting conciliation 
is premature," p. 31, because ". . .the commission*s statu­
tory duty to attempt conciliation is among its most essen­
tial functions." p.32. Despite the fact that both the com­
pany and the union were deprived of the first conciliation 
step as set forth in 29 CFR § 1601.19a, as well as the statu­
tory benefits of conciliation attempts, the company is held 
to liability, while the union is not, although the 
liability was caused by the collective bargaining agreement

.
-43-



signed by both the company and the union. Thus, I dissent 
not only from the finding against the company, but also 
from the disparate treatment awarded the company and the 
union on facts which are indistinguishable.

While the subject of collective bargaining agree­
ments is at hand, I should say I have grave reservations 
about considering evidence in this type case of the respec-

p

. . tive positions taken by the company and the union in nego­
tiations leading up to collective bargaining agreements when

«

the agreement results in unlawful discrimination. This is 
tantamount to allowing a good faith defense disapproved by 
us in Moody v. Albemarle Paper Company, 474 F2 134 (4th Cir. 
1973). (Modified on other grounds, 422 US 405 (1975).

The district court had only this to say about dam­
ages :

"The formulation of the method of calculation 
and distribution of the back pay award and 
adjustment to the pension and profit-sharing 
plans will be complex— sufficiently so as to 
tax the ingenuity and good faith of counsel.
In this regard counsel are directed to confer 
with a view to agreeing on a plan of calcu­
lation and distribution of the back pay award 

‘ for submission to the Court--and, indeed, toI
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explore the possibility of settling the 
monetary aspects of the case." App. p.

- 42.
With the opinion of the district court in mind, it is seen 
that the method of computing damages was not considered by 
that court and is not properly before this court, McGowan 
v. Gillenwater, 429 F2 586 (4th Cir. 1970), so the detailed 
discussion of that subject is a dictum. If the district 
court, in ascertaining damages, adopts standards with 
which either side is in disagreement, either is at per­
fect liberty to appeal the award. Taking up the matter 
now, and especially its treatment in detail, when the mat­
ter is so complex" as to "tax the ingenuity and good faith 
of counsel, and upon no record, is too great a departure 
from what I conceive to be the proper rule of courts ex­
pressing opinions only with reference to existing contro­
versies. There is no controversy at this time between the 
Parties about this matter, and an expression of opinion I 
think beyond the legitimate function of an appellate court. 
I express no opinion as to the correctness of the dictum.

We hold that the imposition of quotas for super­
visory positions is error because the "rate at which the 
company currently appoints blacks and women to super­
visory positions is sufficient to show that there is no

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