Williams v. E.I. Dupont De Nemours Brief for Plaintiffs-Appellants

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No. 80-3177

JOHN R. WILLIAMS, et al.,

Plainti ffs-Appellants, 
- vs. -

E. I. DUPONT DE NEMOURS & CO., et al.,

De fendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Kentucky 

(Thomas A. Ballantine, Jr., J.)

BRIEF FOR PLAINTIFFS-APPELLANTS

JACK GREENBERG 
PATRICK 0. PATTERSON 
JUDITH REED 
10 Columbus Circle 
Suite 2030
New York, New York 10019 
JAMES C. HICKEY
EWEN, MACKENZIE & PEDEN, P.S.C. 
2100 Commonwealth Building 
Louisville, Kentucky 40202
Attorneys for Plaintiffs-Appellants



Table of Contents

Page
Table of Authorities .................................... iii
Questions Presented ..................................... 1
Statement of the Case ................................... 2

Statement of Facts ............................ 3
Proceedings Below.............................. 11

Summary of the Argument ................................. 16
Argument ................................................  18

I. The district court erred in granting 
summary judgment against the plain­
tiffs in these consolidated civil
rights actions ...........................  18

II. The district court erred in holding 
that the seniority system was con­
clusively shown to be "bona fide" 
and therefore immunized by § 703(h) 
of Title VII .............................. 21
A. A seniority system which has a 

racially discriminatory impact 
and is not justified by business 
necessity violates Title VII unless 
the employer or union demonstrates 
that the system was not adopted and 
has not been operated or maintained
with an intent to discriminate ....... 22

B. The incomplete record in this case 
contains evidence that the seniority 
system had its genesis in racial 
discrimination, that it has been 
negotiated and maintained with an 
illegal purpose, that it is irration­
ally structured, and that it operates
in a discriminatory manner ...........  27
1. Genesis .....................   27
2. Negotiation and Maintenance ....... 30

3. Irrationality ....................  32

i



4. Discriminatory Operation .........  33
5. Conclusion .......................  34

III. The district court erred in holding that
plaintiff Williams is not entitled to main­
tain an action under 42 U.S.C. § 1981 ........  35

IV. The district court erred in refusing
to permit plaintiff Williams to sue for 
present and continuing violations of
Title VII and § 1981 .......................... 38

Conclusion ..............................................  47

Addendum: Civil Rights Act of 1866,
42 U.S.C. § 1981; § 703(h) ,
Title VII of the Civil Rights
Act of 1 964, 42 U.S.C. § 2000e-2(h) .........  48

Page



Table of Authorities

Page
Cases:
Acha v. Beame, 570 F.2d 57 (2d Cir. 1978) .......  25,42
Adickes v S.H. Kress & Co., 398 U.S. 144

( 1 970) ...................................... 1 9
Albemarle Paper Co. v. Moody, 422 U.S.

405 ( 1 975) ............... '................ .. 19,24,45,46
. Alexander v. Aero Lodge 735, Machinists,

565 F.2d 1364 (6th Cir. 1977),
cert, denied, 436 U.S. 946 (1978) ........ 24,25

Alexander v. Gardner-Denver Co., 415 U.S.
36 (1973) ................................. 37

Allen v. Amalgamated Transit Union Local 788,
554 F.2d 876 (8th Cir.), cert, denied,
434 U.S. 891 (1977) ...................... 42

Arnold v. Ray, 21 FEP Cases 793 (N.D. Ohio
1979) .....................................

Belt v. Johnson Motor Lines, Inc., 458
F.2d 443 (5th Cir. 1972) ................. 42

Bernard v. Gulf Oil Co., 596 F.2d 1249, 
rehearing en banc granted on other 
grounds, 604 F.2d 449 (5th Cir. 1979) .... 40

Bethel v. Jendoco Construction Corp., 570 
. F.2d 1168 (3rd Cir. 1978) ................ 42

Bolden v. Pennsylvania State Police, 578
F.2d 912 (3rd Cir. 1978) ................. 36

California Brewers Association v. Bryant,
63 L. Ed. 2d 55 (1980) ................... 23,44

Cedillo v. Ironworkers Local 1, 603 F.2d 7
(7th Cir. 1979) .......................... 20,21

Chrapliwy v. Uniroyal, Inc., 15 FEP Cases
822 (N.D. Ind. 1977) ..................... 26

Christiansburg Garment Co. v. EEOC, 434 U.S.
412 (1978) ................................ 19

- i i i -



Clark v. Olinkraft, Inc., 556 F.2d 1219
(5th Cir. 1 977) ............................. 43

Columbus Board of Education v. Penick,
99 S. Ct. 2941 ( 1 979) ......................  27,29,32

Corning Glass Works v. Brennan, 417 U.S.
1 88 (1 974) .................................. 24

County of Los Angeles v. Davis, 440 U.S.
625 ( 1 979) .................................. 36

Davis v. County of Los Angeles, 566 F.2d
1334 (9th Cir. 1977), cert, dismissed
as moot, 440 U.S. 625 (1979) ...............  37

Detroit Police Officers Association v. Young,
608 F.2d 671 (6th Cir. 1979), petition for 
cert, filed, 48 U.S.L.W. 3558 (Jan.
10, 1980) ................................... 26,27,28,

29,32,34
EEOC v. Griffin Wheel Co., 511 F.2d 456

(5th Cir. 1 975) ............................. 42
EEOC v. Southwest Texas Methodist Hospital,

606 F.2d 63 (5th Cir. 1979) (per curiam) .... 19
Garner v. E.I. duPont de Nemours & Co.,

2 FEP Cases 60 (W.D. Ky. 1 969) .............  1 2
Garner v. Stephens, 460 F.2d 1144

(6th Cir. 1 972) ............................. 41
Griggs v. Duke Power Co., 401 U.S. 424

(1971) .................................... 22,23,24,
45,46

Hanover Shoe, Inc. v. United Shoe Machinery
Corp. , 392 U.S. 481 (1 968) .................  43

Hayden v. First National Bank, 595 F.2d
994 (5th Cir. 1 979) ........................  1 9,20

Hospital Building Co. v. Trustees of Rex
Hospital, 425 U.S. 738 (1 976) ..............  20

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) .........  16,22,23,24,

26,27,33,34,35

Page

- i v -



Page

James v. Stockham Valves & Fittings Co.,
559 F.2d 310 (5th Cir. 1977), cert.
denied, 434 U.S. 1034 (1978) ...............  21,25,28,

29,31,33,47
Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 ( 1 975) ........................  37,42
Johnson v. Ryder Truck Lines, Inc.,

575 F.2d 471 (4th Cir. 1978),
cert, denied, 440 U.S. 979 (1 979) ..........  35

Laffey v. Northwest Airlines, Inc., 567 
F. 2d 429 (D.C. Cir. 1 976), cert.
denied, 434 U.S. 1 086 (1 978) ...............  42,47

Logan v. General Fireproofing Co., 521
F. 2d 881 (4th Cir. 1971) ...................  19

Long v. Ford Motor Co., 496 F .2d 500
(6th Cir. 1 974) ............................. 36,37

Macklin v. Spector Freight Systems, Inc.,
478 F. 2d 979 (D.C. Cir. 1 973) ..............  42

Marlowe v. Fisher Body, 489 F.2d 1057
(6th Cir. 1 973) ............................  40

McDonnell Douglas Corp. v. Green, 411 U.S.
792 ( 1 973) .................................. 22

Morelock v. NCR Corp., 586 F.2d 1096
A (6th Cir. 1 978) ............................. 41

Morrison v. Nissan Co., 601 F.2d
139 (4th Cir. 1 979) ........................  1 8

NAACP v. Lansing Board of Education, 559
F. 2d 1 042 (6th Cir. 1 977) ..................  36

Newburg Area Council, Inc. v. Board of 
Education of Jefferson County, 489 
F.2d 925 (6th Cir. 1973), vacated 
and remanded, 418 U.S. 918, reaff'd
per curiam, 510 F.2d 1358 (6th Cir.
1974), cert, denied, 421 U.S. 911
(1 975) ...................................... 28,30

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1 968) ........................  19

v



Page

Ott v. Midland-Ross Corp./ 600 F .2d 24
(6th Cir. 1 979) ................ ............ 1 8

Patterson v. American Tobacco Co., 15 EPD 
II 8085 (E.D. Va. 1 977), aff'd in part 
and vacated and remanded in part, 586
F. 2d 300 (4th Cir. 1 978) ...................  29

Patterson v. American Tobaco Co., 586 F.2d
300 (4th Cir. 1 978) ......................... 25

Personnel Administrator v. Feeney, 442
U.S. 256 (1 979) ............................. 26,27

Pettway v. American Cast Iron Pipe Co.,
576 F .2d 1157 (5th Cir. 1978),
cert, denied, 439 U.S. 1 1 15 ( 1 979) .........  36

Poller v. Columbia Broadcasting, 368 U.S.
464 ( 1 962) .................................. 20

Reed v. Lockheed Aircraft Corp., 22 EPD
11 30,602 ( 9th Cir. 1 980) ...................  43

Rich v. Martin Marietta Corp., 522 F.2d
333 ( 1 0th Cir. 1 975) .......................  42

Romero v. Union Pacific Railroad, 22 FEP
Cases 338 ( 1 0th Cir. 1 980) .................  20

Sears v. Atchison, Topeka & Santa Fe Ry.,
454 F. Supp. 158 (D. Kan. 1 978) ............  28,30

Shehadeh v. Chesapeake & Potomac Tel. Co.,
595 F. 2d 711 (D.C. Cir. 1 978) ..............  43

Smith v. Hudson, 600 F.2d 60 (6th Cir.
1979), cert, dismissed, 100 S. Ct.
495 (1980) .................................. 3,18,19,20

Swint v. Pullman-Standard, 17 EPD 1| 8604
(N.D. Ala. 1 978) ............................ 24

United Air Lines, Inc. v. Evans, 431 U.S.
553 (1 977) .................................. 1 7,38,39,

40,42,43
United States v. Board of School Commissioners,

573 F.2d 400 (7th Cir.), cert, denied,
439 U.S. 824 ( 1 978) ........................  26,29

vi



United States v. Georgia Power Co., 474 F.2d
906 (5th Cir. 1 973) ........................  42

United Steelworkers of America v. Weber,
443 U.S. 1 93 ( 1 979) ........................  22

Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S.
252 (1977) .................................. 26,28,29,31

Washington v. Davis, 426 U.S. 229 (1976) ........  27,34,36
Williams v. Norfolk & Western Ry.,

530 F. 2d 539 (4th Cir. 1 975) ...............  42

Statutes, Rules, and Guidelines:
28 U.S.C. § 1291 ................................. 2
Civil Rights Act of 1866, 42 U.S.C. § 1981 ......  passim
Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seg....................  passim
Rule 56(c), Fed. R. Civ. P........................ 18
Uniform Guidelines on Employee Selection

Procedures, 29 C.F.R. § 1607.11 (1978) .....  46

Other Authority:
Note, Section 1981: Discriminatory Purpose

or Disproportionate Impact?, 80 Colum.
L. Rev. 1 37 (1 980) ................... 36



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No. 80-3177

JOHN R. WILLIAMS, et al.,

Plaintiffs-Appellants, 
- vs. -

E. I. DUPONT DE NEMOURS & CO., et al.,
De fendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Kentucky 

(Thomas A. Ballantine, Jr., J.)

BRIEF FOR PLAINTIFFS-APPELLANTS

QUESTIONS PRESENTED
1. Whether the district court improperly granted 

summary judgment against the plaintiffs in these consolidated 
civil rights actions.

2. Whether the district court erred in holding that a 
seniority system was "bona fide," and therefore immunized by 
§ 703(h) of Title VII of the Civil Rights Act of 1964, where 
there was evidence that the system was adopted and has been 
maintained with an intent to discriminate.



3. Whether the district court erred in holding that 
plaintiff Williams was not entitled to maintain his action 
for employment discrimination under 42 U.S.C. § 1981.

4. Whether the district court erred in holding that 
plaintiff Williams was not entitled to maintain an action 
challenging continuing discrimination in employment.

STATEMENT OF THE CASE
From 1953 until his retirement in 1979, plaintiff-appel­

lant John R. Williams was employed by E.I. duPont de Nemours 
& Company, Inc. ("duPont"), at its Louisville Works. In a 
charge filed with the Equal Employment Opportunity Commis­
sion ("EEOC") in 1971, and again in this civil action filed 
in 1973, plaintiff Williams has charged that he and other 
similarly situated black employees are the victims of past, 
present, and continuing racial discrimination in employment 
by duPont and the Neoprene Craftsmen Union ("the Union") in 
violation of Title VII of the Civil Rights Act of 1964, 42 
U.S.C. § 2000e et_ seq. , and the Civil Rights Act of 1 866, 42 
U.S.C. § 1981. His case was consolidated in the district 
court with a similar action filed in 1973 by the EEOC. Both 
plaintiff Williams and the EEOC have appealed from the 
district court's order of October 26, 1979, granting the 
defendants' motion for summary judgment and dismissing the 
actions with prejudice. This Court has jurisdiction of the 
appeals pursuant to 28 U.S.C. § 1291.

2



Statement of Facts

DuPont began operating its Louisville Works, where it 
manufactures chemicals, in 1942 (A. 117; A. 611) (duPont 
Response to EEOC Request for Admissions, 11 14; Cressey Dep., 
p. 26). Lyle Cressey, the retired plant manager who came to 
the Louisville Works as a supervisor when the plant opened, 

testified that it was racially segregated from the beginning:
[T]here's no way to avoid the fact that 

when we started we were not an integrated plant, 
and throughout the years we went from eliminat­
ing separate change houses, separate toilet 
facilities, separate eating facilities, and step 
by step we did these things generally in line 
with the community (A. 612) (Cressey Dep., p. 30).
Prior to April 1956, the Louisville Works had four

divisions for seniority purposes: engineering, operations,
utility, and classified, or a reasonable equivalent thereof
(A. 117; A. 600)(duPont Response to EEOC Request for Admissions,
11 15; McConnell Dep., p. 73). For functional purposes, on the
other hand, the plant is divided into seven departments —
production, business services, engineering, process, research
and development, environmental health and safety, and employee
relations —  which have no relationship to the seniority
divisions (A. 574-76)(McConnell Dep., pp. 7-9). Jobs in the
engineering and operations seniority divisions were and are

1/

1_/ Since this is an appeal from an order granting summary
judgment, the Court should review all pleadings and documents 
on file, and all factual materials together with all in­
ferences to be drawn therefrom must be read in the light most 
favorable to plaintiffs. Smith v. Hudson, 600 F.2d 60 (6th 
Cir. 1979), cert. dismissed, 100 S. Ct. 495 (1980). See 
section I, infra.

3



skilled and higher-paying; jobs in the classified seniority 
division were and are less skilled and lower-paying (A. 613;
A. 86-87)(Cressey Dep., p. 39; duPont Response to Williams 
1 974 Interrogatories, 1M( 22-23).

Until at least 1956, duPont placed all black new hires, 
regardless of their qualifications, in the classified seniority 
division or its equivalent; only whites were hired for jobs in

the other three divisions or their equivalents (A. 13; A. 563;
A. 595-96) (Williams Complaint, 11 VII; EEOC Determination, p.
1; McConnell Dep., pp. 60-61). From 1956 until October 
1971, all black new hires continued to be placed in the 
classified division (A. 563)(EEOC Determination, p. 1). Until 
April 1956, employees were not allowed to transfer from one 
division to another. No black employee was permitted to 
transfer from the classified division into any other division 
until March 1959 at the earliest (A. 118, 119, 123, 131-32)(duPont 
Response to EEOC Request for Admissions, 1M| 22-23, 27, 29, 50 
and attached letter from L. M. Cressey to Louis M. Groeniger, 
dated Nov. 7, 1972).

In 1953 the Union became the certified bargaining rep­
resentative for wage roll employees at duPont's Louisville 
Works, and in 1954 the Union and duPont entered into their 
first collective bargaining agreement (A. 616)(Lacy Dep., p. 12). 
The April 1956 collective bargaining agreement provided for 
the first time that employees could transfer from one seniority 
division to another (A. 118; A. 564)(duPont Response to EEOC

4



Request for Admissions, 11 24; EEOC Determination, p. 2).
Also in 1956, however, duPont instituted new minimum qualifi­
cations for jobs in the engineering and operations seniority

/>divisions: employees who wished to transfer to jobs in those 
divisions were now required to have a high school diploma or 
its equivalent and to pass a written test (A. 118; A. 542; A. 
564) (duPont Response to EEOC Request for Admissions, 11 25; 
Williams EEOC Charge, p. 2; EEOC Determination, p. 2).

White incumbents in the engineering and operations divi­
sions, who were hired at or about the same time as black 
employees in the classified division, have not been re­

quired to meet these standards (A. 118-19; A. 564)(duPont 
Response to EEOC Request for Admissions, 1MI 26-29; EEOC 
Determination, p. 2). DuPont dropped its high school diploma 
requirement for jobs in the engineering aand operations 
divisions in 1967, but to this day black employees who wish to 
transfer from the classified division into engineering or 
operations must take written tests (A. 600-606)(McConnell Dep., 
pp. 73-79). These tests discriminate against black employees 
and are unrelated to job performance (A. 12-13)(Williams 
Complaint, 1[ IV).

The seniority divisions which had been in existence 
prior to 1956 were formalized in the 1958 collective bargain­
ing agreement as four "master seniority divisions": classified 
utility, operations, and engineering (A. 117; A. 600)(duPont 
Response to EEOC Request for Admissions, 11 18; McConnell

5



Dep., p. 73). Subsequent collective bargaining agree­
ments have provided for three kinds of seniority: (1)
plant seniority, defined as the total accrued time working 
in bargaining unit jobs at the Louisville Works? (2) master 
division seniority, defined as the time an employee has 
worked in jobs in a particular master seniority division; 
and (3) unit seniority, defined as the time an employee has 
worked in jobs within a particular unit of a master senior­
ity division (A. 122; A. 577-90; A. 615, 630-31)(duPont 
Response to EEOC Request for Admissions, 1[ 44; McConnell Dep., 

pp. 20-34; Lacy Dep., pp. 10, 29-30). In general, an em­
ployee's unit seniority controls for purposes of promotion, 
demotion, bumping, recall, overtime listing, work schedules, 
vacation schedules, and job retention within each unit (A. 
123-24; A. 592)(duPont Response to EEOC Request for Admissions, 
11 50; McConnell Dep., p. 41). Plant seniority is used for 
bidding on bargaining unit jobs at the Louisville Works and, 
since approximately 1974, for layoffs or terminations due to 
lack of work (A. 591, 594; cf. A. 564)(McConnell Dep., pp.
40, 56; cf. EEOC Determination, p. 2). At least until the 
adoption of the 1974 collective bargaining agreement, master 
division seniority was used for terminations due to lack of 

work (A. 607; A. 633-35)(McConnell Dep., p. 87; Lacy Dep., 
pp. 32-35).

2/

2/ The 1974 agreement provides for a fifth master senior­
ity division identified as "fireman" (A. 122)(duPont Response 
to EEOC Request for Admissions, 11 45).

6



Under pressure from the U.S. Atomic Energy Commission, 
acting as compliance agent for the Office of Federal Contract 
Compliance in enforcing Executive Order 11246, duPont uni­
laterally modified the seniority system in February 1973 

to "provide Master Division Seniority and Unit Seniority 
equal to Plant Seniority for 134 black employees hired 
prior to August 27, 1962, for purposes of promotion to, 

demotion from and layoff from jobs in Wage Grades 9 and 10 
(but not for other purposes)" (A. 123-24)(duPont Response to 
EEOC Request for Admissions, 1! 50). Wage grades 9 and 10 

consist of the skilled craft jobs in the operations and 
engineering master seniority divisions (A. 639-40)(Lacy Dep., 
pp. 38-39). A similar provision has been included in the 
1974, 1976, and 1978 collective bargaining agreements (A.
123-24; A. 624-33)(duPont Response to EEOC Request for Admis-

3/
sions, 1( 50; Lacy Dep., pp. 23-32).

Other than the modifications described above, which 
were made in approximately 1973-74, there have been no

3/ Article IV, § 20 of the 1974 agreement provides as 
follows:

The 134 black employees hired prior to 
August 27, 1962 shall have Master Division 
Senioriwith job vacancies in
these wage grades to be filled on this basis 
after exhaustion of call-back lists, using 
minimum qualifications of the current job 
incumbents.

7



significant changes in the seniority system since at least 
1956 (A. 594; A. 632-33)(McConnell Dep., p. 56; Lacy Dep., 
pp. 31-32). Under this system, if a black employee trans­
fers from a unit in the classified master seniority division
to a unit in any other division, the employee loses all unit

4/
seniority and master division seniority, and he or she 
begins as a new employee for purposes of accumulating both 
kinds of seniority in the new job (A. 578-79; A. 633-42) 
(McConnell Dep., pp. 21-22; Lacy Dep., pp. 32-41). Thus, 
except for the limited relief provided for 134 persons since 
1973, a black employee who was hired into the segregated 
classified seniority division 25 years ago and who now wishes 
to transfer to a job in another division will have less unit 
and master division seniority in the new unit than either a 
white employee who was also hired 25 years ago or a white 
employee who was hired into that unit yesterday (A. 598-99) 
(McConnell Dep., pp. 63-64). As a result, each of those white 
emplyees will be given preference over the 25-year black 
employee in promotion, demotion, bumping, recall, overtime 
listing, work schedules, vacation schedules, and job retention 
within the unit (A. 123-24; A. 592)(duPont Response to EEOC

Request for Admissions, 11 50; McConnell Dep., p. 41).
By conditioning transfer on the forfeiture of ac­

cumulated unit and master division seniority, the seniority 
system has locked black employees into the heavily segre-

4/ The employee retains some "retreat rights" in the former 
master seniority division in the event of a reduction in force 
(A. 579-80)(McConnell Dep., pp. 22-23).

8



gated classified seniority division and has prevented them 
from advancing to jobs in the formerly all-white operations 
and engineering seniority divisions (A. 13-14)(Williams Complaint, 
11 VIII). DuPont has long been aware of the discriminatory 
effects of the seniority system (A. 123-24; A. 131-32; A.
1 33-35) (see duPont Response to EEOC Request for Admissions, II 
50; attached letter from L. M. Cressey to Louis M. Groeniger 
dated Nov. 7, 1972; attached letter from L. M. Cressey to D.
W. Lacy dated Feb. 14, 1973). As stated by Addison M. McConnell, 
who joined management at the Louisville Works in 1956 and 
served as the Employee Relations Superintendent from 1965 
until his retirement in 1979,

Originally blacks were hired into the 
[classified] division, and later when oppor­
tunities came for them to move into other 
jobs many of them had no desire to move; 
they wanted to keep what they had (A. 595-96)
(McConnell Dep., pp. 60-61).
The Union also has been fully aware of the seniority 

system's adverse effects on black employees, but it has 
flatly refused to negotiate any changes in the system 
which would provide equal opportunities to those employees.
For example, in the 1972 contract negotiations, management 
proposed that the seniority system be revised by combining 
the classified and utility seniority divisions. The proposed 
changes "would have provided improved promotional opportuni­
ties and job security for a majority of [the] black employees 
..., [but the] union rejected all of management's proposals 
in this regard and adamantly refused to make any changes
directed toward solving this problem" (A. 134)(letter from L. M.

I

9



Cressey to D.W. Lacy dated Feb. 14, 1973, p. 2, attached to 
duPont Response to EEOC Request for Admissions, 11 50).

Similarly, when the Atomic Energy Commission informed 
duPont that it would be necessary to revise the seniority 
system to comply with Executive Order 11246, duPont and 
the Union held a series of meetings in 1972 and 1973 in which 
the Union "(1) adamantly refused to consider any changes in 
the seniority rules affecting those 134 black employees hired 
prior to August 27, 1962; (2) refused to submit any union 
counter proposals in the matter; and (3) refused in several 
of the meetings to even discuss the subject at all" (A. 135)(id., 
p. 3). DuPont therefore unilaterally changed the seniority 
system to provide some relief for those black employees 
(id.). The Union then filed a grievance and went to arbitra­
tion on behalf of two white employees who were laid off in 
accordance with the modified system (A. 623-28)(Lacy Dep., pp. 
22-27). This modification was later incorporated into the 
collective bargaining agreement at the Union's request (A.
617-22)(Lacy Dep., pp. 16-21). However, the Union made this 
request only because the change was already in effect; as the 
president of the Union candidly admitted, "we had absolutely 
nothing to do with it" (A. 620)(Lacy Dep., p. 19).

As a result of the seniority system and duPont's 
testing practices, job opportunities at the Louisville 

Works continue to be allocated largely on the basis of 
race. As of December 31, 1973, after this lawsuit was 
filed, 149 of 924 bargaining unit employees, or approximately

10



16%, were black (A. 72)(duPont Answers to Williams 1974 Interroqa-
5/

tories, IfII 1-2). But over 74% of the employees holding jobs
in the classified seniority division were black; over 97% of
the employees in the operations seniority division were white;
and 100% of the employees in the engineering seniority division
were white (A. 75-86)(id., 1M| 14-21). Before this suit was
filed, the pattern of racial segregation by division was even
more complete (see A. 564)(EEOC Determination, p. 2). The
racial composition of each master seniority division as of

6/
December 31, 1973, is set forth in the following table:

Master
Seniority
Division

Total Number 
of Employees

Number of
Black
Employees

Percentage of
Black
Employees

Engineering 306 0 0%
Operations 397 1 1 2. 8%
Utility 49 1 4 28.6%
Classified 166 1 23 74.1 %

Proceedings Below

Plaintiff Williams filed a charge of discrimination with 
the EEOC on January 13, 1971, against duPont and the Union 
(A. 114-16, 541-42)(duPont Response to EEOC Request for Admissions, 
1(11 8, 10 and Ex. A). In May 1971, seventeen other black

5/ Only 6 of 298, or 2%, of the management and supervisory 
employees were black (A. 73)(duPont Answers to Williams 1974 
Interrogatories, 1(11 6-7).
6/ The figures in this table are taken from duPont's
Answers to the 1974 Williams Interrogatories, 1( 11 14-21 (A. 75-86).



present or former duPont employees filed additional EEOC 
charges (A. 114-16, 543-62)(id., 1MI 9-10 and Ex. A ) W i l l i a m s ' 
charge states, in part, that prior to the effective date of Title 
VII, he and other black employees had been hired into racially 
segregated jobs in the classified division and had been 
denied transfer to other divisions despite their qualifica­

tions. The charge also alleges that whites hired before and 
after 1953, when Williams was hired, were allowed to transfer 
to other divisions even though they had lower test scores 
than Williams and did not have a high school diploma; that 
when overt racial bars were removed in 1956, duPont created 
new and higher standards for entrance into the operations and 
engineering divisions; that the purpose and effect of these 
new standards was to prevent blacks from transferring to the 
better-paying white jobs; and that "[tjhese high standards 

and the requirement to forfeit seniority constitutes [sic] 
present acts of discrimination against me and other Negro 
employees hired prior to 1956" (A. 542)(Williams EEOC Charge) 
(emphasis added). The charge further alleges that the Union 
has consistently refused to support Williams and other black 
employees in their claims for transfer rights and adjustments

7/ Prior EEOC charges and a related Title VII lawsuit had 
resulted in relief for some black employees. See Garner v.
E.I. duPont de Nemours & Co., 2 FEP Cases 60 (W.D. Ky.
1969). None of the 1971 charging parties, including Williams, 
was a named plaintiff in the Garner litigation (A. 89)(duPont 
Response to EEOC Request for Admissions, K 52). The district 
court in the case at bar held that the Garner judgment did 
not have a res judicata effect on this action (A. 214-16)(Order 
entered March 13, 1975).



of seniority, and that the Union acquiesces in the maintenance 
of the discriminatory system. The charge describes the 

discrimination as "continuing."
The EEOC investigated these charges of discrimination 

and, on October 20, 1972, issued a determination finding 
reasonable cause to believe the charges were true (A. 563-65) 
(EEOC Determination, pp. 1-3). Williams subsequently received 
a notice of his right to sue and, on July 18, 1973, filed this 
suit in federal district court as a class action under Title 
VII and § 1981 on behalf of "134 Negro employees of Defendant
Company whose plant-wide seniority dates are prior to July 2,

8/
I 965" (A. 11) (Williams Complaint, 11 II). The complaint 
alleges, inter alia, that duPont and the Union "discriminate 
against Negroes by intentionally and unlawfully maintaining" a 
discriminatory seniority system and by "maintaining general 
intelligence tests that are totally unrelated to job perfor­
mance and are artificial barriers to equal employment oppor­
tunity and job transfer and promotion opportunity" (A. 13)(id.,
II IV) . The complaint further charges that duPont and the 
Union maintain seniority divisions which were rigidly segre­
gated before 1956 and which remain largely segregated today, 
and that plaintiff Williams and the members of his class are 
locked into the heavily segregated classified division and 
cannot advance to better jobs in other divisions because in

8/ Elsewhere in the record it appears that 134 black em­
ployees have hire dates antedating August 27, 1962 (A. 123-24) 
(duPont Response to EEOC Request for Admissions, 11 50).

13



order to transfer they would be required to forfeit their 
accrued seniority rights (A. 13)(id., 1M( VII-VIII). The complaint 
specifically alleges that the seniority system "is not a bona 
fide seniority system within the meaning of Title VII of the 
Civil Rights Act of 1964" (A. 14) (id., 1| VIII).

On November 9, 1973, the EEOC also filed a civil action 
alleging discrimination against blacks by duPont and the 
Union (A. 64-68)(EEOC Complaint). The defendants filed 
answers denying the alleged violations in both the Williams 
action and the EEOC action, and the district court later 
consolidated the two cases for all further proceedings.
Numerous pretrial motions were made and litigated in both 
cases. The plaintiffs attempted to take substantial discovery 
but were often denied relevant information. For example, both 
duPont and the Union consistently refused to provide any infor­
mation concerning acts, practices, or events which occurred 
before July 2, 1965, the effective date of Title VII. These 
refusals continued even after the district court, granting plain­
tiff Williams' motion to compel discovery, ordered duPont to 
supply information since and including the year 1960 (A. 399-400) 
(Order entered Dec. 20, 1976). The defendants refused to provide, 

among other things, copies of their early collective bargaining 
agreements, documents relating to the initial negotiation of 
the seniority system, and related information. See, e.g., 
duPont Answers to EEOC First Interrogatories, filed Feb. 18,
1976 (A. 345-58); duPont Answers to Williams 1976 Interroga­
tories, filed Sept. 14, 1976 (A. 387-91); Union Response to EEOC



Request for Production of Documents, filed Sept. 25, 1978 (A. 
450-55); duPont Answers to EEOC Second Interrogatories, filed 
Dec. 8, 1978 (A. 456-72); duPont Answers to Williams 1979 
Interrogatories, filed Sept. 20, 1979 (A. 516-28).

In July 1978, the EEOC filed another motion to compel 
proper discovery. In support of its motion the EEOC advised 
the district court that information relating to the defendants' 
pre-Title VII conduct was relevant to the questions whether 
the seniority system was "bona fide" and whether the system 
"had in its design and origin an 'intent' to discriminate 
against black persons" (A. 409)(EEOC Memorandum in Support of 
Motion for Order Compelling Discovery, p. 2). The court 
never ruled on this motion. Instead, more than a year later
when duPont and the Union moved for summary judgment, it was

9/
granted. The court held that the Title VII claims with 
respect to the seniority system should be dismissed because 
there was "no showing that the seniority system set up in 
the collective bargaining agreement which was reached after 
the adoption of Title VII was drafted with an intent to dis­
criminate ..." (A. 535)(Memorandum Opinion, p. 5). The court
also held that plaintiff Williams could not maintain his 
action under § 1981 where relief was barred by § 703(h) of 
Title VII (A. 536) (i_d. , p. 6); that plaintiff Williams was not

9/ During this period, the district court also granted 
motions relieving plaintiff Williams' prior counsel and 
substituting new counsel who had not previously been involved 
in the litigation. James C. Hickey, one of the counsel so 
relieved, appears in this Court as one of the counsel for 
plaintiff Williams on appeal.

15



entitled to maintain an action challenging continuing viola­
tions of Title VII (A. 536-37)(id., pp. 6-7); and that the 
EEOC was not entitled to pursue any issues except those 
relating to the seniority system (A. 537-38) (i_d. , pp. 7-8). 
Accordingly, the court entered an order granting summary 

judgment to the defendants and dismissing both actions with 
prejudice. The plaintiffs subsequently filed timely notices 
of appeal (A. 539; 540)(EEOC Notice filed Dec. 17, 1979; 
Williams Notice filed Jan. 18, 1980).

SUMMARY OF THE ARGUMENT

In granting summary judgment to the defendants in these 
civil rights actions, the district court did not properly 
consider all discovery on file and all inferences to be 
drawn therefrom in the light most favorable to the plain­
tiffs. The court further erred in using summary judgment 
to resolve questions of motive and intent and, in effect, 
preventing the plaintiffs from taking discovery on disputed 
issues of fact.

In holding that the seniority system adopted and main­
tained by duPont and the Union is protected by § 703(h) of 
Title VII, the district court misread both the statute and 
the opinion of the Supreme Court in International Brother­
hood of Teamsters v. United States, 431 U.S. 324 (1977), 
and it did not properly consider the record in this case. 
Where, as here, a seniority system is discriminatory in its 
effects and is not justified by business necessity, the system 

is unlawful unless the employer or union establishes as an
16



affirmative defense that the system was not adopted and has 
not been operated or maintained with an intent to dis­
criminate. The incomplete record here contains evidence 
that the seniority system had its genesis in racial dis­
crimination, that it has been negotiated and maintained with 
an illegal purpose, that it is irrationally structured, and 
that it operates in a discriminatory manner. The district 
court therefore erred in granting summary judgment, thereby 
depriving the plaintiffs of a trial on this issue.

The district court also erred in dismissing plaintiff 
Williams' claims under 42 U.S.C. § 1981. Williams is 
entitled to maintain an action under § 1981 challenging not 
only the defendants' discriminatory seniority system but 
also their discriminatory testing practices.

The district court further erred in holding that plain­
tiff Williams could not maintain an action challenging 
present and continuing discrimination in employment. In 
reaching this decision, the district court misread United
Air Lines, Inc._v. Evans, 431 U.S. 553 (1977), it ignored
the decisions of this Court and the courts of appeals in 
other circuits, and it adopted an interpretation of Title 
VII and § 1981 which is wholly at odds with the purpose of 
those statutes.

17



ARGUMENT

I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT 
AGAINST THE PLAINTIFFS IN THESE CONSOLIDATED CIVIL 
RIGHTS ACTIONS.

Rule 56(c), Fed. R. Civ. P. , provides for summary 
judgment where "the pleadings, depositions, answers to 
interrogatories, and admissions on file, together with 
the affidavits, if any, show that there is no genuine issue 
as to any material fact and that the moving party is entitled 
to a judgment as a matter of law." Summary judgment should 
be granted "only where it is perfectly clear that there is no 
dispute about either the facts of the controversy or the 
inferences to be drawn from such facts," Morrison v. Nissan 
££. , 601 F.2d 139, 141 (4th Cir. 1 979), and where "the 
application of the law to those facts leads to but a single 
result," Ott v. Midland-Ross Corp., 600 F.2d 24, 28 n.3 (6th 
Cir. 1979). The burden rests squarely upon the moving party 
to show that these conditions have been satisfied:

Although summary judgment is a useful and 
often efficient device for deciding cases, it 
must be used only with extreme caution for it 
operates to deny a litigant his day in court ....
Thus on a motion for summary judgment the 
movant has the burden of showing conclusively 
that there exists no genuine issue as to a 
material fact and the evidence together with 
all inferences to be drawn therefrom must be 
read in the light most favorable to the party 
opposing the motion.... [Wjhile the movant's 
papers are to be closely scrutinized, those 
of the opponent are to be viewed indulgently....
Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.
1979), cert, dismissed, 100 S. Ct. 495 (1980)
(emphasis in original).

1 8



Thus, even where the plaintiff makes no response 
whatever to a defendant’s motion for summary judgment, it 
is reversible error for the district court to grant the 
motion if somewhere in the discovery materials on file there 
is an indication that the facts or the inferences to be 
drawn therefrom are disputed. "A party is never required 
to respond to a motion for summary judgment in order to 
prevail since the burden of establishing the nonexistence 
of a material factual dispute always rests with the 
movant." Smith v. Hudson, supra, 600 F.2d at 64. See 
also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 

(1970).
These principles apply with particular force in 

employment discrimination and other civil rights actions, 
for in such cases the plaintiffs act as "private attorneys 
general" enforcing national policies of the highest 
priority. See Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400, 401-402 (1968); Albemarle Paper Co. v.
Moody, 422 U.S. 405, 415 (1975); Christiansburg Garment 
Co. v. EEOC, 434 U.S. 412 (1978). Summary disposition 
of employment discrimination cases "is not favored, 
especially on a 'potentially inadequate factual presenta­
tion.'" Hayden v. First National Bank, 595 F.2d 994,
997 (5th Cir. 1979), quoting Logan v. General Fire­
proofing Co., 521 F.2d 881, 883 (4th Cir. 1971); EEOC v. 

Southwest Texas Methodist Hospital, 606 F.2d 63 (5th 
Cir. 1979) (per curiam). Where such cases involve ques­
tions of motive or intent, summary adjudication is par­

19



ticularly inappropriate. Smith v. Hudsonr supra, 600 
F.2d at 66; Romero v. Union Pacific Railroad, 22 FEP 
Cases 338, 343 (10th Cir. 1980); Cedillo v. Iron­
workers Local 1, 603 F.2d 7, 11 (7th Cir. 1979); Hayden v. 

First National Bank, supra, 595 F.2d at 997. See also,
Poller v. Columbia Broadcasting, 368 U.S. 464, 473 
(1962).

The court below erred in denying the plaintiffs in this 
case a trial on the merits of their employment discrimination 
claims. Many of the issues here -- including whether the 
defendants' seniority system is "bona fide" and whether the 
effects of that system are "not the result of an intention to 
discriminate because of race" within the meaning of § 703(h) 
of Title VII —  turn on questions of motive and intent. See 
section II, infra. As this Court has held, cases involving 
such questions "are normally not suited to disposition on 
summary judgment." Smith v. Hudson, supra, 600 F.2d at 66. 
Moreover, in such cases as this, "where 'the proof is largely 
in the hands of the alleged [violator],' Poller v. Columbia 
Broadcasting, 368 U.S. 464, 473 (1962), dismissals prior to 
giving the plaintiff ample opportunity for discovery should 
be granted very sparingly." Hospital Building Co. v. Trustees 
of Rex Hospital, 425 U.S. 738, 746 (1976). In the instant 
case, the effect of the summary judgment was to prevent the 
plaintiff from taking discovery concerning the disputed 
issues. See pp. 14-15, supra. In these circumstances, "where 
the need for discovery in order to ... substantiate the claims 
asserted is clear, and where plaintiff was effectively denied

20



the opportunity to engage in that discovery, ... entry of 
summary judgment is inappropriate." Cedillo v. Ironworkers 
Local 1, supra, 603 F.2d at 12.

II. THE DISTRICT COURT ERRED IN HOLDING THAT THE SENIORITY
SYSTEM WAS CONCLUSIVELY SHOWN TO BE "BONA FIDE" AND
THEREFORE IMMUNIZED BY § 703(h) OF TITLE VII.

On the record in this case, it is undisputed that du- 
Pont has a history of overt discrimination against blacks in 
initial job assignments and that the seniority system, by 
conditioning transfer on forfeiture of seniority, locks this 
past racial discrimination into the present employment 
structure at the Louisville Works. As late as December of 
1973, the composition of the formerly all-black classified 
seniority division remained over 74% black; the composition 
of the formerly all-white operations seniority division re­
mained over 97% white; and the formerly all-white engineering 
seniority division was still 100% white (A. 75-86)(duPont Answers 
to Williams 1 974 Interrogatories, 1111 14-21). Seniority systems 
like that negotiated and maintained by duPont and the 
Union "have been condemned by the courts because black 
employees must choose to commit 'seniority suicide' to enter 
departments from which they were previously excluded ...."
James v. Stockham Valves & Fittings Co., 559 F.2d 310, 348 
(5th Cir. 1977), cert, denied, 434 U.S. 1034 (1978). The 
district court nevertheless held that the system in this

21



case was protected by § 703(h) of Title VII, as interpreted 
in International Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977) (A. 531-38)(Memorandum Opinion, pp. 1-5).
In reaching this decision, the district court misread both the 
statute and the Teamsters opinion, and it ignored the record.

A. A Seniority System Which Has a Racially
Discriminatory Impact and Is Not Justified 
by Business Necessity Violates Title VII 
Unless the Employer or Union Demonstrates 
that the System Was Not Adopted and Has 
Not Been Operated or Maintained with an 
Intent to Discriminate.

Title VII is a remedial statute which is designed 
"to assure equality of employment opportunities and to 
eliminate those discriminatory practices and devices which 
have fostered racially stratified job environments to the 
disadvantage of minority citizens." McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 800 (1973); United Steel­
workers of America v. Weber, 443 U.S. 193, 201-204 (1979). 
To attain this paramount national goal, the Act pro­
hibits

not only overt discrimination but also prac­
tices that are fair in form, but discrimina­
tory in operation.

★  *  *

. .. Congress directed the thrust of 
the Act to the consequences of employment 
practices, not simply the motivation. More 
than that, Congress has placed on the em­
ployer the burden of showing that any given 
requirement must have a manifest relation­
ship to the employment in question. Griggs v.
Duke Power Co., 401 U.S. 424, 431-32 (1971)
(emphasis in original).

22



The seniority system in the instant case "operate[s] to 
'freeze' the status quo of prior discriminatory employment 
practices," Griggs, 401 U.S. at 430, and this system there­
fore violates Title VII unless it comes within the exception 
contained in § 703(h). See Teamsters, 431 U.S. at 349. This 
section provides in pertinent part as follows:

Notwithstanding any other provision of 
this title, it shall not be an unlawful 
employment practice for an employer to apply 
different standards of compensation, or dif­
ferent terms, conditions, or privileges of 
employment pursuant to a bona fide senior­
ity ... system, ... provided that such 
differences are not the result of an 
intention to discriminate because of race ....
42 U.S.C. § 2000e-2(h).
In Teamsters, the Supreme Court construed this section 

as providing "that an otherwise neutral, legitimate senior­
ity system does not become unlawful under Title VII simply 
because it may perpetuate pre-Act discrimination." 431 
U.S. at 353-54. The Court emphasized, however, that 
"§ 703(h) does not immunize all seniority systems. It 
refers only to 'bona fide' systems, and a proviso requires 
that any differences in treatment not be 'the result of 
an intention to discriminate because of race....'" Ld. at 
353. See also, California Brewers Association v. Bryant,
63 L. Ed.2d 55, 65-66 (1980).

Like the "professionally developed ability test" 
provision of § 703(h), the "bona fide seniority system" 
provision of the same section creates an affirmative defense 
by which an employer or union may demonstrate that its

23



practices are lawful even though they have a discriminatory 
effect. If the plaintiffs establish that an employment 
test has a racially discriminatory impact, then under 
§ 703(h) the burden shifts to the employer to show that the 
test is job related. Griggs v. Duke Power Co., supra,
401 U.S. at 431-32; Albemarle Paper Co. v. Moody, 422 

U.s. 405, 425 (1975). Similarly, where the plaintiffs 
have established that a seniority system has a discrimina­
tory impact, under § 703(h) the burden shifts to the 
employer or union to demonstrate that the system is bona 
fide and that differences in treatment are not the result 
of intentional discrimination. Swint v. Pullman-Standard, 
17 EPD 11 8604, at 7098 (N.D. Ala. 1 978); cf. Corning Glass 
Works v. Brennan, 417 U.S. 188, 196-97 (1974). Thus, 
the burden of proof properly rests upon the parties who 
have superior access to the proof regarding the crea­
tion, operation, and maintenance of their seniority 10/
system. Cf. Teamsters, 431 U.S. at 359 n.45.

The Supreme Court in Teamsters, 431 U.S. at 355-56, 
and this Court in Alexander v. Aero Lodge 735, Machinists, 
565 F.2d 1364, 1378 (6th Cir. 1977), cert, denied, 436 U.S.

10/ If this burden were on plaintiffs, employers and unions 
could attempt to defeat valid claims by simply withholding 
the relevant evidence. Indeed, this is precisely what du- 
Pont and the Union have done in the instant case. The 
record here nevertheless contains ample proof —  at least to 
withstand the defendants' summary judgment motions -- that 
the seniority system is not bona fide and that its adverse 
effects on black employees are the result of intentional 
discrimination. Thus, regardless of where the burden of 
proof lies, the judgment should be reversed.

24



946 (1978), identified a number of factors which should be 
considered in determining whether a seniority system is "bona 
fide" under § 703(h). In James v. Stockham Valves & Fittings 
Co., supra, 559 F .2d at 352, the Fifth Circuit summarized 
these factors as follows:

1) whether the seniority system operates to 
discourage all employees equally from 
transferring between seniority units;

2) whether the seniority units are in the 
same or separate bargaining units (if 
the latter, whether that structure is 
rational and in conformance with industry 
practice);

3) whether the seniority system had its 
genesis in racial discrimination; and

4) whether the system was negotiated and 
has been maintained free from any illegal 
purpose.

Each of these factors bears on the central question 
whether there has been purposeful discrimination in the 
creation, operation, or maintenance of the seniority system. 
As this Court has stated, a facially neutral system is 
immunized by § 703(h) "as long as an intent to discriminate 
did not enter its adoption and it ha[s] been maintained free 

from any illegal purpose." Alexander v. Aero Lodge 735, 
sjagra, 565 F. 2d at 1 37 8. See also, James v. Stockham 
Valves & Fittings Co., supra, 559 F .2d at 351; Acha v.

Beame, 570 F.2d 57, 64 (2d Cir. 1978) ("a system designed 
or operated to discriminate on an illegal basis is not a
'bona fide* system"); Patterson v._American Tobacco Co.,
586 F .2d 300, 303 (4th Cir. 1978) (a system "would not be 
bona fide if it either currently served a racially dis-

25



criminatory purpose or was originally instituted to serve
a racially discriminatory purpose"); Chrapliw^v. Uniroyal, 
Inc. , 15 FEP Cases 822, 826 (N.D Ind. 1 977).

In a series of recent cases which this Court reviewed 
in Detroit Police Officers Association v. Young, 608 F.2d 
671, 692-94 (6th Cir. 1979), petition for cert, filed, 48 
CJ.S.L.W. 3558 (Jan. 1 0, 1 980), the Supreme Court established 
some guidelines for evaluating proof of discriminatory intent. 
"Determining whether invidious discriminatory purpose was 
a motivating factor requires a sensitive inquiry into such 
circimstantial and direct evidence of intent as may be avail- 
able." Village of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252, 266 (1977). Since evidence 
of such motivation is seldom apparent or direct, "[p]roof 
of discriminatory intent must necessarily usually rely on 
objective factors...." Personnel Administrator v. Feeney,
422 U.S. 256, 279 n.24 (1979). Thus, "an invidious dis­
criminatory purpose may often be inferred from the totality

11/ The Supreme Court in Teamsters noted that prior lower 
court decisions invalidating seniority systems were con­
sistent with the Teamsters opinion to the extent that 
they "can be viewed as resting upon the proposition that a 
seniority system that perpetuates the effects of pre-Act 
discrimination cannot be bona fide if an intent to dis­
criminate entered its very adoption." 431 U.S. at 346 
n. 28.
12/ "In an age when it is unfashionable ... to openly 
express racial hostility, direct evidence of overt bigotry 
will be impossible to find." United States v. Board of 
School Commissioners, 573 F.2d 400, 412 (7th Cir.), cert. 
denied, 439 U.S. 824 (1978).

26



of the relevant facts, including the fact ... that the law 
[or practice] bears more heavily on one race than another." 
Washington v. Davis, 426 U.S. 229, 241-42 (1976); see also, 
Teamsters, supra, 431 U.S. at 339-40 n.40. And "actions 
having foreseeable and anticipated disparate impact are rele­
vant evidence to prove the ultimate fact, forbidden purpose." 
Columbus Board of Education v. Penick, 99 S. Ct. 2941, 2950 
(1979); Personnel Administrator v. Feeney, supra, 422 U.S. 
at 279 n.25. "In short, discriminatory intent may be 
established by any evidence which logically supports an 
inference that the ... action was characterized by invidious 
purpose." Detroit Police Officers Association v. Young, 
supra, 608 F .2d at 693.

B. The Incomplete Record in this Case Contains
Evidence that the Seniority System Had its
Genesis in Racial Discrimination, that it Has
Been Negotiated and Maintained with an Illegal
Purpose, that it Is Irrationally Structured,
and that it Operates in a Discriminatory Manner

1. Genesis
When duPont opened its Louisville Works in 1942, it 

adopted an overt policy of racial discrimination which 
mirrored the segregation in the surrounding community (A. 612) 
(Cressey Dep., p. 30). This policy extended beyond the 
restriction of black employees to the lowest-paying and 
least desirable jobs; it included "separate change houses, 
separate toilet facilities, separate eating facilities," 
and it changed only "step by step ... generally in line with

27



the community" (id.). As this Court knows, segregation in the 
community continued long after the adoption of the seniority 
system. See Newburg Area Council, Inc, v. Board of Education 

of Jefferson County, 489 F .2d 925 (6th Cir. 1973), vacated 
and remanded, 418 U.S. 918, reaff'd per curiam, 510 F.2d 1358 
(6th Cir. 1974), cert. denied, 421 U.S. 931 (1975). Thus, 
racial discrimination was "standard operating procedure" 
when the seniority system was created and developed. James 
v. Stockham, supra, 559 F .2d at 352; Sears v. Atchison,

Topeka & Santa Fe Ry., 454 F. Supp. 158, 180 (D. Kan. 1978). 
This historical context provides evidence that the seniority 
system, like all of duPont's employment practices at the 
time, was infected from the outset with discriminatory 
intent. IcL See also, Arlington Heights, supra, 429 U.S. at 
267; Detroit Police Officers Association v. Young, supra,

608 F.2d at 693.
The seniority system first became a subject for nego­

tiation and inclusion in a collective bargaining agreement in 
1954. By that time, duPont's rigidly segregated employ­
ment structure -- created by overt discrimination in initial 
job assignments and maintained by prohibiting transfer 
between divisions —  had been in place for many years. The 
1956 collective bargaining agreement removed the no-transfer 
rule, but duPont then imposed new educational and testing 
requirements for jobs in the all-white divisions. These 
requirements were not applied to white incumbents in those

28



divisions, and they had the foreseeable consequence of con­

tinuing the segregated employment structure. When the 
division and unit seniority system was formalized in the 
1958 agreement, it was imposed on this existing pattern of 
segregation, and the predictable result was to perpetuate 
that segregation. This "clear pattern is sufficient to give 
rise to a permissible inference of segregative intent."

United States v. Board of School Commissioners, supra, 573 
F.2d at 412; Arlington Heights, supra, 429 U.S. at 267. This 
inference is especially strong where, as here, the "actions 

have ... foreseeable and anticipated disparate impact ...." 
Columbus Board of Education v. Penick, supra, 99 S. Ct. at 
2950; Detroit Police Officers Association v. Young, supra,
608 F.2d at 693.

Further evidence of the system's discriminatory genesis 
may be found in the original collective bargaining agree­
ments, notes and memoranda of negotiating sessions, written
contract proposals, and the testimony of company and union

1 3/
officials involved in the original negotiations. in deciding 
this question, the district court should have given "careful 
consideration to the negotiations involving the seniority 
system ...." James v. Stockham, supra, 559 F.2d at 353.

See also, Patterson v American Tobacco Co. , 15 EPD 11 8085, 
at 7304 (E.D. Va. 1977), aff'd in part and vacated and

13/ The apparent lack of rationality in the original organi­
zation of the system provides additional evidence of its 
discriminatory genesis. See section II B 3, infra.

29



remanded in part, 586 F.2d 300 (4th Cir. 1978); Sears v. 
Atchison, Topeka & Santa Fe Ry., supra, 454 F. Supp. at 
180. But the district court in the instant case did not give 
any consideration whatever to such evidence. Instead, it 
erroneously limited its attention to "the seniority system 

set up in the collective bargaining agreement which was 
reached after the adoption of Title VII..." (A. 535) (Memorandum 
Opinion, p. 5). Although the plaintiffs attempted to discover 
the relevant evidence, duPont and the Union refused to 
provide it, and the district court summarily disposed of the 
case without ruling on the EEOC's pending motion to compel 
proper discovery. See p. 15, supra.

2. Negotiation and Maintenance

Despite the limitations imposed on plaintiffs' discovery, 
the record contains ample proof that since its adoption the 
seniority system has been negotiated and maintained with a 
discriminatory purpose. Segregation at the Louisville Works 
has changed only "step by step ... generally in line with the 
community" (A. 612)(Cressey Dep., p. 30). DuPont did not hire 
a single black person for a job in any of its formerly all-white 
seniority divisions until 1971 (A. 563)(EEOC Determination, 
p.1). Cf. Newburg Area Council, Inc, v. Board of Education, 
supra (the Louisville and Jefferson County school districts 
continued to operate segregated schools into the mid-1970s).
Even after the enactment of Title VII, duPont has limited 
black access to white jobs by using tests and educational

30



requirements which discriminate against blacks and are 
unrelated to job performance (A. 564-65)(EEOC Determination, 
pp. 2-3). This continuing pattern of discrimination in other 
employment practices supports an inference of intentional 
discrimination in the continuation of the seniority system: 
the system "must be evaluated in the context of the 
company's extensive unlawful employment practices during 
the period of negotiations .. . ." James v. Stockham, supra,
559 F.2d at 353. See also, Arlington Heights, supra,
429 U.S. at 266-68.

It is clear from the record that both duPont and the Union 
have long been aware of the system's discriminatory consequences. 
See pp. 9-10, supra. But duPont did not revise the system to 
ameliorate any of those consequences until 1973, and then it 
acted not in response to the longstanding grievances of its 
black employees, but because the Atomic Energy Commission was 
holding up its government contracts (A. 133-35) (letter from 
L.M. Cressey to D.W. Lacy dated Feb. 14, 1973, attached to duPont 
Response to EEOC Request for Admissions, 1[ 50). The Union 
overtly resisted even this limited reform of the seniority 
system. In a series of meetings concerning this issue in 1972 
and 1973, the Union "(1) adamantly refused to consider any 
changes in the seniority rules affecting those 134 black employees 
hired prior to August 27, 1962; (2) refused to submit any union 
counter proposals in the matter; and (3) refused in several

31



of the meetings to even discuss the subject at all" (A. 135)
(id., p. 3).

DuPont's Employee Relations Superintendent testified that 
at no time from 1965 to the present have there been negotia­

tions in collective bargaining sessions on the issue of af­
fording black employees complete mobility between divisions (A. 
597)(McConnell Dep., p. 62). The President of the Union 
similarly testified that, from 1961 through 1967 and from 1971 
to the present (the years in which he has been present during 
contract negotiations), neither duPont nor the Union has made 
any proposal to give any black employees division and unit 
seniority equal to their plant seniority (A. 643-44)(Lacy Dep., 
pp. 42-43). The defendants' clear knowledge of the seniority 
system's discriminatory effects, coupled with their failure to 
make any significant changes in the system, provides further 
proof that the system has been negotiated and maintained with a 
discriminatory purpose. See Columbus Board of Education v.
Penick, supra, 99 S. Ct. at 2950; Detroit Police Officers 
Association v. Young, supra, 608 F.2d at 693.

3. Irrationality

The segregated divisions which duPont and the Union 
adopted for seniority purposes are not related to the depart­
ments into which the plant is organized for functional purposes 
(A. 609-10; A. 572-74)(Cressey Dep., pp. 8-9; McConnell Dep., pp.

32



7-9). Unlike the separate units in Teamsters, the senior­
ity divisions in the instant case have not been "shown to 
be clearly defined, homogeneous, and functionally distinct
groups with separate interests ----" Teamsters, supra, 431
U.S. at 356 n.42. Further discovery will be necessary to 
determine whether there is any rational, non-racial 

explanation for organizing the seniority system in this 
manner. On the present record, however, the absence of a 
rational explanation reinforces the evidence of racial 
motivation. See James v. Stockham, supra, 559 F.2d at 352.

4. Discriminatory Operation

The Supreme Court considered in Teamsters whether the 
seniority system at issue in that case operated to dis­
criminate against minority employees, and the Court con­
cluded that it did not:

It applies equally to all races and ethnic 
groups. To the extent that it "locks" employees 
into non-line driver jobs, it does so for all.
The city drivers and servicemen who are discouraged 
from transferring to line driver jobs are not 
all Negroes or Spanish-surnamed Americans; to the 
contrary, the overwhelming majority are white.
431 U.S. at 355-56 (emphasis added).
The record in Teamsters supported the Court's con­

clusion, for it showed that approximately 87% of the
11/employees harmed by the system were white. Here, by

14/ The basic allegation of discrimination in Teamsters 
concerned the inability of city drivers to transfer to jobs 
as line drivers. Of the 1,284 persons "locked" into the 
city driver positions, 1,117 (or 87%) were white. 431 
U.S. at 342 n.23.

33



contrast, the "overwhelming majority" of employees locked 
into the classified seniority division —  123 of 166 employees, 
or 74% are black. See p. 11, supra. The district court
failed to give any consideration whatever to the fact that 
this seniority system "bears more heavily on one race than 
another." Washington v. Davis, supra, 426 U.S. at 241-42.
The grossly disproportionate racial impact of this system 
provides further evidentiary support for the conclusion 
that the seniority system was adopted and has been main­
tained with a discriminatory purpose. Id; Detroit Police 

Officers Association v. Young, supra, 608 F.2d at 693. See 
also, Teamsters, 431 U.S. at 339-40 n.20.

5. Conclusion

The discriminatory genesis of the seniority system at 
the Louisville Works, as well as the discriminatory mainte­
nance of that system, each independently establishes that the 
system is not "bona fide" and not protected by § 703(h). This 
conclusion is reinforced by the fact that there is no rational, 
non-racial explanation for the organization of the system, 
and by the evidence demonstrating that the overwhelming major­
ity of the employees harmed by the system are black. The 
district court nevertheless concluded that there was "no 
showing that the seniority system set up in the collective 
bargaining agreement which was reached after the adoption

of Title VII was drafted with an intent to discriminate ..."

34



(A. 535)(Memorandum Opinion, p. 5). To the extent that this is a 
finding of fact, it is unsupported by the summary judgment 
record and it is clearly erroneous; to the extent that it is 
a conclusion of law, it is based on a misconstruction of 
§ 703(h) and a misreading of Teamsters.

III. THE DISTRICT COURT ERRED IN HOLDING THAT PLAINTIFF
WILLIAMS IS NOT ENTITLED TO MAINTAIN AN ACTION UNDER 42
U.S.C. § 1981.

The court below held that § 1981 does not afford any 
relief under circumstances in which relief is barred by 
§ 703(h) of Title VII, and that plaintiff Williams therefore 
could not maintain his action under § 1981 (A. 536)(Memorandum
Opinion, p. 6). This decision is wrong as a matter of law 
on two grounds: (1) Williams is entitled to maintain his
challenge to the discriminatory seniority system under 
§ 1981 as well as Title VII. (2) Even if the district 
court's holding were correct with respect to plaintiff's 
seniority claims, it would not dispose of plaintiff's inde­
pendent claims of discrimination in the defendants' testing 
practices.

First, the district court held in essence that a seniority 
system which is protected by § 703(h) of Title VII is also 
immune from attack under § 1981. In so holding, it relied on 
decisions in which the Fourth and Fifth Circuits reached 
similar conclusions. Johnson v. Ryder Truck Lines, Inc. , 575

35



F.2d 471, 474 (4th Cir. 1978), cert. denied, 440 U.S. 979

(1979); Pettway v. American Cast Iron Pipe Co., 576 F.2d 
1 157, 1 1 91-92 n. 37 (5th Cir. 1 978), cert. denied, 439 U.S. 
1115 (1979). The Third Circuit, on the other hand, has 
reached a different result. Bolden v. Pennsylvania State 
Police, 578 F.2d 912, 921 (3rd Cir. 1978). The Supreme Court 
has decided neither this question nor the more general 
question whether proof of discriminatory intent is required 
to establish a violation of § 1981. See County of Los 
Angeles v, Davis. 440 U.S. 625 (1979).

The law in this Circuit is that Title VII principles 
governing the order and allocation of proof "apply with 
equal force to a § 1981 action," Long v. Ford Motor Co., 496 
F•2d 500, 505 n.11 (6th Cir. 1974), and that a prima facie 
violation of § 1981 may be established by proof of either

15/disparate treatment or disproportionate impact, _id. at 506. 
Plaintiff therefore submits that a seniority system with 
discriminatory effects may be held unlawful under § 1981 
even if the system was not adopted and has not been main­
tained with a discriminatory purpose. See Note, Section 1981: 
Discriminatory Purpose or Disproportionate Impact?. 80 Colum. 
L. Rev. 137 (1980). However, since the system in the instant 
case may be held unlawful under Title VII, it may also be

!§./ This Court, citing Washington v._Davis, supra, 426
U.S. at 247-48, has also noted that '* ft]he more rigorous 
discriminatory effect' test is still applicable to causes 

of action based on statutory rights rather than on con­
stitutional grounds, for example, those granted under Title 
VII of the Civil Rights Act of 1964." NAACP v. Lansinq Board 
of Education, 559 F.2d 1 042, 1046 n.3 (6th Cir."T97 7). ------

36



held unlawful under § 1981 irrespective of which standard 
is applied. Cf. Arnold v. Ray, 21 FEP Cases 793 (N.D.
Ohio 1979).

Secondly, the district court completely ignored plain­
tiff Williams' non-seniority claims under § 1981. The com­
plaint plainly alleges not only that the seniority system 
discriminates against blacks, but also that the defendants 
"further discriminate against Negroes by maintaining general 

intelligence tests that are totally unrelated to job per­
formance and are artificial barriers to equal employment 
opportunity and job transfer and promotion opportunity" (A.
13) (Williams Complaint, 11 IV). The complaint specifically 
asks the court to enjoin these unlawful testing practices 
under § 1981 as well as Title VII (A. 11, 15) (id. , 1[ I and 
p. 5, 11 3 ) .

Title VII and § 1981 provide "parallel or overlapping 
remedies against discrimination." Alexander v. Gardner- 
Denver Co., 415 U.S. 36, 47 and n.7 (1973). These remedies, 
"although related and although directed to most of the same 
ends, are separate, distinct, and independent." Johnson v. 

Railway Express Agency, Inc., 421 U.S. 454, 461 (1975).
The complaint in the instant case properly alleges that the 
defendants' testing practices violate § 1981 as well as Title 
VII, and it properly seeks relief under both statutes. See 
Long v. Ford Motor Co. , supra, 496 F. 2d at 506; Davis v. 
County of Los Angeles, 566 F.2d 1334, 1340-42 (9th Cir.

1977), cert, dismissed as moot, 440 U.S. 625 (1979).

37



The discovery on file contains evidence supporting the 
plaintiffs' testing claims. The record shows that "mental 
ability" and "aptitude" tests continue to be used for entry 
into the formerly white-only jobs at the Louisville Works 
(A. 87-88; A. 459)(duPont Answers to Williams 1974 Interroga­
tories, 11 26; duPont Answers to EEOC Second Interrogatories,
11 4). In addition, duPont has admitted that white incumbents 

in those jobs have not been required to satisfy the educational 
and testing requirements which were applied to plaintiff 
Williams and other black employees (A. 118-19)(duPont Response 
to EEOC Request for Admissions, 1(11 25-29). See section IV, 
infra. On this record, the district court could not properly 
grant summary judgment against plaintiff Williams on his claims 
under § 1981. See section I, supra.

IV. THE DISTRICT COURT ERRED IN REFUSING TO PERMIT PLAINTIFF
WILLIAMS TO SUE FOR PRESENT AND CONTINUING VIOLATIONS OF
TITLE VII AND § 1981.

Plaintiff Williams, in both his EEOC charge and his com­
plaint in this action, alleged past, present, and continuing 
discrimination by duPont and the Union. See pp. 12-13, 

supra. The discovery on file contains evidence of on-going 
violations of Title VII and § 1981 in the operation of defen­
dants' seniority system (see section II, supra) and in the use of 
unlawful testing procedures (see section III, supra). This 
record was more than adequate to withstand the defendants' 
motions for summary judgment. See section I, supra. But the 

district court, relying on United Air Lines, Inc, v. Evans,
38



431 U.S. 553 (1977), held that plaintiff's action should be 
dismissed because the Supreme Court had "dealt a fatal blow 
to the concept of 'continuing violations'" (A. 537)(Memorandum 
Opinion, p. 7). In holding that discrimination is immune from 
attack merely because it is longstanding and continuing, the 
district court misread Evans, it ignored the decisions of this 
and other courts, and it adopted an interpretation of Title 
VII and § 1981 which is directly at odds with the purpose of 
those statutes.

The Supreme Court's decision in Evans does not dictate 
the result reached by the district court in the case at bar. 
The plaintiff in Evans was a rehired employee who had not 
filed a timely EEOC charge challenging her termination in 
1968, but who claimed in a charge filed after she had been 
rehired in 1972 that the employer's seniority system 
perpetuated the effects of the allegedly unlawful previous 
termination. The Court in Evans found that the seniority 
system was protected by § 703(h) of Title VII, that the 
plaintiff had not alleged facts establishing that a vio­
lation occurred within the applicable limitations period, and 
that her Title VII complaint should therefore be dismissed.
431 U.S. at 559-60.

Here, by contrast, an employee with no break in service 
filed a timely EEOC charge in 1971, alleging that the 
defendants' testing practices and seniority system were 
preventing blacks from transferring to better-paying white 
jobs and therefore constituted "present acts of discrimina­
tion against me and other Negro employees hired prior to

39



1956" (A. 542)(Williams EEOC Charge, p. 2) (emphasis added).
He also charged that the Union "has consistently refused to 
support me and other similarly situated Negroes in our claims 
for transfer rights and adjustments in seniority," and he 
specifically described the alleged discrimination as "con­
tinuing" (id. ) . In the class action complaint which he 
subsequently filed in the district court under Title VII 
and § 1981, Williams again alleged that duPont and the Union 
are engaged in present and continuing acts of discrimination: 
"intentionally and unlawfully maintaining" a discriminatory 
system and "maintaining general intelligence tests that are 
totally unrelated to job performance and are artificial barriers 
to equal employment opportunity and job transfer and promotion 

opportunity" (A. 13) (Williams Complaint, 11 IV).
As the Supreme Court held in Evans, the issue is not 

"mere continuity; the critical question is whether any 
present violation exists." 431 U.S. at 558 (emphasis in 
original). Plaintiff Williams has clearly alleged present 
violations of Title VII and § 1981, and the summary judgment 
record supports his allegations. Cf. Bernard v. Gulf Oil Co., 
596 F.2d 1249, 1255-56, rehearing en banc granted on other 
grounds, 604 F.2d 449 (5th Cir. 1979). Thus, under the 
reasoning of Evans, plaintiff's claims are not barred by the 
statute of limitations.

The district court's decision is inconsistent with deci­

sions made by this Court both before and after Evans. In 
Marlowe v. Fisher Body, 489 F .2d 1057 (6th Cir. 1973), the

40



plaintiff alleged a number of violations of § 1981, including 
the maintenance of a discriminatory promotional and seniority 

system "continuously ... over the plaintiff's period of 
employment ... up to and including the present time or after the 
filing of the original Complaint." 489 F.2d at 1060 (emphasis in 
original). The district court dismissed these claims as untimely
because the first act of discrimination had occurred more16/
than three years before the suit was filed. This Court 
reversed, holding that the action was not barred where 
discrimination continued to occur within the statutory period:

If the deprivation is a continuing act, 
or continuous series of acts, for purposes of 
limitations it is in the nature of a continuing 
trespass. Id_. at 1063.
In Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir.

1978), this Court again held that the maintenance of a 
discriminatory seniority system constitutes a continuing 
violation, and that a suit challenging the system under 
the Age Discrimination in Employment Act is not barred 
by the statute of limitations. There, as here, the plain­
tiffs challenged the maintenance of a non-bona fide seniority 
system which had a discriminatory effect on a protected 
group. The employer argued that the plaintffs' claims 
accrued, and that the applicable three-year statute of 
limitations began to run, when the system was initially 
adopted. As this Court noted, to accept this argument

16/ In Marlowe, a three-vear Michigan statute of limita­
tions applied to claims under § 1981. 489 F.2d at 1063. In 
the case at bar, the five-year Kentucky statute (K.R.S.
413.120) applies to plaintiff Williams' claims. Garner v. 
Stephens, 460 F.2d 1144 (6th Cir. 1972).

41



a senior-
ity system by an employer whose violation had already
continued without attack for three years." 586 F .2d at
1103. Therefore, the Court held that

the adoption of a seniority system, if dis­
criminatory . .., constitutes a continuing 
violation ... as long as that system is main­
tained by the employer. An employee's cause 
of action ... does not accrue until his employ­
ment opportunities are adversely affected by the 
application to him of the provisions of that 
seniority system. Id_.
The courts in other circuits have also concluded that 

"there is no reason to lock the courthouse door to [a plain­
tiff s] claim solely because he has alleged a contemporary 
course of conduct as an act of discrimination." Belt v. 
Johnson Motor Lines, Inc., 458 F.2d 443, 445 (5th Cir. 1972)
(Title VII and § 1981). The courts have reached this con-

11/ 21/
elusion both before and after the Evans decision.

"would permit perpetual age discrimination through

11/ See Williams v. Norfolk & Western Ry., 530 F.2d 539, 
541-42 (4th Cir. 1975) (Title VII and § 1981); United 
States v. Georgia Power Co., 474 F.2d 906, 922 (5th Cir. 
1973) (Title VII); EEOC v. Griffin Wheel Co., 511 F.2d 
456, 459 (5th Cir. 1975) (Title VII); Allen v. Amalgamated
Transit Union Local 788, 554 F . 2d 876,~8'80 "(8th Cir. ) ,----
cert, denied, 434 U.S. 891 (1977) ( §  1981); Rich v. Martin
Marietta Corp., 522 F .2d 333, 348 (10th Cir.“ f975) (Title 
VH); Macklin v. Spector Freight Systems, Inc., 4 78 F. 2d 
979, 994 ( D. C. Cir. 1 973) ("1 1 ̂ 84 ); Laf fev v7 Northwest 
Airlines, Inc., 567 F . 2d 429, 473 (D.C. Cir'. 1 976), cert.
denied, 434 U.S. 1086 (1978) (Title VII). See also,----
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 467 
n.13 (1975) (dictum).
18/ See Acha v. Beame, 570 F .2d 57, 65 (2d Cir. 1978) 
(Title VII); Bethel v. Jendoco Construction Corp., 570

42



The words of the Supreme Court in an antitrust case apply 
with equal force to these employment discrimination cases:

We are not dealing with a violation which, 
if it occurs at all, must occur within some 
specific and limited time span .... Rather, 
we are dealing with conduct which constituted 
a continuing violation of the Sherman Act and 
which inflicted continuing and accumulating 
harm on [the plaintiff]. Although [the plain­
tiff] could have sued in 1912 for the injury 
then being inflicted, it was equally entitled 
to sue in 1955. Hanover Shoe, Inc, v. United 
Shoe Machinery Corp., 392 U.S. 481, 502 n.15 (1968).
Plaintiff Williams has alleged present and continuing 

discrimination by duPont and the Union, both in the opera­

tion and maintenance of their seniority system and in the 
use of unlawful testing procedures. In rejecting his 
seniority claims, the district court failed to draw the 

crucial distinction between a challenge to a non-bona fide 
seniority system, as here, and a challenge to a bona fide 
system which simply perpetuates a single act of discrimina­
tion, as in Evans. "The distinction between continuing 
violations and continuing impact from past violation has 
been recognized by post-Evans courts." Reed v. Lockheed 
Aircraft Corp. , 22 EPD 11 30,602 at 14,230 (9th Cir. 1 980) 
(emphasis in original). The district court's summary 
judgment improperly foreclosed plaintiff Williams from

F.2d 1168, 1175 (3rd Cir. 1978) (Title VII); Clark v. 
Olinkraft, Inc., 556 F.2d 1219, 1221-22 (5th Cir. 1977) 
(Title VTl); Reed v.Lockheed Aircraft Corp. , 22 EPD 1| 
30,602 at 14,230 (9th Cir. 1980) (Title VII); Shehadeh 
v. Chesapeake & Potomac Tel. Co., 595 F.3d 711, 724 (D.C. 
Cir. 1978) (Title VII).

43



proving at trial that such a continuing violation exists 
in this case.

The summary judgment also deprived plaintiff Williams 
of his right to a trial on the issues of present and con­
tinuing discrimination in the defendants' testing practices.
As the Supreme Court noted in California Brewers Association 
v. Bryant, 63 L. Ed.2d 55, 65-66 (1980), even where a 
seniority system is protected by § 703(h) of Title VII, 
discriminatory educational standards and testing practices 
remain vulnerable. The exception for bona fide seniority 
systems should "not ... be given a scope that risks swallow­
ing up Title VII's otherwise broad prohibition of 'practices, 
procedures and tests' that disproportionately affect members 
of those groups that the Act protects." Id_. at 65.

In the case at bar, plaintiff Williams has challenged 
two distinct but related testing practices. First, he has 
alleged that the defendants use general intelligence tests 
which have a discriminatory effect on blacks and which are 
unrelated to job performance (A. 13) (Williams Complaint, 11 IV). 
The discovery on file shows that "mental ability" and "aptitude" 
tests continue to be used for entry into formerly all-white jobs 
(A. 87-88; A. 459)(duPont Answers to Williams 1974 Interroga­
tories, 11 26; duPont Answers to EEOC Second Interrogatories,
II 4). DuPont has asserted that its tests are job related, but 
it has produced no evidence to support this assertion (see 
A. 564)(EEOC Determination, p. 2). Accordingly, at least for

44



summary judgment purposes, plaintiff Williams has established
that duPont's present testing practices violate Title VII

± 9/
and § 1981 under the principles of Griggs v. Duke 
Power Co. and Albemarle Paper Co. v. Moody, supra.

Plaintiff's second testing claim focuses on disparate 
treatment rather than disproportionate impact. When the 
defendants removed the formal racial bars to inter-division 
transfer in 1956, duPont adopted new educational and testing 
requirements for entry into the all-white divisions (A. 118-19; 
A. 564)(duPont Response to EEOC Request for Admissions, 1MI 
25-29; EEOC Determination, p. 2). White incumbents in those 
divisions were not required to take the tests or to satisfy 
the educational requirement (icL ). DuPont dropped its high 

school diploma requirement for these jobs in 1967, but to 
this day employees who wish to transfer into the formerly 
all-white divisions must take written tests (A. 600-606) 
(McConnell Dep., pp. 73-79). Thus, plaintiff Williams and 
other black employees who were hired into the all-black divi­
sion prior to 1956 are at the present time required to take 
tests to transfer into the formerly all-white divisions; but 
white employees who were also hired before 1956 continue to 
hold jobs in those divisions even though they have never taken 
such tests (see A. 118-19)(duPont Response to EEOC Request for 
Admissions, 1MI 26-29).

19/ See section III, supra.
45



On these facts, even if duPont's present testing
practices were shown to be job related, they nevertheless
would violate Title VII and § 1981 as a form of unlawful
disparate treatment. This principle is explained in § 11
of the Uniform Guidelines on Employee Selection Procedures,

20/
29 C.F.R. § 1607.11 (1978):

... A selection procedure —  even though validated 
against job performance in accordance with these 
guidelines —  cannot be imposed upon members of a 
race, sex, or ethnic group where other employees 
[or] applicants ... have not been subjected to 
that standard. Disparate treatment occurs where 
members of a race, sex, or ethnic group have been 
denied the same employment, promotion, ... or 
other employment opportunities as have been 
available to other employees or applicants. Those 
employees or applicants who have been denied equal 
treatment, because of prior discriminatory prac­
tices or policies, must at least be afforded the 
same opportunities as had existed for other em­
ployees or applicants during the period of dis­
crimination. Thus, the persons who were in the 
class of persons discriminated against during the 
period the [employer] followed the discriminatory 
practices should be allowed the opportunity to 
qualify under less stringent selection proce­
dures previously followed, unless the [employer] 
demonstrates that the increased standards are 
required by business necessity....
The summary judgment record in the instant case estab­

lishes that duPont's present testing practices constitute 
unlawful disparate treatment: black employees who were

20/ The Uniform Guidelines were adopted by the EEOC and 
four other federal civil rights enforcement agencies in 
1978. Like the former EEOC Guidelines on Employee Selection 
Procedures which they supersede, these guidelines "con­
stitute ' [t]he administrative interpretation of the Act by 
the enforcing agency,' and consequently they are 'entitled 
to great deference.'" Albemarle Paper Co. v Moody, supra, 
422 U.S. at 430-31; Griggs v. Duke Power Co., suora, 401 
U.S. at 433-34. “

46



previously excluded from jobs on the basis of race continue 
to be excluded on the basis of tests which were not applied 
to whites during the period of racial allocation of oppor­
tunity. See James v. Stockham Valves & Fittings Co., supra, 
559 F.2d at 337-38 n.43; Laffey v. Northwest Airlines, Inc., 
supra, 567 F .2d at 456-57. The district court therefore erred 
in granting summary judgment for the defendants.

CONCLUSION
For the foregoing reasons, the district court's order 

granting summary judgment should be reversed, the judgment 
should be vacated, and the case should be remanded to the 
district court for further proceedings.

Respectfully submitted,

—
DANIEL HALL
JONES, RAWLINGS, KEITH & NORTHERN 
504 Portland Federal Building 
Louisville, Kentucky 40202
JACK GREENBERG 
PATRICK 0. PATTERSON 
JUDITH REED 
10 Columbus Circle 
Suite 2030
New York, New york 10019 
JAMES C. HICKEY
EWEN, MACKENZIE & PEDEN, P.S.C.
2100 Commonwealth Building 
Louisville, Kentucky 40202
Attorneys for Plaintiffs-Appellants

April 1980.
47



ADDENDUM

Civil Rights Act of 1866, 42 U.S.C. § 1981:

All persons within the jurisdiction of 
the United States shall have the same right 
in every State and Territory to make and en­
force contracts, to sue, be parties, give 
evidence, and to the full and equal benefit 
of all laws and proceedings for the security 
of persons and property as is enjoyed by white 
citizens, and shall be subject to like punish­
ment, pains, penalties, taxes, licenses, and 
exactions of every kind, and to no other.

§ 703(h), Title VII of the Civil Rights Act of 1964, 42 
U.S.C. § 2000e-2(h):

Notwithstanding any other provision 
of this title, it shall not be an unlawful 
employment practice for an employer to apply 
different standards of compensation, or dif­
ferent terms, conditions, or privileges of 
employment pursuant to a bona fide seniority 
or merit system, or a system which measures 
earnings by quantity or quality of production 
or to employees who work in different loca­
tions, provided that such differences are 
not the result of an intention to discriminate 
because of race, color, religion, sex, or 
national origin; nor shall it be an unlawful 
employment practice for an employer to give 
and to act upon the results of any profes­
sionally developed ability test provided 
that such test, its administration or 
action upon the results is not designed, 
intended, or used to discriminate because 
of race, color, religion, sex, or national 
origin. It shall not be an unlawful em­
ployment practice under this title for any 
employer to differentiate upon the basis of 
sex in determining the amount of the wages 
or compensation paid or to be paid to em­
ployees of such employer if such differen­
tiation is authorized by the provisions of 
section 206(d) of Title 29.

48



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing brief 
for appellant were served this date by ordinary United 
States mail on the following:

Edgar A. Zingman, Esq.
Sheryl G. Snyder, Esq.
Robert B. Vice, Esq.
Wyatt, Grafton & Sloss 
2800 Citizens Plaza 
Louisville, Kentucky 40202
Charles W. Brooks, Jr., Esq.
Borowitz & Goldsmith 
310 West Liberty 
Louisville, Kentucky 40202
Laverne S. Tisdale, Esq.
Senior Trial Attorney
Equal Employment Opportunity Commission 
1389 Peachtree Street, N.E.
Suite 101
Atlanta, Georgia 30309
Leroy D. Clark, Esq.
Phillip Sklover, Esq.
Office of the General Counsel
Equal Employment Opportunity Commission
2401 E Street, N.W.
Washington, D.C. 20506

Dated: August £ £  , 1980

Appellants