Greenberg, Jack, 1961-1983 - 23 of 56

    In The

f>upnw (Emxrt at %  States
October, 1978

No. 78-179

Robert L. J ohnson, J r., et al.,
Petitioners, v. ’

Ryder Truck Lines, Inc., et al.,
Respondents.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR RESPONDENT UNIONS IN OPPOSITION

David Previant 
Robert M. Baptiste 
Roland P. W ilder, J r.

25 Louisiana Avenue, N.W. 
Washington, D.C. 20001

F rancis M. F letcher, J r.
Harkey, F aggart, Coira & 

F letcher
1924 Wachovia Center 
Charlotte, North Carolina 28285

Counsel for the Union Respondents

WILSON E p e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

Opinions Below.............. ....... .... ....................................... . 1
Jurisdiction ..... ....................................................................... 2

Question Presented........ ............ ....................................... . 2

Statutory Provisions. Involved ................... ...................... 2
S tatem ent......... ............ ................ ............ ................ ............. 2

A rgum ent..... ............................ ................................... ........ 3

I. The Decision Below Is Correct And Conforms To
This Court’s Precedents............ ............................  3

II. There Is No Conflict Of Decision............ ......... 10

III. County of Los Angeles V. Davis, No. 77-1553,
Presents A Different Legal Issue____ ________  12

Conclusion ............................ ............................. ...................  14



II

TABLE OF AUTHORITIES
Cases: Page

Afro American Patrolmens League v. Duck, 503
F.2d 294 (6th Cir. 1974)_______ ____ ___ ___ 10

Alexander V. Aero Lodge No. 735, IAM, 565 F.2d
1364 (6th Cir. 1977)__________ _____________ 10

Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) ................................         7 ,8

Bolden V. Pennsylvania State Police, ——- F.2d
——, 17 F E P  Cases 687 (3rd Cir. 1978) _____  12

Brown V. Board of Educ., 347 U.S. 483 (1954).... 8
Chance V. Board of Examiners, 534 F.2d 993, modi­

fied on rehearing on other grounds, 534 F.2d 
1007 (2d Cir. 1976), cert, denied, 431 U.S. 965
(1977) .................      11

Chatman V. United States Steel Corp., 425 F. Supp.
753 (N.D. Calif. 1977)_________      6

County of Los Angeles v. Davis, 566 F.2d 1334 
(9th Cir. 1977), cert, granted, 46 U.S.L.W. 3780
(U.S,, June 19, 1978) (No, 77-1553)........... . 12,13

Detroit Edison Co. V. EEOC, et at., 431 U.S. 951
(1977) ................... ............................................... . 10

Dothard V. Rawlinson, 433 U.S. 321 (1977)_____  13
Franks V. Bowman Transp. Co., 424 U.S. 747

(1976) ............................... ......................... ...............  5
Green V. County School Bd., 391 U.S. 430 (1968).. 8
Griffin V. Pacific Maritime Ass’n., 478 F.2d 1118

(9th Cir.), cert, denied, 414 U.S. 859 (1973) __  6, 7
Griggs V. Duke Power Co., 401 U.S. 424 (1971).... 13
International Brotherhood of Teamsters V. United

States, 431 U.S. 324 (1977)___ 4, 5, 7, 9 ,10,11,12,13
Johnson V. Railway Express Agency, 421 U.S.

454 (1975) ................................. ....................... ....... 5 ,6 ,7
Lane V. Wilson, 307 U.S, 268 (1939)...___________ 9
Long V. Ford Motor Co., 496 F.2d 500 (6th Cir.

1974) ...................................... .................. ................ 10
Macklin v. Spector Freight Systems, 478 F.2d 979 

(D.C. Cir. 1973) 10



Ill

TABLE OF AUTHORITIES—Continued
Page

Patterson V. American. Tobacco Co., 535 F.2d 257
(4th Cir.), cert, denied, 429 U.S. 920 (1976).... 11

Steele V. Louisville & Nashville R.R. Co., 323 U.S.
192 (1944)....... .................................................. 9

Swann v. Charlotte-Mecklenburg Board of Educ.,
402 U.S. 1 (1971)......................................... .......... 8

Syres V. Oil Workers, Local 23, 350 U.S. 892
(1955) ........ .............................................. ............. 9

United A ir Lines V. Evans, 431 U.S. 553 (1977)..- 6, 7
United States V. East Texas Motor Freight, 564

F.2d 179 (5th Cir. 1977) ___________ __ ______ 10,11
Washingtons. Davis, 426 U.S. 229 (1976)______  12
Waters V. Wisconsin Steel Works, 502 F.2d 1309 

(7th Cir. 1974), cert, denied, 425 U.S. 997
(1976) .............................................. ........................ 10,11

Watkins V. United Steelworkers, Local 2369, 516
F.2d 41 (5th Cir. 1975) .............................. .......... 11

Western Gillette, Inc. v. Sabala, 431 U.S. 951
(1977) ...................................... ............ .................... 10

Whitfield V. United Steelworkers, 263 F.2d 546
(5th Cir. 1958), cert, denied, 360 U.S. 902 
(1959) .......................... ........... ............... ...........,........ 9

Statutes and Constitutional Provisions:
Fourteenth Amendment, U.S. Constitution______ 8, 9
42 U.S.C. § 1981 _____        ..passim
42 U.S.C. § 1983 ........ .       12
42 U.S.C. § 1985 ........       12
42 U.S.C. § 1988 ................................. ........................2, 4,12
42 U.S.C. § 2000e, Title VII of the 1964 Civil Rights

Act ............. ........................................ ......................passim
42 U.S.C. § 2000e-2 ( h ) ____________________ 2, 4,11,12

§ 703(h), id. __________________________ 2,4,11,12
§ 703(g)........ ..................................................... 12



In The

wpmw (&mtt at %  Inttpfc
October, 1978

No. 78-179

Robert L, J ohnson, J r., et al.,
Petitioners,

v.

Ryder Truck Lines, Inc., et a l,
Respondents.

On Petition for a Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

BRIEF FOR RESPONDENT UNIONS IN OPPOSITION

OPINIONS BELOW

The findings, conclusions and opinion of the District 
Court are unofficially reported at 10 [CCH] EPD 
If 10,535; they are reprinted in the Appendix to the Peti­
tion, at pp. 26a-71a. The District Court’s judgment is 
unofficially reported at 11 [CCH] EPD f] 10,692; it is 
reprinted at pp. 15a-25a of the Petition’s Appendix. The 
April 1, 1977 opinion of the Court of Appeals (Pet., at 
13a-14a) is reported at 555 F.2d 1181, while its May 2, 
1978 opinion on rehearing (Pet., at la-12a) is reported 
at 575 F.2d 471.



2

JURISDICTION

The jurisdictional requisites are adequately set forth 
in the Petition.

QUESTION PRESENTED

The Respondent Unions restate the question presented 
by this case in the following terms :

Does a bona fide seniority system, applying equally to 
all races and ethnic groups, violate Section 1981 of Title 
42, United States Code, because it does not afford retro­
active seniority credits to victims of past discrimination 
in hiring?

STATUTORY PROVISIONS INVOLVED

Section 703(h) of Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000c-2(h), and 42 U.S.C. §1981, 
are set forth in the Petition, at 3. In addition, 42 U.S.C. 
§ 1988 provides in pertinent part:

“The jurisdiction in civil . . . matters, conferred on 
the district courts by the provisions of this chapter 
. . . shall be exercised and enforced in conformity 
with the laws of the United States, so far as such 
laws are suitable to carry the same into effect . . .”

STATEMENT

This action under Title VII and 42 U.S.C. § 1981 was 
filed on January 5, 1973 by the Petitioners against their 
employer, Ryder Truck Lines, Teamsters Local 71 and 
the International Brotherhood of Teamsters. The com­
plaint alleged a variety of discriminatory actions, includ­
ing hiring discrimination by Ryder, and the maintenance 
of a seniority system prior to July, 1973, which had the 
effect of perpetuating discriminatory hiring policies. The 
case was certified as a class action; it was tried in August,



3

1975. On November 18, 1975, the United States District 
Court for the Western District of North Carolina found 
and concluded, inter alia, that Ryder had pursued a policy 
of refusing to hire over-the-road drivers from the ranks 
of black applicants for employment and black employees 
working in local cartage operations. Also, the seniority 
system in force when the suit was filed was held dis­
criminatory.

The District Court’s findings indicated that the seniority 
provisions of the City Cartage and Over-the-Road Supple­
ments to the National Master Freight Agreement, which 
were effective prior to July 1, 1973, had the effect of per­
petuating Ryder’s discriminatory hiring policies so far as 
they did not permit transferees from city cartage to carry 
their terminal seniority with them upon moving to road 
jobs. (Pet., at 35a, 37a) “ [T]he restrictive seniority 
provisions in the pertinent agreements were [held] viola­
tive of Title VII and 42 U.S.C. § 1981.” (Pet., at 36a) 
The District Court further noted that, effective July 1, 
1973, the seniority system was changed to permit trans­
ferees between city and road jobs to carry with them their 
full terminal seniority. (Pet., at 37a-38a) The plaintiffs 
and class members who transferred to road jobs enjoyed 
the benefit of these contract changes. Their seniority 
status was not affected by the Fourth Circuit Court of 
Appeals’ decision on the question presented by the 
Petition.

The District Court awarded backpay to five employees 
it found to have been discriminatorily excluded from road 
jobs by Ryder at hire, and inhibited from transferring by 
their inability to carry over accrued terminal seniority 
under the pre-1973 collective bargaining agreements. On 
April 1, 1977, the Court of Appeals affirmed per curiam 
the District Court’s judgment. (Pet,, at 13a) Ryder’s 
petition for rehearing was first denied and then granted



4

after this Court’s decision in International Brotherhood 
of Teamsters v. United States, 431 U.S. 324 (1977) 
(hereinafter T.I.M.E.-D.C.). On rehearing, the Court of 
Appeals remanded for further consideration of the five 
employees’ claims. (Pet., at 7a)

The Fourth Circuit panel unanimously concluded that
T.I.M.E.-D.C. required reversal of that portion of the 
District Court’s decision holding that the pre-1973 senior­
ity system violated Title VII because it perpetuated past 
discrimination. In addition, it held that a facially neutral 
seniority system, “bona fide” within the meaning of Sec­
tion 703(h), did not violate 42 U.S.C. § 1981. Under the 
pre-1973 contracts, white as well as black employees were 
required to yield their accrued seniority when transferring 
to road jobs. “Consequently, § 1981 does not afford the 
black employees relief, because the statute confers on black 
persons only the same rights possessed by white persons.” 
(Pet., at 4a) Two members of the Court concluded that 
42 U.S.C. |§ 1988, which “instructs federal courts as to 
what law to apply in causes of action arising under fed­
eral civil rights acts,’ ” required that the protections for 
bona fide seniority systems contained in Section 703(h) 
be taken into account in applying Section 1981 to claims 
alleging seniority discrimination. Circuit Judge Winter 
concurred in the holding that Section 1981 does not out­
law bona fide seniority systems.

ARGUMENT

I.

THE DECISION BELOW IS CORRECT AND CON­
FORMS TO THIS COURT’S PRECEDENTS

This case presents the same issue under 42 U.S.C. 
'% 1981 which this Court decided under Title VII in
T.I.M.E.-D.C. There, as here, it was contended that a



5

facially neutral seniority system, applying equally to all 
races and ethnic groups, perpetuated past hiring discrimi­
nation because it did not permit seniority to be trans­
ferred across departmental lines. Like the all but identical 
seniority provisions considered in T.I.M.E.-D.C., the vice 
of the pre-1973 seniority system involved in this case 
was said to be its tendency to “lock” minorities into city 
cartage jobs. But “to the extent that it ‘locks’ employees 
into non-line driver jobs, it does for all. . . .” 431 U.S. 
at 355-56.

The record is barren of any suggestion that the pre- 
1973 contracts were negotiated or maintained for' any 
illegal purpose. Thus the sole question is whether their 
failure to extend retroactive seniority to victims of past 
discrimination amounts to a violation of Section 1981.

Based on the equal application of the pre-1973 contracts 
to both black and white city cartage drivers, the Court of 
Appeals concluded that Ҥ 1981 does not afford the black 
employees relief, because this statute confers on black 
persons only the same rights possessed by white persons.” 
(Pet., at 4a) The Court acknowledged that each black 
incumbent employed prior to 1965 had a cause of action 
under Section 1981 for the hiring discrimination perpe­
trated against him. It noted, howmver, that these hiring 
claims were barred by North Carolina’s three-year statute 
of limitations applicable to such claims. (Pet,, at 4a, 8a ); 
Johnson v. REA, 421 U.S. 454, 462 (1974). This holding 
is undoubtedly correct. As this Court stated in Franks v. 
Bowman Transp. Co., 424 U.S. 747, 758 (1976), “the 
underlying legal wrong . . .  is not the alleged operation of 
a racially discriminatory seniority system but of a racially 
discriminatory hiring system. . . .” Here the hiring dis­
crimination against the five employees affected by the 
Court of Appeals’ decision on reconsideration occurred 
between 1950 and 1957, when two were hired by Ryder 
(2 JA 217-18, 239) and three were hired by another firm



6

later acquired by Ryder (2 JA 183, 262, 319). These 
ancient acts were “unfortunate event[s] in history which 
. . . [have] no present legal consequences.” United Air 
Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).

Evans involved a Title VII claim, in which a seniority 
system was alleged to have continued the effects of a 
discriminatory no-marriage rule, thereby preserving the 
discriminatee’s otherwise time-barred claim. This “con­
tinuing violation” theory was rejected. Although Evans 
is not dispositive of this case, 431 U.S. at 558 n.10, it 
is significant to the extent this Court recognized that 
time-barred events frequently affect the calculation of 
seniority. Id. at 560. This is equally true in Section 1981 
cases. See Griffin v. Pacific Maritime Ass’n., 478 F.2d 
1118, 1119-20 (9th Cir.), cert, denied, 414 U.S. 859 
(1973) ; Chatman v. United States Steel Corp., 425 F. 
Supp. 753, 761 (N.D. Calif. 1977). Statutes of limita­
tion reflect an interest in prohibiting the prosecution of 
stale claims, an interest to be given effect in cases aris­
ing under Section 1981. Johnson v. REA, supra, 421
U.S. 454; 42 U.S.C. i§ 1988. This interest is defeated by 
regarding acts of hiring discrimination as continuing 
indefinitely, so long as they affect calculations of sen­
iority credit under a neutral seniority system. That 
the Fourth Circuit declined to view the individual hiring- 
claims involved here as continuing over approximately 
two decades surely suggests no conflict with this Court’s 
decision in Johnson.

It is not apparent why hiring claims asserted by dis- 
criminatees employed in less desirable classifications al­
legedly continue by operation of a neutral seniority sys­
tem, while claims of persons initially rejected for any 
job but hired later with less seniority than they might 
have had but for the discrimination, do not continue. 
Not only is the present seniority effect given to past acts 
of hiring discrimination the same, but, “if anything, the



7

latter group is more disadvantaged. . . T.I.M.E.-D.C.
v. United States, supra, 431 U.S. at 355. The same ob­
servation can be made with respect to employees dis- 
criminatorily discharged or laid off and later rehired. 
E.g., United Air Lines, Ine. v. Evans, supra, 431 U.S. 
533; Griffin v. Pacific Maritime Ass’n., supra, 478 F.2d 
1118. Certainly the distinction between claims does not 
lie in the nature of a departmental seniority system, for 
there is nothing inherently discriminatory about a de­
partmental seniority system. T.I.M.E.-D.C. v. United 
States, supra, 431 U.S. 324. Nor is there any distinction 
in terms of limitations policy. The accrual of a hiring 
claim is at least as evident to an employee as a rejected 
applicant, and the one has slept on his Section 1981 
rights no less than the other. Johnson v. REA, supra, 
421 U.S. at 466.

Contrary to the Petitioners’ assertion (Pet., at 7), 
the lower Court’s decision does not conflict with, this 
Court’s conclusion in Johnson “that Congress clearly has 
retained § 1981 as a remedy against private employ­
ment discrimination separate from and independent of 
. . . Title VII. . . .” Id. Like Congress,1 this Court con­
sidered the two statutes in a procedural and remedial 
context. Id. at 460. Other than to mention that Title 
VII and Section 1981 are “co-extensive” and that they 
“augment each other and are not mutually exclusive,” 
421 U.S. at 459, Johnson did not consider substantive 
prohibitions against particular acts of discrimination. 
Earlier this Court observed that “legislative enactments

1 Little more can be gleaned from the legislative history of Title 
VII’s 1972 amendments than “a congressional intent to allow an 
individual to pursue independently his rights under both Title VII 
and other applicable state and federal statutes.” Alexander v. 
Gardner-Denver Co., 415 U.S. 36, 48 (1974). Congress was con­
cerned that the short statutes of limitations, complex procedural 
prerequisites and coverage limitations in Title VII required the 
preservation of multiple remedies. Johnson v. REA, supra, 421 
U.S. at 460, 471.



8

in this area have long evinced a general intent to ac­
cord parallel or overlapping remedies against discrimi­
nation.” Alexander v. Gardner-Denver Co., supra, 415
U.S. at 47. As the lower Court found, this Court no­
where has suggested that, as between Title VII and 
Section 1981, “Congress intended to create conflicting 
and contradictory standards for determining what con­
stitutes illegal discrimination.” (Pet., at 6a-7a)

The Petitioners’ assertion (Pet., at 10-11) that the 
decision below is inconsistent with this Court’s constitu­
tional decisions in school desegregation, voting and racial 
convenant cases overlooks fundamental differences be­
tween employment and other types of discrimination 
cases. The school desegregation cases are based on one 
overriding concept : “Separate educational facilities are 
inherently unequal. . . .” Brown v. Bd. of Educ., 347
U. S. 483, 495 (1954). “The burden on a school board 
today is to come forward with a plan that promises real­
istically to work . . . now . . . until it is clear that state- 
imposed segregation has been completely removed.” Green
V. County School Bd., 391 U.S. 430, 439 (1968).

“Freedom-of-choiee” and other desegregation plans dis­
approved by this Court were not themselves held viola­
tive of the fourteenth amendment as perpetuating past 
discrimination. Id. at 439. Instead, they were found in­
sufficient to accomplish desegregation now. Id. at 40. 
In short, the school desegregation cases are concerned 
with the adequacy of remedial measures formulated by 
school boards to comply with their affirmative duty under 
the fourteenth amendment “ ‘to take whatever steps might 
be necessary to convert to a unitary system in which 
racial discrimination would be eliminated root and 
branch.’ ” Swann v. Charlotte-Mecklenburg Bd. of Educ., 
402 U.S. 1, 15 (1971).

These principles cannot be incorporated wholesale into 
the private employment sector. Neither Title VII nor



9

Section 1981 impose an affirmative duty on employers 
and labor organizations to construct a “unitary” employ­
ment system.2 T.I.M.E.-D.C. v. United States, supra, 431 
U.S. at 353. Unlike the school desegregation cases, which 
are concerned with remedies alone, this case turns on 
whether a racially neutral seniority system is itself dis­
criminatory because it does not extend retroactive sen­
iority credits to victims of past hiring discrimination. 
Here the hiring violations are time-barred and have no 
present legal significance, unless the failure to remedy 
them can be said to constitute a present violation. This 
Court has never intimated that the nondiscrimination 
obligation mandates affirmative action of this sort. School 
and employment discrimination cases cannot be equated.3

2 The duty of a union certified as an exclusive bargaining agent 
to represent unit employees fairly is “at least as exacting a duty 
to protect equally the interests of the members, of the craft as the 
Constitution imposes upon a legislature to give equal protection to 
the interests of those for whom it legislates. . . .” Steele v. Louis­
ville & N.R.R., 323 U.S. 192, 202 (1944); see also Syres v. Oil Work­
ers, Local 23, 350 U.S. 892 (1955). Yet this fair representation duty 
is not violated by maintenance of a neutral seniority system, even 
though that system may perpetuate the effects of past discrimina­
tion in hiring. Whitfield, V. United Steelworkers, 263 F.2d 546 (5th 
Cir. 1958), cert, denied, 360 U.S. 902 (1959). The fact that the fair 
representation doctrine rests on equal protection underpinnings 
weighs heavily against the Petitioners’ assertion that the lower 
Court’s decision conflicts with half a century of constitutional deci­
sions because the substantive prohibitions of Section 1981 are at 
least as broad as the fourteenth amendment. (Pet., at 10-11)

3 Lane v. Wilson, 307 U.S. 268 (1939), in which a state first re­
fused to permit blacks to register to vote and then, in effect, closed 
out the voting lists to all prospective registrants, is even wider of 
the mark. The state’s conduct there more nearly can be analogized 
to a seniority system which is negotiated and maintained for ex­
press discriminatory purposes. See T.I.M.E.-D.C. V. United States, 
supra, 431 U.S. at 356.



10

II.

THERE IS NO CONFLICT OF DECISION

Minor differences of principle are apparent in the de­
cisions of the several Courts of Appeal that have applied 
Section 1981 to employment discrimination cases. But 
these differences cannot fairly be described as conflicts 
of decision. At the outset, it should be noted that this 
Court has vacated and remanded cases brought under 
Section 1981 for reconsideration in light of T.I.M.E.- 
D.C.* In view of this Court’s action, it is highly ques­
tionable whether Section 1981 cases decided before 
T.I.M.E.-D.C.4 5 6 by Circuit Courts that have not yet re­
considered the issue necessarily represent the state of 
the law within these Circuits. Cf. United States v. East 
Texas Motor Freight System, Inc., 564 F.2d 179, 185 
(5th Cir. 1977). The correctness of this view is indi­
cated by the Sixth Circuit’s experience. Afro American 
Patrolmens League v. Duck, supra, 503 F.2d 294 and 
Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974), 
cited in the Petition, at 9, were followed by Alexander 
v. Aero Lodge No. 735, I AM, 565 F.2d 1364 (6th Cir. 
1977), cert, denied, 56 L.Ed.2d 787 (1978). Although 
the Alexander case was brought under both Title VII 
and Section 1981, the Sixth Circuit Court of Appeals re­
versed on the “seniority perpetuation” issue in light of 
T.I.M.E.-D.C.«

4 Western Gillette, Inc. v. Sabala, 431 U.S. 951 (1977); Detroit 
Edison Co. v. EEOC, et al., 431 U.S. 951 (1977).

5 E.g., Afro American Patrolmens League v. Duck, 503 F.2d 294 
(6th Cir. 1974); Macklin v. Spector Freight Systems, 478 F 2d 979 
(D.C. Cir. 1973).

6 There was no discussion of whether the bona fide seniority sys­
tem in Alexander violated Section 1981. But the Sixth Circuit di­
rected the District Court to “consider whether, absent consideration 
of the effects of the seniority system,” the proof had established a 
“ ‘regular procedure or policy’ ” of discrimination. 565 F.2d at 1383.



11

No Circuit has held that Title VII, § 703(h) impliedly 
repealed Section 1981. In Chance v. Board of Examiners, 
534 F.2d 993, modified on other grounds, 534 F.2d 1007 
(2d Cir. 1976), cert, denied, 431 U.S. 965 (1977), the 
Second Circuit Court of Appeals declined to condemn as 
violative of Section 1981 a seniority system that with­
stood scrutiny under Title VII. The alternative grounds 
for its holding were that Title VII, § 703(h) either im­
pliedly repealed “any possible contrary construction of 
§ 1981,” or furnished “a statement of guiding legal prin­
ciples. . . .” Id. at 998. The latter ground enjoys wide 
acceptance among the lower Courts, which properly have 
interpreted Section 1981 to avoid substantive conflicts 
with Title VII. Patterson v. American Tobacco< Co., 535 
F.2d 257 (4th Cir.), cert, denied, 429 U.S. 920 (1976) ; 
Waters v. Wisconsin Steel Works, supra, 502 F.2d at 
1320 n.4; accord, Watkins v. United Steelworkers, Local 
2369, 516 F.2d 41 (5th Cir. 1975).7

Thus the several Courts of Appeal have followed closely 
parallel avenues in reaching the same result, that is, 
Section 1981 does not outlaw bona fide seniority systems. 
But this fact falls far short of establishing a conflict in 
decision warranting exercise of this Court’s certiorari 
authority.

The Court also stated its agreement with the holding of Waters v. 
Wisconsin Steel Works, 502 F.2d 1309 (7th Cir. 1974), cert, denied, 
425 U.S. 997 (1976).

7 In Watkins, while suggesting that the substantive standards 
under Title VII and Section 1981 were the same as to employment 
issues dealt with by both statutes, the Fifth Circuit Court of Appeals 
rejected a challenge to* a bona fide seniority system under Section 
1981 because the proof did not establish acts of hiring discrimina­
tion against specific individuals allegedly perpetuated by the sen­
iority system. See also* United States v. East Texas Motor Freight 
System, Inc., supra, 564 F.2d at 185, where the Court of Appeals 
intimated that the principles of T.I.M.E.-D.C. also applied to Section 
1981 claims.



12

The Third Circuit Court of Appeals’ decision in Bolden
V. Pennsylvania State Police, 17 FEP Cases 687 (8th 
Cir. 1978), does not detract from our conclusion. There 
an intervenor attempted to obtain, pendente lite, modifica­
tion of a consent decree’s remedial provisions, to which 
it had agreed, on the ground of precedential evolution. 
Noting that the intervenor shouldered a particularly 
heavy burden, the Third Circuit denied relief. Due to the 
procedural context of the case, the issue was cast in 
terms of remedy and not violation: Whether T.I.M.E.- 
D.C. and its progeny “have made the elimination of 
seniority as a criterion for promotion illegal.” Id, at 698. 
The Court indicated that it could not impute to Congress 
an “intention to circumscribe the remedial authority of 
the federal courts under §§ 1981, 1983, 1985 and 1988.” 
Id. It also emphasized the “distinction, when relief is 
sought under Title VII, between violations of § 703(h) 
and remedies under 1 706(g).” Id. Clearly Bolden did 
not reach the issue in the instant case.

III.

COUNTY OF LOS ANG ELES  v. DAVIS, NO. 77-1553,
PRESENTS A DIFFERENT LEGAL QUESTION

In County of Los Angeles v. Davis, 566 F.2d 1334 
(9th Cir. 1977), cert, granted, 46 U.S.L.W. 3780 (U.S., 
June 19, 1978) (No. 77-1553), the Ninth Circuit Court 
of Appeals held that use of an employment test violated 
Section 1981 based on a showing that the test screened 
out disproportionate numbers of minority persons, thus 
establishing a prima facie case of discrimination which 
was not rebutted due to the employer’s failure to demon­
strate the test’s validity. A divided panel held that no 
proof of an actual intent to discriminate was required 
under Section 1981 as it is in equal protection cases. 
Washington v. Davis, 426 U.S. 229 (1976). In the



13

panel’s view, Title VII’s impact discrimination standard, 
as outlined in Griggs v. Duke Power Co., 401 U.S. 424 
(1971), is applicable to Section 1981 claims.

“Impact discrimination” is significantly different than 
the “past discrimination perpetuated” theory on which 
the instant case was tried and appealed. Disproportionate 
impact and job relatedness are critical issues in “impact 
discrimination” cases, Dothard v. Rawlinson, 433 U.S. 
321 (1977), while “past discrimination perpetuated” 
theories turn on a failure to extend a remedy for earlier 
acts of discrimination. See T.I.M.E.-D.C. v. United, States, 
supra, 431 U.S. at 348. These differences are under­
scored by the fact that County of Los Angeles does not 
involve the statute of limitations or seniority issues 
presented by the question in this case. Whether a viola­
tion of Section 1981 can be made out without proof of an 
actual intent to discriminate is simply not a question 
here.

Even if we are wrong in this regard, it is clear that 
this Court’s decision in County of Los Angeles will not 
affect the result reached by the Court below. A holding 
that intentional discrimination is a critical element of 
a Section 1981 claim will privilege bona fide seniority 
systems, since they are by definition negotiated and main­
tained without regard to race. If, on the other hand, 
this Court agrees with the Ninth Circuit’s holding that 
there is no operational distinction in liability standards 
between Title VII and Section 1981, bona fide seniority 
systems will be no more subject to attack under Section 
1981 than Title VII.



14

CONCLUSION

For the foregoing reasons, the petition for a writ of 
certiorari to the Fourth Circuit Court of Appeals should 
be denied.

Respectfully submitted,

David P reviant 
Robert M. Baptiste 
Roland P. W ilder, J r.

25 Louisiana Avenue, N.W. 
Washington, D.C. 20001

F rancis M. F letcher, J r.
Harkey, F aggart, Coira & 

F letcher
1924 Wachovia Center 
Charlotte, North Carolina 28285

Counsel for the Union Respondents