Delay v. Carling Brewing Company Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 76-3221

JOE DELAY, et al.,

Plaintiffs-Appellants, 
- vs -

CARLING BREWING COMPANY, et al.,
Defendan ts-Appellees.

On Appeal From The United States District Court 
For The Northern District of Georgia

BRIEF FOR PLAINTIFFS-APPELLANTS

KENT SPRIGGS
324 W. College Avenue 
Tallahassee, Florida 32301

N. DAVID BUFFINGTON
88 Walton Street, N.W. 
Atlanta, Georgia 30303

JACK GREENBERG 
RONALD ELLIS

10 Columbus Circle 
Suite 2030
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS-APPELLANTS



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 76-3221

JOE DELAY, et al.,
Plaint if f s-Appe Hants, 
- vs -

CARLING BREWING COMPANY, et al.,
Defendants-Appellees.

CIRTIFICATE REQUIRED BY FIFTH CIRCUIT 
__________LOCAL RULE 13(a)___________

The undersigned, counsel of record for Plaintiffs- 
Appellants, certifies that the following listed parties have 
an interest in the outcome of this case. These representa­
tions are made in order that Judges of this Court may 
evaluate possible disqualification or recusal pursuant to 
Local Rule 13(a).

1. Joe Delay and Walter Wilkins, both plaintiffs.
2. The class of black employees of Carling Brewing 

Company who were employed at the company's Atlanta 
Plant, whom the plaintiffs represent.

i



2

1

3. Carling Brewing Company, defendant.
4. Local 357, International Union of Brewery, Flour, 

Cereal, Soft Drink and Distillery Workers of 
America, AFL-CIO, now merged with the International 
Brotherhood of Teamsters, Chauffeurs, Warehousemen 
and Helpers of America, defendants.

ATTORNEY FOR PLAINTIFFS-APPELLANTS

V



TABLE OF CONTENTS

Certificate Required by Local Rule 13(a) .........  i
Table of Contents ................................  xii
Table of Authorities .............................  v
Statement of Issues Presented for Review .........  xi

r

STATEMENT OF THE CASE .................................  1
STATEMENT OF FACTS ...................................  2
ARGUMENT .............................................  4

THE DISTRICT COURT ERRED IN 
GRANTING SUMMARY JUDGMENT 
FOR DEFENDANTS BASED ON
SECTION 703(h) OF TITLE VII .........  4
A. Neither the Language of 
§703(h) nor the Legislative 
History of Title VII Justif­
ies the Interpretation of
the District Court ..................  5
A SENIORITY SYSTEM WHICH

' PERPETUATES THE EFFECTS OF
PRE-ACT DISCRIMINATION IS 

I A LEGAL WRONG UNDER TITLE
VII .................................  14
A. Seniority Rights are
Not Inviolable ......................  14

B. Company Seniority, Like 
Departmental Seniority, Can 
Perpetuate Past Discrimina­
tion and Thus be Illegal
Under Title VII .....................  16

Page

iii



Page
C. Maintaining a Seniority System 
Which Disadvantages Blacks Who Are 
Identifiable Victims of Past 
Racial Discrimination Is, Of Itself,
Present Discrimination As to Those 
Individuals ......................  20
D. Identifiable Victims of Pre-Act 
Discrimination May Seek Redress 
From a Seniority System Which Has 
the Effect of Perpetuating That
Prior Discrimination .............  23
E. The Closing of the Company's 
Atlanta Plant, While Foreclosing 
Certain Seniority Relief for 
Plaintiffs, Has Eliminated 
Equitable Objections Raised By Some
Courts ...........................  28
REGARDLESS OF THE RESULT OF 
PLAINTIFFS' TITLE VII CLAIM, THE 
DISTRICT COURT ERRED IN NOT GRANTING
RELIEF UNDER 42 U.S.C. §1981 .....  30

CONCLUSION ......................................  36



TABLE OF AUTHORITIES

s

Cases:

Acha v. Beame, 531 F.2d 648 (2nd Cir. 1976) ___
Afro-American Patrolmens League v. Duck, 366

F. Supp..1095 (N.D. Ohio 1973), aff'd in 
pertinent part, 503 F.2d 294 (6th Cir.
1974) ............................

22, 24, 25, 26
Page

22
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) .....................................  15, 31, 35
Allen v. City of Mobile, 331 F. Supp. 1134 (S.D.

Ala. 1971), aff'd per curiam, 466 F.2d 122 
(5th Cir. 1972), cert, denied, 412 U.S. 909 
(1973) .....................................  22

Alpha Portland Cement Co. v. Reese, 507 F.2d 607 
'-(5th Cir. 1975) ...........................

Brady v. Bristol-Meyers Co., 459 F.2d 621 (8th 
Cir. 1972) ...............................

Bridgeport Guardians, Inc. v. Members of Civil 
Service Com'n, 497 F.2d 1113 (2nd Cir. 1974), 
cert, denied, 421 U.S. 991 (1975) ..........  22

Brown v. Gaston County Dyeing Co., 457 F.2d 1377 
(4th Cir. 1972), cert, denied, 409 U.S. 982 
(1972) .....................................  30

Caldwell v. National Brewing Co., 443 F.2d 1044 
(5th Cir. 1971), cert, denied, 405 U.S. 916 
(1972) .....................................  30

Chance v. Board of Examiners, 534 F.2d 993 (2nd
Cir. 1976) .................................  24

Contractors Association of Eastern Pennsylvania 
v. Secretary of Labor, 442 F.2d 159 (3rd Cir.
1971), cert, denied, 404 U.S. 854 (1971) ___ 33

v



Page
Dobbins v. Electrical Workers Local 212, 292

F. Supp. 413 (S.D. Ohio 1968), aff'd as later 
modified, 472 F.2d 634 (6th Cir. 1973) ..... 21

EEOC v. Plumbers, Local Union No. 189, 311 
F. Supp. 468 (S.D. Ohio 1970), vac1d on 
other grounds, 438 F.2d 408 (6th Cir. 1971), 
cert, denied 404 U.S. 832 (1971) ........... 21

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 
(1973) ..................................... 32

Evans v. United Air Lines, Inc., 534 F.2d 1247 
(7th Cir. 1976), cert, granted, 45 U.S. L.W. 
3321 (1976) ................................ 19

Franks v. Bowman Transportation Co., Inc.,
U.S. , 47 L.Ed 2d 444 (1976} ..........

2, 4, 6, 8, 14,
25, 29, 30

Ford Motor Co. v. Huffman, 345 U.S. 330
(1953) ..................................... 14, 15

Gresham v. Chambers, 501 F.2d 687 (2nd Cir.
(1974) ..................................... 34

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

A
7

Guerra v. Manchester Terminal Co., 498 F.2d 
i 641 (5th Cir. 1974) ........................ 32

Harper v. Mayor and City Council of Baltimore,
359 F. Supp 1187 (D. Md. 1973), aff'd sub 
nom. Harper v. Kloster, 489 F.2d 1134 (4th 
Cir. 1973) ................................. 22

Head v. Timken Roller Bearing Co., 486 F.2d 870 
(6th Cir. 1973) ............................ 16, 30

Humphrey v. Moore, 375 U.S. 335 (1964) ........ 14
Johnson v. Railway Express Agency, Inc., 421 U.S. 

454 (1975) ................................. 30, 31

vi



Page

Jones v. Alfred H. Mayer Co., 392 U.S. 409
(1968)   34

Local 189, United Paperxnakers and Paperworkers v. 7, 8, 13, 14, 
United States, 416 F.2d 980 (5th Cir. 1969) 15, 16, 19,
cert, denied, 397 U.S. 919 (1970) ..........  21, 30

Loy v. City of Cleveland, 8FEP Cases 614 (N.D.
Ohio 1974)   22

Macklin v. Spector Freight Systems, Inc., 478
F .2d 979 (D.C. Cir. 1973)   34

Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir.
1975) , cert, denied (1976) ................. 2, 8, 29

Morton v. Mancari, 417 U.S. 535 (1974)   33
Nance v. Union Carbide Corporation, Consumer 21, 18

Products Division, 540 F.2d 718 (4th Cir.
1976) ......................................

Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968)   15

Pettway v. American Cast Iron Pipe Co., 494 F.2d
211 (5th Cir. 1974)   30

Posadas v. National City Bank, 296 U.S. 497
(1936)   33

Quarles v. Philip Morris, Inc., 279 F. Supp. 505 7, 13, 15,
(E.D. Va. 1968) ............................  19, 21

Robinson v. Lorillard Corp., 444 F.2d 791 (4th 
Cir. 1971), cert, dismissed, 404 U.S. 1006 
(1971)    13, 16

Rowe v. General Motors Corp., 457 F.2d 348 (5th
Cir. 1972) .................................  7, 22

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 
(5th Cir. 1970), cert, denied, 401 U.S. 948 
(1971) .....................................  30, 34

vii



Page

«

i

Schaeffer v. Tannian, 394 F. Supp. 1136 (E.D. 
Mich. 1975) ...........................

Silver v. New York Stock Exchange, 373 U.S. 341 
(1963) ..................

Sullivan v. Little Hunting Park, Inc., 396 U.S. 
229 (1969) ................................

Tillman v. Wheaton-Haven Rec. Ass'n, 410 U.S.
431 (1973) ................................

United States v. Bethlehem Steel Corp., 446 F.2d 
652 (2nd Cir. 1971) .......................

United States v. Chesapeake & Ohio R. Co., 471 
F.2d 582 (4th Cir. 1972), cert, denied, 411 
U.S. 939 (1973) ...........................

United States v. Georgia Power Co., 474 F.2d 906 
(5th Cir. 1973) ...........................

United States v. Jacksonville Terminal Co., 451 
F.2d 418 (5th Cir. 1971), cert, denied, 406 
U.S. 906 (1972) ...........................

United States v. N.L. Industries, Inc., 479 F.2d 
354 (8th Cir. 1973) ....................... .

United States v. Sheet Metal Workers, Local 36, 
416 F.2d 123 (8th Cir. 1969) ...............

Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir. 
1971) ......................................

Washington v. Davis, _____U.S._____ 48 L.Ed 2d
597 (1976) .................................

Waters v. Wisconsin Steel Works of International 
Harvester Co., 427 F.2d 476 (7th Cir. 1970), 
cert, denied, 400 U.S. 911 (1970) ..........

27

33

34

35

13, 20, 22

16

17

16, 19

16

21

15

32

34

viii



Page
Watkins v. Scott Paper Co., 530 F.2d 1159 (5th 

Cir. 1976), cert, denied, _____U.S._____
(1976) .....................................  5, 23, 24

Watkins v. United Steel Workers of America, Local
No. 2369, 516 F.2d 41 (5th Cir. 1975) ......  19

Young v. International Telephone & Telegraph Co.,
438 F.2d 757 (3rd Cir. 1971) ...............  34

i
Statutes:

42 U.S.C. §1981 (Civil Rights Act of 1886) .....  1, 30, 31, 32, 33
42 U.S.C. §1982 ...............................  34> 35
42 U.S.C. §§2000a et. seq. (Title II, Civil

Rights Act of 1964)   ]_q
42 U.S.C. §2000a (e)   35
42 U.S.C. §§2000d et. seq. (Title VI, Civil

Rights Act of 1964)   10
42 U.S.C. §§2000e et. seq. (Title VII, Civil

•̂■i-Û ts Act of 1964) ......................... passim
42 U.S.C. §2000e-2(a) (Title VII, §703 (a) .....  7, 15

t 42 U.S.C. §2000e-2(c) (Title VII, §703 (c) .....  7

42 U.S.C. §2000e-2 (h) (Title VII, §703 (h) .....  passim
42 U.S.C. §2000e-2(j) (Title VII, §703 (j) .....  33
42 U.S.C. §§3601 et. seq. (Civil Rights Act of

(1968)   34

xx



Legislative Materials: paqe
110 Cong. Rec. 2726 (1964)   12

110 Cong. Rec. 2727 (1964)   12
110 Cong. Rec. 2728 (1964)   12

110 Cong. Rec. 7206 (1964) (Interpretative
Memorandum prepared by Department of
Justice ....................................  Q> i3

110 Cong. Rec. 7212 (1964) (Clark-Case
Interpretative Memorandum ..................  8, 9, 13

110 Cong. Rec. 7215 (1964) (Clark-Kirksen
Responses) .................................  g/ 13

110 Cong. Rec. 11,930 (1964)   10
110 Cong. Rec. 12,723 (1964)   11

110 Cong. Rec. 12,813 (1964)   10
110 Cong. Rec. 13,650 (1964)   31
110 Cong. Rec. 14,511 (1964)   11

110 Cong. Rec. 15,896 (1964)   11

110 Cong. Rec. 15,998 (1964)   11

110 Cong. Rec. 16,002 (1964)   11

H.R. Rep. No. 914, 88th Cong., 1st Sess.
(1963) .....................................  12

H.R. Rep. No. 92-238 (1971) ...................  31
S. Rep. No. 92-415 (1971) .....................  31

Authority:
Cooper and Sobol, Seniority and Testing Under Fair 

Employment Laws: A General Approach to
Objective Criteria of Hiring and Promotion, 82
HARV.L.REV. 1598 (1969) .....................  10, 20, 28

x



STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether the district court erred in dismissing 
plaintiffs' Title VII claim.

2. Whether the district court erred in not granting 
plaintiffs relief under 42 U.S.C. §1981.

xi



STATEMENT OF THE CASE
This is an action brought in the United States District 

Court, Northern District of Georgia, by Joe Delay ("Delay") and 
Walter Wilkins ( Wilkins") as a class action to enforce the 
provisions of 42 U.S.C. §1981 and Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §2000e et seg., against Carling Brewing 
Company ("Carling") and Local 357, International Union of United 
Brewery, Flour, Cereal, Soft Drink, and Distillery Workers of 
America ("Local 357"). In their complaint, filed September 21, 
1973, Delay and Wilkins sought injunctive and other appropriate 
relief for themselves and the class. They alleged that Carling 
discriminated against black workers in that layoffs and recalls 
were determined by a collectively-bargained plant seniority sys­
tem based on date of hire; thus, because blacks were 
categorically excluded from employment by Carling prior to 1963, 
a disproportionate number of blacks were laid off each year 
because of the substantial seasonal fluctuation in Carling's 
work force. (R. 4-7)*Carling filed its answer on November 30, 
1973. (R. 26-30) Local 357's parent international union merged
with the International Brotherhood of Teamsters, et al. 
("Teamsters"); District Judge Newell Edenfield allowed counsel 
for Local 357 to withdraw because the Teamsters did not desire 
to use the same counsel. (R. 32-34) After answering interroga­
tories served upon it by plaintiffs (Interrogatories: R. 11-16;
* Citations to Record are in this form.



Answers and Attachments: R. 35-352), Carling moved for summary 
judgment on February 15, 1974. (R. 353) On June 25, 1974,
Judge Edenfield entered an order denying Carling's motion for 
summary judgment. (R. 551-554) The order was based primarily 
on Watkins v. United Steel Workers of America, Local 2369. 369 
F. Supp. 1221 (E.D. La. 1974). (R. 553, 554) On February 25,
1975, Carling moved for reconsideration of its previous motion. 
(R. 555) On March 12, 1975, Judge Edenfield entered an order 
staying further proceedings pending the Fifth Circuit's decision 
in Watkins, supra. (R. 566-567) On July 31, 1975, following 
the Fifth Circuit decision, Judge Edenfield entered an order dis­
solving the stay and inviting the parties to file new briefs in 
light of the decision. (R. 570-571) Following the filing of 
the called-for briefs, on December 22, 1975, Judge Edenfield 
entered an order staying further proceedings pending the Supreme 
Court's decision in Franks v. Bowman Transportation Co.. 495 
F.2d 398 (5th Cir. 1974), cert, granted. 420 U.S. 989 (1975).
(R. 599-602) On April 7, 1976, plaintiffs filed a motion to dis­
solve the stay because the Supreme Court had decided Bowman. 
supra. (R. 603) On July 30, 1976, Judge Edenfield entered an
order granting Carling's motion for summary judgment. (R. 616- 
621) It is from this order that plaintiffs have appealed.
(R. 623)

STATEMENT OF FACTS
Carling engaged in a systematically discriminatory program

2



of refusing to hire blacks until approximately 1963. (R. 551)
Delay sought employment at Carling in 1960. (R. 519) Wilkins
sought employment at Carling in 1963. (R. 548) During Congress­
ional deliberation on the Civil Rights Act of 1964, but prior to 
its enactment (July 2, 1964) and its effective date (July 2,
1965), Delay and Wilkins were hired by Carling. (R. 521,549, 
respectively) The collective bargaining agreement between 
Carling and Local 357 provided for layoffs and recalls on the 
basis of a plant-wide seniority system. (R. 552) Due to the 
seasonal nature of the brewery business, many of Carling's employ­
ees were laid off for up to six months of each year. (R. 520,549, 
552) Because of the late date at which Carling began to hire 
blacks, the practical result of the last hired-first fired
seniority system was that all black employees were laid off four 
to six months each year. (R. 552) This caused not only a large 
direct economic effect on the black workers, but also resulted in 
the black workers being ineligible for pension and health 
benefits and vacation leave. (R. 549-552) Delay filed a charge 
of discrimination with the Equal Employment Opportunity 
Commission on April 22, 1969. (R. 37) The financial effect of
the layoffs was so great that Delay was forced to resign in 
July, 1969. (R. 520) Carling decided to close its Atlanta 
brewery, and, as it curtailed its operations, it terminated all 
of its remaining black employees in 1972. (R. 549) Carling
closed its brewery in 1974. (R. 563) Delay received his right-to-
sue letter dated July 11, 1973 from the Equal Employment Opportunity- 
Commission (R. 8), and, together with Wilkins, filed the instant 
action on September 21, 1973 (R. 4).

3



ARGUMENT

THE DISTRICT COURT ERRED IN 
GRANTING SUMMARY JUDGMENT 
FOR THE DEFENDANTS BASED ON 
SECTION 703 (h) OF TITLE VII

The district court's order in the instant case resulted 
from an improper extention of the Supreme Court's decision
i-n Franks v. Bowman Transportation Co,. _____ U.S. ,
47 L.Ed 2d 444 (1976). In Franks, the Court stated clearly 
in the beginning of its opinion what that case was concerned 
with:

This case presents the question 
whether identifiable applicants 
who were denied employment 
because of race after the 
effective date and in violation 
of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§2000e 
et seq. [42 U.S.C.S. §§2000e et 
seq.], may be awarded seniority 
status retroactive to the dates 
of their employment applications 
(footnote omitted). 47 L.Ed 2d
at 453.

It is thus quite clear that Franks was not this case. The 
Court was faced with denials of employment after the 
effective date of Title VII. Here the denials occurred prior 
to the effective date of Title VII. Yet, the district court 
presumed to extract from that decision a controlling 
principle for a situation which was not before the Court and

4



which the Court had no need to decide.
The fallacy in the district court's approach is self-

evident. The court began by stating that the Supreme Court
noted a difference between pre-Title VII and post-Title VII

1/
discrimination in hiring. From there, it concluded that, 
while the latter formed a basis for relief, the former did 
not. There, however, is no logical nexus between the 
premise (different situation) and the conclusion (opposite 
result). Indeed this Court has declined to make a similar 
inference. Watkins v. United Steel Workers of America, Local 
No.2369, 516 F.2d 41 (5th Cir. 1975). As the discussion, 
infra, makes clear, it is the similarity between the two 
situations, and not the difference, which is determinative 
of the result.

A. Neither the Language of §703(h) nor the Legislative 
History of Title VII Justifies the Interpretation of 
the District Court.

The district court interpreted Section 703(h) as grant­
ing an exemption for plant seniority:

If §703(h) means anything at all, 
it must mean that plant seniority 
rights acquired prior to the 
passage of the Act are not to be

,l/"This court agrees with the defendant that the Supreme 
Court opinion in Franks makes a distinction between pre- 
and post-Act discrimination as it relates to vested 
seniority rights." (R. 620)

_ 5 _



divested in order to correct the 
effects of unfortunate, but not 
illegal, past discrimination.
(R. 620).

The court purported to draw support from the legislative
history of Title VII. An analysis of section 703(h) itself
and Title VII history in general, however, does not sustain

2/
this contention by the district court.

Section 703(h), 42 U.S.C. §2000e-2(h), provides in 
pertinent part:

Notwithstanding any other provision 
of this title, it shall not be 
unlawful employment practice for an 
employer to apply different stand­
ards of compensation, or different 
terms, conditions, or privileges of 
employment pursuant to a bona fide 
seniority or merit system. . . .

2/ Cf.. Franks v. Bowman Transportation Co., supra, where 
the Supreme Court said about §703(h):

[I]t is apparent that the thrust of 
the section is directed toward 
defining what is and what is not an 
illegal discriminatory practice in 
instances in which the post-Act 
operation of a seniority system is 
challenged as perpetuating the 
effects of discrimination occurring 
prior to the effective date of the 
Act. 47 L.Ed 2d at 460.

No exemption for plant seniority is noted. That, of course, 
would presume to answer the question of "what is not an 
illegal discriminatory practice," namely, the use of plant 
seniority.

6



Stated simply the clause means that an employer may utilize 
a "bona fide seniority or merit system" without being 
guilty of an unlawful employment practice. Neither this 
section nor any other part of Title VII defines what is 
meant by the phrase "bona fide" seniority system. The 
courts, however, have generally agreed that "one characteris­
tic of a bona fide seniority system must be lack of discrim­
ination." Quarles v. Philip Morris. Inc.. 279 F.Supp. 505, 
517 (E.D. Va. 1968); Local 189. United Papermaker & Paper- 
workers v. United States.416 F.2d 980, 987 (5th Cir. 1969), 
cert, denied. 397 U.S. 919 (1970).

This interpretation of §733 (h) is consistent with the 
broad prohibitory language of §§703 (a), (c), 42 U.S.C.
§§2000e-2(a), (c). These provisions generally define unlaw­
ful employment practices by employers and unions# 
respectively. By their terms they would appear to prohibit
any discriminatory employment practice unless it is

3/
specifically authorized elsewhere.

3/ See, e«g., Local 189, United Papermaker^and Paperworkers 
v. United States, 416 F.2d 980; (5th Cir. 1969), cert. 
denied, 397 U.S. 919 (1970) (hereinafter "Local 189") Rowe 
v. General Motors Corp.. 457 F.2d 348, (5th Cir. 1972); 
Griggs v. Duke Power Co.. 401 U.S. 424 (1971).

7



The legislative history of Title VII provides no basis 
for altering this construction of §703(h), i.e. that a dis­
criminatory seniority system is not protected. See Franks 
v . Bowman Transportation Co.. supra. At best the history 
of the title is confusing and contradictory as regards 
seniority rights. Much of the controversy centers around 
several documents inserted into the Congressional record 
by Senator Clark, the floor manager of the equal employment 
title. The three documents are an Interpretative Memorandum 
PreP^red by the Department of Justice, 110 Cong. Rec. 7206- 
07, "Clark-Case Interpretative Memorandum," 110 Cong. Rec.

4/ Local 189, supra (legislative history is "singularly uninstructive on seniority rights").
5/ The Department of Justice Memorandum states in pertinent part:

Title VII would have no effect on seniority rights existing at the time it takes effect, 
if/ for example, a collective bargaining con­
tract provides that in the event of layoffs, 
those who were hired last must be laid off 
first, such a provision would not be affected 
in the least by Title VII. This would be 
true even in the case where owing to dis­
crimination prior to the effective date of 
the title, white workers had more seniority 
than Negores. Title VII is directed at 
discrimination based on race, color, religion, 
sex or national origin. It is perfectly clear 
that when a worker is laid off or denied a 
chance for promotion because under established 
seniority rules he is low man on the totem 
pole he is not being discriminated against 
because of his race. 110 Cong. Rec. 7207.

8



7212-15, and a set of prepared answers by Senator Clark to6/

questions suggested by Senator Dirksen, 110 Cong. Rec.1/7215-17.

6/ The "Clark-Case Memorandum," states that:
Title VII would have no effect on established 
seniority rights. Its effect is prospective 
and not retrospective. Thus, for example, 
if a business has been discriminating in the 
past and as a result has an all-white working 
force, when the title comes into effect the 
employer's obligation would be simply to 
fill future vacancies on a nondiscriminatory 
basis. He would not be obliged —  or indeed, 
permitted —  to fire whites in order to hire 
Negores, or to prefer Negores for future 
vacancies, or, once Negroes are hired to 
give them special seniority rights at the 
expense of the white workers hired earlier. 
(However, where waiting lists for employ­ment or training are, prior to the effective 
date of the title, maintained on a discrimina­
tory basis, the use of such lists after the 
title takes effect may be held an unlawful 
subterfuge to accomplish discrimination.)
110 Cong. Rec. 7213.

7/ Two of the prepared responses are pertinent to the ques­
tion here.

Question. Would the same situation prevail in respect to 
promotions when that management function is governed 
by a labor contract calling for promotions on the 
basis of seniority? What of dismissals? Normally, 
labor contracts call for 'last hired, first fired.'
If the last hired are Negores, is the employer dis­
criminating if his contract requires that they be 
first fired and the remaining employees are white?

Answer. Seniority rights are in no way affected 
by the bill. If under a 'last hired, first fired' 
agreement a Negro happens to be the 'last hired,' he 
can still be 'first fired' as long as it is done 
because of his status as 'last hired' and not because 
of his race. 110 Cong. Rec. 7217.

*  *  *

_ 9



There are numerous reasons why these statements do not 
properly reflect the meaning of Title VII as enacted.^/
The most critical defect in relying on these statements is 
that they were made before the present Title VII was drafted 
and more particularly, the specific language of Section 703(h), 
relating to seniority, was drafted. Some weeks after these 
statements were inserted in the Congressional Record, a sub­
stitute "Dirksen—Mansfield" bill, authoredtya bipartisan 
leadership group, was introduced on May 26, 1964 as a sub­
stitute for the original bill. (110 Cong. Rec. 11930-36).
This substitute bill replaced the Clark bill in its entirety

2/and modified it substantially. It was this substitute, 
containing §703(h), 110 Cong. Rec. 12,813 (1964), which was

"Question. If an employer is directed to abolish 
his employment list because of seniority discrimination, 
what happens to seniority?

Answer: The bill is not retroactive, and it will
not require an employer to change existing seriority lists."

8/ See Cooper and Sobol, Seniority and Testing Under Fair 
Employment Laws: A general Approach to Objective Criteria of
Hiring and Promotion. 82 Harv. L. Rev. 1598, 1611-1614.
9/ The Senatorial deadlock that produced the substitute was 
not to any significant extent over seniority. The proscrip­
tions on employment discrimination contained in the Title VII 
bill were merely one part of an historic omnibus bill which 
also had controversial titles prohibiting, inter alia, dis­
crimination in public accommodations (Title II, see 42 U.S.C. 
§§2000a et seq.) and in federally-assisted programs including 
public and private schools (Title VI, see 42 U.S.C. §§2000d 
et seq.). Even limiting the analysis to Title VII provisions, 
the critical issue was not over seniority but whether EEOC 
should have any enforcement powers and if so of what nature 
("cease-and-desist" or right to sue in federal court). See, 
e.g., 110 Cong. Rec. 12,721-22 (1964) (remarks of Senator Humphrey).

10



subsequently enacted. 110 Cong. Rec. 14,511 (1964). The 
statements introduced by Senator Clark were thus interpretive 
of a bill that did not pass and not of Title VII or of §703(h) 
as enacted. It is therefore appropriate to rely on the 
specific language of §703(h) rather than on these earlier 
legislative statements.

In explaining the addition of §703(h), Senator Humphrey
commented that "[t]he change does not narrow application of
the title, but merely clarifies its present intent and effect,"
110 cong. Rec. 12,723 (1964). No further explanation of the
new section was made in the Senate. In the House, Rep. Celler,
the bill's House Manager, explained the changes made by the
substitute bill. He noted as a significant modification the
provision of §703(h) permitting non-discriminatory ability 

10/tests.—  110 Cong. Rec. 15,896. He made no mention of its
"bona fide seniority system" language. id. This failure to 
note the seniority language as significant has added import
when the House's previous concern over the effects on seniority 
is considered. A dissenting minority of the House Judiciary

10/ After final passage of Title VII, Rep. McCullough, "who 
had much to do with the passage and also the preparation of 
the civil rights bill," 110 Cong. Rec. 15,998 (1964) (remarks 
of Sen. Dirksen), prepared a comparative analysis of the 
original House-passed bill and the final Senate version. That 
analysis notes that the House version lacked any §703(h) pro­
vision, but describes the Senate-added section solely as 
authorizing the use of professionally developed ability tests, 110 Cong. Rec. 16,002 (1964).

11



Committee, which reported the bill out with favorable recom­
mendation, argued that the bill would destroy all seniority

l1/systems.—  The bill's proponents did not refute these 
statements. An amendment to exempt from Title VII's pros­
cription all employment practices based on a seniority 
system was defeated on the House Floor. 110 Cong. Rec. 
2727-2728 (1964).

To ascribe to §703(h) an exemption for seniority systems 
would be to accept the premise that House leaders, who had 
specifically rejected such an exemption, did not consider 
such a change significant and therefore found no reason to 
comment thereon.

The viability of the Clark materials is further suspect 
because, taken literally, they would immunize all established

11/ The minority protested that,
If the proposed legislation is enacted, the 

President of the United States and his appointees - 
particularly the Attorney General - would be granted 
the power to seriously impair . . . the seniority 
rights of employees in corporate and other employment 
[and] the seniority rights of labor union members 
within their locals and in their apprenticeship 
program.

The provisions of this act grant the power to 
destroy union seniority . . . .  with the full statu­
tory powers granted by this bill, the extent of 
actions which would be taken to destroy the seniority 
system is unknown and unknowable. H. Rep. No. 914, 
88th Cong. 1st Sess. 64-66, 71-72 (emphasis supplied).
See also, 110 Cong. Rec. 2726 (1964) (remarks of 
Rep. Dodwy).

12



seniority rights. Courts have unanimously rejected this notion
13/as inconsistent with the true Congressional purpose. Any 

interpretation which shields a system having discriminatory 
effects is similarly at odds with Congressional intent.

The construction given §703(h) by the district court 
provides such a shield, for it would immunize a seniority sys­
tem, no matter how discriminatory its effect unless there is

12/

12/ See, e,g., the following statements:

"Title VII would have no effect on seniority 
rights existing at the time it takes effect." 
Department of Justice Interpretative Memorandum,
110 Cong. Rec. 7207 (1964).

"Title VII would have no effect on establish­
ed seniority rights. Its effect is prospective 
and not retrospective." Clark-Case Interpretative 
Memorandum, 110 Cong. Rec. 7213 (1964).

"Answer: The bill is not retroactive, and it
will not require an employer to change existing sen­
iority lists." Clark-Dirksen responses, 110 Cong.
Rec. 7217 (1964).

12/ See, e.q., Quarles v. Philip Morris, Inc. 279 F.
Supp. 505, 515-8 (E.D. Va. 1968) ("It is also 
apparent that Congress did not intend to freeze an 
entire generation of Negro employees into discrim­
inatory patterns that existed before the Act");
Local 189, United Papermakers and Paperworkers v. 
United States, supra. 416 F.2d at 988, 966; Robinson 
v. LoriHard Corp.. 444 F.2d 791 (4th Cir. 1971); 
cert, dismissed , 404 U.S. 1006 (1971); United States 
v. Bethlehem Steel Corp.. 446 F.2d 652 (2nd Cir. 1971).

13



some separate post-Act discriminatory practice. The court
thus felt that it could not modify vested seniority rights
unless there was some "underlying legal wrong" occurring after
the Act. This interpretation ignores the fact that a
seniority system, as applied, can be impermissibly discriminatory

A SENIORITY SYSTEM WHICH PERPETUATES THE 
EFFECTS OF PRE-ACT DISCRIMINATION IS A 
LEGAL WRONG UNDER TITLE VII_____________

A. Seniority Rights are not Inviolable.
Seniority has developed into crucial determinant of employ­

ment opportunities in American industry. Indeed, seniority 
serves a salutory purpose in employer-employee relationship.
Its objectivity and ease of application make it a particularly 
appealing instrument for making decisions. The security it
affords causes courts to pause in addressing possible changes,

15/
changes that might upset the expectations of employees. It must 
be remembered, however, that seniority rights are not sacrosanct. 
They are not vested property rights, but may be altered in 
appropriate circumstances. Humphrey v. Moore. 375 U.S. 335, 345- 
50 (1954); Ford Motor Co. v. Huffman. 345 U.S. 330, 337-39 (1953)

14/

14/ This construction in effect means that the seniority system 
cannot of itself by discriminatory. This reasoning, of course, 
would have to be based on a distinction between plant seniority 
and job, or departmental, seniority since the latter have been 
found to be discriminatory because of their perpetuating effect. 
Local 189, supra. This dictinction is logically unsupportable. 
See infra paces 16 et seq.

15/ See generally Franks v. Bowman Transportation Co., supra.

14



Seniority rights are particularly susceptible when strict 
adherence would contravene a strong public policy.— ^

Congress has determined that equality in employment 
is an important public policy and the eradication of dis­
crimination should be given the "highest priority."
Alexander v. Gardner-Denver, 415 U.S. 36 (1974); Newman v. 
Piggie Park Enterprises, 390 U.S. 400 (1968). Consistent 
with this directive, courts have determined that seniority 
schemes may not stand when the important rights guaranteed by 
Title VII are thereby denied:

Adequate protection of Negro rights under 
Title VII may necessitate, as in the 
instant case, some adjustment of the rights 
of white employees. The court must be free 
to deal equitably with conflicting interests 
of white employees in order to shape remedies 
that will most effectively protect and re­
dress the rights of the Negro victims of 
discrimination. Vogler v. McCarty, Inc.,
451 F.2d 1236 (5th Cir. 1971)

The seniority scheme is not immune from modification because
17,/it was established before the Act. Local 189, supra.

16/ See e.g., Ford Motor Co. v. Huffman, supra. In this 
case, a collective bargaining agreement gave seniority credit 
to veterans for periods spent in military service prior to 
initial employment.
17/ "It is also apparent that Congress did not intend to 
freeze an entire generation of Negro employees into discrimin­
atory-patterns that existed before the act." Quarles v.
Philip Morris, Inc., 279 F.Supp. 505, 517 (E.D. Va. 1968)

15



The line of cases dealing with departmental or job 
seniority has adhered to this interpretation. The fact that 
the departmental scheme had been established prior to Title 
VII did not shield such systems from review.

18/

B. Company Seniority, Like Departmental Seniority,
Can Perpetuate Past Discrimination and Thus be 
Illegal Under Title VII.
It is extremely important that the import of the

"departmental seniority cases" be clearly understood. These
decisions substituting plant or tool employment seniority
for job or departmental seniority were not based on the notion
that plant seniority is per se valid. Rather, they are
grounded in the realization that, on the facts of those cases,
job or departmental seniority perpetuated the effects of the
past discrimination while plant seniority did not:

As we have indicated, we do not hold that 
'mill seniority' is per se required under 
Title VII. But we do hold that, where, as 
here, 'job seniority' operates to continue 
the effects of past discrimination, it 
must be replaced by some other, non-dis- 
criminatory, system, and that mill seniority 
is an appropriate system in this case.
(emphasis added) United States v. Local 189,
United Papermakers & Paperworkers, 282 F.
Supp. 39, 45 (E.D. La. 1968), aff'd, 416 
F.2d 980 (5th Cir. 1969), cert, denied 
397 U.S. 919 (1970)

18/ See e.g., Local 189, United Papermakers & Paperworkers v. 
United States, supra; United States v. Jacksonville Terminal Co., 
451 F.2d 418 (5th Cir. 1971); Robinson v. Lorillard Corp~ 444 
F.2d 791 (4th Cir. 1971) cert, dismissed 404 U.S. 1006 (1971); 
United States v, Chesapeake & Ohio R. Co., 471 F.2d 582 (4th 
Cir. 1973), cert. denied 411 U.S. 939 (1973); United States v.
N. L. Industries, Inc., 479 F.2d 354 8th Cir. 1973); Head v. 
Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973).

16



In the departmental seniority cases," the companies hired 
blacks prior to the Act, but assigned them to segregated 
departments, or jobs. The use of department seniority as the 
determinant after the Act disadvantaged blacks who had no 
seniority in the better paying white departments - and thus 
would be relegated to the bottom of the line. Since, however, 
both blacks and whites had generally entered the plant on a 
non-discriminatory basis (i.e. discrimination in hiring was 
not the barrier), plant seniority served as a neutral standard 
for work allocation.

The reasoning of these cases is compelling. It would 
be unfair to blacks, and of course illegal, to allocate work 
on the basis of length in service on jobs from which blacks 
had been excluded. The logic applies a fortiori to the totally 
segregated plant. In such a case, the black worker has not 
been allowed to accumulate any seniority, plant or depart­
mental. The use of plant seniority avails him not. Some 
other, non-discriminatory employment practice must be employed 
or the seniority system somehow altered. As this Court stated 
in United States v. Georgia Power Co., 474 F.2d 906 (5th Cir. 
1973) :

If the present seniority system in fact 
operates to lock in the effects of past 
discrimination, it is subject to judicial alteration under Title VII.

There is no reason to exempt a plant seniority system from 
this rule. The Fourth Circuit agrees with the foregoing

- 17



reasoning. Nance v. Union Carbide Corp., Consumer Products
Division, 540 F.2d 718 (1976). In Nance, an employee's 
"company service" was his period of employment less layoffs. 
The female plaintiff did not have enough "company service" 
to withstand a layoff in 1970. The plaintiff alleged that 
the layoff "resulted from an improper deduction in her 
company service record" because of "sex-discriminatory lay­
offs in the pre-Act period of her employment." 540 F.2d at 

19/728.—  xn holding that the plaintiff was entitled to have 
her "company service status adjusted" to remove the adverse 
effects of any pre-Act discriminatory layoffs, the Court 
stated:

Such a system obviously gave the male employee 
a preferred opportunity to protect his 'company 
service' over the female employee. This more 
extensive opportunity in bidding for vacancies 
during layoffs on the part of male employees 
was a discrimination against female employees 
and because that discrimination was carried over 
in the operation of the post-Act Seniority system 
it tainted such post-Act system. (Emphasis added). 
540 F.2d at 729.

The Court thus recognized that the seniority system in ques­
tion was not bona fide since it had its genesis in racial

19/ "Plaintiff's claim is that the defendant, by following 
a discriminatory practice of limiting female employment to 
certain job classifications, narrowed the opportunity of its 
female employees to bid on an equal basis with male employees 
for job vacancies in the plant, thereby causing a female em­
ployee to suffer generally more layoff time than a comparably 
qualified male employee." Id. at 728.

-18-



[or sex] discrimination. — ^ 540 F.2d at 729; Quarles v 
Philip Morris, Inc., supra.

It must be remembered that seniority, be it depart­
mental or plant, is but an employment practicei— -̂ It should be 
treated accordingly:

When an employer or union has discriminated 
in the past and when its present policies 
renew or exaggerate discriminatory effects, 
those policies must yield, unless there is 
an overriding legitimate, non-racial business 
purpose. Local 189, supra, 416 F.2d at 989.

This requirement of "business necessity" means more than mere
business purpose:

the "business necessity" doctrine must [do] ... 
more than ... serve legitimate management func­
tions. Otherwise, all but the most blatantly 
discriminatory plans would be excused even if 
they perpetuated the effects of past discrimina­
tion ....
Necessity connotes an inestimable demand. To be 
preserved, [a present employment practice] .... 
must not only directly foster safety and effi­
ciency of a plant, but also be essential to
those goals..... If the legitimate ends of
safety and efficiency can be served by a reason­
ably available alternative system with less dis­
criminatory effects, then the present policies 
may not be continued.

Watkins v. Scott Paper Co., 530 F.2d 1159, 1168 (5th Cir. 1976), 
quoting United States v. Jacksonville Terminal Co., 451 F.2d 
418, 451 (5th Cir. 1971), cert denied, 406 U.S. 906 (1972 ).

20/ See, also, Evans v.~ United Airlines, Inc., 534 F.2d 1247 
(7th Cir. 1976), cert granted, 45 U.S. L.W. 3321 (1976) 
(continuous time-in-service, i.e., company service, is dis­
criminatory if interruption in employment is caused by dis­criminatory discharge)
5_1/ Industry custom and the usually impartial application of 
seniority schemes have dictated that seniority be the determining 
factor in many instances. Other criteria, such as a strict merit system, may also be utilized.

-19-



See also United States v. Bethlehem Steel Corp., 446 F.2d 
at 662. In the instant case, the defendants have failed 
to meet this burden. This is not surprising in view of the 
fact that the blacks involved have demonstrated an ability 
to do the job. There is no indication that running the plant 
with more senior employees amounts to a "business necessity." 
There is no evidence that certain employees, or groups of 
employees, who were retained when the black employees were 
laid off were indispensable or possessed special skills. In 
sum, there is no possible business necessity— ^ for a strict 
preference for longer term employees to the disadvantage of 
black employees as in this case.

C. Maintaining a Seniority System Which Disadvantages 
Blacks Who Are Identifiable Victims of Past Racial 
Discrimination Is, Of Itself, Present Discrimina­tion As to Those Individuals.

The district court predicated its decision, in part, on
its view that there was no "legal wrong" against plaintiffs
after the Act:

Those who were discriminated against prior 
to the passage of the Act can point to no 
'underlying legal wrong' on which to base 
their seniority claim; they seek merely to 
restructure vested seniority right estab­
lished prior to the effective date of the Act.(R. 620)

2_2/  ̂ The use of seniority is not for the benefit of employer. 
It is basically^the product of unions' desire to provide 
their members with some degree of security. See generallv Cooper and Sobol at 1 6 0 4 - 1 6 0 7 . ------------~

-20-



This view is erroneous for it ignores the essence of plain- 
tiffs claim, namely, that the "underlying legal wrong" is 
the seniority system which perpetuates the prior discrimina­
tion and insures that they will not advance beyond the 
position they were in before the Act:

When an employer adopts a system that neces­
sarily carries forward the incidents of 
discrimination into the present, his practice 
constitutes on-going discrimination, unless 
the incidents are limited to thosethat safety and efficiency require.
(emphasis added) Local 189, 416 F.2d at 994.

The mere fact that the system was established prior to the 
Act will not protect it. If that were the case, a departmen­
tal system would be similarly immune. In fact, courts have 
looked to the post-Act effects of the prior discrimination 
in modifying systems which were facially neutral and which, 
absent the pre-Act discrimination, would be acceptable em­
ployment practices. Quarles v. Philip Morris, Inc., supra.
Nance v. Union Carbide Corp., Consumer Products Division, supra.

The above reasoning conforms to judicial precedents 
which have nullified employment preferences based on length 
of service where blacks were prevented from accumulating the 
relevant seniority. Thus, where craft unions have had a 
history of excluding blacks, they may not use seniority in 
granting preference for hiring hall referrals. United States 
v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969)—

23/ See, also, Dobbins v. Electrical Workers Local 212, 292 
F. Supp. 413 Ts .dT Ohio 1968), aff'd as later modified, 472 F.2d 
634 (6th Cir. 1973); EEOC v. Plumbers, Local Union No. 189,
311 F. Supp. 468 (S.D~ Ohio 1970) , vac'd on other grounds 438 
F.2d 408 (6th Cir. 1971), cert denied, 404 U.S. 832 (1971)

-21-



Similarly, courts have forbidden the use of seniority as a 
factor in promotions in cases where the employer had in the 
past, discriminated in hiring on the basis of race. Rowe v . 
General Motors Corp., 457 F.2d 348 (5th Cir. 1972).24/ The 
common thread in these cases and in the "departmental 
seniority" cases is that facially neutral seniority systems 
are illegal in themselves under Title VII because they perpe­
tuate practices that would lock blacks into inferior positions 
in the employment s e t t i n g . i n  the departmental setting,

24/ See, also Allen v. City of Mobile, 331 F.Supp. 1134,
IT42-43 (S.D. Ala. 1971), aff'd per curiam 466 F.2d (5th Cir. 
1972), cert, denied 412 U.S. 909 1973. Afro-American Patrol­
men's League v. Duck, 366 F. Supp. 1095, 1102 (N.D. Ohio, 1973), 
aff'd in pertinent part 503 F.2d 294 (6th Cir. 1964); Harper 
v. Mayor and City Council of Baltimore, 359 F.Supp. 1187, 
1203-1204 (D. Md. 1973), aff'd sub nom Harper v. Kloster 486 
F.2d 1134 (4th Cir. 1973); hoy v. City of Cleveland, 8 FEP 
Cases 614 (N.D. Ohio 1974); see also, Bridgeport Guardians,
Inc. v. Members of Civil Service Com'n, 497 F.2d 1113. 1115 (2nd Cir. 1974).
25/ It should be noted that the question of pre-Act discri­
mination was broached by the Second Circuit in explaining its 
decision in United States v. Bethlehem Steel Coro".. 446 F.2d 625 (1971) : * -------------------------------

[B]ethlehem's seniority list rankings resulted 
from pre-1965 discrimination that was lawful, 
however, reprehensible it may have been. Never­
theless, we ordered the seniority ranking to 
be changed, according to plant-wide rather than 
departmental seniority, (footnote omitted).
Acha v. Beame, 531 F.2d 648, 652 (1976).

-22-



the black employee was hindered in bidding across department 
lines by the effects of post-Act operation of the system.
Just as the past segregation in departments constantly asserted 
itself in post-Act bidding, so too, the complete refusal to 
hire in the past constantly reasserted itself whenever there 
was a rollback or layoff.

D. Identifiable Victims of Pre-Act Discrimination
May Seek Redress From a Serniority System Which has 
the Effect of Perpetuating That Prior Discrimination.

This Court's decision in Watkins v. United Steel 
Workers of America, Local No. 2369, 516 F.2d 41 (1975) is
the starting point for the instant case:

We specifically do not decide the right of a 
laid-off employee who could show that, but for 
the discriminatory refusal to hire him at an 
earlier time than the date of his actual em­
ployment, or but for his failure to obtain 
earlier employment because of exclusion of 
minority employees from the work force, he 
would have sufficient seniority to insulate him 
against layoff. 416 F.2d at 45.

The court focused on the distinction between preferential 
modification and remedial modification of seniority rankings 
and held that blacks not otherwise personally discriminated 
against could not seek seniority relief that would protect them

-23-



from lay-offs.— ^ The Court held that plant seniority was
acceptable on the facts of that particular case:

We hold, therefore, that the use of total 
employment seniority to determine the order 
of layoff of employees in this case does 
not violate Title VII of the CivilRights 
Act of 1964. (emphasis added)516 F .2d at 52

The instant case supplies the ingredient that was missing in 
Watkins, i.e., identifiable victims of discrimination at the 
hands of the employer.

The Second Circuit has recently decided that such 
victims are indeed entitled to relief. Acha v. Beame, 531 
F.2d 648 (1976).——/ In Acha, New York City had discriminated

26/ The court repeatedly referred to this distinction in denying relief in that case:
Inasmuch as none of plaintiffs have suffered 
individual discrimination at the hands of the 
Company, however, there is no past discrimina­
tion toward them which the current maintenance 
of the layoff system could possibly peroetuate. 516 F .2d at 47.

And again:
[T]here was an express intent [in Title VII] to 
preserve_contractual rights of seniority as be­
tween whites and persons who had not suffered 
any effects of discrimination. 516 F.2d at 48

And finally:
Plaintiffs, who have never suffered discrimina­
tion at the hands of the Company, are in no 
better position to complain of the recall system 
than are the white workers who were hired con­
temporaneously with them. 516 F.2d at 48

27/ See, also, Chance v. Board of Examiners, 534 F.2d 648 (2nd Cir. 1976). — —

- 2 4 -



in the hiring of women to positions on the city police force. 
Because of a downturn in the economy, the city was forced to 
lay off a large number of officers. The lay-off affected 
women more adversely than men because so many had been re­
cently hired. The Court held that, as to identifiable victims 
of prior discriminations, constructive seniority back to the
date a female would have been hired, absent discrimination,

28/was an appropriate remedy. The court rejected a claim that 
the relief sought was an illegal preference, noting that it was 
simply a remedial device within the power of a district court 
when applied to persons who had actually been discriminated 
against. 42 U.S.C. §2000e—5 (g). 531 F.2d 656. As the Court 
correctly noted the seniority scheme as to these individuals 
was discriminatory.— ^

28/ "If a female police officer can show that, except for 
her sex, she would have been hired early enough to accumulate 
sufficient seniority to withstand the current layoffs, then 
her layoff violates section 703(a)(1) of Title VII, 42 U.S.C. 
§2000e-2(a)(1), since it is based on sexual discrimination." 
531 F.2d at 654. A plaintiff would be entitled to relief upon such a showing.
29/ The court realized that the discrimination in this type 
oF case was even more pervasive than in the "departmental 
seniority" case:

Plaintiffs here were not merely relegated to 
inferior jobs, but were denied employment 
altogether for discriminatory reasons.531 F.2d at 655.

-25-



The facts in Acha are analogous to those in the instant
case since the discriminatory hiring practices pre-dated
Title VII's applicability to local government entities.— ^
The decision clearly puts the situation in perspective:

[W]e believe that the relief plaintiffs seek 
would prevent the perpetuation of the effects of past discrimination as to them.
(Emphasis added) 531 F.2d at 655.

There, as here, the operation of the seniority system was an

3JV pointed out by Chief Judge Kaufman's concurring opinion 
in Acha, the layoffs applied in New York City to officers hired 
after March, 1969. 531 F.2d at 657. Since Title VII became
applicable to local governments in 1972, any plaintiff who could 
prove she had sufficient seniority to withstand layoff would 
have to prove she would have been hired prior to March, 1969 
and, of course, prior to 1972. In other words, she would have 
to show discrimination prior to the effective date of the Act. 
Judge Kaufman indicated further that the showing would even 
encompass discrimination before Title VII was first enacted:

If so, relief should be available to an 
individual who proves she took the 1964 
examination for "policewoman," achieved 
a score on that examination that, were 
she a man, would have assured her employ­
ment, but nevertheless was not appointed 
until 1970 . . . .  531 F.2d at 657.

-26-



illegal employment practice when applied to identifiable
31/victims of past discrimination.—

The special context in which this case arises, i.e., 
seasonal work force variations, presents a particularly 
appropriate situation for the proposed relief. In the lay­
off cases cited above, much of the immediate problem results 
from a general trend in the economy. In the instant case, 
the past effects would be firmly entrenched even in a good 
economy. Thus, the plaintiffs have had no opportunity to 
overcome, through the passage of time, the disadvantage

32/occasioned by their prior exclusion from the work force.— ■ 
In effect, the employer was able to maintain a segregated 
work force for approximately six months out of each year.

31/ The instant case is even more compelling since we are not 
dealing with police officers where experience, rightly or 
wrongly acquired, is arguably a business requirement. Where, 
as here, experience will have a marginal effect, if any, on job 
performance, seniority is a suspect basis for allocation of 
work. See, Schaefer v. Tannian, 394 F. Supp. 1136, 1149 
(E.D. Mich. 1975) (The Court raised the question, but stated 
that there had been no showing of business necessity in any case).
32/ One effect of the continual lay-offs has been the inability 
of black workers to participate in pension and health benefits 
(R. 523, 524), as per the Collective Bargaining Agreement:

[Employment for pension] purposes shall be 
deemed to be continuous so long as the 
employee's seniority has not be interrupted 
and so long as he has not been laid off for 
six (6) months or longer at any one time.

-27-



The employer had what amounted to two classes of employees, 
regular and supplemental, and the parallels between this 
case and the "promotion-referral" cases become more evident.

E. The Closing of the Company's Atlanta Plant, While
Foreclosing Certain Seniority Relief for Plaintiffs, 
Has Eliminated Equitable Objections Raised by Some Courts.
Defendant's plant in Atlanta is now closed. Conse­

quently, there is no longer an existing seniority system to 
be affected by any relief that plaintiffs may be granted in 
this case.— ■' The issue now centers around plaintiffs' claims 
for monetary relief based on the discriminatory lay-offs.

It is evident that one of the major obstacles faced 
in Constructive seniority" cases is an equitable concern for 
the expectations of white employees in the work force.— / Two 
major points are usually stressed: first, that constructive
seniority for black employees defeats the expectations— / of 
white employees:

33/ This development, of course, affects remedy, but does 
not diminish defendant's inability for its illegal practice.
34/ See, e.g., Franks v. Bowman Transportation Co., Inc.
u*s* ____/ 47 L. Ed. 2d 444, 471-482 (1976). (Separate opinions
of Chief Justice Burger and Justice Powerll, concurring in part 
and dissenting in part); Meadows v. Ford Motor Co.. 510 F.2d 939 
(1975), cert, denied (1976); Cooper and Sobol, supra, at 1604- 1607. — --
35/ Whether these expectations are legitimate is debatable.
It is possible that no job would have been available for some 
incumbents if blacks had been hired in the first instance. See 
Franks v. Bowman Transportation Co., Inc., supra, U.S. at~
_______t 47 L.Ed. 2d at 468, Cooper and Sobol, supra, at 1605.

-28-



[A seniority system] is justified among workers 
by the concept that the older workers in point of 
service have earned their retention of jobs by the length of prior service for the particular 
employer. Meadows v. Ford Motor Co., 510 F.2d at 949.

Secondly, it is noted that the imposition of seniority relief
loses much of its deterrent effect because it does not impact

36/on the employer.
First, a retroactive grant of competitive-type 
seniority usually does not directly affect the 
employer at all. It causes only a rearrangement 
of employees along the seniority ladder without 
any resulting increase in cost. Thus, Title VII's 
'primary objective' of eradicating discrimination 
is not served at all for the employer is not de­
terred from the practice. Franks v. Bowman
Transportation Co., Inc., ____ U.S. ____, 47 L.Ed.2d
at 475 (1976) (opinion of Justice Powell).

These equitable considerations are worth noting in the overall
context if only to point out that, even given these concerns,
constructive seniority is available as a remedy. Franks v.
Bowman Transportation Co., Inc., supra.; Meadows v. Ford Motor
Co., supra.

The relief now sought in the instant case is less per­
vasive because of the plant closing. Competitive-type seniority 
is not possible now. Some benefit-type seniority and backpay, 
however, are available. The burden will fall solely on the dis­
criminating employer:

36/ The Supreme Court makes a clear distinction between the 
concept of "benefit-type" and "competitive-type" seniority, 
the former determining pension rights, length of vacation and 
similar company benefits, the latter determining an employee's 
preferential rights against other employees. This argument, of 
course, would not apply to benefit-type seniority since it, in 
fact, places the burden directly on the employer.

-29-



As noted above, the granting of backpay and 
benefit-type seniority furthers the pro­
phylactic and make-whole objectives of the 
statute without penalizing other workers. 
Franks v. Bowman Transportation Co., Inc.,
____ U.S. at _____, 47 L.Ed. 2d at 475
(1976) (Opinion of Justice Powell).

REGARDLESS OF THE RESULT OF PLAINTIFFS'
TITLE VII CLAIM, THE DISTRICT COURT ERRED 
IN NOT GRANTING RELIEF UNDER 42 U.S.C. §1981

Plaintiffs' complaint alleged a cause of action under
42 U.S.C. §1981. While the district court made no mention
of that section in granting the motion for summary judgment
(R 616-621), it apparently assumed that a seniority system
held immune under Title VII is also exempt under §1981. Such
a construction emasculates the remedial possibilities under 

37/§1981—  and ignores the relationship between the two statu­
tory provisions.

Section 1981 assures black persons the same right 
"to make and enforce contracts" as white citizens. This pro­
scription against racial discrimination in contracts includes 
a prohibition against racial discrimination in employment.— ^

37/ See, Brown v. Gaston County Dyeing Co., 457 F.2d 1377 
(4th Cir. 1972), cert, denied, 409 U.S. 982 (1972) (back pay 
ordered for 1961 to 1962 under Section 1981); Also, cf. 
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974); Head v. Timken Roller Bearing Co., 486 F.2d 
870 (6th Cir. 197311 ‘
38/ See e.g. Johnson v. Railway Express Agency, Inc., 421 
U.S. 454 (1975); Sanders v. Dobbs Houses, Inc. 431 F.2d 1097, 
1101 (5th Cir. 1970), cert, denied, 401 U.S. 948 (1971) ; 
Caldwell v. National Brewing Co., 443 F.2d 1044, 1045 
(5th Cir. 1971), cert, denied 405 U.S. 916 (1972).

30



Nothing in Title VII restricts the remedy a court may fashion 
to enforce or restore these rights. The Supreme Court has 
continued to reject the assertion that §1981 is somehow limited 
by Title VII :IV

. . . (L)egislative enactments in this area
have long evinced a general intent to accord 
parallel or overlapping remedies against 
discrimination 7/ . . . (T)he legislative 
history of Title VII manifests a congressional 
intent to allow an individual to pursue inde­
pendently his rights under both Title VII and 
other applicable state and federal statutes.
The clear inference is that Title VII was 
designed to supplement, rather than supplant, 
existing laws and institutions relating to 
employment discrimination.

77 See, e.g. 42 U.S.C. Section 1981 (Civil 
Rights Act of 1966); 42 U.S.C. Section 1983 
Civil Rights Act of 1871) .

Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49 (1974).
The Court's decision in Alexander endorses both clear legis­
lative history and principles settled in the lower courts.
In 1964 and 1972 Congress rejected amendments that would have 
made Title VII the exclusive remedy for employment discrimina­
tion. 110 Cong. Rec. 13650-52 (1964); H.R. Rep. No. 92-238 
at p. 79 (1971); S. Rep. No. 92-415 at P. 24 (1971). Congress 
thus intended that §1981 offer a separate and independent remedy 
from that of Title VII.

39/ See, also Johnson v. Railway Express Agency, Inc., 421 
U.S. at 461 (1975)1

We generally conclude, therefore, that the 
remedies available under Title VII and 
§1981, although related, and although 
directed to most of the same ends, are 
separate, distinct and independent.

31



Consistent with the independence of the two provisions, 
courts have held that differing results occur depending on 
which statutory scheme is utilized. The Supreme Court, for
example, in Washington v. Davis, ____ U.S. _____, 48 L.Ed.2d
597 (1976) held that the standard for adjudicating claims 
under 1981 is not the same as the standard under Title VII. 
The Courts of Appeals have similarly recognized differences. 
In Guerra v. Manchester Terminal Co., 498 F.2d 641 (5th Cir. 
1974) this Court held that, although Title VII does not pro 
hibit discrimination based on alienage,— ^ §1981 does.— '/

40/ See Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973)
41/ The Court in Guerra noted that §1981 expresses 
"a humane and remedial policy," and stated, "Congress intended 
Title VII to be an important, but not the only, weapon in the 
arsenal against employment discrimination." 498 F.2d at 650.
It justified holding that §1981 prohibits some forms of employ­
ment discrimination that Title VII does not touch by reasoning 
that in reconciling the two statutes, the goal must be:

to mitigate the harshness to those accused of employ­
ment discrimination resulting from what one source 
has characterized as "multiple jeopardy," [footnote 
omitted] while preserving and protecting for those 
complaining of discriminatory employment practices 
the full panoply of remedies guaranteed them by the federal laws."46/

46/ We emphasize that though Title VII, §1981, 
and Section 8 of the NLRA may overlap in the 
area of employment discrimination, their in­
fluence must not be exaggerated. They are 
separate, independent statutes. The procedures 
under them vary; the available remedies may 
differ significantly, and, as the case at bar 
illustrates, conduct creating liability under 
one may not create liability under another.

498 F.2d at 658.
-32-



The Court in Alpha Portland Cement Co. v. Reese, 507 F.2d
607 (5th Cir. 1975), ruled that §1981 might authorize class

42/
The reasoning in theserelief where Title VII did not.'

cases applies equally to any exemption in Title VII that
43/might be occassioned by §703(h)—

To hold that the broad, unqualified language of §1981 
is limited by Title VII would require finding that the later 
statute repealed or superseded the earlier one, at least in 
regard to seniority issues. Such repeals by implication are 
not favored. Morton v. Mancari, 417 U.S. 535 (1974) (enactment 
of Title VII did not repeal remedial provisions of existing law.— ^

42/ The court in Reese rejected a policy argument against 
extension of §1981 remedies beyond the reach of Title VII, stating:

Accepting [the employer's] proposition arguendo, 
the policy choice is one already made by Congress 
in creating Title VII as a remedy supplemental to 
and separate from that existent under §1981.
507 F.2d at 609 (footnote omitted).

43/ See, e.g. Contractors Association of Eastern Pennsylvania v . 
Secretary of Labor, 442 F.2d 159, 172 (3rd Cir. 1971) cert, denied 
404 U.S. 854 (1971) (§703(j) of Title VII, 42 U.S.C. §2000e-2(j), 
companion section to §703(h), cannot limit remedies based on laws other than Title VII).
4 4 /  See also Posades v. National City Bank, 296 U.S. 4 9 7 ,  503  
TT9'36) ("the intention of the legislature to repeal must be clear 
and manifest"). Silver v. New York Stock Exchanqe, 373 U.S.341 (1963) “—

-33-



The notion that Title VII repealed pre-existing remedies
under §1981 has been rejected in this Circuit:

So, too, the equal employment provisions 
of the same Civil Rights Act of 1964 do 
not supersede the provisions of §1981, 
which had its origins in the very same 
section of the Civil Rights Act of 1866 as did §1982. . . .
Furthermore, occurrences within the Congress culminating in the passage of Title VII 
strongly support the conclusion that it was 
not intended to supercede existing remedies.
Sanders v. Dobbs Houses, Inc., 431 F.2d 
1097, 1100 (1970) cert, denied 401 U.S. 948 (1971). ------

Other circuit court decisions have expoused this position,— ^ 
thus acceting to the mandate of the Supreme Court not to read 
the civil rights legislation of the 1960's as narrowing the 
relief available under the more general post-Civil Rights War 
acts* Jones v. Alfred H. Mayer Co., 392 U.S. 409, 416 n. 20 
(1968) ("the Civil Rights Act of 1968 [42 U.S.C. §§3601 et seq.] 
does not mention 42 U.S.C. §1982, and we cannot assume that 
Congress intended to effect any change, either substantive or 
procedural, in the prior statute"); Sullivan v. Little Hunting 
Park, Inc., 396 U.S. 229, 237-238 (1969) (Title II of Civil

45/ See e.g. Gresham v. Chambers, 501 F.ed 687 (2nd Cir. 1974); 
Young v. International Telephone & Telegraph Co., 438 F.2d 757 
(3rd Cir. 1971); Brady v. Bristol Myers Co., 459 F.2d 621 (8th Cir. 
1972); Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 
(D.C. Cir. 1973); Waters v. Wisconsin Steel Works of International 
Harvester Co., 427 F.2d 476 (7th Cir. 1970) cert, denied 400 U.S.911 (1970). ---- ------

34



Rights Act of 1964, 42 U.S.C. §§2000a et seq., does not 
supersede provisions of 42 U.S.C. §1982; cf. Tillman v. 
Wheaton-Haven Rec. Ass'n., 410 U.S. 431 (1973).

Prior to 1963, the defendant systematically excluded 
blacks from its work force. (R. 545-546) . This policy 
clearly violated §1981. To subscribe to the theory that 
exemption of a seniority system under Title VII would some­
how protect that system from review under §1981 is to insulate 
blatant discrimination from redress. The district court was 
concerned with the absence of an "underlying legal wrong." 
Surely, this reasoning would not apply to §1981 since there 
was a legal wrong under §1981, the discriminatory refusal 
to hire. The seniority system certainly perpetuates the 
effect of this discriminatory practice. Any other construc­
tion would be adverse to the Congressional intent to place 
the "highest priority" on the fight against discrimination.
Alexander v. Gardner-Denver, supra., and would be logically

46/ 47/inconsistent.— ' There is no difference in kind between

46/ It has already been noted that to deny relief in the 
instant case, while granting it in departmental seniority 
cases, would create the anomalous result of rewarding an 
employer for the thoroughness of his discrimination. The 
following example indicates a serious flaw in this approach.
Consider employer A. Prior to the effective date of Title II,
A fires all black employees. When Title VII comes into effect, 
he hires workers in a non-discriminatory manner and uses com­
pany seniority as the basis for employment decisions. In spite 
of the prior overt act of discrimination, the same reasoning 
that would protect th employer in the instant case, would 
protect him in the hypothetical case. The syllogism would run thus

35



Respectfully submitted,

Kent Spriggs
324 N. College Avenue 
Tallahassee, Florida 32301

N. David Buffington
88 Walton Street, N.W. 
Atlanta, Georgia 30303

Jack Greenberg 
Ronald L. Ellis

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs Appellants

37