California Brewers Association v. Bryant Brief Amicus Curiae of the Lawyers' Committee for Civil Rights Under Law

    In The

Supreme Court Of The United States
October Term, 1979

No. 78-1548

CALIFORNIA BREWERS ASSOCIATION, et al„
Petitioners,

v.

ABRAM BRYANT,
Respondent.

On Writ o f Certiorari to the 
United States Court o f Appeals for the Ninth Circuit

BRIEF AM ICUS CURIAE OF THE 
LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW

O f Counsel:

John B. Jones, Jr. 
N orman R edlich 

Co-Chairmen 
W illiam L. R obinson 
R ichard T. Seymour 

Staff Attorneys 
Lawyers Committee for 

Civil Rights Under Law 
733 Fifteenth St. 
Washington, D.C. 20005 
(202) 628-6700

G erald A. R osenberg 
Ellen G aylin 
R osenman Colin F reund 

Lewis & Cohen 
575 Madison Ave.
New York, N.Y. 10022 
(212) 940-8800



TABLE OF CONTENTS

I. Interest of Amicus Curiae......................................   1
II. P reliminary Statement.............................................  4

1. Prior Proceedings.......................................     4
2. Statement o f F a c ts .... .......     7
3. Summary o f A rgum ent...................    10

HI. Argument:
The Court of Appeals Correctly Held That 
Respondent’s Allegations of Employment D is­
crimination Flowing from the 45 Week 
Requirement were not Subject to D ismissal by 
the Mere Assertion of the “Seniority” Defense 
Under Section 703(h)............................................   12

1. N ature and Reach o f Title VII S u its............  12
2. Scope o f Seniority Exemption Under Sec­

tion 7 0 3 (h ) ....................................................  13
3. Considerations of Statutory Interpretation .. 17
4. The 45 Week Requirement...............    20

IV. Conclusion .........................    25

Page



11

TABLE OF CASES AND AUTHORITIES
Page

Cases
Aeronautical Industrial District Lodge 727 v. Campbell,

337 U.S. 521 (1 9 4 9 )..........................................................  18
Alabama Power Co. v. Davis, 431 U.S. 581 (1 9 7 7 )......... 19
Brennan v. Keyser, 507 F.2d 472 (9th Cir. 1974), cert, 

denied, 420 U.S. 1004 (1 9 7 5 ) ..........................................  18
Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977)............ 22
DeFunisv. Odegaard, 416 U.S. 312 (1 9 7 4 ) ......................  3, 9
Equal Employment Opportunity Commission v. Louis­

ville <6 Nashville Railroad Company, 505 F.2d 610 
( 5th Cir. 1974), cert, denied, 423 U.S. 824 ( 1975)...... 18

Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.
275 (1 9 4 6 )........................................................................... 20

Ford Motor Co. v. Huffman, 345 U.S. 330 (1 9 5 3 )...........  18
General Electric Co. v. Gilbert, 429 U.S. 125 (1 9 7 6 )...... 12
Griggs v. D uke Power Company, 401 U.S. 424 (1971) ..12. 13
Hernandez v. European Auto Collision, Inc., 487 F.2d 

378 (2d Cir. 1973)............................................................ . 9
Humphrey v. Moore, 375 U.S. 335 (1964).........................  25
International Brotherhood o f  Teamsters v. United 

States, 431 U.S. 324 (1 9 7 7 )................ ....................... passim
McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1 9 7 3 ).............................................................. ...................  12
Nashville Gas Co. v. Satty, 434 U.S. 136 (1977).............  15
National Automatic Laundry and Cleaning Council v. 

Shultz, 443 F,2d 689 (D.C. Cir. 1971).........................  18
Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 

1374, on rehearing, 583 F.2d 132 (5th Cir. 1978), 
cert, denied, 47 U.S.L.W. 3761 (M ay 21, 1979)......... 16

Patterson v. American Tobacco Co., 586 F.2d 300 (4th 
Cir. 1978)....................................... ............. ......................  i 6

Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 
(5th Cir. 1978), cert, denied, 99 S. Ct. 1020 (1979)... 17

Phillips Company v. Walling, 324 U.S. 490 (1944)....... 18



Page

iii

Powell, v. U.S. Cartridge Company, 339 U.S. 497 
(1 9 5 0 )........... .............................. ....................................... . 18

Regents o f the University o f California v. Bakke, 438 
U.S. 265 (1 9 7 8 ).................................... .............................  3

Scheuer v. Rhodes, 416 U.S. 232 (1 9 7 4 )............................ 9
Tcherepnin v. Knight, 389 U.S. 332 ( 1967) ......................  17
United Steelworkers o f America v. Weber, 99 S. Ct. 2721 

(1 9 7 9 )  ............................................................ ...............  3
Statutes
Civil Rights Act o f 1964, Title VII, 42 U.S.C. § 2000e..joassim
Fair Labor Standards Act o f 1938, 29 U.S.C.

§ 2 1 3 (a ) (2 ) ..............................................................-.........  18
Veterans Re-employment Rights Act o f 1940, 50 U.S.C.

App. § 459.... ...........................................................-  18, 19, 20
Rules
Federal Rules of Civil Procedure, Rule 1 2 (b )(6 ) ...........  5, 9
U.S. Supreme Court Rule 4 2 (2 ) .......................................... 1
Miscellany
Aaron, “ Reflections on the Legal Nature and 

Enforceability o f Seniority Rights”, 75 Harv. L. Rev.
1532 (1 9 6 2 )........................................................................  23

Bureau of Labor Statistics, United States Department of 
Labor, “ Collective Bargaining Provisions: Adminis­
tration o f Seniority”, Bulletin No. 1425-14 at 11 n.9 
(1 9 7 2 ).................................................................—............. 22

Cooper & Sobol, “Seniority and Testing Under Fair 
Employment Laws: A General Approach to Objective 
Critieria o f Hiring and Promotion,” 82 Harv. L.R.
1598 (1 9 6 9 ).............................      23

2A M oore’s Federal Practice, 11 12.08 (2d ed. 1979)....... 9
5A Moore’s Federal Practice, H 52.04 (2d ed. 1979)....... 6
5 Wright & Miller, Federal Practice and Procedure: 

Civil: § 1357 ( 1969)...........    21



I n  T h e

Supreme Court of The United States
O ctober T erm, 1979

No. 78-1548

California Brewers Association, et al.,
Petitioners,

v.
Abram Bryant,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for the Ninth Circuit

BRIEF A M IC U S C U RIAE  OF THE LAWYERS’ 
CO M M ITTEE FOR CIVIL RIGHTS UNDER LAW

I. INTEREST OF A M IC U S  C U R IA E 1 
The Lawyers’ Committee for Civil Rights Under Law was 

organized in 1963 at the request of the President of the United 
States to involve private attorneys in the national effort to

1 The parties’ letters of consent to the filing of this brief are being 
filed with the clerk pursuant to Sup. Ct. Rule 42(2).



2

assure civil rights to all Americans. The Committee’s member­
ship today includes two former Attorneys General, several past 
Presidents of the American Bar Association, a number o f law 
school deans, and many o f the nation’s leading lawyers. 
Through its national office in Washington, D.C., and its offices 
in Jackson, Mississippi, and eight other cities, the Lawyers’ 
Committee over the past fifteen years has enlisted the services 
o f over a thousand members o f the private bar in addressing 
the legal problems o f minorities and the poor in voting, 
education, employment, housing, municipal services, the ad­
ministration o f justice, and law enforcement.

Our extensive litigation program against employment dis­
crimination is conducted through our privately funded Govern­
ment Employment Project (providing representation to federal, 
state, and local government employees claiming unlawful em­
ployment discrimination), through our Equal Employment 
Opportunity Project ( which provides representation to private- 
sector plaintiffs), and through the general litigation activities of 
our Mississippi and Washington offices and other local affil­
iates.

In this case, the Court must review the provisions o f a 
statewide collective bargaining agreement in the brewery in­
dustry which, under the guise of “ seniority,” has effectively 
locked out o f permanent employment positions blacks and 
other minority workers. If the challenge mounted by the 
petitioners to the decision of the Ninth Circuit is successful, the 
seniority exception embodied in § 703(h) of the Civil Rights 
Act o f 1964, as amended, will become an insurmountable 
obstacle to a substantial proportion of otherwise worthy Title 
VII claimants. We believe that such a result was neither 
intended by Congress nor envisioned by the Court in Inter­
national Brotherhood o f Teamsters v. United States, 431 U.S. 
324 ( 1977) (hereafter, “Teamsters”) , on which petitioners 
principally rely.



3

We have previously addressed issues o f racial dis­
crimination in the context o f higher education as well as 
employment in our amicus briefs filed in DeFunis v. Odegaard, 
416 U.S. 312 ( 1974), Regents o f the University o f  California v. 
Bakke, 438 U.S. 265 ( 1978), and United Steelworkers o f  
America v. Weber, 99 S.Ct. 2721 ( 1979). Because the issues 
presented by this case are vitally important to the realization of 
the goal of equal employment opportunity for blacks, the 
Committee files this brief urging affirmance of the judgment 
below.



4

II. PRELIMINARY STATEMENT

1. Prior Proceedings

This uncertified class action was begun in October, 1973, in 
the United States District Court for the Northern District of 
California, by respondent, Abram Bryant, against petitioners, 
the California Brewers Association; the Fal staff Brewing Corpo­
ration, an individual brewery where Bryant had worked; the 
Teamster Brewery and Soft Drink Workers Joint Board of 
California ( “Joint Board” ) of the International Brotherhood of 
Teamsters, etc. ( “Teamsters” ); and two Teamsters local 
unions, seeking relief pursuant to, inter alia, Title VII of the 
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e 
(sometimes referred to hereafter as “Title VII” ) to remedy 
alleged discriminatory employment practices in the brewery 
industry in California. Bryant alleged in his Second Amended 
Complaint (A. 9-24)2 that he had worked in the brewery 
industry in California since 1968; had become a “ temporary 
employee” therein; had sought unsuccessfully to become a 
“permanent employee,” which status would have assured re­
spondent important benefits and promotions; but had been 
thwarted in that endeavor by the concerted, illegal and dis­
criminatory conduct of petitioners. (Second Amended Com­
plaint, f f  12-22a, A. 16-18.) Respondent alleged that the acts 
of racial discrimination which had barred his entry into “per­
manent employee” status resulted inexorably from a collective 
bargaining agreement, dated June 1, 1970, entered into by, 
among others, the Teamsters Joint Board and the California 
Brewers Association ( “ Collective Bargaining Agreement” ). (A. 
25-42.) Specifically, Bryant pointed to § 4 (a )(  1) o f the Collec­
tive Bargaining Agreement, which provided in 1970 (as it had 
for two decades past) that for a “ tem porary” employee to 
achieve “perm anent” status, he had to work a minimum of 45 
weeks in any year for a member brewery ( “ the 45 week

2 References to the Appendix will be indicated by the letter “A” 
followed by relevant page citations.



5

requirement” ). (A. 27.) Bryant alleged that, as a practical 
matter, the 45 week requirement had operated and would 
continue to operate in the brewery industry as a barrier to any 
worker’s rise from the “ tem porary” to the “ perm anent” classifi­
cation. He also alleged that virtually no black workers had 
achieved the status o f “ permanent employee.” (Second 
Amended Complaint, § 16, A. 17.) He sought as relief (1 ) a 
declaratory and injunctive order enjoining the enforcement of 
the 45 week requirement; (2 ) a mandatory injunction awarding 
him unspecified retroactive status and benefits; and (3 ) dam ­
ages.

Following procedural developments not material to this 
appeal, petitioners moved pursuant to Rule 1 2 (b )(6 ), Federal 
Rules of Civil Procedure, for an order dismissing the Second 
Amended Complaint on the ground that it failed to state a 
claim for which relief could be granted. That motion was 
granted, without opinion, and an order of dismissal entered on 
October 17, 1974. (A. 43-45.) The record does not reflect the 
grounds urged by the petitioners or the reasons underlying the 
decision of the District Court. It may be inferred from its 
summary disposition of the case, however, that the District 
Court reached its ultimate judgment without referring to any 
matters other than the Second Amended Complaint and the 
Collective Bargaining Agreement.

Respondent’s appeal to the Court o f Appeals for the Ninth 
Circuit thus tested solely the adequacy o f the stricken pleading, 
not the quality or sufficiency of the evidence that respondent 
might marshall at a trial. It is necessary to stress this 
elementary procedural observation inasmuch as petitioners’ 
argument to this Court occasionally reads as if respondent had 
been given an opportunity below to develop the record fully. 
(Brewers Br. at 6-12, 20-22.)3 Following initial oral argument

3 References to to the Brief of Petitioners California Brewers 
Association and California Breweries will be indicated by “Brewers 
Br.” followed by relevant page citations. References to the joint brief 
by the unions and to the amicus brief submitted by the Equal 
Employment Advisory Council will be indicated by “Union Br.” and 
“EEAC Br.,” respectively, followed by the relevant page citations.



6

before the Court o f Appeals, Teamsters was decided, the proper 
interpretation o f which has become the centerpiece o f this case. 
Teamsters clarified the scope o f the defense to Title VII suits 
found in § 703(h) o f the Civil Rights Act of 1964, 42 U.S.C. § 
2000e-2(h). That section provides:

Notwithstanding any other provision o f this title, it 
shall not be an unlawful employment practice for an 
employer to apply different standards of compensation, or 
different terms, conditions, or privileges of employment 
pursuant to a bona fide seniority or merit system . . . 
provided that such differences are not the result o f an 
intention to discriminate because of race, color, religion, 
sex, or national origin . . . .

Interpreting this provision, the Court held, 431 U.S. at 353-54, 
that “ an otherwise neutral, legitimate seniority system does not 
become unlawful under Title VII simply because it may 
perpetuate pre-Act discrimination.”

The Court o f Appeals below, in an opinion reported at 585 
F.2d 421 (1979), reversed the dismissal of the Second 
Amended Complaint, concluding that respondent had pleaded 
facts sufficient to entitle him to a trial o f his employment 
discrimination claims. In so concluding, the Ninth Circuit 
rejected petitioners’ defense—reshaped in light o f Team­
sters—that the 45 week requirement was part o f a bona fide 
seniority system immunized from review by § 703(h). That 
conclusion was mandated by its analysis o f the terms and 
provisions of the Collective Bargaining Agreement.4 The Court

4 Notwithstanding the petitioners’ contention that the Ninth 
Circuit engaged in impermissible appellate fact finding ( Brewer’s Br. 
at 42-45), the Court of Appeals did no more than summarize the 
allegations and uncontroverted documentary evidence before it. In­
deed, where the District Court does not weigh the credibility or 
demeanor of live witnesses, the Court of Appeals is in as good a 
position as the District Court to summarize and evaluate the evidence. 
5A Moore’s Federal Practice, H 52.04 at 2677 (2d ed. 1979), and 
cases collected therein. Moreover, the Ninth Circuit remanded to the 
District Court the task of determining the operative effect of the 
Collective Bargaining Agreement. 585 F.2d at 428.



7

of Appeals reasoned, first, that the 45 week requirement did not 
“ involve an increase in employment rights or benefits based 
upon length of the employee’s accumulated service.” (emphasis
added) 585 F.2d at 426. Second, it construed the provision as 
an “ all-or-nothing proposition.” 585 F.2d at 427. Third, the 
Court noted that credit for time worked was not cumulative 
from year to year. Because the 45 week requirement operated 
in this fashion, it could not lawfully be characterized as a 
seniority requirement or as part of a seniority system. Having 
concluded that the challenged provision o f the Collective 
Bargaining Agreement was thus not free from judicial scrutiny 
by reason o f § 703(h), the Court o f Appeals remanded the 
cause “ to give plaintiff the opportunity to prove that the 45- 
week provision had a discriminatory impact on Black workers 
in violation of Title VII, . . . .” 585 F.2d at 428.

The petition for certiorari was granted on June 4, 1979. 47 
U.S.L.W. 3781, 62 L. Ed. 2d 282.

2. Statement of Facts

The facts comprise the well-pleaded allegations of re­
spondent’s Second Amended Complaint, read in conjunction 
with the Collective Bargaining Agreement. As properly found 
by the Ninth Circuit, the following are the relevant factual 
allegations:

In 1968 plaintiff Abram Bryant, a Black person and a 
member of Teamsters’ Local 856, got his first brewery 
worker’s job with Falstaff Brewing Company in Northern 
California. Bryant earned his living working for Falstaff 
until 1973 when he went to work for Theodore Hamm 
Company. In 1974 when this action was filed, despite 6 
years o f brewery experience, Bryant was still classified as a 
temporary employee because of his inability to satisfy the 
45-week provision in the collective bargaining agreement 
between all major California breweries and brewery 
unions. Under this provision, found in section 4 of the



8

agreement, a temporary employee must work 45 weeks in 
one calendar year before he is classified as perm anent and 
entitled to additional fringe benefits and greater job secu­
rity. On its face the requirement appears innocuous. The 
rub is that changed circumstances in the brewery industry, 
including greater automation, improved brewing methods, 
and consolidation o f breweries, have lessened the demand 
for labor, so that now it is virtually impossible for any 
temporary employee, Black or White, to work 45 weeks in 
one calendar year. [Footnotes omitted.] 585 F.2d at 423- 
424.

The specific provisions of the Collective Bargaining Agreement 
that precluded Bryant and others similarly situated from enter­
ing the ranks o f “perm anent employees,” while simultaneously 
insulating those white workers who had achieved the highest 
employment status in the brewery industry from being divested 
of their status, are contained in §§ 4 (a ) (1 )  and 4 (a ) (5 )  
thereof. Section 4 (a ) (1 )  provides in pertinent part that a 
temporary employee becomes a perm anent employee when he 
“ has completed forty-five weeks o f employment under this 
Agreement in one classification in one calendar year as an 
employee o f the brewing industry in [California].” Section 
4 (a ) (5 )  provides that a perm anent employee shall lose his 
status as such where, subject to exceptions not here relevant, he 
“ is not employed under this Agreement for any consecutive 
period o f two (2 ) years . . . .” (emphasis supplied) (A. 29.) 
It is not disputed that the latter provision means that divestiture 
o f perm anent employee status under Section 4 (a ) (5 )  occurs 
only where an employee fails to work at all in the brewery 
industry for a two-year period.

The balance of the Collective Bargaining Agreement, 
discussed at length by petitioners, addresses other distinct 
rights, benefits and obligations of the employees covered 
thereunder. (Brewers Br. at 8-12.) It is respectfully suggested 
that these provisions, which pertain to dispatching and job 
referrals, layoffs and bumping rights, reflect traditional notions



9

of seniority, in that rights accrue gradually and proportionately 
with the passage of time. These “ true seniority” provisions, as 
the Ninth Circuit developed that concept, 585 F.2d at 426-427, 
are functionally distinct and severable from the status-defining 
provisions o f §§ 4 (a ) (1 )  and 4 (a ) (5 )  described above.

In sum, focusing solely on the challenged provisions o f the 
Collective Bargaining Agreement and the practices o f the 
petitioners thereunder, respondent alleged that he and other 
black employees have been “ forever precluded from achieving 
perm anent status.” (11*16, Second Amended Complaint, 
A. 17.)

Although petitioners maintain that the Court o f Appeals 
attached undue weight to Bryant’s allegations (Brewers Br. at 
43-46), the foregoing summary of the facts must be assumed to 
be accurate and complete for purposes of this appeal.5 Bryant’s 
complaint thus alleged serious and pervasive patterns o f racially 
discriminatory practices in a state-wide industry.6 This appeal

5 Indeed, the only additional fact that should be considered by 
the Court is the concession by petitioners that numerous member 
breweries in the California Brewers Association are now closed or are 
operating under agreements different from the Collective Bargaining 
Agreement under review here. ( Brewers Br. at 6-7, n.7.) Since 
equitable relief against such defendants may be impossible to effec­
tuate, the altered relationship of the parties may render this case 
moot. Hernandez v. European Auto Collision, Inc., 487 F. 2d 378, 387 
(2d Cir. 1973), (in Civil Rights Act case where claim for specific relief 
became moot, remaining claim for nominal damages will not preserve 
suit); and De Funis v. Odegaard, 416 U.S. 312 (1974) (where 
injunction is no longer necessary to protect plaintiffs claimed entitle­
ment to attendance at law school, case dismissed as moot).

6 The standard which governs the dismissal of a complaint under 
Rule 12(b)(6) is that “a complaint should not be dismissed for 
insufficiency unless it appears to a certainty that plaintiff is entitled to 
no relief under any state of facts which could be proved in support of 
the claim” (emphasis omitted). 2A Moore’s Federal Practice f  12.08 
at 2271, 2274 (2d ed. 1979). In the context of a civil rights case, the 
Court has similarly held that “ [wjhen a federal court reviews the 
sufficiency of a complaint, before the reception of any evidence either 
by affidavit or admissions, its task is necessarily a limited one. The 
issue is not whether a plaintiff will ultimately prevail but whether the 
claimant is entitled to offer evidence to support the claims.” Scheuer v. 
Rhodes, 416 U.S. 232, 236 (1974).



10

ultimately will determine whether he shall have an opportunity 
to prove his case in court; if not, respondent will have been 
thwarted by petitioners5 conclusory assertion that the chal­
lenged provisions o f the Collective Bargaining Agreement are 
free from judicial scrutiny because they may loosely be charac­
terized as part o f a seniority system established prior to the 
passage o f the Civil Rights Act o f 1964.

3. Summary of Argument

To determine whether Bryant is entitled to a hearing in the 
District Court o f his claim that the 45 week requirement violates 
Title VII, the Court will have to determine the scope o f the 
seniority exemption carved out o f the Civil Rights Act by 
§ 703(h). A number o f decisions by this Court establish that in 
order to make out a prima facie  case under Title VII, a plaintiff 
who challenges a facially neutral provision in an employment 
agreement that was adopted without impermissible racial moti­
vation must show that the provision has had markedly dis­
parate effects on white and nonwhite employees and cannot be 
justified by business necessity.

Teamsters decided that § 703(h) exempts from review 
employment practices to the extent that they are components o f 
bona fide  seniority systems established prior to the enactment of 
the Civil Rights Act of 1964, notwithstanding that they may 
perpetuate pre-Act unequal treatment o f whites and non­
whites. Although the Court in Teamsters carefully circum­
scribed the requirement that a challenged practice be bona fide, 
it did not directly address the question o f what constitutes a 
seniority system. Petitioners argue, in essence, that provisions 
o f labor agreements pertaining to hiring, promotion, bumping 
and firing are part o f a seamless web permeated by the concept 
o f seniority. Accordingly, they urge that courts should not 
attempt to dissect such agreements in an effort to eliminate 
perceived discriminatory provisions, since any such judicial 
effort will necessarily upset a carefully negotiated system of 
rights and obligations agreed to over years by management and



11

labor. However, despite these predictions o f dire consequences, 
federal courts in the wake o f Teamsters have succeeded in 
isolating and enjoining parts o f collective bargaining agree­
ments that are violative o f Title VII. Hence, it would appear 
that the task o f analyzing such agreements and framing appro­
priate equitable decrees that remedy civil rights violations but 
respect and preserve other racially-neutral provisions is not 
beyond the capacity of the federal courts.

Moreover, a careful analysis of the case law shows that it is 
possible to extract certain core concepts that give meaning to 
the statutory term “seniority.” The emphasis placed by the 
Ninth Circuit in its decision below on graduated increases in 
employment rights or benefits based upon the length o f an 
employee’s accumulated service was fully warranted. The 
court’s construction is the more compelling when it is recog­
nized that seniority is an exception to a statute whose overriding 
purpose is the extension, to all covered workers, of equal 
employment opportunities. A strict interpretation of “ seniority” 
in § 703(h) thus comports with the basic scheme of Title VII.

Measured against these standards, the 45 week require­
ment cannot escape judicial scrutiny. Its principal character­
istics are those alleged by Bryant and identified by the Ninth 
Circuit: ( i)  forfeiture of time accrued after each calendar year; 
(ii) the impossibility o f satisfying the criterion; and (iii) the 
failure o f the Collective Bargaining Agreement to confer any 
intermediate right or benefit short of permanent status on a 
temporary employee who works a substantial number of weeks 
— but fewer than 45. In view o f these deficiencies, the Court of 
Appeals properly reinstated the Second Amended Complaint so 
as to permit Bryant to attempt to prove his allegations of 
discriminatory practices in the brewery industry in California.



12

III. ARGUMENT
TH E COURT OF APPEALS CORRECTLY HELD THAT 
RESPONDENT’S ALLEGATIONS OF EM PLOYM ENT 
DISCRIM INATION FLOW ING FROM  THE 45 WEEK 
REQUIREM ENT W ERE NOT SUBJECT TO DISM ISSAL 
BY TH E M ERE ASSERTION OF TH E “ SEN IO RITY” 
DEFENSE UNDER SECTION 793(h).

1. N ature and Reach of Title VII Suits

The primary purpose o f Title VII was “ to assure equality 
o f employment opportunities and to eliminate those dis­
criminatory practices and devices which have fostered racially 
stratified job environments to the disadvantage of minority 
citizens. ” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 
(1973). In order to accomplish this goal, Congress “ pro­
scribe [ d ] not only overt discrimination but also practices that 
are fair in form, but discriminatory in operation.” Griggs v. 
Duke Power Company, 401 U.S. 424, 431 (1971). Numerous 
decisions in this Court have demonstrated that a prima facie  
Title VII violation may be established by policies or practices 
that are neutral on their face and in intent but that nonetheless 
discriminate in effect against a particular group. General 
Electric Co. v. Gilbert, 429 U.S. 125, 137 (1976); McDonnell 
Douglas Corp. v. Green, supra, at 802 n. 14; Griggs, supra, at 
430. Thus, a facially neutral practice which perpetuates the 
effects o f prior discrimination generally violates Title VII.

As the Court held in Griggs: “ Under the Act, practices, 
procedures, or tests neutral on their face, and even neutral in 
terms of intent, cannot be maintained if they operate to ‘freeze’ 
the status quo of prior discriminatory employment practices.” 
Id. at 430. In Griggs the Court held that an employer’s practice 
of requiring either a high school diploma or passing an 
intelligence test as a prerequisite to employment or transfer 
violated the Civil Rights Act o f 1964. Neither requirement was 
shown to bear a “ demonstrable relationship to successful 
performance of the jobs.” 401 U.S. at 431. The Court



13

explained the overriding purpose o f Title VII o f the Civil Rights 
Act in these terms:

The objective o f Congress in the enactment o f Title 
VII is plain from the language of the statute. It was to 
achieve equality o f employment opportunities and remove 
barriers that have operated in the past to favor an identi­
fiable group o f white employees over other employees. 
401 U.S. at 429-30.

Contrary to the central contention articulated by petition­
ers, who would read Title VII as part o f a “Seniority Exemption 
Act o f 1964,” Teamsters carved out a narrow exception within 
the rule announced in Griggs. To accept the boundless 
definition of “ seniority system” proferred by petitioners 
(Brewers Br. at 25-35, Union Br. at 21-32) would vitiate Title 
VII by requiring virtually every employment discrimination 
claimant to prove initially that the practice complained of was 
not remotely related to a seniority system. The limited immu­
nity granted by § 703(h) should not be allowed to protect any 
and all elements o f labor agreements which employers and 
unions characterize as components of seniority systems. 
(EEAC Br. at 30.) To do so would permit management and 
unions to dilute employees’ civil rights by the simple expedient 
o f labelling as a “ seniority” requirement any challenged provi­
sion of a collective bargaining agreement. Such a result would 
encourage evasion o f the Act’s requirements and obstruct the 
important goals of Title VII. Nothing in Teamsters requires this 
result, as a close examination o f its facts and rationale will 
demonstrate.

2. Scope of Seniority Exemption Under § 703(h)

In Teamsters, black employees o f a carrier company 
challenged certain seniority provisions in their union’s collective 
bargaining agreements. The employees’ union maintained two 
separate bargaining units which corresponded to the company’s 
two departments — line drivers and city drivers. For purposes



14

of calculating “ competitive seniority,” i.e., “ the order in which 
employees may bid for particular jobs, are laid off, or are 
recalled from layoff...,” 431 U.S. at 343, seniority was based 
upon length o f service in a particular department. For purposes 
o f calculating “ benefit seniority,” e.g., vacation time and pen­
sion credits, seniority was based upon length o f service with the 
company. Employees seeking to transfer from one department 
into the other could not retain their accumulated “ competitive 
seniority.”

Black workers had traditionally been assigned only to the 
less desirable city driver departm ent and claimed that the 
forfeiture o f competitive seniority upon transfer unfairly dis­
criminated against them and “ locked” them into jobs. The 
Court held that the seniority system was protected by § 703(h), 
since “ an otherwise neutral, legitimate seniority system does not 
become unlawful under Title VII simply because it may 
perpetuate pre-Act discrimination.” 431 U.S. at 353-54.

The seniority system in Teamsters granted job seniority 
along historically separate job classifications in a m anner which 
perpetuated the allocation o f those jobs on racial lines. How­
ever, it did not bar employees’ access to a different job, nor any 
non-employees’ access to a particular job. In Teamsters, black 
workers could become line drivers after the Act was passed; in 
large measure they declined to seek such a transfer because to 
do so would have jeopardized their job security. The gist of 
Teamsters is that a bona fide  seniority provision in a fairly 
negotiated collective bargaining agreement is not prohibited 
under Title VII o f the Civil Rights Act of 1964, as amended, 
simply because it may not confer on present employees seeking 
transfer to a new department any greater rights than are 
enjoyed by non-employees.

In sum, Teamsters gave content to the requirement in 
§ 703(h) that a seniority system, to be free from challenge in 
Title VII actions, must be bona fide. But Teamsters left to 
another day the question o f the precise contours o f seniority



15

systems as such. Thus, contrary to the contention o f petitioners, 
Bryant’s argument that he is entitled to an order striking down 
certain portions o f the Collective Bargaining Agreement that 
are not part o f the core seniority system in the California 
brewery industry is not foreclosed by Teamsters.

Results reached by post-Teamsters cases refute petitioners’ 
proposition that § 703(h) protects all aspects o f the employer- 
employee relationship that may be attributable to alleged 
seniority systems. The Court has recognized in a sex dis­
crimination case that also arose under § 7 0 3 (a )(2 ) the inherent 
limitations o f § 703(h). In Nashville Gas Co. v. Satty, 434 U.S. 
136 (1977), the Court held that certain elements o f a seniority 
system having a discriminatory impact upon women violated § 
7 0 3 (a )(2 ) o f Title VII. The employer in Satty required 
pregnant female employees to take a leave o f indeterminate 
length. The seniority system provided that such employees 
must forfeit any job security accrued prior to the leave. Thus, 
an employee who sought re-employment after a pregnancy 
leave could only obtain a position “ for which no individual 
currently employed is bidding . . . ” 434 U.S. at 139.

When the employee in Satty applied for reinstatement, she 
learned that her previous position had been eliminated due to 
bona fide  cutbacks in her department. Instead, she received a 
job  in a temporary capacity. Her repeated attempts to secure a 
permanent position were rejected in favor o f other employees 
who had begun to work during her pregnancy leave. The Court 
stated that “ both intentional discrimination and policies neutral 
on their face but having a discriminatory effect may run afoul of 
§ 7 0 3 (a ) (2 ) .” 434 U.S. at 141. The employment practice which 
denied accumulated seniority to female employees was found to 
be facially neutral but could not be sustained due to its 
discriminatory effect upon wom en’s employment opportunities. 
Id. at 143. The Court thus gave tacit recognition to the fact that 
particular sections o f collective bargaining agreements may be 
nullified on Title VII grounds notwithstanding their loose 
relationship to core seniority provisions o f such agreements.



16

Post -Teamsters cases in the lower federal courts demon­
strate that Teamsters does not authorize unwarranted ex­
pansion o f the scope o f the term “ seniority system.” Employers 
have not been permitted to dilute employees’ civil rights by 
incorporating extrinsic practices into the definition o f “ senior­
ity” systems.

In Parson v. Kaiser Aluminum & Chemical Corp., 575 F.2d 
1374, on rehearing, 583 F.2d 132 (5th Cir. 1978), cert, denied, 
47 U.S.L.W. 3761 (M ay 21, 1979), for example, the court held 
that a restrictive provision governing interdepartmental transfer 
opportunities was not part o f the seniority system. An em­
ployee seeking to transfer to a new department could bid for an 
entry level job only in that department. Upon transferring he 
was required to retain the entry level job for a minimum of ten 
days before becoming eligible to bid for vacancies in the new 
department. In striking down this system, which inhibited 
interdepartm ental transfers, the court stated:

While the rules for bidding for vacancies within a 
departm ent are governed by seniority and thus by Team­
sters, the ten-day bottom entry requirement is not a 
seniority rule at all. Rather, it is a condition upon transfer 
wholly extraneous to the prevailing seniority system, and, 
as such, is not immunized by § 703(h) and Teamsters. 583 
F.2d at 133.

The Parson decision illustrates the need to draw careful 
distinctions between various aspects o f employment. Although 
rules o f promotion and tenure may have some o f the attributes 
o f seniority, that fact alone does not remove a system of 
promotion and tenure from judicial scrutiny.

In Patterson v. American Tobacco Co., 586 F,2d 300 (4th 
Cir. 1978), the court held that a “ promotional system” with a 
racially discriminatory impact was not part o f a seniority system 
and consequently not immunized by § 703(h). The “promo­
tional scheme” provided that certain jobs be filled according to



17

lines o f progression, with employees moving from one job to 
the next within the line. The available jobs were predominantly 
in one departm ent from which blacks had traditionally been 
excluded. Thus, blacks held few jobs in these lines and could 
not advance up the scale o f progression despite their seniority. 
The Court o f Appeals held that the lines of progression were 
not components o f the seniority system:

As construed by the Court in Teamsters, § 703(h) 
carves out an exception to the holding of Griggs that an 
otherwise neutral practice which perpetuates the effects of 
past employment discrimination is violative o f Title VII. As 
we read Teamsters, this is a narrow exception, concerning 
only practices directly linked to ‘a bona fide seniority 
system.’ Section 703(h) does not insulate an entire 
promotional system even if such system is facially neutral. 
At most, it insulates only the seniority aspects of the 
promotional system. Consequently, Teamsters requires no 
modification o f the relief we approved with regard to job 
descriptions, lines o f progression, back pay (except such 
awards as may have been founded upon American’s 
seniority system) or supervisory appointments. Only our 
decision to allow black employees to make interbranch 
transfers with the retention o f company seniority impinges 
upon American’s seniority system. (Emphasis added .) 586 
F.2d at 303.

See also, Pettway v. American Cast Iron Pipe Co., 576 F.2d 
1157, 1193-4 (5th Cir. 1978), cert, denied, 99 S.Ct 1020 
(1979), which held that a line of progression did not constitute 
part o f a seniority system.

3. Considerations of Statutory Interpretation

It is a well-established principle of statutory construction 
that “ remedial legislation should be construed broadly to 
effectuate its purposes.” Tcherepnin v. Knight, 389 U.S. 332,



18

336 (1967).7 Petitioners’ interpretation o f the statutory ex­
ception set forth in § 703(h) effectively undermines the reme­
dial purposes o f Title VII.

Moreover, statutory exceptions to remedial laws should be 
read narrowly.8 Thus, in Phillips Company v. Walling, 324 U.S. 
490 (1945), the Court read restrictively a statutory exemption 
contained in § 1 3 (a )(2 ) o f the Fair Labor Standards Act of 
1938, 29 U.S.C. § 2 1 3 (a )(2 ). The Court stated that:

The Fair Labor Standards Act was designed ‘to 
extend the frontiers o f social progress’ by ‘insuring to all 
our able-bodied working men and women a fair day’s pay 
for a fair day’s work’ . . . .  Any exemption from such 
hum antarian and remedial legislation must therefore be 
narrowly construed . . . .  To extend an exemption to other 
than those plainly and ummistakably within its terms and 
spirit is to abuse the interpretive process and to frustrate 
the announced will of the people. 324 U.S. at 493.

In construing the term “ seniority,” petitioners rely heavily 
upon a line of cases decided under the Veterans Re­
employment Rights Act o f 1940, as amended, 50 U.S.C. App. 
§ 459 ( “ Veterans Act” ).9 The Veterans Act provides that a 
veteran who seeks re-employment after discharge from military 
service “ shall be permitted to return to his position with such 
seniority, status, pay, and vacation as he would have had if  he 
had not been absent for such purposes.” 50 U.S.C. App. 
§ 4 5 9 (g )(4 ). The broad language employed in these decisions 
should not be taken out o f context.

7 See also, Powell v. U.S. Cartridge Company, 339 U.S 497, 516- 
17 ( 1950); Equal Employment Opportunity Commission v. Louisville & 
Nashville Railroad Company, 505 F.2d 610, 616 (5th Cir. 1974), cert, 
denied, 423 U.S. 824 ( 1975).

8 Brennan v. Keyser, 507 F.2d 472, 477 (9th Cir. 1974), cert, 
denied, 420 U.S. 1004 (1975); National Automatic Laundry and 
Cleaning Council v. Shultz, 443 F.2d 689, 706 (D.C.Cir. 1971).

9 E.g., Aeronautical Industrial District Lodge 727 v. Campbell, 
337 U.S. 521 (1949); Ford Motor Co. v. Huffman, 345 U.S. 330 
( 1953). See, Brewers Br. at 28-32; Union Br. at 23-27.



19

The Veterans Act was, in essence, a civil rights act for 
returning veterans. The purpose of the Veterans Act was to 
assure that individuals who engaged in military service would 
not be penalized upon their return to civilian life. Because the 
courts sought to protect the rights o f returning veterans they 
construed terms and conditions o f employment, including “ sen­
iority,” broadly so as to effectuate the statutory objective. But it 
must be borne in mind that in the Veterans Act suits, the rights 
o f the returning serviceman — including rights to “ super- 
seniority” — were grounded in a Congressional declaration of 
policy to accord enlarged benefits to veterans. Those who 
opposed the veterans’ claims generally defended on con­
tractual, not statutory grounds. Their arguably cramped con­
struction o f “ seniority” provisions in labor-management agree­
ments generally yielded to the specific statutory purpose of 
protecting returning servicemen from loss o f rights occasioned 
by their departure from the civilian job force. Moreover, the 
cases relied on by petitioners simply do not arise in contexts 
where claims of seniority had to be weighed against competing 
civil rights claims o f black workers protected by Title VII.

An analysis o f one representative case, Alabama Power Co. 
v. Davis, 431 U.S. 581 ( 1977), illustrates the rationale behind 
this group o f cases. Davis’ employment at Alabama Power 
Company, interrupted by 30 months of military service, contin­
ued until his retirement. He claimed that § 9 o f the Veterans 
Act, 50 U.S.C. App. § 459(b), required his employer to give 
him pension credit for his period of military service. § 9 
provides in part that a veteran seeking re-employment shall “ be 
restored...to a position o f like seniority, status, and pay....” 50 
U.S.C. App. § 4 5 9 (b )(B )(i) .

The Court focused on the nature o f the benefits involved 
and concluded, contrary to the Power Company’s assertion, 
that pension payments were part of the seniority system. The 
company could not avoid granting veterans the protection 
afforded by the Act by characterizing pension payments as 
deferred compensation for actual service rendered. The Court



20

held, citing Fishgold v. Sullivan Diydock & Repair Corp., 328 
U.S. 275, 285 (1946), that “ no practice o f employers...can cut 
down the service adjustment benefits which Congress has 
secured the veteran under the Act.” Thus, defining seniority 
rights in a liberal fashion best implemented the purpose o f the 
Veterans Act.

The instant case, however, arises under the Civil Rights 
Act, not the Veterans Act. Although both Acts are remedial, 
the purpose and scope of each is fundamentally different. We 
do not understand petitioners to suggest that the drafters of 
§ 703(h) o f the Civil Rights Act looked to the treatment of 
seniority under the Veterans Act to give meaning to the 
statutory phrase “bona fide seniority...system.” Nor does our 
research disclose any nexus between the two acts. Accordingly, 
cases decided under the Veterans Act ultimately offer little 
guidance in determining the scope of the seniority exemption 
under Title VII.

4. The 45 Week Requirement
As amicus, we are o f course cognizant o f the sanctity of 

collective barginning agreements. No one denies that freedom 
of collective bargaining must be respected; but proper obser­
vance o f that principle should not foreclose examination of 
particular provisions in labor-management agreements said to 
relate to seniority systems.

Section 4 (a ) (1 )  o f the Collective Bargaining Agreement 
defines a “ perm anent employee” as one who “ has completed 
forty-five weeks of employment under this agreem ent. . . in one 
calendar year.” (A. 27.) The Court of Appeals correctly 
determined that this provision neither comprises a seniority 
system nor is it part o f a seniority system.10 585 F.2d at 426.

10 In further support of their contention that the 45 week 
requirement is a seniority rule or an element of a seniority system, 
petitioners point to respondent’s “admissions” below to that effect. 
(Brewers Br. at 41 n. 18.) Although Bryant undeniably alleged that 
the contested provision was part and parcel of petitioners’ seniority

[ footnote continued on following page ]



21

The sole function o f the 45 week requirement is to enable 
the companies and the union to classify brewery workers as 
permanent or temporary employees. Since temporary employ­
ees are distinguishable from permanent employees only by 
virtue o f their failure to have satisfied the 45 week minimum 
within one year, it is clear that the distinction between the two 
classes of employees is arbitrary and, unlike Teamsters, unre­
lated to a bona fide  seniority system. The capricious aspects of 
the distinction are easily illustrated.

Seniority systems are intended to encourage attendance, 
diligence and attention to daily responsibilities because every 
day an employee works, he acquires greater job security and 
competitive advantage. Unless the 45 week requirement is 
satisfied, notwithstanding longevity of service in any other 
respect, employees are denied crucial benefits, such as job 
security and bumping rights. As further evidence o f the proposi­
tion that the 45 week requirement is not an aspect o f seniority, 
we invite the Court to compare the divesting provisions of § 
4 (a ) (5 )  of the Collective Bargaining Agreement with the 
vesting provision, § 4 (a ) (1 ) ,  described immediately above. 
Section 4 (a ) (5 )  provides that permanent employees can lose 
their protected status only if they fail to work at all for two 
consecutive years. (A. 29.) Section 4 (a ) (5 )  does not require a 
mini mum amount of work within these two years. Thus, the 45 
week requirement is unrelated to the proper goals o f a seniority 
system.

[ footnote continued from prior page ]
system (see, e.g., H *15, Second Amended Complaint, A. 16-17), this 
characterization is hardly an admission for purposes of a motion to 
dismiss a complaint at the pleadings stage. “ [T]he court will not 
accept conclusory allegations on the legal effect of the events plaintiff 
has set out if these allegations do not reasonably follow from his 
description of what has happened, or if these allegations are con­
tradicted by the description itself.” 5 Wright & Miller, Federal 
Practice and Procedure: Civil: § 1357 at 597 ( 1969). Moreover, it 
can hardly be doubted that the issue of whether the 45 week 
requirement may properly be described as a seniority provision is a 
mixed question of fact and law, if indeed in the posX-Teamsters era it 
is not a pure question of law. (Brewers Br. at 41.)



22

Petitioners concede (Brewers Br. at 28) the “ general tru th” 
o f the statement by the Court o f Appeals that “ the fundamental 
component o f a seniority system is the concept that employment 
rights should increase as the length o f an employee’s service 
increases” 585 F.2d at 426. However, petitioners attempt to 
retract that important concession by complaining that “ the 
Ninth Circuit omitted any discussion o f the important limita­
tions and conditions that serve to define and qualify the 
operation o f seniority.” Id. The reason why the Court of 
Appeals did not discuss any special factors which could be 
included within a seniority system is that not one o f these 
factors is present in the Collective Bargaining Agreement. 
Petitioners cite “ superseniority” provisions and probationary 
requirements in other labor agreements as factors which fre­
quently affect seniority based purely on length o f service. 
(Brewers Br. at 26-28.) However, “superseniority” is irrelevant 
because it does not come into play in the brewery industry’s 
Collective Bargaining Agreement. Also, the rules governing 
probation, to which petitioners refer, similarly have no bearing 
on the 45 week requirement. “ Probationary employees are 
normally hired in the expectation that they will be retained as 
regular employees if their work proves satisfactory.” 11 Satisfac­
tory work in the brewery industry, however, does not correlate 
to advancement in status from temporary to permanent em­
ployee.

Moreover, the 45 week requirement cannot be justified on 
the basis o f skill or special training or merit. Petitioners’ 
discussion of the complexity o f certain seniority systems obfus­
cates the fact that the 45 week requirement has no relation to 
either seniority or any other “ important factor.” For example, 
in Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977), a case cited 
by petitioners (Union Br. at 36 n.37), the Fifth Circuit per­

11 Bureau of Labor Statistics, United States Department of 
Labor, “Collective Bargaining Provisions: Administration of Senior­
ity,” Bulletin No. 1425-14 at 11 n.9 (1972)



23

mitted certain critical jobs to be excepted from the plant-wide 
seniority system only because these jobs “ necessitated special 
treatment in light of the higher responsibility required for the 
performance o f such jobs.” 559 F.2d at 1333. Such functional 
distinctions are not present in the brewery industry.

As noted above, the requirement that an employee work 
45 weeks during one year in order to attain permanent status 
bears no relationship to the fundamental ingredient o f all 
seniority systems—total length o f service. “ The variations and 
combinations o f seniority principles are very great, but in all 
cases the basic measure is length o f service. . . .  ”12 (emphasis 
added).

The 45 week requirement is not designed to reward 
employees on the basis of their cumulative employment record. 
Although temporary employees may gain in relative seniority 
within that category on the basis o f length o f service, such 
advancement will not lead to a change o f status from temporary 
to perm anent employee. Bryant alleged, and at this stage o f the 
litigation it must be assumed to be true, that even the highest 
ranking temporary employee may be barred forever from 
attaining the security and benefits enjoyed by permanent 
employees. Assuming arguendo that the barrier is not imper­
meable, it would theoretically be possible for a low-ranking 
temporary employee to achieve permanent status by the quirk 
of working for 45 weeks in any single year, regardless o f how 
little he may have worked in earlier years.

Although petitioners argue strenuously that the Court of 
Appeals slighted the seniority features of the Collective Bar­
gaining Agreement, it should be clear from the foregoing 
analysis that such seniority features are distinct from and of no

12 Cooper & Sobol, “Seniority and Testing Under Fair Employ­
ment Laws: A General Approach to Objective Criteria of Hiring and 
Promotion,” 82 Harv. L.R. 1598, 1602 (1969); See also, Aaron, 
“Reflections on the Legal Nature and Enforceability of Seniority 
Rights,” 75 Harv. L. Rev. 1532, 1534 ( 1962).



2 4

benefit to the temporary employee seeking genuine job security 
within the ranks o f perm anent employees. This anomaly serves 
to underscore Bryant’s contention that the 45 week requirement 
is so far removed from true seniority, as the term is commonly 
understood, that judicial inquiry into its allegedly dis­
criminatory effects is entirely proper. In contrast to the situation 
in Teamsters, where the problem arose from a loss o f job 
security upon transfer, here there is no realistic chance of 
obtaining a transfer with access to job security itself. In the 
brewery industry, unlike Teamsters, there is no functional 
difference between permanent and temporary employees. It is 
thus evident that the 45 week requirement cannot be considered 
rationally related to any element traditionally associated with 
seniority system. W hat is more, petitioners fail to show why an 
equitable decree could not be framed that would nullify §§ 
4 (a ) (1 )  and 4 (a ) (5 )  o f the Collective Bargaining Agreement 
while leaving intact the bona fide  core seniority provisions that 
are not the subject o f Bryant’s challenge.

Even the cases on which petitioners principally rely ( Bre­
wers Br. at 29-31; Union Br. at 38-9, 47-50) acknowledge the 
central role o f true seniority. In Teamsters, seniority was 
measured from the date an employee joined the company and 
from the time he entered a particular bargaining unit. This 
dual system of seniority established different orders of priority 
among employees for different purposes. However, within each 
area, seniority accrued with length o f service. Plaintiffs there 
did not attack the measure used, which was based on length of 
service; instead, the challenge was to their inability to transfer 
seniority between bargaining units.

This Court made clear in Teamsters that Title VII does not 
require wholesale emasculation of seniority systems so as to 
erase all indicia of pre-Civil Rights Act discrimination. But the 
statutory objective o f equal employment opportunity cannot be 
circumvented by labelling as an element o f “ seniority” a 
discriminatory practice that disadvantages those intended to be



25

protected by Title VII. Bryant does not seek advancement on 
the basis of discriminatory practices antedating his employment 
in 1968 in the brewery industry. He asks only that this Court 
permit him to prove at trial that the 45 week requirement bears 
only the most attenuated relationship to commonly understood 
standards o f seniority and should be invalidated because o f its 
racially discriminatory effects during the period o f his employ­
ment, unjustified by any business necessity. If  the decision 
below is affirmed, respondent will endeavor to show that the 45 
week requirement falls within the category o f “ capricious or 
arbitrary factors” condemned by this Court in Humphrey v. 
Moore, 375 U.S. 335, 350 (1964).

IV. CONCLUSION

As the foregoing analysis demonstrates, Title VII suits 
cannot be defeated by the bare assertion that the challenged 
employment practice is in some attenuated fashion related to a 
seniority system. Section 703(h) o f the Civil Rights Act of 
1964, as construed in Teamsters, should exempt from judicial 
review only those employment practices grounded in pre-1965 
provisions o f collective bargaining agreements that are unambi­
guously part o f bona fide  seniority systems. For Title VII 
purposes, a true seniority provision is one that entails graduated 
increases in employment rights or benefits based upon the 
length o f an employee’s accumulated service. Because (1 ) the 
45 week requirement in the California brewery industry is not a 
true seniority provision and (2 ) petitioners have not con­
clusively shown that enjoining the enforcement of the 45 week 
requirement will vitiate other provisions o f the subject Collec­
tive Bargaining Agreement that are exempt from review, the 
Court o f Appeals correctly concluded that Bryant should be 
given a hearing in which to prove the racially discriminatory 
effects of the 45 week requirement. Accordingly, the judgment



26

o f the Court o f Appeals, reversing the dismissal o f Bryant’s 
Second Amended Complaint, should be affirmed.

Respectfully submitted,

O f Counsel:

John B. Jones, Jr. 
N orman Redlich 

Co-Chairmen 
W illiam L. Robinson 
R ichard T. Seymour 

Staff Attorneys 
Lawyers’ Committee for 

Civil Rights Under Law 
733 Fifteenth Street 
Washington, D.C. 20005 
(202) 628-6700

October, 1979

Gerald A. Rosenberg 
Ellen Gaylin 
Rosenman Colin Freund 

Lewis & Cohen 
575 Madison Avenue 
New York, New York 10022 
(212) 940-8800