Jenson v. Eveleth Taconite Company Court Opinion

    Ill THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1930

No.

THE AMERICAN TOBACCO COMPANY, 
TOBACCO WORKERS' INTERNATIONAL 
UNION, AND LOCAL 182 OF TOBACCO 
WORKERS' INTERNATIONAL UNION,

Petitioners,
v.

JOHN PATTERSON, MARION MOSHOE, 
EDMUND PAGE, JAMES RANDOLPH 

AND PERCY TAYLOR,

Respondents.

AMERICAN BRANDS, INC.,

Petitioner,
v.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Respondent.

ENTRY OF APPEARANCE

Please enter my appearance as counsel of record 
in this matter on behalf of petitioners Tobacco Workers'



International Union and Local 182 of Tobacco Workers

International Union.

Counsel for Petitioners 
Tobacco Workers' International 
Union and Local 182 of Tobacco 
Workers' International Union
LEVIT & MANN
Third Floor, The Imperial Building 
5th and Franklin Streets 
Richmond, Virginia 23219 
(804) 644-5453

- 2 -



IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1980

No.

THE AMERICAN TOBACCO COMPANY,
TOBACCO WORKERS' INTERNATIONAL 
UNION, AND LOCAL 182 of TOBACCO 
‘WORKERS' INTERNATIONAL UNION,

Petitioners,

v .

JOHN PATTERSON, MARION MOSHOE, 
EDMUND PAGE, JAMES RANDOLPH 

AND PERCY TAYLOR,
Respondents.

AMERICAN BRANDS, INC.
Petitioner,

v.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

‘Respondent.

ENTRY OF APPEARANCE
*

Please enter my appearance as counsel of
i

record in this matter on behalf of petitioners American



Tobacco Company, 

American Brands,

a Division of American Brands, Inc. and 

Inc.

1  .✓  j  ^ L c  * - - (  ^  - '  1  ^  ' '

Henry T. Wickham 
Counsel for Petitioners 
The American Tobacco Company, 
a Division of American Brands,
Inc. and American Brands, Inc.

MAYS, VALENTINE, DAVENPORT & MOORE
23rd Floor, F&M Center
1111 East Main Street
Post Office Box 1122
Richmond, Virginia 23208
(804) 644-6011

- 2 -



I

iII

IN THE

&apmt? Glmirt nf thr ITuitPii Stall's
OCTOBER TERM, 1980

No,

THE AMERICAN TOBACCO COMPANY, 
TOBACCO WORKERS’ INTERNATIONAL 
UNION, AND LOCAL 182 OF TOBACCO 

WORKERS’ INTERNATIONAL UNION,
Petitioners,

v.

JOHN PATTERSON, MARION MOSHOE, 
EDMUND PAGE, JAMES RANDOLPH 

AND PERCY TAYLOR,
Respondents.

AMERICAN BRANDS, INC.,

v.
Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

(Names and addresses of attorneys on inside cover)



H enry  T. W ickham  (Counsel of Record 
for American)

D . E u g e n e  W e b b , J r .
St e p h e n  A. N o r th u p  
M ays, V a l e n t in e , D a v en po r t  & M oore 

P. O. Box 1122 
Richmond, Virginia 23208 
804-644-6011

P aul  G. P e n n o y e r , J r .
B ernard  W. M cC arthy  
P e t e r  N. H il l m a n  
C h a d bo u r n e , P a rk e , W h it esid e  & 

W o l f f

30 Rockefeller Plaza
New York, New York 10112
212-541-5800

Counsel for Petitioners 
The American Tobacco Company, 
a Division of American Brands, Inc., 
and American Brands, Inc.

Jay J. Levit (Counsel of Record for 
Unions)
Imperial Building, Third Floor 
5th and Franklin Streets 
Richmond, Virginia 23219 
804-644-5453

J am es F. C arroll  
Air Rights Building 
7315 Wisconsin Avenue, N.W. 
Washington, D.C. 20014 
301-652-1449

Counsel for Petitioner Unions

Petitioners, The American Tobacco Company, a Division 
of American Brands, Inc., American Brands, Inc.1, (herein­
after collectively “American”), Tobacco Workers’ Inter­
national Union and Local 182, Tobacco Workers’ Interna­
tional Union (hereinafter collectively “the Unions”) pray 
that a writ of certiorari issue to review the en banc judg­
ment of the Court of Appeals for the Fourth Circuit in 
these cases.

QUESTION PRESENTED

Whether the immunity from Title VII liability given to 
bona fide seniority systems under § 703(h) applies to sen­
iority systems instituted or revised after the effective date 
of Title VII?

1 American Brands, Inc. has no parent, subsidiary or affiliate re­
quired to be reported under Sup. Ct. R. 28.1.

i



TABLE OF CONTENTS

Page
QUESTION PRESENTED ............................................................ i

TABLE OF AUTHORITIES..........................................................  f t

OPINIONS B E L O W .....................................   2

JURISDICTION...............................................................................  2

STATUTORY PROVISION IN V O LV ED ..................................  2

STATEMENT OF THE C A S E .............................    3

REASONS FOR GRANTING THE W R IT ................................  5

I. This Case Presents An Important Question of Federal 
Law: The Applicability of § 703(h) of Title VII to Post- 
Act Seniority System s............................................................ 5

A. The decision below will have a chilling effect on labor
relations and affirmative action ....................................... 6

B. Neither statutory language nor legislative history sup­
ports the Court of Appeals’ interpretation of this im­
portant federal l a w ....................................................   10

II. The Result Reached by the Court of Appeals Conflicts In 
Principle With Decisions of This Court and with a Sub­
stantial Number of Lower Court Decisions........................ 16

CONCLUSION ............................................................................... 22

Appendix: En Banc Opinion of the United States Court of Appeals, 
Fourth Circuit, November 18, 1980

ii

TABLE OF AUTHORITIES

Cases

Page

Albemarle Paper Co. V. Moody, 422 U.S. 405 (1975) ............... 9
Alexander v. Aero Lodge No. 735, 565 F.2d 1364 (6th Cir.

1977), cert, denied, 436 U.S. 946 (1978) ............................  20
California Brewers Association v. Bryant, 444 U.S. 598

(1980) .................................................................................... passim
Consumer Products Safety Commission v. GTE Sylvania, Inc.,

_ U .S .  100 S.Ct. 2051 (1 9 8 0 ) .......................................11,15
Edmonds v. Southern Pacific Transportation Co., 19 Fair

Empl. Prac. Cas. 1052 fN.D. Cal. 1979) ................................  21
Edmondsonw. United States Steel Corp., 20 Fair Empl.

Prac. Cas. 1745 (N.D. Ala. 1979) ...........................................  21
EEOC v. McCall Corp., 24 Fair Empl. Prac. Cas. 432 

(S.D. Ohio 1978), aff'dsub nom, EEOC v. McCall 
Printing Corp., 24 Fair Empl. Prac. Cas. 437
(6th Cir. 1980) ...........................................................................  21

Franks V. Bowman Transportation Co.,
424 U.S. 747 (1976) .............................................................. H> I 3

Freeman v. Motor Convoy, 20 Empl. Prac. Dec. 1̂ 30,090
(N.D. Ga. 1979) ........................................................................ 21

Gemsco, Inc. v. Walling, 324 U.S. 244 (1945) ..........................  15
Griffin v. Copperweld Steel Co., 22 Fair Empl. Prac. Cas.

1112 (N.D. Ohio 1978) ........................................................... 2 1
Griggs v. Duke Power Co., 401 U.S. 424 (1971) . .7, 16, 17, 18, 20
Hameed v. Iron Workers___F.2d _ ,  24 Fair Empl.

Prac. Cas. 352 (8th Cir. 1980) .................................................. 20
International Brotherhood of Teamsters v. United States,
' 431 U.S. 324 (1977) ..........................................................passim
Johnson v. Burroughs Corp., No. 252 Daily Lab. Rep.

(BNA) D-l (December 31, 1980) (S.D. Fla. 1980) ........... 20
Local 1S9, United Papermakers & Papenvorkers v. United 

States, 416 F.2d 980 (5th Cir. 1969), cert, denied,
397 U.S. 919 (1 9 7 0 ) ................................................................... 8

iii



Page

Pate v. Transit District, 21 Fair Empl. Prac. Cas. 1228
(N.D. Cal. 1979) . ......................................................'............ 21

Richards V. United States, 369 U.S. 1 (1962) ...................... 11, 12
Sanders V. Sherwin Williams Co., 495 F. Supp. 571

(E.D. Mich. 1980) ............................................. .......................  21
62 Cases of Jam v. United States, 340 U.S. 593 (1 9 5 1 ) ........... 11
Trans World Airlines, Inc. V. Hardison,

432 U.S. 63 (1 9 7 7 ) ......................................................7, 15, 17, 19
United Air Lines, Inc. V. Evans, 431 U.S. 553 (1 9 7 7 ) .........passim
United States V. Bethlehem Steel Corp.,

446 F.2d 652 (2d Cir. 1971) ...................................................  8
United States v. Citizens & Southern National Bank,

422 U.S. 86 (1975) ..................................................................  12
United States v. Ironworkers Local 86, 443 F.2d 544

(9th Cir.), cert, denied, 404 U.S. 984 (1971) ........................ 8
United States v. Jacksonville Terminal Co., 451 F.2d 418 

(5th Cir. 1971), cert, denied sub nom, Brotherhood of 
Locomotive Engineers v. United States,
406 U.S. 906 (1972) ................................................................  8

United States v. Oregon, 366 U.S. 643 (1961) .......................... 15
United Steelworkers of America, AFL-CIO-CLC V. Weber,

443 U.S. 193 (1979) ............................................................ ,9, 10

Statutes

Bank Holding Company Act, 12 U.S.C. § 1 8 4 9 (d ) ............... 12-13
Title VII, Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e et seq........................................................ passim
Title VII, § 703(h), 42 U.S.C. § 2000e-2(h) ....................... passim
42 U.S.C. § 1981 ..........................*...............................................  3
Transportation Act of 1958, Section 7(c), 49 U.S.C. § 303 . . . .  12

Textbook

2A Sutherland, Statutory Construction § 47.12
(4th ed. Supp. 1980) ................................................................  12

iv

Articles

Page

Vaas, Title VII: Legislative History, 7 B.C. Ind. &
Comm. L. Rev. 431 (1966) ......................................................  14

Cooper & Scbel, Seniority and Testing Under Fair 
Employment Laws: A General Approach to Objective 
Criteria of Hiring and Promotion,
82 Harv. L. Rev. 1598 (1 9 6 9 ) .................................................. 14

Legislative Source

110 Cong. Rec. 7206 (1964) ......................................................  14

v



IN THE

j^ujirmp dmirt ai tlje
OCTOBER TERM, 1980

No,

THE AMERICAN TOBACCO COMPANY, 
TOBACCO WORKERS’ INTERNATIONAL 
UNION, AND LOCAL 182 OF TOBACCO 

WORKERS’ INTERNATIONAL UNION,
Petitioners,

v.

JOHN PATTERSON, MARION MOSHOE, 
EDMUND PAGE, JAMES RANDOLPH 

AND PERCY TAYLOR,
Respondents.

AMERICAN BRANDS, INC.,

v.
Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Respondent.

PETITION FOR A W RIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT



2

OPINIONS BELOW

The en banc opinion, of the Fourth Circuit as to which a 
writ of certiorari is sought is unofficially reported at 24 Fair 
Empl. Prac.’Cas. 531 and is set forth in the appendix to this 
petition. Previous opinions of the Fourth Circuit in these 
cases are reported at 535 F.2d 257, cert, denied, 429 U.S. 
920 (1976) (“Patterson 1”), and 586 F.2d 300 (1978) 
(“Patterson II’’). Previous opinions of the district court are 
unofficially reported at 8 Fair Empl. Prac. Cas. 778 (1974) 
(post-trial opinion on liability); 11 Fair Empl. Prac. Cas. 
577 (1974) (opinion on relief); and 18 Fair Empl. Prac. 
Cas. 377 (1977) (order denying motion to reconsider and 
vacate prior findings of liability).

JURISDICTION

The judgment of the court of appeals was entered on 
November 18, 1980. This petition is filed within ninety 
(90) days of that judgment. The jurisdiction of this Court 
is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 703(h) of Title VII provides (42 U.S.C. § 
2000e-2(h)):

Notwithstanding any other provision of this title, it 
shall not be an unlawful employment practice for an 
employer to apply different standards of compensation, 
or different terms, conditions, or privileges of employ­
ment pursuant to a bona fide seniority or merit system, 
or a system which measures earnings by quantity or 
quality of production or to employees who work in 
different locations, provided that such differences are 
not the result of an intention to discriminate because 
of race, color, religion, sex, or national origin, nor

i

3

shall it be an unlawful employment practice for an em­
ployer to give and to act upon the results of any pro­
fessionally developed ability test provided that such 
test, its administration or action upon the results is not 
designed, intended or used to discriminate because of 
race, color, religion, sex or national origin. It shall not 
be an unlawful employment practice under this title 
for any employer to differentiate upon the basis of sex 
in determining the amount of the wages or compensa­
tion paid or to be paid to employees of such employer 
if such differentiation is authorized by the provisions 
of section 6(d) of the Fair Labor Standards Act of 
1938, as amended (29 U. S. C. 2C6(d)).

STATEMENT OF THE CASE

These are employment discrimination cases, consolidated 
for trial, in which the plaintiffs alleged violations of Tide 
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000c 
et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 19S1, 
at two separate plants of American located in Richmond, 
Virginia—the Virginia Branch and the Richmond Branch. 
Respondents John Patterson, et al., were plaintiffs in one 
case, a class action alleging race discrimination, and re­
spondent Equal Employment Opportunity Commission was 
plaintiff in the other, alleging both race and sex discrimina­
tion. American was a defendant in both cases, as was Local 
182 of Tobacco Workers’ International Union.2 Tobacco 
Workers’ International Union was a defendant in the class 
action case only.

At trial, the district court found no post-Act discrimina­
tion in hiring and job assignment, but found that American’s 
seniority system, although “facially fair and neutral, 8 Fair 
Empl. Prac. Cas. at 782, nevertheless violated Title VII be-

2 At the direction of the court of appeals in Patterson I, Local 
182 was dismissed from the EEOC case.



4

cause portions of the system perpetuated the effects of past 
discrimination in hiring and job assignment.* Found viola­
tive were (1) American’s practice of separate seniority at 
the two plants with loss of accumulated seniority in the 
event of transfer, and (2) several lines of progression, in 
which, although promotions are awarded on the basis of 
seniority, only employees who have occupied the lower- 
level job are eligible to bid on the higher-level job. In Pat­
terson I the Fourth Circuit affirmed this finding and this 
Court subsequently denied a petition for a writ of certiorari.

Thereafter, while these cases were on remand to the dis­
trict court for back pay proceedings, this .Court rendered 
its decisions in International Brotherhood of Teamsters v. 
United States, 431 U.S. 324 (1977) and United Air Lines, 
Inc. v. Evans, 431 U.S. 553 (1977). Petitioners thereupon 
moved for relief from the prior finding of liability on the 
ground that it could no longer stand in light of these de­
cisions. The district court denied relief, but in Patterson II, 
a panel of the Fourth Circuit reversed as to the practice of 
separate seniority at each plant and remanded for a deter­
mination whether that practice is “bona fide” within the 
meaning of § 703(h). However, the panel, without discus­
sion, failed to include the lines of progression within the 
scope of that remand.

On rehearing, the court en banc, as had the panel, re­
manded for a determination whether the practice of sep­
arate seniority at each plant is “bona fide.” (App. at 11 to 
12). However, the court did not similarly remand as to the 
lines of progression. Although the issue of whether the

3 The district court also found that American’s selection of super­
visory personnel violated Title VII, a finding which the en banc 
court of appeals has now directed be reconsidered. (See App. at 13 
to 19). The issues concerning* the selection of supervisors are not 
involved in this petition.

5

lines of progression were a “seniority system” under § 
703(h) had been briefed and argued before the court en 
banc, the court did not decide that question.4 Rather, the 
majority of the court of appeals held that in its view Ҥ 
703(h) simply has no application to American’s job lines 
of progression policy, whether or not it be considered a 
‘seniority system’ in the mode of its operation” (App. at 
8), and held that “the immunity accorded seniority sys­
tems by § 703(h) . . .  run[s] only to those systems in exist­
ence at the time of Title VII’s effective date.” (App. at 10).

REASONS FOR GRANTING TIIE WRIT

I.
This Case Presents An Important Question Of Federal Law:

The Applicability Of § 703(h) Of Title VII To 
Post-Act Seniority Systems

If allowed to prevail, the decision below interpreting 
§ 703(h) of Title VII as having no application to seniority

* Curiously, the opinion of the court of appeals contains no refer­
ence whatsoever to this Court’s ruling in California Brewers Associa­
tion v. Bryant. 444 U.S. 598 (1980), the leading decision on what 
constitutes a “seniority system” under § 703(h). Although the Cal­
ifornia Brewers decision was rendered after oral argument occurred, 
the parties called it to the attention of the court many months before 
the en banc opinion issued.

6 Notwithstanding the absence of any specific finding below, the 
court, sna sponte, found as a fact that the lines of progression first 
came into existence after the effective date of Title VII. (App. at S 
to 11). This finding was made even though the specific question as 
to when the lines of progression were first instituted had not been an 
issue at the trial, which occurred in 1974, years before this Court’s 
decisions in Teamsters and California Brewers. As the dissenting 
opinion below indicates, there is a genuine factual dispute on the 
current record as to whether the lines of progression indeed ante­
dated the effective date of Title VII (see dissenting opinion), and a 
remand for proper factual determination would have been appropri­
ate. Solely for purposes of this petition, petitioners treat the lines of 
progression as having come into existence after Title VII s effective 
date.



6

systems instituted or revised after the effective date of Title 
VII will have a significant, negative impact on national 
labor policy and will adversely affect affirmative action. 
The interpretation is contrary to the express language of the 
statute and not supported by the legislative history of 
§ 703(h).

A. The Decision Below Will Have A Chilling Effect On 
Labor Relations And Affirmative Action

International Brotherhood of Teamsters v. United States, 
431 U.S. 324, 352 (1977), held that “the unmistakable 
purpose of § 703(h) was to make clear that .the routine ap­
plication of a bona fide seniority system would not be un­
lawful under Title VII,” even where such systems perpetu­
ated the effects of pre-Act discrimination. United Air Lines, 
Inc. v. Evans, 431 U.S. 553 (1977), extended the holding 
of Teamsters to preclude Title VII challenges to seniority 
systems that perpetuated the effects of discriminatory post- 
Act practices that had not been the subject of a timely 
complaint." Last Term, in California Brewers Association 
V. Bryant, 444 U.S. 598 (1980), the Court had occasion 
to clarify the meaning of the term “seniority system” as it 
appears in § 703(h). Therein, the Court indicated that the 
term should be liberally, not narrowly, construed in view of 
the backdrop to Title VII of the nation’s long-standing labor 
policy recognizing diverse forms of seniority systems and 
the necessity of affording significant freedom in their crea­
tion. Id. at 608.

This case brings to the Court the opportunity to give 
further, needed guidance as to the meaning of § 703(h). 
By holding that “the immunity accorded seniority systems by 
§ 703(h) [runs] only to those systems in existence at the

* See California Brewers Association V. Bryant, 444 U.S 598 
, 600 n. 2 (1980).

7

time of Title VII’s effective date” (App. at 10) and that 
§ 703(h) “has no application to seniority systems instituted 
after the effective date of Title VII” (id. at 9 n.3), the 
majority of the en banc court of appeals has created un­
certainty as to the application of this important federal law 
covering millions of employees and thousands of employers 
throughout the nation. As this Court has recognized, senior­
ity in the collective bargaining context “lies at the core of 
our national labor policy. . . . ” Trans World Airlines, Inc. v. 
Hardison, 432 U.S. 63, 79 (1977). The uncertainty as to 
the status under Title VII of post-Act instituted cr revised 
seniority systems clouds an area of such national importance 
that the question should be settled by this Court.

The adverse impact of the ruling below on labor rela­
tions cannot be over emphasized. In explaining its decision, 
the majority below stated that “[s]ystems initiated in the 
post-Act period must of course pass muster under the Griggs 
[disparate impact7] analysis in the same manner as other 
facially neutral policies or practices challenged as discrimi­
natory in their consequences.” (App. at 10 n.5). In Team­
sters, supra, this Court noted that the critical distinction 
between claims of disparate treatment and claims of dis­
parate impact is that “[p]roof of discriminatory motive is 
critical” in a claim of disparate treatment, while “[p]roof of 
discriminatory motive, we have held, is not required under 
a disparate impact theory.” 431 U.S. at 335-36 n.15. The 
decision of the court of appeals to relegate post-Act seniority 
challenges to the Griggs disparate impact mode of analysis, 
rather than apply the Teamsters analysis requiring proof of 
purposeful discrimination, plainly signals an erroneous re­
turn to the pre-Teamsters line of cases that had routinely 
struck down seniority systems merely on the basis of per­
petuation of past discrimination, regardless of the presence

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



8

or absence of discriminatory motive. See, e.g., Local 189, 
United Papermakers & Paperworkers v. United States, 416 
F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919 
(1970).

Carving out two such diverse tests under § 703(h), one 
applicable to pre-Act seniority systems and the other to 
post-Act initiated or revised seniority systems, is simply 
illogical and negates the “[significant freedom [which] 
must be afforded employers and unions to create differing 
seniority systems.” California Brewers, supra, 444 U.S. at 
608. Such negating effect flows from the Griggs disparate 
impact analysis, with its primary reliance on.statistics8 and 
its related difficult burden of establishing a business neces­
sity defense6 to meet such a statistical prima facie case. In 
order to be confident that a newly adopted seniority sys­
tem or a revision to a pre-Act system would withstand such 
an analysis, management and labor would first have to be 
sure that the racial and sexual break down within depart­
ments, lines of progression or other employment units 
mirrored the relevant statistics. The fact that the initiation 
of the system or a revision thereto was void of any dis-

8 Plaintiff in a case alleging disparate impact invariably establishes 
a prima facie case through a statistical showing of imbalance. See, 
e.g., United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir.), 
cert, denied, 404 U.S. 984 (1971).

* Lower courts have held defendants to exacting standards under 
the business necessity test, see United States v. Bethlehem Steel Corp., 
446 F.2d 652, 662 (2d Cir. 1971) and pre-Teamsters courts rarely 
upheld a seniority system pursuant to claims of business necessity. 
See, e.g., United States v. Jacksonville Terminal Co., 451 F.2d 418, 
451 (5th Cir. 1971). cert, denied sub nom, Brotherhood of Loco­
motive Engineers v. United States, 406 U.S. 906 (1972) (“ ‘[t]o be 
preserved, the seniority and transfer system must not only directly 
foster safety and efficiency of a plant, but also be essential to those 
goals’ quoting United States v. Bethlehem Steel Corp., 446 F.2d 
at 662).

9

criminatory motive and could pass muster under the bona fide 
seniority system analysis enunciated by this Court in Team­
sters would be irrelevant. The critical elements of national 
labor policy recognizing “the give and take of free collec­
tive bargaining . . . [and] the specific characteristics of a 
particular business or industry, . . .” California Brewers, 
supra, 444 U.S. at 608, would thus be substantially im­
paired.

Furthermore, the inevitable result of the pre-Act/post- 
Act dichotomy in the applicable analyses under § 703(h) 
would have an unfortunate, damaging effect on affirmative 
action. The majority below held § 703(h) inapplicable to 
all post-Act seniority system “change[s] and formaliza- 
tion[s] (whether in favor of or against employee interests)
. .  . . ” (App. at 9 n. 4; emphasis added). As a consequence, 
changes in pre-Act seniority systems made after the ef­
fective date of Title VII, even though they benefit minorities 
covered by the Act, will be discouraged because such a 
change would consign the system to a Griggs analysis. Such 
systems will be retained in order to preserve § 703(h) pro­
tection and its bona fides analysis pursuant to Teamsters.

As the dissenters below accurately pointed out, even a 
post-Act change made “in favor of a class of black employ­
ees, will deprive the company and the union making the 
change from the benefit of a § 703(h) exemption.” (App. 
at 49). Such prohibitive effect of the majority’s ruling runs 
directly contrary to this Court’s observation in United 
Steelworkers of America, AFL-CIO-CLC v. Weber, 443 
U.S. 193, 204 (1979) (citing Albermarle Paper Co. v. 
Moody, 422 U.S. 405, 418 (1975)), that Title VII is “in­
tended as a spur or catalyst to cause employers and unions 
to self-examine and self-evaluate their employment practices 
and to endeavor to eliminate, so far as possible, the last 
vestiges of an unfortunate and ignominious page in this



10

country’s history.” 10
The restrictive principle announced below will disable 

collective bargaining in' the important area of seniority. It 
will inhibit management and labor from adopting employ­
ment practices to meet a changing economy or industry. It 
will put a damper on good faith efforts made in the spirit 
of affirmative action to overcome vestiges of past discrim­
ination. If allowed to stand, it will jeopardize hundreds of 
diverse seniority structures established or revised in Ameri­
can industry in the fifteen years since Title VII’s enactment. 
For these reasons, the case presents an important question 
of federal law which should be settled by this Court.

B. Neither Statutory Language Nor Legislative History 
Supports The Court Of Appeals' Interpretation 

Of This Important F ederal Law

The interpretation by the court of appeals holding 
§ 703(h) inapplicable to seniority practices not in place at 
the time of Title VII’s effective date is plainly inconsistent 
with the express language of the section and is not sup­
ported by its unusual legislative history. For this reason

10 The dissent recognized this conflict with Weber (App. at 49-50):
That part of the majority opinion providing that a company 
and a union cannot alter a seniority system so as to make more 
favorable the conditions of employment of minority employees 
is directly contrary to Weber, I think. It requires a too strained 
construction of the statute to hold that a seniority system ad­
mittedly discriminatory in effect, as in Teamsters, is protected 
by § 703(h) so long as it remains unchanged, but if it is 
changed in favor of the minority employees, then the employer 
and the union lose their § 703(h) exemption.

* * *
Such a conclusion, I suggest may sound astonishing, yet that is 
precisely what the majority holds.

11

also, this important question of federal law should be settled 
by this Court.

On its face, this definitional section11 makes no distinction 
between pre- and post-Act bona fide systems. Had Congress 
meant to cover one but not the other, it easily could have 
done so. But Congress did not choose such a course. Rather, 
Congress chose language which addresses all bona fide 
seniority systems.

The court of appeals, in ignoring the literal dictates of 
§ 703(h), departed from the cardinal principle of statutory 
construction that “the starting point for interpreting a 
statute is the language of the statute itself. Absent a clearly 
expressed legislative intention to the contrary, that language 
must ordinarily be regarded as conclusive.” Consumer Prod­
ucts Safety Commission v. GTE Sylvania, Inc. — U.S. —, 
100 S. Ct. 2051, 2056 (1980). A court “must, of course, 
start with the assumption that the legislative purpose is ex­
pressed by the ordinary meaning of the words used.” Rich­
ards v. United States, 369 U.S. 1, 9 (1962). Where those 
words are clear and unequivocal on their face, as here, a 
court is “bound to operate within the framework of the 
words chosen by Congress. . . .” Id. at 10. The proper func­
tion of the court of appeals in this case was “to construe 
what Congress has written. After ail, Congress expresses its 
purpose by words. It is for us to ascertain—neither to add 
nor to subtract, neither to delete nor to distort.” 62 Cases 
of Jam v. United States, 340 U.S. 593, 596 (1951). That 
function was clearly not followed below.

The court of appeals did not point, nor could it point, 
to any equivocation or lack of clarity in the terms expressly

11 In Franks v. Bowman Transportation Co., 424 U.S. 747, 761 
(1976), the Court stated that § 703(h) is definitional, its thrust 
“directed toward defining what is and is not an illegal discriminatory 
practice.. . . ”



12

chosen by Congress. Rather, the court deviated from the 
plain language to effectively turn the section into a “savings” 
or “grandfather” clause, exempting pre but not post-Act 
systems, even though “it would be difficult to conceive of 
any more precise language Congress could have used to 
command” 12 coverage of all bona fide seniority systems.

As the dissenters below aptly observed, “Congress un­
doubtedly knows how to write a grandfather clause if it 
wishes, but in this case wrote an exception instead.” (App. 
at 26 n .l) . Indeed, the same Congress drafted and passed 
savings provisions in other parts of Title VII.13 The natural 
inference is that § 703(h)’s clear lack of resemblance to 
typical savings clauses14 was not unintentional.

12 Richards v. United States, supra, 369 U.S. at 9.
13 For example, § 703(b) as enacted called for application of the 

“employer” definition of the Act on an annual step-down basis:
. . . Provided, That during the first year after the effective date 
prescribed in subsection (a) of section 716, persons having 
fewer than one hundred employees (and their agents) shall not 
be considered employers, and, during the second year after 
such date, persons having fewer than seventy-five employees 
(and their agents) shall not be considered employers, and, dur­
ing the third year after such date, persons having fewer than 
fifty employees (and their agents) shall not be considered 
employers:. . .  (Emphasis added).

Section 701(e), as enacted, contained a similar step-down or savings 
definition for “labor organization.”

14 Savings or grandfather clauses are “calculated to prevent hard­
ship by saving accrued rights and interests from the operation of a 
new rule.” 2A Sutherland, Statutory Construction § 47.12 (4th ed. 
Supp. 1980). Such clauses invariably exempt an established class from 
new regulation so long as that class possessed certain characteristics 
by a date specified in the savings clause itself. See, e.g., § 7(c) of the 
Transportation Act of 1958, 49 U.S.C. § 303, providing that “any 
person (or its predecessor in interest) [who] was in bona fide opera­
tion on May 1, 1958, over any route or routes or within any territory,
. . .” could apply for an authorization to continue the operation that 
the applicant had previously performed. In United States v. Citizens 
& S. Natl. Dank, 422 U.S. 86, 108 (1975), the Court considered an 
archtypical savings provision to the Bank Holding Company Act, 12 
U.S.C. § 1849(d), which stated (422 U.S. at 108):

1

13 '

Notwithstanding the unequivocal language of § 703(h) 
and its dissimilarity to any known savings clauses, the 
court of appeals believed its result was justified by the 
“legislative history,” which it variously described as “con­
clusively demonstrat[ing]”, “replete with indications,” or at 
least “suggest[ing]” that post-Act systems were not intended 
to be encompassed by § 703(h). Even assuming for the 
sake of argument that the words of the section itself are 
somehow ambiguous on this score and that examination of 
the legislative history is appropriately warranted, that “his­
tory,” such as it is, reveals no authoritative support for the 
interpretive conclusion below. At most, that “history” is of 
wholly ambiguous significance and falls far short of the 
showing needed to disregard the words Congress expressly 
employed.

This Court is no stranger to the circumstances preceding 
the adoption of § 703(h). See Teamsters, supra, 431 U.S. 
at 350-55; Franks, supra, 424 U.S. at 759-62 (noting the 
“unusual legislative history” of the section and “the ab­
sence of the usual legislative materials” surrounding its 
adoption). The court of appeals purported to find support 
for its conclusion in two pieces of this “history” : (1) a 
memorandum prepared by Senators Clark and Case which 
in part stated that “Title VII has no effect on established 
seniority rights”; and (2) a memorandum prepared by the 
Justice Department which stated that “Title VII would
(Cont. from preceding page)

“Any acquisition, merger, or consolidation of the kind de­
scribed in section 1842(a) of this title which was consummated 
at any time prior or subsequent to May 9, 1956, and as to 
which no litigation was initiated by the Attorney General prior 
to July 1, 1966, shall be conclusively presumed not to have 
been in violation of any antitrust laws other than section 2 of 
Title 15 [§ 2 of the Sherman Act].”

The court in the instant case was without authority to transform 
§ 703(h) into a savings clause absent such clear legislative direction.



14

have no effect on seniority rights existing at the time it 
takes effect.” (App. at 10 n.5). Neither piece of “legislative 
history” can authoritatively support the conclusion reached 
by the court of appeals.

The documents relied on below were introduced into the 
record by Senator Clark on April 8, 1964, during the gen­
eral debate on the bill passed by the House. They were 
drafted in response to criticisms of another Senator that 
the bill, which contained no analogue predecessor to the 
eventual § 703(h), would, inter alia, “undermine the 
vested rights of seniority;...” 110 Cong. Rec. 7206 
(1964). “None of these documents [was] read on the floor 
of the Senate, and there was no discussion of their contents 
or of this specific seniority issue, then or thereafter.” 
Cooper & Sobel, Seniority and Testing Under Fair Employ­
ment Laws: A General Approach to Objective Criteria of 
Hiring and Promotion, 82 Harv. L. Rev. 1598, 1611 
(1969). Nearly eight weeks later, on May 26, following a 
number of bipartisan leadership conferences, the so-called 
Mansfield-Dirksen amendment was offered as a substitute 
for the entire bill. See Vaas, Title VII: Legislative History, 
7 B.C. Ind. & Comm. L. Rev. 431, 445-46 (1966). One 
of a number of amendments appearing for the first time 
was § 703(h).

Congress plainly designed § 703(h) as a clarification or 
definitional provision of what is and is not an “unlawful 
employment practice” under § 703(a); it would have re­
quired no feat of legislative drafting skill to insert the terms 
“existing” or “established” before the statute’s descriptive 
phrase, “bona fide seniority or merit system.” That neither 
“established,” “existing” nor any similar term of limitation 
appeared in § 703(h) when it was proposed many weeks 
after the introduction of the Clark and Case and Justice De­
partment memoranda supports the view that the drafting

15

groups, and the Congress as a whole, specifically rejected 
any such limitation. Instead of the assumptions made by 
the majority below, it is much more logical to presume that 
Congress, in view of the national policy favoring collective 
bargaining and seniority, as recognized by this Court in 
Hardison and California Brewers, supra, intended § 703(h) 
to be applicable to all seniority systems and revisions there­
to, whether instituted before or after the passage of the 
Act, so long as bona fide and not the result of an intention 
to discriminate. ■

Accordingly, the talismanic quality conferred by the 
court of appeals on the isolated references in the “legislative 
history” to “established” and “existing” seniority rights does 
not withstand close inspection, particularly where the clear 
words and ordinary meaning of the statute belie any such 

- result. “The plain words and meaning of a statute cannot 
be overcome by a legislative history which, through strained 
processes of deduction from events of wholly ambiguous 
significance, may furnish dubious bases for inference in 
every direction.” Gemsco, Inc. v. Walling, 324 U.S. 244, 
260 (1945). Petitioners submit that here there is no “clearly 
expressed legislative intention to the contrary” of the “lan­
guage of the statute itself.” Consumer Products Safety Com­
mission v. GTE Sylvania, Inc., supra, __U.S. at __ , 100
S. Ct. at 2056." In sum, the court of appeals plainly erred 
in divining a “legislative history” of nebulous foundation to 
justify an interpretation of § 703(h) which constitutes a 
blatant departure from the language of the section itself.

"  See also United States v. Oregon, 366 U.S. 643, 648 (1961) 
(isolated statements in the legislative history “have never been re­
garded as sufficiently compelling to justify deviation from the plain 
language of a statute.”).



16

II.
The Result Reached By The Court Of Appeals Conflicts In 

Principle With Decisions Of This Court And With A 
Substantial Number Of Loner Court Decisions

In holding § 703(h) inapplicable to post-Act seniority 
systems, the court of appeals adopted a restrictive and 
erroneously narrow interpretation. Such a construction, 
reached without benefit of briefing or argument below on 
that specific issue, represents a conflict in principle and ap­
proach with applicable decisions of this Court, and a sub­
stantial number of lower courts.

In Teamsters, the Court saw no distinction in § 703(h) 
between pre- and posl-Act seniority practices, stating that 
“[sjection 703(h) on its face immunizes all bona fide se­
niority systems, and does not distinguish between the per­
petuation of pre- and post-Act discrimination.” 431 U.S. at 
348 n.30 (emphasis added).16

In Evans, the Court seemed to squarely reject the narrow 
principle announced below that § 703(h) has no application 
to post-Act practices (431 U.S. at 560):

The Court of Appeals read § 703(h) as intended to 
bar an attack on a seniority system based on the con­
sequences of discriminatory acts which occurred prior 
to the effective date of Title VII in 1965, but having 
no application to such attacks based on acts occurring 
after 1965. This reading of § 703(h) is too narrow. 
The statute does not foreclose attacks on the current 
operation of seniority systems which are subject to 
challenge as discriminatory. But such a challenge to

10 Petitioners do not claim that seniority systems are immune from 
attack. The result they urge to this Court, i.e., analysis of post-1965 
systems pursuant to the § 703(h) bona fides standard rather than the 
Griggs disparate impact analysis, would by no means ensure blanket 
immunity for such systems. It would remain for the lower courts to 
conduct evidentiary inquiries as to whether the practice “is not ‘bona 
fide,’ or . . . [if] differences in employment conditions that it has pro-

17

a neutral system may not be predicated on the mere 
fact that a past event which has no present legal sig­
nificance has affected the calculation of seniority credit, 
even if the past event might at one time have justified a 
valid claim against the employer. A contrary view 
would substitute a claim for seniority credit for almost 
every claim which is barred by limitations. Such a result 
would contravene the mandate of § 703(h). (Emphasis 
added; footnote omitted).

Hardison, supra, offers further support for petitioners’ 
view that the Fourth Circuit has erroneously separated post- 
Act seniority practices from the ambit of § 703(h). In 
finding that an employer’s duty to make “reasonable ac­
commodation” to the religious needs of its employees did 
not require it to take steps inconsistent with its seniority 
system, the Court emphasized, without differentiating be­
tween pre-Act and post-Act practices, that “seniority sys­
tems are afforded special treatment under Title VII itself.” “ 
432 U.S. at 81. There was no suggestion that the Griggs 
disparate impact analysis would apply to post but not to 
pre-Act seniority practices. Instead, Hardison endeavored 
to coalesce the earlier teachings of Teamsters and Evans 
and necessarily rejected the application of Griggs to senior­
ity systems (432 U.S. at 82, 83 n.13):
(Cont. from preceding page)
duced are ‘the result of an intention to discriminate because of race.’ ” 
California Brewers, supra, 444 U.S. at 611.

*' This principle that seniority systems are given special treatment 
by the Act itself is of critical importance and was not properly ap­
preciated by the court of appeals. Its statement that § 703(h) is a 
“quite narrow exception to Title VII’s general coverage of all ‘con­
ditions of employment’ ” (App. at 9 n.4; emphasis added) is beside 
the point. Although § 703(h) applies to relatively few employment 
practices covered by Title VII, it does not follow that when an em­
ployment practice comes within the section, the protection provided 
by the section is to be narrowly applied. Teamsters, Evans, Hardison 
and California Brewers all instruct that when a practice comes within 
the ambit of the section, it is to be liberally, not narrowly, construed.



18

. . . absent a discriminatory purpose, the operation of 
a seniority system cannot be an unlawful employment 
practice even if the system has some discriminatory 
consequences.

* * *
. . .  § 703(h) unequivocally mandates that there is no 
statutory violation in the absence of a showing of dis­
criminatory purpose. See United Air Lines, Inc. v. 
Evans, 431 U.S. 553, 558-560, 52 L Ed 2d 571, 97 
S Ct 1885 (1977) (emphasis added).

Most recently, in California Brewers, the Court accorded 
a similarly broad interpretation to § 703(h). There, the 
Court indicated that the definitional thrust of the term 
“seniority system” in § 703(h) was designed to be forward- 
looking, and not static. “Significant freedom,” the Court 
stated, “must be afforded employers and unions to create 
differing seniority systems. . . .” 444 U.S. at 608. Such a 
prospective view of the statute would not be possible if any 
seniority system or revision initiated after the Act was sub­
ject to the Griggs disparate impact analysis rather than to 
the bona fides analysis under Teamsters.

The result reached by the court of appeals in this case 
conflicts with the principles articulated by this Court in the 
decisions noted above.

It mistakenly ignores the admonition in Teamsters that 
§ 703(h) “on its face immunizes all bona fide seniority 
systems. . . .” 431 U.S. at 348 n.30. Section 703(h) im­
munizes both pre-Act and post-Act bona fide seniority sys­
tems, as well as post-Act revisions to such systems.

By construing § 703(h) as a “quite narrow exception” 
of no applicability to post-Act seniority practices, the court 
of appeals committed the same fundamental error in ap­
proach to § 703(h) as that squarely rejected by this Court 
in Evans. The decision below, unless corrected, would sub­
stitute for the holding of Evans a return to the perpetuation

19

concept of discrimination for all post-1965 seniority prac­
tices, regardless of how untimely a charge might be.- This 
result would be plainly inconsistent with the teaching of 
Evans that an untimely challenged discriminatory act, even 
if perpetuated through the operation of a seniority system, 
is the “legal equivalent of a discriminatory act which oc­
curred before the statute was passed” (431 U.S. at 558), 
so long as the seniority system is otherwise bona fide under 
§ 703(h).

The conclusion below that the interest protected by § 
703(h) extends only to “those seniority rights already 
vested in incumbent workers when Title VII went into 
effect” (App. at 10) is contrary to this Court’s recogni­
tion in Hardison that all seniority systems are afforded spe­
cial treatment under § 703(h), that there is no statutory 
violation in the absence of a showing of discriminatory 
purpose and that collective bargaining, which universally 
includes seniority provisions, “lies at the core of our na­
tional labor policy,” 432 U.S. at 79. That conclusion is 
also contrary to the lesson of California Brewers that 
§ 703(h) is to be broadly interpreted and is forward-look­
ing in its application to seniority systems in order to assure 
that significant freedom is afforded in the creation of differ­
ing seniority systems. Noticeably absent from the considera­
tions of the court of appeals is this Court’s perception in 
California Brewers that in enacting § 703(h) (444 U.S. at 
608):

Congress passed the Civil Rights Act of 1964 against 
the backdrop of this Nation’s longstanding labor policy 
of leaving to the chosen representatives of employers 
and employees the freedom through collective bargain­
ing to establish conditions of employment applicable 
to a particular business or industrial environment. 
It does not behoove a court to second-guess either



20

that process or its products. Seniority systems, reflect­
ing as they do, not only the give and take of. free col­
lective bargaining', but also the specific characteristics 
of a particular business or industry, inevitably come 
in all sizes and shapes. (Emphasis added; citations 
omitted).

The decision of the Fourth Circuit conflicts in result with 
opinions of the Sixth and Eighth Circuits. These courts, 
when confronted with challenges to seniority systems either 
instituted or revised post-Act, analyzed those practices for 
presence or absence of bona tides rather than applying the 
Griggs disparate impact approach. Alexander v. Aero 
Lodge No. 735, 565 F.2d 1364 (6th Cir. 1977), cert, de­
nied, 436 U.S. 946 (1978); Hameed v. Iron Workers,__
F.2d —, 24 Fair Empl. Prac. Cas. 352 (8th Cir. 1980).18

Moreover, numerous district courts post-Teamsters have 
likewise reviewed post-Act seniority systems under bona 
tides analysis, requiring proof of discriminatory intent in 
the adoption or maintenance of a seniority system as a pre­
requisite for a finding of non bona tides.18 Liability should

18 The Eighth Circuit, in Hameed v. Iron Workers, held that a 
referral seniority system initiated post-Act in a 1972 collective bar­
gaining agreement “must be judged” under Teamsters and Evans, 
which “immunize bona fide seniority systems which have a dispropor­
tionate impact on blacks or other minorities, provided that any dis­
parity is not the result of interntional [sic] discrimination.” Id. at 360 
(footnote and citations omitted). Contrary to the approach of the 
Fourth Circuit, the Eighth Circuit properly observed that “even if a 
disproportionate impact had been shown, the seniority system would 
not have been shown to be a prima facie violation of title [sic] VII 
because Teamsters immunizes seniority systems from attack under 
the disproportionate impact theories of Griggs.” Id. at n.12.

In Alexander v. Aero Lodge No. 735, supra, the Sixth Circuit 
drew no distinction for § 703(h) purposes between pre- and post-Act 
seniority practices, and analyzed the latter under the bona fides test.

10 See, e.g., Johnson V. Burroughs Corp., No. 252 Daily Lab. Rep. 
(BNA) D-l (December 31, 1980) (S.D. Fla. 1980) (seniority sys­
tem instituted in 1974 at a plant which did not open until 1968

not be different depending on the locus of the action.
Given the frequent challenges to seniority practices, it is 

evident that conflicts between the decision below and 
principles stated by this Court and the results reached by 
the Sixth and Eighth Circuits and numerous district courts 
present an important and recurring issue that should be 
settled by this Court.

(Cont. from preceding page)
analyzed for bona fides under § 703(h); Sanders v. Shenvin Williams 
Co., 495 F. Supp. 571, 575-77 (E.D. Mich. 1980) (pre-Act prac­
tices and post-Act revisions to seniority system analyzed for bona 
fides under § 703(h) notwithstanding claim of disparate impact); 
Pate v. Transit District, 21 Fair Empl. Prac. Cas. 1228, 1245 (N.D. 
Cal. 1979) (“[t]he seniority system created by collective bargaining 
agreements in effect . . . during the period from 1968 through 1976, 
because it applied equally to employees of all races, and was neither 
created nor maintained with a discriminatory purpose, was a bona 
fide seniority system” under § 703(h) (emphasis added)); Edmond­
son v. United States Steel Corp., 20 Fair Empl. Prac. Cas. 1745, 
1747 (N.D. Ala. 1979) (previous court-ordered seniority system 
established in May 1973 ruled bona fide under § 703(h) over claim 
of adverse impact); Freeman v. Motor Convoy, 20 Empl. Prac. 
Dec. <j 30,090 (N.D. Ga. 1979) (seniority system adopted in 1969 
“when the shop and yard employees were organized” referred to a 
master for determination of bona fides under § 703(h)); Edmonds 
v. S. Pac. Transp. Co., 19 Fair Empl. Cas. 1052 (N.D. Cal. 1979) 
(challenges to pre- and post-Act seniority system practices analyzed 
under the bona fides test of § 703(h)); Griffin v. Coppcnveld Steel 
Co., 22 Fair Empl. Prac. Cas. 1112 (N.D. Ohio 1978) (post-Act 
revisions to seniority system reviewed for § 703(h) bona fides); 
EEOC v. McCall Corp., 24 Fair Empl. Prac. Cas. 432, 436 (S.D. 
Ohio 1978), aff’d sub nom, EEOC v. McCall Printing Corp., 24 
Fair Empl. Prac. Cas. 437 (6th Cir. 1980) (1966 adjustment of line 
of progression incorporating workers without carryover seniority and 
challenged under perpetuation theory held bona fide under § 703(h) 
absent a showing of discriminatory purpose).



22

CONCLUSION

For these reasons, a writ of certiorari should be issued 
to review the opinion and judgment of the Fourth Circuit.

Respectfully submitted,
H enry  T. W ickham  
D. E u g e n e  W e b b , J r .
St e p h e n  A. N o r t h u p  
M ays, V a l e n t in e , D a v en po r t  & M oore 

P. O. Box 1122 
Richmond, Virginia 23208

P a u l  G. P e n n o y e r , J r . •
B ernard  W. M cC arthy  
P e t e r  N. H il l m a n  
C h a d bo u r n e , P a rk e , W h itesid e  & 

W o l f f

30 Rockefeller Plaza 
New York, New York 10112

Counsel for Petitioners 
The American Tobacco Company, a 
Division of American Brands, Inc., 
and American Brands, Inc.

J ay J. L evit

Imperial Building, Third Floor 
5th and Franklin Streets 
Richmond, Virginia 23219

J a m es  F. C arroll  
Air Rights Building 
7315 Wisconsin Avenue, N.W. 
Washington, D. C. 20014

Counsel for Petitioner Unions
January 15,1981



App. 1

(to rt ni Appals
FOR THE FOURTH CIRCUIT

No. 78-1083

Jo h n  P a t t e r so n , M arion  M o sh o e , E d m u n d  P ag e , 
Ja m e s  R a n d o l p h  a n d  P ercy  T a y lo r , each  in d iv id u a l l y  

a n d  on  b e h a l f  of  a ll  o t h er  per so n s  sim il a r l y

SITUATED AND EQUAL EMPLOYMENT OPPORTUNITY
C o m m issio n ,

Appellees,
v.

T he  A m e r ic a n  T obacco  C o m p a n y , 
a  D ivision  of A m e r ic a n  B r a n d s , I n c .,

Appellant,
AND

T obacco  W o rk ers’ I n t e r n a t io n a l  U n io n

AN UNINCORPORATED ASSOCIATION; ET AL.,
Defendant.

No. 78-1084

John  Pa t t e r so n , M arion  M o siio e , E d m u n d  Page , 
Ja m es  R a n d o l p h  a n d  P ercy  T a y lo r , each  in d iv id u a ll y

AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY 
SITUATED AND EQUAL EMPLOYMENT OPPORTUNITY 

C o m m issio n ,

v.
Appellees,



App. 2

T obacco  W o rk ers’ I n te r n a t io n a l  U n io n ,
AN UNINCORPORATED ASSOCIATION; LOCAL 182,

T obacco  W orkers’ I n te r n a t io n a l  U n io n ,
AN UNINCORPORATED ASSOCIATION,

Appellant.

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

Argued June 5, 1979. Decided November 18, 1980

Before HAYNSWORTH, Chief Judge, WINTER, BUTZ- 
NER, RUSSELL, WIDENER, HALL and PHILLIPS, Cir­
cuit Judges, sitting en banc.

Henry T. Wickham (John F. Kay, Jr., Stephen A. Northup, 
Mays, Valentine, Davenport & Moore, Paul G. Pennoyer, 
Jr., Arnold Henson, Bernard W. McCarthy, Chadbourne, 
Parke, Whiteside & Wolff on brief) for The American To­
bacco Company, A Division of American Brands, Inc.; Jay 
J. Levit (James F. Carroll on brief) for Tobacco Workers’ 
International Union and Local 182, Tobacco Workers’ In­
ternational Union; Henry L. Marsh, III (S. W. Tucker, 
Randall G. Johnson, John W. Scott, Jr., Hill, Tucker & 
Marsh; Jack Greenberg, Barry L. Goldstein, O. Peter Sher­
wood on brief) for John Patterson, et al.; Ramon V. Gomez, 
Equal Employment Opportunity Commission (Abner W. 
Sibal, General Counsel, Joseph T. Eddins, Associate Gen­
eral Counsel, Beatrice Rosenberg, Assistant General Coun­
sel on brief) for Equal Employment Opportunity Com­
mission.

App. 3

hV ••

PHILLIPS, Circuit Judge:
In these consolidated Title VII actions brought by EEOC 

and a class of black employees against American Tobacco 
Company (American) and Tobacco Workers’ International 
Union (Union) alleging race and sex discrimination in hir­
ing, promotion, transfer and other employment practices, 
the district court found violations and granted sweeping 
relief which, with modifications, was then approved by this 
court upon appeal. Patterson v. American Tobacco Co., 535 
F.2d 257 (4th Cir.), cert, denied, 429 U.S. 920 (1976). 
Following entry by the district court of a modified judgment 
in conformity with our mandate upon remand, the Supreme 
Court decided International Brotherhood of Teamsters v. 
United States, 431 U.S. 324 (1977); United Airlines, Inc. 
v. Evans, 431 U.S. 553 (1977); and Hazelwood School 
District v. United States, 433 U.S. 299 (1977). Asserting 
that these decisions constituted significant intervening 
changes in the law entitling them to equitable relief from 
the judgment, American and the Union moved under Fed. 
R. Civ. P. 60(b) for appropriate relief.1 The district court 
denied the motion and this appeal by the defendant-mov­
ants followed. It was first heard by a panel of this court 
which decided that while Evans and Hazelwood did not 
entitle the movants to any relief from the judgment, Team-

'Defendants first moved for relief in this court, seeking a recall 
of mandate and an order directing the district court to vacate its 
modified judgment. The recall of mandate was denied on the au­
thority of Standard Oil Co. v. United States, 429 U.S..17 (1976), 
as not requisite to district court consideration of the motions for 
relief. Jt. Supp. App. 2, 3. Defendants then moved in the district 
court that the modified judgment be vacated and the complaints dis­
missed on the basis of the intervening decisions. While the motions 
did not identify the rule under which they were made, they are most 
appropriately treated as motions under Fed. R. Civ. P. 60(b)(5) 
for relief from a judgment certified as final for purposes of appeal 
under Fed. R. Civ. P. 54(b). Jt. App. 183-84.



App. 4

sters might, and that remand for further proceedings in 
light of Teamsters was required. Patterson v. American 
Tobacco Company, 586 F.2d 300 (4th Cir. 1978).

Upon rehearing by the court en banc, we conclude that 
the decision in Evans did not entitle the defendants to any 
relief from the judgment but that the decisions in both 
Teamsters and Hazelwood may require relief whose specific 
form can only be determined by further proceedings in the 
district court. Accordingly we affirm in part and vacate and 
remand in part for further proceedings.

I

The factual background and protracted procedural his­
tory of these cases is adequately set out in our earlier opin­
ion, 535 F.2d 257, and in the panel opinion withdrawn upon 
our en banc rehearing of the instant appeals, 586 F.2d 300. 
It need not be repeated in full here; specific details neces­
sary to our discussion will suffice.

By way of general background, the essential features of 
the modified judgment from which relief by motion is now 
sought are here summarized. Based upon findings of viola­
tions by the defendants in transfer and promotion practices 
affecting non-supervisory employees and in the procedures 
by which supervisory employees were appointed, the judg­
ment required American to: (1) post more definite written 
job descriptions when vacancies occurred; (2) eliminate 
lines of employment progression in six of nine job cate­
gories; (3) permit blacks in the prefabrication department 
in one branch to transfer to jobs in the fabrication depart­
ment at another branch without losing seniority despite 
American’s long-standing policy disallowing inter branch 
transfers with retention of company seniority; (4) make 
back-pay awards to employees unlawfully denied promo­

App. 5

tions; and (5) develop and apply objective criteria for ap­
pointing supervisory personnel. Reserved for judgment and 
still pending for determination in the district court were the 
individual claims for restitutionary back pay awards.

The defendants contend that the cited Supreme Court 
decisions require relief in various ways from the further 
enforcement of the judgment. We consider the effect of each 
decision in order.

n
Teamsters

Defendants contend that Teamsters draws in question the 
continued validity of those portions of the challenged judg­
ment finding American’s branch seniority system and its job 
lines of progression policy violative of § 703(a) of Title 
VII and granting related relief. The branch seniority system" 
was found violative on the basis that by imposing, without 
justification of business necessity, loss of seniority upon em­
ployees transferring from the lower paying prefabrication 
department of one branch to the higher paying fabrication 
department of another branch, blacks and women had been 
effectively locked into the lower paying positions. 535 F.2d 
at 263-64, 271. The lines of progression policy was found 
violative of Title VII in respect of six of nine protected job 
lines because of its demonstrated disparate impact upon 
protected employees and the failure to show its justification 
by any business necessity. Id. at 264-65, 271.

The contention is that Teamsters has now revealed that 
both the branch seniority system and the job lines of pro­
gression policy are immunized against challenge by 
§ 703(h) of Title VII because they are, within contempla-

1 Frequently alluded to by the litigants as the “plantwide seniority 
system,” essentially to distinguish it from the earlier departmental 
system that it supplanted in 1963.



App. 6

tion of that section, “bona fide” seniority systems. We con­
clude that under Teamsters the branch seniority system 
must be held immune ’if bona fide within the meaning of 
§ 703(h), and that this presents a factual issue requiring 
reconsideration by the district court. We further conclude 
that § 703(h) as interpreted in Teamsters has no applica­
tion to the job lines of progression policy, so that no recon­
sideration of the finding of violation or of the relief granted 
in relation to this policy is required by Teamsters. Our rea­
sons follow.

In pertinent part, § 703(h) provides that

[I]t shall not be an unlawful employment practice for 
an employer to apply different standards of compensa­
tion, or different terms, conditions, or privileges of 
employment pursuant to a bona fide seniority . . . sys­
tem . . ., provided that such differences are not the re­
sult of an intention to discriminate because of race, 
color, religion, sex, or national origin. 42 U.S.C. 
§ 2000e-2(h).

When the original judgment was entered, affirmed on 
appeal and modified on remand, the view in this and other 
Circuits was, as expressed in United States v. Chesapeake 
& Ohio Railway, 471 F.2d 582, 587 (1972), that, notwith­
standing § 703(h), “seniority systems which perpetuate past 
racial discrimination violate [Title VII].”

Teamsters expressly rejected that view, finding it belied 
by the legislative history of § 703(h) and holding instead 
that “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. In 
holding the Teamsters seniority system immune under 
§ 703(h), the Court emphasized that by literal terms of the 
statute a system’s immunity depends upon its being “bona

App. 7

fide,” and specifically pointed to the statutory requirement 
that differences in treatment flowing from the system’s ap­
plication not be “the result of an intention to discriminate 
because of race.” Id. at 353.

Because the bona fides of the Teamsters system was con­
ceded, the Teamsters Court was not, however, required to 
give detailed attention to the criteria by which bona fides 
in a contested situation is now to be determined. The Court 
did point out that the system before it “did not have its 
genesis in racial discrimination, and . . . was negotiated and 
[had] been maintained free of any illegal purpose." Id. at 
356 [emphasis supplied]. Also emphasized were the facts 
that the system was facially neutral, applying alike to all 
employees, equally discouraging all from making intra­
company transfers involving loss of seniority; and finally 
that the differences in employment conditions imposed by 
the system had a rational basis in the practices of the af­
fected industiy and were consistent with National Labor 
Board precedents. Id. at 355-56.

From this it is clear that the modified judgment in this 
case was entered under a misapprehension on the part of 
both the district court and this court as to the proper ap­
plication of § 703(h) to claims of Title VII violation 
through the operation of seniority systems. At odds with our 
then understanding^] lack of bona fides may not be rested 
solely upon a finding of perpetuation of pre-Act discrimina­
tion. See Johnson v. Ryder Truck Lines, Inc., 575 F.2d 471 
(4th Cir. 1978). Defendants are accordingly entitled to 
relief from that judgment to the extent the present or a re­
opened record shows that the “seniority system” therein 
found violative of Title VII is immune to challenge because 
“bona fide” within contemplation of § 703(h).

By their motions in the district court, the defendants con­
tended that both the branch seniority system and the lines



App. 8

of progression policy were now revealed to be immune under 
§ 703(h) because their bona fides was manifest-on the 
record. The district court, without differentiating between 
the two and apparently treating them as constituting together 
“the seniority system” in issue, held flatly that

the seniority system of the defendants in this case is not 
a bona fide system under [Teamsters] not merely be­
cause it perpetuated Pre-Act discriminatory practices 
. . . but because this system operated right up to the 
day of trial in a discriminatory manner. [Teamsters 
citation omitted]. This system had a discriminatory 
genesis. [Teamsters citation omitted] The background 
of labor relations of this Company and the seniority 
system clearly shows this to be true. The record in this 
case clearly supports this finding.

Defendants, of course, challenge that conclusion. Because 
we consider that application of § 703(h) to the branch 
seniority system and to the lines of job progression policy 
respectively presents separate questions dictating different 
results, we take them up separately.

A.

We first conclude that § 703(h) simply has no application 
to American’s job lines of progression policy, whether or 
not it be considered a “seniority system” in the mode of its 
operation.’ This policy was not in effect at American in

’ Plaintiffs have contended that 703(h) has no application to the 
job lines of progression policy because, as administered, the policy 
was not a seniority system within contemplation of § 703(h). With­
out challenging the proposition that the job lines of progression 
may constitute a 703(h) seniority system, see Teamsters, at 355 & 
n.41, the contention is that the only seniority system in effect at 
American was the plantwide (branch seniority) system; that it alone 
determined progression even within the job lines of progression

App. 9

1965 when Title VII went into effect, but was only adopted 
in January 1968 in connection with American’s general re­
vision of its promotional policies. 535 F.2d at 263.*

We think that the legislative history of § 703(h), as ex­
haustively analyzed by the Supreme Court in Teamsters and
adopted in 1968, there being no superimposed seniority system in­
tegral to this separate policy. Plaintiffs seek and find considerable 
support for this position in various formal representations made by 
American in this litigation that the job lines of progression policy 
was operated entirely on a plantwide seniority basis. This was not. 
however, a factual issue directiy litigated in the case and the record 
as presently composed is ambiguous on it. In view of our stated 
basis for deciding that 703(h) has no application to seniority svs- 
tems instituted after the effective date of Title VII, we need not 
address this as a possible alternative basis for decision.

* Judge Widencr’s dissenting opinion challenges this factual asser­
tion, contending that this policy was demonstrably in effect prior to 
the effective date of Title VII in 1965. With all respect for his ex­
haustive search of the evidentiary record and for the fruits of that 
search in which he finds support for his challenge, we simply dis­
agree with the inferences he draws and perhaps with the legal im­
plication he derives from those inferences.

Without attempting here an exhaustive countcranalysis of the 
factual record, our perception is that while the informal rudiments 
of what is now described as a “job lines of progression policy” cer­
tainly existed before 1965, the stated procedures adopted by Ameri­
can in 1968 to control entry into and promotions within specifically 
identified job “lines” involved enough of change and formalization 
(whether in favor of or against employee interests) to constitute a 
new policy, or at least one so radically altered from prior unstruc­
tured procedures that it could not be considered simply a “routine 
application," see Teamsters, 431 U.S. at 352, of those prel965 
procedures. As indicated in text of this opinion, we construe § 703(h) 
as a quite narrow exception to Title VII’s general coverage of all 
“conditions of employment,” including of course promotional policies, 
the prime subject of all types of seniority systems. In line with that 
narrow interpretation, we consider that “routine application” should 
be given a stringent reading against any employer seeking the special 
insulation provided by § 703(h) for any seniority “system” alleged 
to have been in place when Title VII was enacted. On that basis, we 
conclude, as a panel of this court has long since assumed—without 
intervening challenge of fact or law— that within contemplation of 
§ 703(h), the job lines of progression policy here in question only 
came into existence in 1968.



App. 10

in Franks v. Bowman Transportation Co., 424 U.S. 747 
(1976), conclusively demonstrates that Congress intended 
the immunity accorded seniority systems by § 703 (h) to run 
only to those systems in existence at the time of Title VII’s 
effective date, and of course to routine post-Act applica­
tions of such systems. See Teamsters, 431 U.S. at 352. That 
history is replete with indications that the interests sought to 
be protected by this special exception to Title VII’s general 
coverage of all “conditions of employment” were those 
seniority rights already vested in incumbent workers when 
Title VII went into effect.'

'  The applicability of § 703(h) to seniority systems initiated after 
the effective date of Title VII was not decided by Teamsters. See 
Note, 52 Tul. L. Rev. 397, 405 (1978). The EEOC position is that 
§ 703(h) has no applicability to seniority systems not in operation 
at the effective date of Title VII. EEOC Notice N-915 (July 14, 
1977), reprinted in EEOC Compliance Manual f  6500. We need not 
here embrace in its entirety this EEOC interpretation of Teamsters 
to agree that the legislative history suggests that post-Act seniority 
systems were not intended to be included in the protection of 
§ 703(h). A memorandum prepared by Senators Clark and Case 
stated in explanation of the intended effect of this section that “Title 
VII has no effect on established seniority rights.” 110 Cong. Rec. 
7213 (1964). The Justice Department noted that “Title V lfwould 
have no effect on seniority rights existing at the time it takes effect.” 
Id. at 7207. In discussing this legislative history, the Supreme Court 
noted in Teamsters that Title VII would allow “full exercise of 
seniority accumulated before the effective date of the Act,” 431 U.S. 
at 352, and that Congress did not intend to punish employees by 
destroying their “vested seniority rights . . . simply because their 
employer had engaged in discrimination prior to the passage of the 
Act," id. at 353. The question of the application of § 703(h) to 
seniority systems initiated after 1965 was not present in Teamsters 
and apparently has not been authoritatively addressed subsequently. 
Considering that Title VII is a broad remedial statute, we believe die 
legislative history supports the view that only those bona fide seniority 
systems in operation when Title VII took effect are entitled to the 
protection of § 703(h). Systems initiated in the post-Act period must 
of course pass muster under the Griggs analysis in the same manner as 
other facially neutral policies or practices challenged as discriminatory 
in their consequences. Griggs v. Duke Power Co.. 401 US 424 
(1971).

App. 11

Because § 703(h) has no application to this policy, its 
discriminatory effect was properly assessed by the district 
court under the general disparate impact test laid down in 
Griggs v. Duke Power Co., 401 U.S. 424 (1971). The vio­
lation then found under that test and the related relief given 
having been affirmed by this court, 535 F.2d at 264-66, 
defendants are entitled to no relief from those portions of 
the judgment related to American s job lines of progression 
policy.

B.

There is no question that if American’s branch seniority 
system is bona fide within contemplation of § 703(h) as 
interpreted in Teamsters, defendants are entitled to relief 
from those portions of the judgment related to inter-branch 
transfers. This system, unlike the lines of progression 
policy, was in effect when Title VII went into effect, and 
seniority rights were then vested under it. Opening up ’inter­
branch transfers to protected groups of employees without 
loss of their branch seniority indubitably impinges retro­
actively upon seniority rights already vested at the critical 
time in employees in the transferee branch. It is this that is 
forbidden by § 703(h), so long as the seniority system is 
“bona fide." 431 U.S. at 348-55.

We turn now to the fact that the district court in ruling 
on the 60(b) motion expressly concluded that in light of 
Teamsters, American’s seniority system was not bona fide. 
Implicit in that conclusion, earlier quoted, was the district 
court’s understanding that, under Teamsters, American’s 
branch seniority system would not be bona fide if it either 
“had its genesis” or was thereafter “maintained” for an 
illegally discriminatory purpose. We agree that this is 
Teamsters teaching. Id. at 356. However, we do not think 
that the record before the district court when it ruled upon



App. 12

the motion justified its specific conclusion that the system 
was not bona fide under this test. Certainly there are not 
in the record before us express findings of fact that would 
support such a conclusion. Whether there is evidence suf­
ficient to support the requisite findings of fact is doubtful in 
view of the understanding of § 703(h)’s application that 
reigned in this Circuit when the original record was being 
made. In consequence, the present record does not permit us 
to conduct a principled review of the district court’s ruling 
on this point. See Schneiderman v. United States, 320 U.S. 
118, 129-30 (1943); Kelley v. Everglades Drainage Dis­
trict, 319 U.S. 415, 421-22 (1943); Knapp v. Imperial Oil 
& Gas Products Co., 130 F.2d 1, 3-4 (4th Cir. 1942).

Because the issue of the branch seniority system’s bona 
tides only emerged in its present contours after the original 
record was made, we conclude that the relief invoked by 
defendants under 60(b) can only be achieved by reopening 
the record for additional proof and a new determination of 
bona tides in light of Tcanisters.’

Ill
Evans

Evans held that Title VII was not violated by an em­
ployer’s failure to grant retroactive seniority under its bona 
fide seniority system to a rehired employee who had not filed 
timely charges with EEOC following her earlier discrimina­
tory discharge. Defendants here contend that Evans draws 
in question the continued validity of the district court’s 
judgment to the extent it finds violations of Title VII and 
grants relief related to defendants implementation of its 
1968 promotional system, because no timely challenge to

* For guidance in addressing the issue the district court may find 
helpful the Fifth Circuit’s decision in James v. Stockham Valves b  
Fittings Co., 559 F.2d 310, 350-53 (5th Cir. 1977).

App. 13
V v t

that system was filed with EEOC when die system was 
adopted. We conclude that Evans is inapposite to die facts 
of this case and hence requires no modification or recon­
sideration of the judgment.

In Evans the Court specifically rejected the employee’s j 
claim that the failure to accord her retroactive seniority 
benefits constituted a “continuing violation” that was not 
time-barred. Rejection was on the basis that the seniority j 
system itself was not charged or proven to constitute an 
existing violation of the claimants’ rights to nondiscrimina- 
tory conditions of employment. In the instant case, by con­
trast, the violations charged and found by the district court 
were “continuing” in the very sense not present in Evans. 
Here the promotional policies adopted in 1968 were alleged 
by the claimants, found by the district court, and affirmed 
by this court to involve a continuing pattern or practice of 
discrimination that locked black and women employees into 
less favorable job positions. These effects, unlike the denial 
to the Evans claimant of retroactive seniority benefits, con­
stitute truly “continuing” violations of Title VII. Hence, 
claims related to these violations are not barred by failure • 
to have challenged at its inception the policy which gave 
continuing rise to them.

IV
Hazelwood

Defendants contend that Hazelwood undercuts the basis 
upon which discrimination was found in appointments to 
supervisory positions at the Richmond and Virginia 
branches, and that they are accordingly entitled to relief 
from related portions of the judgment. While we do not 
believe that Hazelwood requires full relief from the judg­
ment on the present record, we conclude that it does require 
remand for reconsideration.



App. 14

Hazelwood made two critical clarifications in Title VII 
doctrine that might significantly have affected the district 
court’s original assessment of the evidence, its resulting 
judgment, and this court’s initial review of that judgment. 
The first has to do with the relevant time period within 
which discrimination is to be assessed; the second, with the 
assessment of statistical proof in respect of jobs claimed by 
the employer to require special qualifications or skills. For 
reasons that follow, we conclude that the judgment under 
attack is not supportable on the present record under a fair 
application of these principles from Hazelwood, and that 
their proper application can only be insured by reconsidera­
tion of the evidence related to the supervisory positions on 
a reopened record in the district court.7

The district court’s original finding of discrimination in 
appointments to the supervisory positions was based entirely 
upon plaintiff’s statistical proof. This showed substantial 
current disparities between the percentages of blacks and 
women in the general population of the Richmond SMSA’ 
and those employed in supervisory positions by American 
in its Richmond and Virginia branches’ and, again, between 
the percentages of black and women employees in lower 
level positions at American and those employed in super­
visory positions by American in its two branches. Taking 
into account that the supervisory positions had been filled 
partially by hiring from outside and partially by promotion 
and transfers from within American’s work force, the dis­
trict court concluded that a violation of Title VII in filling

7 See note 1 supra.
8 There is no dispute that the appropriate geographical area from 

which to draw base statistical data is that defined by the Richmond 
SMSA.

8 This excludes any consideration of the special case of the Rich­
mond office which, with only four or five post-Act vacancies in­
volved, is not in issue on this appeal.

App. 15

these positions had been established by plaintiff’s statistical 
proof. The district court considered but was unpersuaded by 
defendants’ statistical evidence offered to rebut plaintiff’s 
prima facie case. That evidence consisted of two elements 
favoring defendants’ position that were then and now con­
tended to be more probative on the issue than plaintiff’s sta­
tistical evidence: statistical data showing the percentages of 
women and blacks categorized as “supervisors’’ in the SMSA 
figures compared with the percentages of blacks and 
women employed in supervisory positions at American; and 
statistical data showing the overall course of American’s ap­
pointments to vacant supervisory positions since the effective 
date of the Act.

While the record is not wholly clear on the point, we are 
persuaded that the district court gave little, if any, considera­
tion to these elements of defendants’ proof, presumably for 
the very reason that Hazelwood had not then made plain 
their great importance in assessing proof of discrimination 
in this type case. Our reasons for this conclusion require 
brief analysis of Hazelwood’s specific teaching on the rele­
vant issues and of the district court’s order denying the Rule 
60(b) motion.

As we recently pointed out in EEOC v. Radiator Specialty
C o.,------F .2d -------(4th Cir. Nov. 15, 1979) (slip op. at
17), Hazelwood and its recent progeny have now confirmed 
the inappropriateness in the usual case of using general 
population and general work force statistics as base data for 
establishing discrimination in respect of hiring and promot­
ing to job positions requiring special qualifications “not 
commonly possessed or readily acquired.’’ In the instant 
case, it seems obvious that in the pre-Hazelwood setting both 
the district court in entering original judgment and this court 
in review simply assumed the appropriateness of using plain­
tiffs’ general population and general work force statistics as



App. 16

the base data for comparison with American’s employment 
of blacks and women in supervisory positions; On the dis­
trict court’s part this may have been because it rejected 
American’s contention that special qualifications existed. If 
so, the record does not indicate that this was the basis for 
the court’s reliance upon plaintiffs’ statistics, nor would such 
a conclusion have been supported on that record. The ques­
tion whether special qualifications in the Hazelwood sense 
did or did not exist for these positions could not be resolved 
as a matter of law on the basis of the opposing parties’ bald 
conflicting assertions, nor by looking simply to the manifest 
nature of the positions, but required a factual inquiry whose 
necessity was not then realized. See EEOC v. Radiator Spe­
cialty Co.,___ F.2d a t____ (slip op. at 14-16). That fac­
tual inquiry is required now to assure compliance with 
Hazelwood’s teaching on the appropriate use of statistical 
evidence to establish and to rebut a prima facie case of dis­
crimination.

It is equally obvious that the district court and this court 
in the pre-Hazelwood setting failed to assess the evidence 
with appropriate regard for the relevant time period for in­
quiry as that too has now been clarified in Hazelwood. 
Basically, Hazelwood teaches on this point that the relevant 
period commences no earlier than the effective date of the 
Act.10 This has two critical consequences. It makes irrele­
vant to the establishment of a prima facie case any evidence, 
including statistical data, related to pre-Act employment 
acts.11 Perhaps more critically, it permits an employer effec­
tively to rebut a prima facie statistical showing of discrimi-

10 Under Evans, of course, the beginning of the relevant time 
period may be at later times set by limitation periods for charging 
violations.

11 Except for the limited purpose of proving inferentially the con­
tinuation of pre-Act discrimination into the post-Act time period. See 
Hazelwood, 433 U.S. at 309 n.15.

App. 17

nation in a current, static employment situation by showing 
that within the critical post-Act time frame its employment 
acts have been non-discriminatory. Thus, an “employer who 
from [the effective date of the Act] forward made all its 
employment decisions in a wholly non-discriminator}' way 
would not violate Title VII even if it had formerly main­
tained an all-white work force by purposefully excluding 
Negroes.” 433 U.S. at 309.

In considering on the 60(b) motion whether Hazelwood 
required relief from the judgment, the district court took the 
view that its only possible relevance was “on the question of 
whether the defendant should have been allowed to put on 
evidence to rebut the plaintiffs’ prima facie case.” As to 
this, the court pointed out, the defendants had been “al­
lowed and they did, put on a substantial amount of evidence 
in an unsuccessful attempt to rebut the prima facie case.” 
Therefore, the court concluded, “Hazelwood . . .  is inap­
plicable to these cases.” Jt. Supp. App. at 23. As our discus­
sion has indicated, Hazelwood goes well beyond simply 
authorizing the presentation of rebutting proof by an em­
ployer, and touches in critical ways upon the appropriate 
mode of assessing the total proof adduced by both sides. Our 
review of the record, including of course the district court’s 
expressed perception of Hazelwood’s impact, persuades us 
that reconsideration of the evidence on a reopened record is 
required in order fairly to determine whether the judgment 
can stand in light of Hazelwood

12 The possibly decisive force of defendants’ proof of post-Act ap­
pointments if properly considered under Hazelwood's teaching is ex­
haustively explored in Judge Widener’s opinion dissenting from the 
withdrawn panel opinion in this appeal. 586 F.2d at 306-10. Without 
attempting prejudgment of the matter, we draw attention here to that 
analysis merely to emphasize our conviction that Hazelwood's im­
pact may not have been fully appreciated by the district court in 
ruling on the Rule 60(b) motion.



App. 18

As earlier indicated, it is clear in the first place that the 
question of special qualifications for the supervisory posi­
tions must be determined as a prelude to proper assessment 
of the statistical evidence. If it is determined that no special 
qualifications beyond those commonly possessed or readily 
acquired are involved, then general population and work 
force statistics within the relevant time period may appro­
priately be used to determine whether plaintiffs’ evidence of 
record establishes a prima facie case.” If it is determined 
that special qualifications in this sense do exist, then the 
most probative evidence will be qualified market data,14 and

13 This will require a rough break-out of appointments by hiring 
from those by promotions (or transfers) from within American’s 
work force. T he relevant labor pool for assessing discrimination in 
promotion practices consists of qualified lower level employees. 
E.g., Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979).

14 While we have earlier noted the possibly decisive force of SMSA 
statistics as the appropriate qualified market data, see note 12 supra, 
the question of their actual appropriateness will itself require analysis 
by the district court. Defendants contend that we have already de­
cided their appropriateness by stating in our original panel decision 
that they provided a “more realistic measure of the company’s con­
duct than the gross percentage of blacks and women in the whole 
work force.” 535 F.2d at 275. This was said, however, in the context 
of an evaluation of the propriety of the district court’s remedial order. 
The question of their appropriateness for determining liability in the 
first instance is an open one on the present record. The SMSA statis­
tics give the percentages of blacks and women in the Richmond area 
who are employed in jobs denominated as “supervisory” in the total 
labor pool there analyzed. Whether these percentages substantially 
reflect the percentages of persons in that pool “specially qualified” 
for American’s particular supervisory positions is not manifest on 
the present record.

Until the actual nature of any special qualifications required for 
American’s positions is determined in some factual detail, the pro­
bative force of the SMSA data will not be apparent. In any event, 
plaintiff is not absolutely required to produce evidence of the actual 
percentages of specially qualified blacks and women in the relevant 
labor pool in order to make out a prima facie case. Other data, e.g., 
applicant-flow statistics, may be “very relevant,” Hazelwood, 433 
U.S. at 308 n.13, though this has to be carefully assessed in light of 
the particular situation in issue. See Dothard v. Rawlinson, 433 U.S. 
321,330 (1977).

App. 19

general population and work force data may be found not 
appropriate as the basis for statistical comparison.” In the 
latter event, plaintiffs should be allowed on the reopened 
record to adduce any evidence of qualified market data 
available to them. See EEOC v. Radiator Specialty Co., 
----- F.2d a t------ , ____(slip op. at 15-18).

Next, in assessing defendants’ rebutting evidence, whether 
on the present or a reopened record, proper weight must be 
accorded its tendency to show nondiscrimination in post-Act 
employment decisions, notwithstanding the inference of dis­
crimination permissible under Griggs from plaintiffs’ statis­
tical proof of a prima facie case. In order fairly to assess 
defendant’s effort at rebuttal, it would seem necessary' to 
establish on a reopened record the details of the relatively 
small number of post-Act appointments (apparently around 
30 in number) to supervisory positions: the approximate 
dates when vacancies were filled, the race and sex of each 
appointee, and whether appointment was by promotion from 
within or hiring from without. Only so can a valid statistical 
comparison within the relevant labor pool be made.

V

For these reasons, the order of the district court denying 
on their merits the motions of American and the Union for

15 Hazelwood did not entirely rule out the use of general popula­
tion and general work force statistics in “special qualification” cases, 
simply pointing out that “[wjhen special qualifications ire required 
to fill particular jobs, comparisons to the general population . . . 
may have little probative value." 433 U.S. at 308 n.13 [emphasis sup­
plied]. The question remains whether under the circumstances of a 
particular case the statistical proof offered justifies the inference on 
which the prima facie case rests. Our own post-Hazelwood cases have 
made it plain, however, that where special qualifications are found 
to exist, general population and work force statistics will not normally 
suffice as the base data for establishing a prima facie case. See EEOC
v. Radiator Specialty C o.,____ F .2d_____ (4th Cir. Nov. 15, 1979);
Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979); EEOC v. 
Chesapeake b  Ohio Railway, 577 F.2d 229 (4th Cir. 1978).



App. 20

relief under Fed. R. Civ. P. 60(b) is affirmed in part and 
vacated and remanded in part for further proceedings con­
sistent with this opinion.

Affirmed in part; 
Vacated and Remanded 

in part.

App. 21

WINTER, Circuit Judge, concurring and dissenting:
I concur in the majority opinion of the in banc court with 

respect to its treatment of the Teamsters and Evans issues 
both for the reasons set forth therein and the reasons ex­
pressed in the majority panel opinion, Patterson v. American 
Tobacco Company, 586 F.2d 300 (4 Cir. 1978) (Patterson 
II). I dissent from the majority’s application of the Hazel­
wood principles to the instant case and from the remand for 
further proceedings under Hazelwood both for the reasons 
expressed in the majority panel opinion and those that fol­
low. In my view the present record conclusively shows that 
the requirements of Hazelwood have been amply met. Ameri­
can has had at least one opportunity to demonstrate other­
wise. It did not avail itself of that opportunity and the court 
should proceed to final disposition without further delay.

I

I agree that under Hazelwood an employer may success­
fully rebut a plaintiff’s prima facie case, which plaintiff 
established by proving that the percentages of women and 
blacks employed as supervisors is disproportionately low to 
the percentages of women and blacks in the available labor 
pool, by showing that the percentages of women and blacks 
categorized as “supervisors” in the SMSA figures compared 
favorably with the percentages of blacks and women em­
ployed in supervisory positions by the employer. But, as I 
understand the law, resort to the “supervisors” statistics in 
the SMSA figures is predicated upon a showing by the em­
ployer that tire supervisory positions require special qualifica­
tions "not commonly possessed or readily acquired” by the
general labor force. EEOC v. Radiator Specialty C o .___
F.2d------, ------ (4 Cir. 1979) (emphasis added). If such
a showing is not made, the appropriate statistics to be con-



App. 22

sidered are those of the available labor force. I also agree 
that Hazelwood teaches that the relevant period for de­
termining discrimination in hiring or promotion is not earlier 
than the effective date of the Title VII (July 2, 1964). [s/c] 

On the question of the statistics to which the court should 
turn to decide if plaintiffs’ prima facie case was rebutted, I 
think that the stipulation of the parties, made June 24,1974, 
supplies the answer. The parties stipulated:

56. Prior to selecting an employee for promotion to 
a supervisory position the defendant Company gives 
the local union an opportunity to make recommenda­
tions.

57. The defendant Company has never had an edu­
cational requirement for employees promoted from 
hourly production jobs to supervisory positions.

58. Hourly employees of the defendant Company 
do not have to apply or express their interest in holding 
a supervisory position in order to be considered for 
promotion to such a position.

59. The defendant Company does not have any 
written guidelines which are used in selecting super­
visory personnel.

60. The selection of supervisors at the Richmond 
and Virginia Branches of the defendant Company is 
left to the discretion of those employees at the super­
intendent and manager levels of plant management.

I would think it obvious that if American permits a union 
to nominate candidates for promotion, if it imposes no edu­
cation requirement for employees promoted from hourly 
production jobs to supervisory positions, if it does not re­
quire a showing of employee interest as a condition of pro­
motion and if it has no written guidelines for selecting super­
visory personnel, relying instead on the unbridled discretion 
of higher supervisory personnel, there is no requirement that

App. 23

employees hired for supervisory positions possess skills or 
special qualifications not commonly possessed or readily 
acquired. Even if, as the majority speculates, the district 
court simply assumed the appropriateness of using general 
population and general work force statistics as the base data 
for comparison with American’s employment of blacks and 
women in supervisory positions, that assumption was mani­
festly correct. Irrespective of whether the district court in its 
original decision or in its decision on remand articulated the 
reason for its result with the legal nicety that the majority 
would prefer, I see no point in returning the case.

It should be remembered also that, while the district 
court was reconsidering its decision on remand, Hazelwood 
had been decided. Our direction to the district court gave 
American full opportunity to tender proof of the special 
qualifications which it believed that it was necessary that its 
supervisory personnel possess.1 American failed to' offer any 
evidence other than that' already contained in the record. 
Instead it stated to the district court both in writing and in 
the oral statements of counsel that the present record was 
sufficient and the issue to be decided was purely legal. More­
over, before us, American relies on SMSA statistics which 
have little relevance to the tobacco industry; namely, sta­
tistics derived from construction craftsmen, mechanics and 
repairmen, machinists, metal craftsmen, and other crafts­
men. Thus from lack of proof of the need for special quali­
fications, despite an opportunity to offer such proof, and 
general inappropriateness of the statistical data asserted to

1 The actual sequence of what transpired was that after we decided 
Patterson II defendants moved us to recall the mandate and to re­
consider our decision in the light of, inter alia, Hazelwood. In deny­
ing the motion, we stated in our order that “[t]he parties may present 
to the district court all questions of law arising out of recent Supreme 
Court cases . . . and they may offer such supplementary evidence as 
may be pertinent. . . ”



App. 24

support American’s position, I would conclude that the only 
relevant evidence on. the factor in question is the-stipulation 
of the parties which, as I have shown, established that special 
qualifications are not required. Since there was no necessity 
of special qualifications, the correctness of the district court’s 
factual determinations is unimpeached and there is no need 
for a second remand.

II

1 also see no need to remand for a consideration of post- 
Act employment decisions for, as I view the record, under 
any test plaintiffs’ prima facie case was not rebutted.

During the post-Act period to the date of trial, American 
hired or promoted approximately 85 persons to supervisory 
positions at the Virginia and Richmond branches, 55 at Vir­
ginia and 30 at Richmond.2 Of this number, 34% (27) 
were promoted and the rest were hired from the outside. At 
the Virginia branch, 6 of the 55 supervisory appointments 
were of blacks— 10.8% of the total supervisory appoint­
ments. At the Richmond branch, 3 out of 30 supervisory ap­
pointments were of blacks— 10% of the total supervisory 
appointments. Both of these figures are below the percent­
age of blacks in even the Richmond SMSA supervisory 
workforce (12% ), and more markedly so with respect to 
the proportion of blacks in the overall workforce (23.6% ).5

2 "Die majority in banc opinion refers to the number as being ap­
proximately 30 in number. Presumably this statement is based upon 
the district court’s finding that “at least” 18 and 9 persons were hired 
or promoted to supervisory positions at the Virginia and Richmond 
branches, respectively. But the district court in later findings found 
that from January 1, 1963 to June 1, 1973 there have been over 55 
and 30 vacancies in the assistant foreman position at the Virginia and 
Richmond branches, respectively, and since 1966, 4 vacancies in the 
position of supervisor in the Richmond office.

2 For the reasons set forth in Part I of this opinion, I would deem 
as the appropriate measure the proportion of blacks in the overall 
work force (23.6% ).

App. 25

Thus, to me, the evidence of post-Act hirings and promo­
tions to supervisory positions confirms and does not rebut 
the plaintiffs prima facie case of racial discrimination in 
post-Act recruitment of supervisory personnel.

There is further support for this conclusion in an analysis 
of the appointment dates of the black supervisors. Of the 9 
black supervisors at the Richmond and Virginia branches 
at the date of trial, 5 were not made supervisors until after 
January 3, 1969, when EEOC charges were filed. Since one 
black supervisor had been appointed prior the effective date 
of Title VII, this means that American voluntarily ap­
pointed only 3 black supervisors during the period that its 
compliance with the law is to be measured.

in
In the light of my views, it could be asked why I do not 

join in the majority in banc opinion since I agree that re­
mand under Teamsters is required and the record is such 
that plaintiffs will prevail on both issues on remand under 
Hazelwood. The short answer is that this litigation has pro­
ceeded at a regrettably slow pace to date. The ultimate relief 
to those of the plaintiffs entitled to back wages has long been 
denied. Conversely American has been afforded a full and 
fair opportunity to show how Hazelwood should change the 
course of this litigation and it has failed or been unable to 
meet the burden resting on it. I do not think that the ulti­
mate decision in this case on any issue should be delayed 
any longer than is absolutely necessary. Since I see no viable 
issue under Hazelwood, I would not complicate the remand 
by interjecting this issue.

Judge Butzner authorizes me to state that he joins in this 
opinion.



App. 26

WIDENER, Circuit Judge, concurring and dissenting:
4

I

I concur in the result reached by the majority in part II-B 
of its opinion, as well as in part IV thereof.

II

As to part III of the majority opinion concerning the 
application of Evans, I respectfully dissent for the reasons I 
have stated in my dissenting opinion at 586 F2d page 310.

m
I respectfully dissent to part II-A of the majority opinion 

for the reasons I will set out below.1
The lynchpin of the majority’s holding, that § 703(h) 

has no application, is this statement found on page 10 of the 
slip opinion:

“This policy [lines of progression] was not in effect at 
American in 1965 when Title VII went into effect, but 
was only adopted in January 1968 in connection with 
American’s general revision of its promotional policies, 
555 F.2d at 263.”

11 would not find it either necessary or appropriate to make the 
majority’s holding that § 703(h) only applies to seniority systems in 
existence on the effective date of the Act, although I note that the 
statutory language and legislative history do not require this holding. 
The Supreme Court has specifically noted in Teamsters that § 703(h) 
on its face immunizes all bona fide seniority systems. 431 U.S. 348, n. 
30. Although § 703(h) is written as an exception and not as a grand­
father clause, the majority simply transforms an ordinary exception 
into just that. Congress undoubtedly knows how to write a grand­
father clause if it wishes, but in this case wrote an exception instead. 
New plants, for instance, are summarily excluded from § 703(h) in 
the majority view, without stated justification.

App. 27

I have read page 263 of that opinion from beginning to 
end, and, with respect, cannot read into it the meaning 
given by the majority which I have just quoted. Indeed, that 
opinion indicates, if anything, the lines of progression were 
in existence at least as early as 1963. 535 F2d at 271. I 
think the source of the majority’s statement is more likely 
an uncritical acceptance and erroneous interpretation of 
stipulation 38 filed in the district court, to which I will later 
allude. In all events, without the accuracy of the quoted 
statement, the opinion of the majority, that § 703(h) has 
no application, is without foundation. I think the record is 
uncontradicted and compelling that the factual statement is 
demonstrably wrong.

In this case, the pretrial discovery, the trial, and the dis­
trict court’s decision all occurred prior to the Supreme 
Court’s decision in Teamsters. Therefore, it was not material 
whether or not the lines of progression existed prior to 1965 
(the effective date of the Act). It is thus not surprising that 
the district court’s findings of fact do not address this issue 
directly and can be read in two ways.1 The majority today

* The district court’s stipulation 3S states that a posting and bidding 
system was instituted in 1968, and that there were exceptions for 
nine named lines of progression. It does not state whether the lines 
already existed in 1968 or whether the lines were created in 196S. In 
light of the full record, the former interpretation is clearly correct. 
The stipulation reads in full:

38. On January 15, 1968, the defendant Company instituted a 
system (which is still in effect) whereby permanent vacancies 
in classifications under the jurisdiction of Local 182 of the 
T.W.I.U. at both the Richmond and Virginia Branches were 
filled through job posting and employee bidding. Under this sys­
tem, all such vacancies are posted on plant bulletin boards for 
seven working days. Anyone in the bargaining unit may sign any 
posting (bid on any job) with the exception of postings for va­
cancies in the adjuster, learner adjuster, examiner-making, ex­
aminer-packing, and dryer operator, textile dryer operator, 
overhaul adjuster-making or packing, and turbine operators 
classifications at the Virginia Branch and adjuster and learner 
adjuster at the Richmond Branch. >



App. 28

simply assumes the lines of progression were created in 
1968. Not only is this-assumption not correct, but the full 
record clearly demonstrates that in 1968 lines of progression 
were eliminated, except for the nine lines at issue here which 
already existed and which were merely acknowledged as pre­
existing exceptions to the posting and bidding system. On 
remand, the district court should if necessary take additional 
evidence, and in all events issue findings of fact on the 
origins of the lines of progression.

The full record, even as it now stands, is replete with evi­
dence that the lines of progression existed for many years 
prior to the effective date of the Act.s The Company did not, 
and still does not, use the terminology “lines of progression.” 
The Company does use the term “qualifications” to describe 
what are in fact lines of progression; that is, one became 
“qualified” for a job at the top of the line by first holding a 
job nearer the bottom of the line. The district court found 
as a fact that both prior to and after the effective date of 
the Act, job qualifications “referred to whether or not an 
employee had filled a particular job before and was in the 
opinion of supervisory personnel, familiar with it.” Finding 
of Fact Number 8. (Appendix II 8 EPD, 9722, p. 6012, 
E.D. Va. 1974.)

Of plaintiffs’ First Interrogatories to Defendant American 
Tobacco Company, interrogatory number 7 calls for an 
explanation of “the basis or rationale for each line of pro­
gression . .  . and each change therein described in answer to 
interrogatory 6. . . .” (Record, v. I, p. 47, 50-51.) The 
answer refers to a list of jobs “with qualifications other than

What this opinion refers to as stipulation 38 is actually paragraph 
38 of stipulation 1. Other numbered stipulations referred to are the 
numbered paragraphs of stipulation 1.

3 A search of the 52 volume record reveals no evidence to the 
contrary.

App. 29

seniority.” The answer goes on to explain:

This means simply that an individual has to bid for, 
and qualify on, the lower paid job first in each case 
before that person may bid for, and qualify on, the 
higher paid job. The criterion for requiring these 
“qualifications” is based squarely on the necessity of 
learning the first job before being able to adequately 
perform the next one even after the regular training 
period.
(Record, v. I, p. 287.)

The list of jobs referred to (which became Plaintiffs’ Ex­
hibit 35M) is titled “EXPLANATIONS OF CLASSIFICA­
TIONS WITH QUALIFICATIONS OTHER THAN SE­
NIORITY IN ANSWER TO QUESTION 7.” The list then 
describes each line of progression (Learner Adjuster to Ad­
juster, Operator to Learner Adjuster, Catcher to Examiner- 
Making, etc.) and gives a detailed explanation of the ration­
ale for each one. It is beyond question that the Company 
used “qualifications” as a synonym for lines of progression.

Interrogatory 6, referred to in interrogatory 7 (see 
supra), reads in relevant part:

6. Describe in detail all changes in the composition or 
structure of departments and lines of progression, or 
in any job, including the creation, elimination, merger, 
or restructuring of any department, line of progression 
or job which occurred between January 1, 1960 and 
the date these interrogatories are answered.
(Record, v. I, p. 50.)

American’s answer was dated July 26, 1973:

6. The significant changes in departments patterns of 
movement (sic), etc., which have taken place since 
January 1, 1960, are as follows:



App. 30

*  *  *

(b) The elimination of qualifications (except as noted 
in answer to question 5) with the establishment of 
seniority as the sole criterion for permanent promotion 
to be effected through the posting and bidding system 
in the contract of 1968 as agreed between the company 
and the Union.
(c) . . . By 1968 the Company and the Union negoti­
ated the elimination of qualifications except in the few 
jobs mentioned in answer to Question 5.
(Record, v. I, p. 269-270)4 (italics added).

* Similar interrogatories were put to the defendant unions. The 
local- and the international provided separate answers, all of which 
are not illuminating. Plaintiffs’ First Interrogatories to Defendant 
Unions, (Record, v. I, p. 30), includes interrogatory 23 (Id. p. 37): 

23. State whether American Tobacco and defendant have en­
tered into any agreements which in any way altered, restruc­
tured, rearranged or merged the lines of progression in any of 
the departments or units utilized by the Company for organizing 
its employees by jobs performed. If so, . . . [state] Uie dates of 
the agreements.

Defendant Local No. 182’s Answers to Plaintiffs’ First Interroga­
tories (Record, v. I, p. 95, 98) states:

23. See attached copies of contracts. Chief negotiators for both 
sides shown in back of attached contracts. Dates of agreements 
also shown. Dates of negotiations not known.

The Defendant Tobacco Workers International Union’s answer sim­
ply states that “International has not entered into any agreement 
with The American Tobacco Company.” (Record, v. I, p. 100, 107). 
Every union contract in the record, covering the period from I960 
through 1974, states that promotions are based on seniority and 
qualifications. None of the contracts mention "lines of progression." 
See Plaintiffs Exhibit 35FF and page 9 infra.

Plaintiffs’ First Interrogatories to Defendant American Tobacco 
Company, interrogatory 5 (Record v. I, p. 47, 49), is: “State whether 
jobs in the plant are organized or grouped in any way into depart­
ments and/or lines of progression.” The Company’s answer, in rele­
vant part, is: “There are a few jobs with qualifications other than 
seniority under the ‘posting and bidding’ system and these are listed 
in the attached 1968 agreement between Management and the three 
Eastern Locals (182, 183, and 192 of the TW IU).” (Record v. I, 
p. 285). Notwithstanding what the answer claims, the 1968 agree­
ment does not mention lines of progression or the particular jobs in­
volved, and neither does any of the other union contracts.

App. 31

Since the answer describes the reduction in the number of 
lines of progression which occurred in 1968 but does not 
indicate the creation of any lines, the lines existed on and 
before January 1, 1960. The lines of progression were 
not created in 1968, as the majority assumes; they were 
eliminated in 1968, with the exception of the few at issue 
here. These few existed well before the effective date of the 
Act, and were not eliminated in 1968 when the rest were.

The Company provided two sets of answers to each inter­
rogatory, one for the Richmond Branch and one for tire 
Virginia Branch. The answer to interrogator)' 6 quoted 
above is for the Richmond Branch. The answer for the Vir­
ginia Branch contains a paragraph identical to paragraph 
(b) quoted above, and also adds:

By 1967, the pattern of downward movement, princi­
pally of whites, had slowed somewhat, a few new hires 
were taken in, some whites elected voluntary layoff 
status rather than do some of the pipeline jobs, and 
the Company and the Union negotiated the elimination 
of qualifications except in those few jobs mentioned in 
answer to question 5.
(Record, v. I, p. 287) (italics added).

The Answer to interrogatory 7 quoted above is for the 
Virginia Branch. The Richmond Branch answer reads: “7. 
Refer to Virginia Branch answers, same information is 
applicable. (Note only classifications of Adjusters and 
Learner Adjusters apply to Richmond Branch.)” (Record 
v. I, p. 270).5 Lines of Progression were in existence prior

5 The EEOC put similar interrogatories to the Companv, and re­
ceived similar answers. See EEOC Interrogatories 1-20 to Defendant 
American Brands, Inc., d /b /a  The American Tobacco Company, in­
terrogatories 8 and 16 (Record, v. I, p. 195, 201, 203-204) and the 
Company’s answers (Record, v. I, p. 315, 318, 321-324 (Richmpnd 
Branch), and p. 327, 332, 336-338 (Virginia Branch)).



App. 32

to 1960, and all but the nine* at issue here were eliminated 
by 1968/

It is more than merely interesting to recognize that the 
named plaintiff, John Patterson, filed his charge not because 
he would not enter a line of progression as may be inferred 
from the various majority opinions filed in this case but 
because the line of progression that he was in was eliminated 
in 1968. Although a description of his line of progression, 
like the others, was not formally reduced to writing, Patter­
son and everyone else knew about it, relied on it, and Patter­
son was understandably upset when it was eliminated. Pat­
terson had been a factory supply handler, and there had been 
a line of progression from that position to the position of 
machine operator. Supply handlers were trained to be op­
erators, and part of their job as supply handler was to relieve 
the operator. In this manner handlers gained one or two 
hours of experience a day as operators. (Record, v. XVII, 
pp. 68-73,105-106, 118; v. XXV, p. 56; v. XVIII, p. 57D; 
v. XIX, p. 4-5 (deposition of foreman Barnes); v. 
XXXVIII, p. 18 (deposition of employee Howard); v. 
XXXIV, pp. 43-44, 53-59-60 (deposition of Foreman 
Thomas); v. V, pp. 135-136 (Trial Transcript); v. VII, pp. 
627-631 (Trial Transcript)). Patterson gave the following 
testimony at his deposition:

* Since the district court found that three of the lines were justified 
by business necessity (see Finding #  31, EPD p. 6013), only six 
lines are actually at issue. However, because all nine lines pre-date 
the Act, they are all, if bona fide, protected by § 703(h), whether or 
not they are justified by business necessity.

' American’s answers to plaintiffs’ first set of interrogatories con­
tain numerous other references to the existence of “qualifications” 
prior to 1968 and to the elimination or reduction in the number of 
lines of progression in 1968. See, e.g., answers to interrogatories 20, 
25, 26, 28, 29 (Record, v..I, pp. 294, 296, 298, 299, 300).

App. 33

Q. Did you file a charge of discrimination with the 
EEOC?

A. Yes.
Q. I believe it was in 1968. Can you recall the specific 

charge that you made at that time?
A. Yes.

%Q. What was that?
*A. Well, the charge was that they had—you want me 

to go into detail on it?
Q. Be fine.
A. Well, I h,ad put in my time for my hours of receiv­

ing a machine, which was supposed to be nine 
hundred hours, and in the meantime after we put 
in that nine hundred hours they gave out some 
machines, but they dipped back across from the 
agreement they made. They changed the agreement.

Q. Was this in 1968?
A. In ’68.

*  *  *

Q. Do you recall the employees who got those promo­
tions following the posting?

A. No, I don’t recall that either.
Q. If I told you they were James Starkes, Isaiah Jones, 

Milton Branch and Andrew Yancey, would that . 
refresh your memory?

A. Well, that seems like the four that were brought 
over after we had served our nine hundred hours.
I say that seemed like the four.

Q. And they were all senior employees to you, were 
they not?

A. Yes, they were senior.
Q. And they were all black employees, were they not?
A. Yes.

*  *  *

Q. Now, as I understand it, the only claim of discrimi­
nation that you made so far as your testimony in 
response to Mr. Wickham’s question is that you 
had accumulated 900 hours on the machine, is that 
correct?



App. 34

A. Right.
Q. And that yon didn’t get a job as a machine operator, 

is that right?
A. Right.
Q. There was no other claim of discrimination that you 

are making?
A. Not for me.

* * * "
Q. Who discriminated against you?
A. From what I understand, they changed the rule in 

the middle of the stream and I got hurt.
*  *  *

Q. How did they change the rule?
A. Well, from the way I look at it,- they changed the 

rule when they reached over and got those four men 
and put them into jobs like that and. left the other 
men that had accumulated the hours with the less 
seniority outside.

Q. Those four men were black men, weren’t they?
A. Yes.
Q. This is what you mean when you say you were dis­

criminated against?
A. Yes
(Record, v. XXV, pp. 20-21, 23, 36, 27.)

Mr. Dillard (manager), in his trial testimony, confirmed 
that this was the basis of Patterson’s charge. (Record, v. 
VIII, pp. 982-982, 1035.) The elimination of this line of 
progression in 1968 (from factory supply handler to ma­
chine operator) formed the basis of Patterson’s charge. 
Patterson was in a line of progression, but when this line 
was eliminated and replaced with a posting and bidding 
system, others with more seniority got the vacancies.

Taylor, another named plaintiff, also filed a charge with 
the EEOC, alleging that his seniority rights were violated. 
His complaint is identical to Patterson’s. He had acquired 
900 hours’ experience as an operator, but when that line

of progression was eliminated in 1968, four other blacks 
with more seniority got the position(s) he wanted. (Record 
v. XXV, pp. 72-82 (Taylor’s deposition); v. XXXVIII, pp. 
7-11, 18 (deposition of Howard, a black Union officer who 
has been with American since 1946): v. VIII, pp. 9S2-9S4, 
1035 (Dillard’s trial testimony)).

Every contract between American and the relevant locals 
of the Tobacco Workers’ International Union clearly recog­
nized that for some promotions, “qualifications” were neces­
sary. Article 8 of the Union contract, for example, signed 
on November 4, 1959 (effective January 1, 1960) con­
tains the following:

All promotions and demotions shall be made in accord­
ance with seniority provided, that, in the opinion of the 
Management, there is no question as to the qualifica­
tions and efficiency of the employee concerned. (Italics 
added)

Identical or very similar clauses were included in ever}' con­
tract since then (no earlier contracts appear to be in the 
record). (See Record, v. XIV, Plaintiffs’ Exhibit 35FF, 
Union Contracts effective January 1, 1962 (including 
amendment of Oct. 27, 1964); January 1, 1965; January 
15, 1968; January 15, 1971.) These contracts, interpreted 
in light of the district court’s finding on the meaning of 
“qualifications,” show that at least since 1960, a promotion 
to certain jobs depended on whether or not the candidate 
“had filled a particular job before.” This describes the es­
sence of a job line of progression. Indeed, we so described 
it in the first panel opinion in nearly the same words. 535 
F2d at 265. The 1968 and 1971 union contracts continued 
to use the terminology “qualifications.” They did not use the 
phrase “lines of progression,” nor did they identify which 
jobs are in lines of progression.



App. 36

Plaintiffs’ Exhibit #56  indicates which jobs, at the Vir­
ginia Branch, required “qualifications” in 1963-if not ear­
lier. The exhibit lists 82 job classifications in which, as of 
September 1963, vacancies were filled by “the same system 
of filling vacancies (promotions) as the Richmond Branch, 
i. e., no qualifications, plantwide seniority only.” That list 
of 82 jobs does not include any of the nine jobs at issue here 
(adjuster, learner adjuster, examiner-making, examiner­
packing, ADT dryer operator, textile dryer operator, over­
haul adjuster, adjuster-prefabrication, and turbine opera­
tor) . The sentence immediately following that list reads:

From September. 16, 1963 to January 15, 1968 pro­
motions to the remaining job classifications at Virginia 
Branch required plant-wide seniority and qualifications, 
with “qualifications” prevailing over seniority.

This clearly shows that at least as early as 1963, in order 
for an employee to get promoted to one of the nine jobs at 
issue here (as well as others), the employee had to have 
filled a particular job before. Lines of progression existed 
at least as early as September 16, 1963. See also Record, 
v. V, pp. 84-87.

The record is replete with evidence that as far back as 
the 1950’s, for the jobs at issue here and for others, an em­
ployee had to work in the lower paying job before being 
promoted to the higher paying job. One of the nine lines 
that was recognized as an exception to the posting and bid­
ding system is the line from catcher to examiner (Stipula­
tions 38, 41). The deposition of S. Kirby, who started with 
American in 1952 as an Assistant Foreman, shows the fol­
lowing:

Q. During that period of time [from 1952 to 1957], 
what type of qualifications did you have to have to

App. 37

become an examiner?
A. You would have to be an experienced catcher. 
(Record, v. XVI, p. 28-29; see also Id., p. 52.)

The deposition of John Dillard, Manager (Record, v. XVII, 
p. 95), includes his statement that “To my knowledge, all 
of our examiners in the Making Department, at one time 
or another have been a catcher.” Thus, the line of progres­
sion from catcher to examiner existed in the 1950’s and was 
not “adopted” in 1968.

The progression from operator to learner adjuster was
also excepted from the general posting and bidding system. 
(Stipulations 38 and 40, 8 EPD at p. 6010.) John Dillard 
started with American in 1940 as a factory clerk and worked 
his way up to become Manager in 1961 ( which position he 
still held in 1973, the date of his deposition). (Record, v. 
XVII, pp. 4-6.) Dillard’s deposition contains the following:

Q. To your knowledge, have there ever been any 
learner adjusters who haven’t been operators?

A. To my knowledge, all of our learner adjusters have 
come from the operating classification.

(Record, v. XVII, p. 94, emphasis added.)

E. B. Barnes started with American Tobacco in 1943 as a 
hopper filler and tote boy, and worked his way up to become 
foreman by the time his deposition was taken. (Record, v. 
XX, pp. 3-5.) The following exchange took place at Barnes’ 
deposition:

Q. In order for a guy to be an adjuster, would it be an 
advantage for him to be a maker or packer op­
erator?

A. Oh, definitely, yes, definitely. It is almost a must. 
You put somebody on there to make an adjuster 
out of him, it would be like trying to take me and



App. 38

make me an engineer without giving me an edu­
cation. t

Q. Do you know of any situations since you have been 
there where a making adjuster is put to work with­
out being an operator first?

A. I don’t recall any. I don’t know of any. I don’t 
know of any.

Q. Is there any rule that says you have to be one?
A. I think this is one of the things that goes on the 

posting notice when they post, to say the qualifica­
tions are that you are an operator. If it was making 
adjuster, that you were a making operator, etc.

(Record, v. XX, pp. 84-85.)

While the Virginia Branch had nine lines of progression, 
the Richmond Branch had lines leading to only two posi­
tions, learner adjuster and adjuster. (Stipulation 38, supra.) 
W. F. Miller, assistant manager of the Richmond Branch, 
testified at trial as follows:

Q. Now, under that departmental seniority, were there 
any other qualifications [fjor promotions during 
that period, other than seniority, departmental?

A. This was still prior to—
Q. Prior to 1963?
A. No, sir. The only qualifications were people that 

were interested and could learn the job. Other than 
we had one of our qualifications on the line of the 
progress.

Q. The line of progression?
A. The line of progression; that you had to be a pack­

ing machine operator before you became a learner 
adjuster.

Q. And a learner adjuster before you became an ad­
juster?

A. Yes.
Q. That line of progression is still in effect?
A. Yes, it is.

App. 39

Q. And it has been even since prior to the merger9 
A. Yes, sir. ° '
(Record, v. VII, Trial Transcript, pp. 868-869. The 
merger referred to is obviously the merger of the two 
union locals which took place on September 16, 1963.)

H. Nuckols, Jr. was Machine Shop Foreman from 1955 
to 1969. He also testified at trial:

Q. And what are the qualifications for becoming a 
learner adjuster?

A. The basic qualification is that he have been a op­
erator, machine operator, a packer, or making ma­
chine operator.

Q. Why is this necessary?
A. Well, I would think it would be necessary in order 

that he would become somewhat familiar with the 
machine. That is just one of the regulations they 
have had down through the times that they have 
always used. . . .

Q. Now, sir, in order to become an adjuster, is it cor­
rect to say that you must serve as a learner adjuster 
first?

A. Yes.
(Record, v. V, Trial Transcript, pp. 241-242; italics 
added.)

Nuckols further testified that to his knowledge, every ad­
juster and learner adjuster has served as either a packing 
or making machine operator (Id. at 244) and that this re­
quirement was a prerequisite (Id. at 267).

G. A. Howard started with American in 1946 as a gen­
eral laborer, and was a learner adjuster when his deposition 
was taken. He confirmed that prior to 1968 the “qualifica­
tion!. • •]” for learner adjuster was to have been an oper­
ator. (Record, v. XXXVIII, p. 19.) Foreman O’Brien, in 
his deposition, also confirmed that prior to 1968 adjusters



App. 40

were first operators. (Record, v. XIX, p. 38.)
Indeed, at least as early as 1963, the required qualifica­

tion for “progressing” from operator to learner adjuster to 
adjuster existed and was used to fill even temporary vacan­
cies. Referring to the period from 1963 to 1968, Dillard 
gave the following testimony at trial:

Q. What about your adjusters? Were they handled in 
the same way as your machine operators?

A. The adjusters followed a progression that led to 
the job. They had previously been an operator—

Q. I am only talking about temporary vacancies now.
A. Yes. I am telling you about temporary vacancies. 

They had been an operator, and then they had been 
a learner adjuster, and then they had been an 
adjuster.

Q. And you filled the temporary vacancy in one of 
those jobs by getting someone who had previously 
done the job?

A. We had a list of people, and the list was set up by 
seniority and qualifications, and we used the list.

(Record, v. V, Trial Transcript, pp. 122-123.)

The EEOC, in its Post-Trial Brief, states that “qualifica­
tions” were used in the canvassing method of filling tempo­
rary vacancies “From 1963 to 1968.” EEOC’s Post-Trial 
Brief at 35 (Aug. 7, 1974). It is clear from the uncontra­
dicted testimony at trial and in depositions introduced into 
evidence that the line of progression from operator to 
learner adjuster existed for many years prior to 1968, and 
prior to the effective date of Title VII.

The same is true of the progression from learner adjuster 
to adjuster. This line was also recognized as an exception 
to the posting and bidding procedure. (Stipulations 38, 39, 
8 EPD at p. 6010.) Dillard’s deposition includes the fol­
lowing:

App. 41

Q. Have there ever been any adjusters who haven’t 
been learner adjusters?

A. I don’t positively know the answer to that question. 
In recent years I know that—and when I say recent 
years, I mean in the last twenty-five years or so— 
all of the adjusters have come from the learner ad­
juster grouping.

(Record, v. XVII, p. 94, emphasis added.)
Employee Kirby’s deposition includes:

Q. During that period of time from ’57 to ’62, again, 
how did someone become an adjuster?

A. Someone would have become a learner adjuster 
before he would have become an adjuster 

(Record, v. XVI, p. 42.)
Millers trial testimony, quoted supra, confirms that prior 

to 1963 one had to be a learner adjuster before becoming 
an adjuster. Nuckols’ trial testimony, also quoted supra, pro­
vides further confirmation that the line of progression from 
learner adjuster to adjuster existed well prior to the effective 
date of Title VII.

Indeed, the plaintiffs argued that the “qualification” of 
being a learner adjuster before becoming an adjuster has 
always existed. The Plaintiffs’ Memorandum in Opposi­

tion to Defendants’ Motion to Amend and Supplement 
Findings of Fact and Conclusions of Law (Record, v. IV, p. 
211) includes the following response to the defendants’ 
proposed Supplemental Finding #5:"

American Tobacco s Motion to Amend and Supplemental Find­
ings of Fact and Conclusions of Law and to Proffer Additional Evi­
dence (Record, v. IV, p. 130) includes Proposed Supplemental Find­
ing of Fact # 5 ;

5. Both the Richmond and Virginia Branches established plant­
wide seniority in 1963. The Richmond Branch has never used 
prior experience on a job as a prerequisite to a promotion to 
any job under the jurisdiction of TWIU Local 182. The Vir-



App. 42

5. Supplemental Finding # 5  is adequately covered 
in the Court’s Finding # 8 . The Company’s suggested 
supplement is incorrect, e.g. the Richmond Branch has 
always required its TWIU "adjusters” to hold the posi­
tion of “learner adjuster.’’ In addition the Virginia 
Branch maintained “lines of progression” as recently 
as the date of trial. (Stipulations Nos. 39-47.) (Id., 
emphasis added.)

Here, then, even the plaintiffs allege that the learner ad­
juster-adjuster line of progression “has always” existed at 
the Richmond Branch.’

The posting and bidding system instituted in 1968 also 
recognized an exception for the progression from line 
searcher to examiner-packing. (Stipulations 38 and 42, 8 
EPD, p. 6010.) The Dillard deposition includes:

Q. All right, sir. It is my understanding, also, that in 
. order to become an examiner in Packing, you 
should have been a line searcher, is that correct?

A. Yes, sir, that is correct.
* * *

Q. Have there ever been any examiners who haven’t 
been line —

A. I am not really sure of this one. I know that we 
have not had any examiners that haven’t been line 
[searchers] at some time in recent years.

(Record, v. XVII, p. 96; by “recent years” lie means 
within the last 25 years, Id, p. 94.)

The Dillard deposition also indicates that the boiler op­
erator to turbine operator line of progression has existed

ginia Branch used “qualifications” (prior experience) in certain 
classifications until January 15, 1968.

(Stipulation directly contradicts the second sentence of the
proposed finding.)

* The Court denied defendants’ motion to amend and supplement. 
Record, v. IV, p. 267.

App. 43 o

for at least fifteen or twenty years. (Record, v. XVII, pp. 
100-101; see Stipulations 38 and 47, 8 EPD, p. 6010.)

Finally, even the EEOC claims that “qualifications” were 
used, not after 1968, but “until 1968.” Plaintiff-Equal Em­
ployment Opportunity Commission’s Post-Trial Brief at 33. 
Plaintiffs, John Patterson, et al, agree. In their separate 
post-trial brief, they claim that qualifications were pan of 
“The American Tobacco Company’s Promotional Systems 
Which Were In Effect Prior to January 15, 196S." Post Trial 
Brief of Plaintiffs John Patterson, et al, at 62 (emphasis 
added). Indeed, that brief at that page indicates the system 
of “qualifications” was instituted “[f fallowing the merger. .. 
on September 16, 1 9 6 3 ...,” as does the EEOC brief quoted 
last above. The only reasonable meaning to “following” is 
just following.

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IV

It is acknowledged that the majority holding as to the 
effect of § 703(h) on the lines of progression within the 
seniority system is based entirely on the fact that the lines 
did not exist in 1965. I maintain this fact is simply not 
in the record.

Because the question of exactly when the lines of pro­
gression were initiated is so important in this case and 
was never made such an issue of in the district court or in 
the previous hearings in this court, I am of opinion the 
remand order should include a direction to inquire into the 
lines of progression to ascertain when and under what cir­
cumstances they came into being.

I doubt that it is fair to the plaintiffs to decide the ques­
tion on the record before us now, but should we so do, 
the record is uncontradicted that the lines of progression 
came into being at the very latest just following the merger



App. 44

of the two unions in 1963, almost two years before the 
effective date of the statute.

Should such an inquiry disclose that which the record 
tends to show, that the lines of progression were instituted 
prior to the effective date of the statute, then the district 
court should further inquire as to their bona fides.

V

Footnote 4 of the majority opinion, in refutation of the 
facts disclosed by this dissent, I find, with all respect, equally 
as unsupported by the record as is the body of the opinion.

There follows an analysis of the footnote, albeit some­
what out of the same order in which the footnote is written:

A.

The footnote ends with the conclusion that, “within con­
templation of § 703(h), the job lines of progression policy 
here in question only came into existence in 1968,” and, as 
a part of its authority for that conclusion, states that “a 
panel of this court has long since assumed” that fact. A 
principal problem with this case for some time has been the 
assumption of facts rather than their finding from the record. 
See, for example, my previous dissent at 586 F’2d 305, 306 
concerning the promotion of supervisory employees, which 
required a similar factual analysis. The majority here, I 
suggest, assumes the same fact it says the panel assumed. 
Assumption of facts, especially critical contentious facts, 
is not an acceptable way to reach a decision, I think. Rather, 
resort to the record is required.

While I acknowledge an “exhaustive search of the eviden­
tiary record,” I must confess to disappointment because 
there was no “exhaustive counter-analysis of the factual 
record.” I suggest that a counter-analysis would not have

* . •* v;, App. 45 ' , '

supported the critical fact on which the majority bases its 
opinion.

B.
The position the majority takes in its footnote 4 is in 

reality twofold.
First, to support its conclusion that the lines of progres­

sion were only adopted in January 1968, it concedes that 
there were “informal rudiments” of such before 1965. Such 
informal rudiment^, however, according to the majority, 
were replaced in 1968 by “stated procedures adopted by 
American in 1968 to control entry into and promotions 
within specifically identified job ‘lines’ ”.

This conclusion of the majority, I think, is not only un­
supported by the record, it is entirely refuted by the record.

Both the January 1965 and the 1968 collective bargain­
ing agreements in their only references to lines of progres­
sion state in haec verba:

“All promotions and demotions shall be made in 
accordance with seniority except as otherwise agreed 
to by the Company and the appropriate Union local or 
locals, provided these promotions and demotions shall 
be made without regard to race, color, creed, sex, or 
national origin, and provided that, in the opinion of 
Management, there is no question as to the qualifica­
tions and efficiency of the employee concerned.”

We must remember that “lines of progression” was not a 
part of the parlance of the employee, the employer, or the 
union until this claim became contentious. The parties all 
referred to job qualifications, as does the collective bargain­
ing agreement. So, the “stated procedures” relied upon by 
the majority as coming into existence in 1968 in fact were in 
existence at least as early as January 1965. And not only 
were they in existence, they were letter for letter the same.

#

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App. 46

The above quotation from footnote 4 next provides that 
the job lines involved were “specifically identified.” The use 
of “specifically identified” as used by the majority may easily 
have two meanings. One of the meanings is that the job 
lines were “specifically identified” in 1968 but had not been 
before. The other is that while the job lines had been “spe­
cifically identified” before, they were governed only by 
“stated procedures” beginning in 1968. Neither meaning 
is supported by the record. Neither the collective bargaining 
agreement of 1965 nor the collective bargaining agreement 
of 1968 has any job line which is “specifically identified.” 
As I have heretofore pointed out, the number of job lines 
of progression was reduced in 1968. But, other than a reduc­
tion in numbers, the job lines of progression remained the 
same. The identity of the job lines of progression involved 
was known to everyone both before and after the 1968 
agreement, as were the qualifications to benefit by one of 
those lines.

Footnote 4 goes on to say that within the specifically 
identified job lines of progression, “enough of change and 
formalization” took place in 1968 “to constitute a new 
policy, or at least one so radically altered from prior un­
structured procedures” that it could not be considered a 
routine continuation of the old policy. I take issue with this 
fact finding also, and note it was not made by the district 
court but by this court.

That there was no “change” in the lines of progression 
policy by the collective bargaining agreements is clearly 
shown by the language of those agreements I have quoted 
above. The majority opinion then suggests that there was 
not only “change” but also “formalization” which had not 
existed before. By “formalization” the majority opinion may 
only suggest that that which theretofore had been informal 
was made formal in 1968. The short answer is that the

App. 47

policy was formal both in 1965 and in 1963, as is again 
shown by the collective bargaining agreements. What 
could be more formal than a written contract between the 
company and the union? I suggest that nothing could. And 
I note that the majority does not demonstrate by jot or tittle 
how anything became formal in 1968 which theretofore 
had been informal. While it finds that there was a “new 
policy” commencing in 1968, it fails to tell us what the old 
policy was. Indeed, this would also seem to be impossible in 
view of the letter for letter repetition of the 1965 provision 
in the 1968 contract. The remarks just above also apply to 
the majority’s finding that if the policy was not new, it was 
“at least one so radically altered” that it could not be con­
sidered simply a routine continuation of old policy. What 
the policy was before alteration is also not explained in the 
majority opinion, and, for the same reasons I have outlined 
above, I suggest it is impossible to explain because there was 
no difference.

The majority relies on Teamsters, 431 U.S. at 352, for 
its legal conclusion that the policy it finds as either “new" 
or “so radically altered” is not “simply a ‘routine applica­
tion’ ” of “those prel965 procedures.” It emphasizes that 
it construes § 703(h) as a “quite narrow exception” to 
Title VII’s general coverage of conditions of employment, 
and again emphasizes that it considers the “routine applica­
tion” of pre-1965 policies should be “given a stringent read­
ing against any employer seeking the special insulation pro­
vided by § 703(h) for any seniority ‘system’ alleged to have 
been in place when Title VII was enacted.” “On that basis,” 
in the majority’s words, it carries its “stringent reading 
against any employer seeking special insulation provided by 
§ 703(h)” into fact finding, for the concluding sentence of 
the fact finding, “on that basis,” is that the lines of progres­
sion only came into existence in 1968. I do not think that



App. 48

Teamsters, or any construction of it, authorizes a “stringent 
reading” against anyone, employer, employee, or union, with 
respect to fact finding. I had thought courts must be neutral 
fact finders.

If it be said that the “stringent reading against any em­
ployer” is meant only to refer to whether or not § 703(h) 
should apply, the majority has carried that “stringent read­
ing” into full force and effect by the result it obtains on 
account of changes in the lines of progression. The only 
way the majority can find liability on this record without fur­
ther fact finding by the district court is by giving such a 
“stringent reading” against the employer and the union that 
it actually finds liability when all the employer and the union 
tried to do was to improve the existing conditions for the 
plaintiff class, as I will set out below, for it must be remem­
bered that each relevant change in the collective bargaining 
agreements disclosed in this record, whether pre- or post-act, 
has benefited the plaintiff class. None have been to its det­
riment.

C.

While the above comments go largely to the majority’s 
lack of factual support by analysis or by supporting testi­
mony or exhibits to support its conclusion, and incidentally 
to its construction of Teamsters, perhaps the most serious 
error it makes in its efforts to support the key conclusion 
as to the 1968 establishment of lines of progression is this: It 
holds that if there is enough change and formalization of the 
lines of progression policy, “whether in favor of or against 
employee interest,” to constitute a new or radically altered 
policy, then the new policy is not entitled to a § 703(h) 
exemption. (Italics added.) “Employee interest” may only 
be considered the interest of the plaintiffs since that is what 
this case is all about, and there is no litigation at hand con­

App. 49
4

cerning the interest of other employees. Thus, the majority 
boldly holds that a change in a previously existing seniority 
system, although the change may be in favor of a class of 
black employees, will deprive the company and the union 
making the change from the benefit of a § 703(h) exemp­
tion.

Nothing I can think of could be less founded either in law 
or logic.

In the 1968 contract, for example, there is a provision 
for posting job openings either superimposed upon the 
system of lines of progression, or from which nine lines of 
progression were excepted. (1968 contract p. 4; stipulation 
38.) Of course this action, especially when coupled with the 
elimination of certain lines of progression as took place, 
would only have had a favorable effect on the black em­
ployees as a class, for the cases are too numerous to bear 
citation, which, in their remedies for racially discriminatory 
employment practices, provide for posting and bidding. 
Thus, logic rejects this aspect of the conclusion of the 
majority.

The law likewise rejects this conclusion in United Steel­
workers v. Weber, 443 U.S. 193 (1979), in which the hold­
ing of the court was that it was not a violation of the 196*1 
Civil Rights Act for an employer and a union to agree to a 
preference for minority employees. The court said that the 
act is “intended as a spur or catalyst to cause employers 
and unions to self-examine and self-evaluate their employ­
ment practices and to endeavor to eliminate, so far as 
possible, the last vestiges of an unfortunate and ignominious 
page in this country’s history.” 443 U.S. at 204. Thus, 
Weber approved actions by employers and unions designed 
to alleviate previously existing discriminatory conditions of 
employment. That part of the majority opinion providing



App. 50

that a company and a union cannot alter a seniority system 
so as to make more favorable the conditions of employment 
of minority employees is directly contrary to Weber, I think. 
It requires a too strained construction of the statute to hold 
that a seniority system admittedly discriminatory in effect, 
as in Teamsters, is protected by § 703(h) so long as it re­
mains unchanged, but if it is changed in favor of the minor­
ity employees, then the employer and the union lose their 
§ 703(h) exemption.

Not only is this conclusion contrary to logic and law, it 
is a blow against minority employees and contrary to the 
purpose of the statute. Hereafter, in this circuit at least, 
neither an employer nor a union may safely agree to any 
change in a seniority system existing before July 1, 1965 for 
fear that its § 703(h) exemption will be lost. Thus, a sen­
iority system as rigid as the one approved in Teamsters, 
which protects a group of white employees, under the pro­
visions of § 703(h), will receive the sanction of the statute 
and the blessings of this court, wliile a seniority system 
equally as rigid but which by the action of the employer 
and the union has, since July 1, 1965, ameliorated a part 
of the previously existing discriminatory conditions, will not. 
Such a conclusion, I suggest may sound astonishing, yet that 
is precisely what the majority holds.

I am authorized to state that Judge Russell concurs in 
this opinion.

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