Brief for the NAACP Legal Defense & Educational Fund, Inc., Charles Hamilton Houston Institute for Race & Justice, and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioners

    I s  t h e

§itprrm:e Glnurt nf tin' United States
O ctober T e r m , 1974

No. 74-728

H arold F ra n k s  a n d  J o h n n ie  L e e ,

Petitioners,
v.

B ow m an  T ransportation  C o m pa n y , I n c ., e t  a l..

Respondents.

BRIEF FOR PETITIONERS

J ack Greenberg  
J am es M. N abrit , I I I  
M orris J .  B allek 
B arry L. G oldstein  
E ric. S c h n a ppe r

10 Columbus Circle
New York, New York 10019

J o h n  K . M yer

Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

E liza b eth  R . R in d sk o pe  
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



I N D E X

Table of Authorities ..............    ii

Opinions Below ..........................    1

Jurisdiction .................................    1

Statutory Provisions Involved .....    2

Question Presented .... ..... ................. .......... ................ 4

Statement of the Case .................................................  5

Summary of Argument ..... .......................................... 12

A r g u m en t—

I. Section 703(h) Does Not Prohibit an Award of 
Retroactive Seniority to Discriminatorily Re­
jected Job Applicants as Part of Their Title 
VII Remedy ....................................................... 15
A. The Court of Appeals Formulated a Rule

That Would Bar Complete Seniority Relief 
to Diseriminatees Without Regard to the 
Circumstances or Equities of the Case ......  15
1. The Inadequacy of Seniority Relief

Granted Below ........      15
2. The Court of Appeals Holding ............. . 18

B. Neither the Language of § 703(h) Nor Its
Place in the Statutory Scheme Justifies the 
Construction Adopted Below ....................... 20

PAGE



0. The Legislative History of Section 703(h)
Does Not Support the Construction of the 
Court Below .......................................... ...........  23

D. Section 703(h) Should Be Construed in 
Keeping With National Labor Policy to 
Permit Remedial Grants of Retroactive 
Seniority hv District Courts ...............- .....  31

1. Affirmative remedies for civil rights vio­
lations ....................................-......................  31

2. The remedial policy of the NLRA .......  33

3. Modification of seniority systems to im­
plement public policy .............— ...........  35

4. Retroactive seniority serves public policy 38

II. The District Courts Have Authority to Grant 
Retroactive Seniority Relief Under 42 U.S.C.
§ 1981 .................-................. -............ ........... -.........  40

Conclusion .....-................ — ..............................-..... -......  46

Table of Authorities

Oases:
Aeronautical Industrial District Lodge 727 v. Camp­

bell, 337 U.S. 521 (1949) ................... -.........................  37
Albemarle Paper Co. v. Moody, O.T. 1974 Nos. 74-389,-

428, argued April 14, 1975 ..........-........ ..................—- 21
Alexander v. Gardner-Denver Co., 415 TJ.S. 36

(1974) ................. ............................-....... 12,14,22,30,40,42
Alpha Portland Cement Co. v. Reese, 507 F.2d 607 

(5th Cir. 1975) .............................................................-  43

ii

PAGE



I l l

Atlantic Maintenance Co. v. N.L.R.B., 305 F.2d 604 
(3rd Cir. 1962), en fg  134 NLRB 1328 (1961) ..........  34

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.
1969)  .......... ..............................  32

Brady v. Bristol-Myers Co., 459 F.2d 621 (8th Cir.
1972) ...... ..................... ............................................ 41,44

Brown v. Gaston Connty Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972), cert, denied 409 U.S. 982 (1972) 40

Caldwell v. National Brewing Co., 443 F.2d 1044 (5th
Cir. 1971), cert, denied 405 F.2d 916 (1972) .......... 40

Contractors Association of Eastern Pennsylvania v. 
Secretary of Labor, 442 F.2d 159 (3rd Cir. 1971), 
cert denied 404 U.S. 854 (1971) ...............................  43

Dobbins v. Electrical Workers Local 212, 292 F. Sup]).
413 (S.D. Ohio 1968), aff’d as later modified sub 
nom. United States v. Local Union 212, 472 F.2d 634 
(6th Cir. 1973) .........................................................  36

EEOC v. Plumbers Local Union No. 189, 311 F. Supp.
468 (S.D. Ohio 1970), vac’d on other grounds 438 
F.2d 408 (6th Cir. 1971), cert, denied 404 U.S. 832
(1971) ..............................................................   36

Emporium Capwell Co. v. Western Addition Commu­
nity Organization, 43 L.Ed. 2d 12 (1975) ...............  39

Espinoza v. Farah Manufacturing Co., 414 U.S. 86 
(1973) .....................         42

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) .... . 37

Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168 
(1973), aff’g 467 F.2d 164 (9th Cir. 1972)

PAGE

34



IV

Green v. School Board of New Kent County, 391 U.S.
130 (1968) .... ..................... .................... ............ ...... 32

Gresliam v. Chambers, 501 F.2d 687 (2nd Cir. 1974) -.40,44 
Griggs v. Duke Power Co., 420 F.2d 1225 (4th Cir.

1970), rev’d on other grounds 401 U.S. 424 (1971) .... 17 
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ....21, 31, 32 
Guerra v. Manchester Terminal Co., 498 F.2d 641 (5th 

Cir. 1974) ................................................. ................42,43

Head v. Timken Boiler Bearing Co., 486 F.2d 870 (6th 
Cir. 1973) ............... ................................ .................32,35

Jersey Central Power & Light Co. v. Local Union 327
et al., 508 F.2d 687 (3rd Cir. 1975) ........................  24

J. I. Case Co. v. Borak, 377 U.S. 426 (1964) .... ..... . 41
Johnson v. Railway Express Agency, Inc., O.T. 1973

No. 73-1543, argued December 11, 1974 ................. 41
Johnson v. Seaboard Air Line R. Co., 405 F.2d 645 (4th

Cir. 1968), cert, denied 394 U.S. 918 (1969) ........ .....  30
Jones v. Mayer Co., 392 U.S. 409 (1968) .................14,44
Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (3rd 

Cir. 1973) vacated and remanded on other grounds
414 U.S. 970 (1973) ............ .................... ......... 13, 38, 39

Jurinko v. Edwin L. Wiegand Co.,-----F. Supp. ------
(W.D. Pa. C.A. No. 69-225, November 22, 1974), on
remand from-----F.2d------ , 7 EPD If 9215 (3rd Cir.
1974) .... .................. ............................................... . 39

Local 53, International Association of Heat and Frost 
Insulators & Asbestos Workers v. Vogler, 407 F.2d
1047 (5th Cir. 1969) .................................................  32

Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969) cert, 
denied 397 U.S. 919 (1970) ................ .17,18, 21, 29, 30, 35

PAGE



V

PAGE

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974) 40
Louisiana v. United States, 380 U.S. 145 (1965) .......13,32

Macklin v. Spector Freight Systems, Inc., 478 F.2d

Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir. 
1975), cert, filed April 25, 1975, O.T. 1974 No.

Miller v. International Paper Co., 408 F.2d 28,3 (5th
Cir. 1969) ...................................................................  30

Mitchell v. Robert de Mario Jewelry, Inc., 361 U.S. 288
(1960) .....................................................................   41

Monroe v. Board of Commissioners, 391 U.S. 450
(1968) .......................................................    32

Morton v. Mancari, 417 U.S. 535 (1974) .....................44,45

NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) .......... 33
N.L.R.B. v. Cone Bros. Contracting Co., 317 F.2d 3

(5th Cir. 1963) ..........................................................  34
N.L.R.B. v. Lamar Creamery Co., 246 F.2d 8 (5th Cir.

1957), enf’g 115 NLRB 1113 (1956) ........................  34
N.L.R.B. v. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969) 34
Newman v. Avco Corp., -----  F. Snpp.----- , 8 EPD

if 9769 (M.D. Tenn. 1974), granting relief on remand 
from  451 F.2d 743 (6th Cir. 1971) ............. ............  34

Patterson v. Newspaper & Mail Deliverers’ Union,
-----F.2d------ , 9 EPD if 10,033 (2nd Cir. 1975) ....... 32

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974) ........        33

Pettway v. American Cast Iron Pipe Co., —— F. Snpp.
----- , 4 EPD if 7651 (N.D. Ala. 1970), granting re­
lief on remand from  411 F.2d 998 (5th Cir. 1969) .... 34



VI

Phelps-Dodge Corp. v. NLRB, 313 U.S. 177 (1941)_13, 31,
34,35,45

Posadas v. National City Bank, 296 U.S. 497 (1936) ..... 44

Quarles v. Philip Morris, Inc., 279 F. Snpp. 505 (E.D.
Va. 1968) ................... ................................................  29

Rios v. Enterprise Ass’n Steamfitters Local 638, 501
F.2d 622 (2nd Cir. 1974) ....................................... . 33

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.
1971) , cert, dismissed 404 U.S. 1006 (1971) ....29, 35, 37

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
1972) ....................................................................... 21,36

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th
Cir. 1970), cert, denied 401 U.S. 948 (1971) ..........40,44

Screws v. United States, 325 U.S. 91 (1945) .............. 28
Shaffield v. Northrop Worldwide Aircraft Services,

Inc., -----  F. Supp. ----- , 7 EPI) IT 9223 (M.D. Ala.
1974) ..................................    34

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229
(1969) .....     ....41,45

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971) .......................................    32

Tillman v. Wlieaton-Haven Rec. Ass’n., 410 U.S. 431 
(1973) ...........................................................   45

United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971) .......................................................... 29,37

United States v. Borden Co., 308 U.S. 188 (1939) ..... 44
United States v. Chesapeake & Ohio R. Co., 471 F.2d 

582 (4th Cir. 1973), cert, denied 411 U.S. 939 (1973) 35

PAGE



PAGE

United States v. Georgia Power C o.,-----F. Supp.
----- , 3 EPD Tf 8318 (N.D. Ga. 1971), rev’d 474 F.2d
906 (5th Cir. 1973) ..................... ........... ................

United States v. Georgia Power Co., 474 F.2d 906 (5th
Cir. 1973) ..... ........................................................... 32,

United States v. Georgia Power Co., -----  F. Supp.
----- , 7 EPD 9167 (N.D. Ga. 1974), entering decree

on remand from 474 F.2d 906 (5th Cir. 1973) ......
United States v. Jacksonville Terminal Co., 451 F.2d 

418 (5th Cir. 1971), cert, denied 406 U.S. 906 (1972) 
United States v. Navaho Freight Lines, Inc., C.A. No.

72-116-MML (C.D. Cal., January 15, 1973) ..........
United States v. N. L. Industries, Inc., 479 F.2d 354

(8th Cir. 1973) ..... ........ .............................................
United States v. Pilot Freight Carriers, Inc., C.A. No.

C-143-WS-71 (M.D. N.C., October 31, 1972) ..........
United States v. Price, 383 U.S. 787 (1966) .............
United States v. Roadway Express, Inc., C.A. No. 

C-68-321 (N.D. Ohio September 1, 1970) (consent-
decree), aff’d 457 F.2d 854 (6th Cir. 1972) .............

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

Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir.
1971) ............. ................... '............. .........................32,

Voutsis v. Union Carbide Corp., 452 F.2d 889 (2nd Cir. 
1971), cert, denied 406 U.S. 918 (1972) .....................

Waters v. Wisconsin Steel Works of International 
Harvester Co., 427 F.2d 476 (7th Cir. 1970), cert.
denied 400 U.S. 911 (1970) ................................... ....41,

Waters v. Wisconsin Steel Works of International 
Harvester Co., 502 F.2d 1309 (7th Cir. 1974) cert, 
filed February 21, 1975, O.T. 1974 No. 74-1064 ...... 23,

11

33

39

35

39

35

39
44

39

36

37

30

44

40



VU1

Watkins v. United Steel Workers of America, Local 
No. 2369, 369 F. Supp. 1221 (E.D. La. 1974), appeal 
docketed, 5th Cir. No. 74-2604 (June 17, 1974) ....... 24, 29

Watson v. City of Memphis, 373 T.7.S. 526 (1963) .... . 30

Young v. International Telephone & Telegraph Co.,
438 F.2d 757 (3rd Cir. 1971) ...................................... 40,44

Other Authorities:

Aaron, Reflections on the Legal Nature and Enforce­
ability of Seniority Rights, 75 Harv. L. E ev. 1532 
(1962) .....................................      15,41

Bureau of the Census, 1970 Census of Population, 
General Population Characteristics— Georgia (1970) 6

Bureau of National Affairs, Labor Relations Yearbook 
(1971) ............      15

Cooper and Sobol, Seniority and Testing Under Fair 
Employment Laws: A General Approach to Objec­
tive Criteria of Hiring and Promotion, 82 Harv. L.
E ev. 1598 (1969) ............................. ........... ..... .......... 15,30

Developments in the Law—Employment Discrimination 
and the Civil Rights Act of 1964, 84 H arv. L. E ev.
1109 (1971) ............................................    33

Frankfurter, Some Reflections on the Reading of 
Statutes, 47 Colum, L. E ev. 527 (1947) ................... 23

Note, Title V II, Seniority Discrimination and the In­
cumbent Negro, 80 Harv. L. E ev. 1260 (1967) ...........  17

PAGE



IX

Statutes and Buie: PAGE

5 TT.S.C. §3502(a) (1966) ......... ....... .........................  37
18 IT.S.C. §241 ......... ......... .................................- ....... 44
28 U.S.C. §1254(1) ------- -------------------- ------------- 1
29 U.S.C. §§151 et seq. (National Labor Relations

Act) ......................................-........-.......- ..................  33
29 U.S.C. §158(a) (3) ...... ................... -........................ 30
29 U.S.C. §160(c) (National Labor Relations Act, 

§10(c)) ........................ .......................................-....33,34
42 U.S.C. §1981 (Civil Rights Act of 1886) ...... 4, 5,12,14,

40, 41, 42, 43, 44, 45,46

42 U.S.C. §1982 ...................... .............................. 41, 44,45
42 U.S.C. §§2000a et seq. (Title II, Civil Rights Act 

of 1964) ..............................-.................................... 27,45
42 U.S.C. §2000a(e) ........ .......... .................................. 45
42 U.S.C. §§2000d et seq. (Title VI, Civil Rights Act

of 1964) .......................... -............................. -...........  27
42 U.S.C. §§2000e et seq. (Title VII, Civil Rights Act 

of 1964) ................................... .............................. passim

42 U.S.C. §2000e-2 (Title VII, §703) ............................ 20
42 U.S.C. §2000e-2(a) (Title VII, §703(a)) .....   2,21,22
42 U.S.C. §2000e-2(c) (Title VII, §703(c)) ........... 2,21,22
42 U.S.C. §2000e-2(h) (Title VII, §703(h)) ..........  passim
42 U.S.C. §2000e-2(j) (Title VII, §703(j)) ................  43
42 U.S.C. §2000e-5 (Title VII, §706) ........................  21
42 U.S.C. §2000e-5(g) (Title VII, §706(g)) ....3,12,21,22,

23, 24, 32, 33, 34, 35



X

PAGE

42 U.S.C. §2000e-6 ...................................................... . 39
42 U.S.C. §§3601 et seq. (Civil Rights Act of 1968) .... 44
50 U.S.C. App. §§3301 et seq. (Selective Training and 

Service Act of 1940) ......... .......................................... 37
50 U.S.C. App. §§451 et seq. (Selective Service Act of 

1948) ......... ................... ................................. ...........  37
50 U.S.C. App. §459(c) (1967) ........................... ........ 37
Pub. L. 92-261, 86 Stat. 103 (1972) (Equal Employ­

ment Opportunity Act of 1972) ...............................  22
Rule 23(b)(1), (2), Federal Rules of Civil Procedure 5

Legislative Materials:
110 Cong. Rec. 2726 (1964) .........................     24
110 Cong. Rec. 2727 (1964) ..........    25
110 Cong. Rec. 2728 (1964) ..........................................  25
110 Cong. Rec. 2804 (1964) .   25
110 Cong. Rec. 6549 (1964) ..............................  33
110 Cong. Rec. 7206 (1964) (Interpretative Memo­

randum prepared by Department of Justice) ........ 25, 29
110 Cong. Rec. 7212 (1964) (Clark-Case Interpreta­

tive Memorandum) ................. .......................... 25, 26, 29
110 Cong. Rec. 7215 (1964) (Clark-Dirksen re­

sponses)  ........... ..... ....... ....26, 29
110 Cong. Rec. 11,926 (1964) ............................ 26
110 Cong. Rec. 11,930 (1964) ....................    26
110 Cong. Rec. 12,706 (1964) .......... .................  26



XI

110 Cong. Rec. 12,708 (1964) ......................................  26
110 Cong. Rec, 12,721 (1964) ...........       26
110 Cong. Rec. 12,723 (1964) .................. ..................  27
110 Cong. Rec. 12,813 (1964) ......................................  27
110 Cong. Rec. 12,818 (1964) ...............     27
110 Cong. Rec. 13,650 (1964) ..................................... 42
110 Cong. Rec. 15,896 (1964) ...... .............................. 27
110 Cong. Rec. 15,998 (1964) ............. ....................... 28
110 Cong. Rec. 16,002 (1964) ......................................  28
118 Cong. Rec. 7168 (1972) ..................     .22,32
118 Cong. Rec. 4942 (1972) ............         22
H.R. 7152 (1963) ............................ .............................24,27
H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963) ........ 24, 33
H.R, Rep. No. 92-238 (1971) ............ ............................  42
S. Rep. No. 92-415 (1971) ....... ...................... .......... .....  42

PAGE



In t h e

S u p r e m e  (Em xrt rtf tfjr  l u t t r &
O ctober T e r m , 1974 

No. 74-728

H arold P ra n k s  a n d  J o h n n ie  L e e ,

Petitioners,
v.

B ow m an  T ransportation  C om pa n y , I n c ., e t  al.,

Respondents.

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the United States Court of Appeals for 
the Fifth Circuit denying the relief here sought is reported 
at 495 F.2d 398 (Pet. A1-A41).1 The order of the Court 
of Appeals denying rehearing is reported at 500 F.2d 1184 
(Pet. A44). The opinion, order and decree, and judgment 
of the district court, which are not officially reported, ap­
pear at 5 EPD 8497 (Pet. A45-A70).

Jurisdiction

The jurisdiction of this Court rests on 28 U.-S.C. 
§ 1254(1). The judgment of the United States Court of 
Appeals for the Fifth Circuit was entered June 3, 1974

1 References in this form are to the Appendix to the Petition 
for a W rit of Certiorari.



2

(Pet. A42). The Court of Appeals denied Petitioners’ 
timely petition for rehearing on September 12, 1974 (Pet. 
A44). The Petition for a Writ of Certiorari was filed on 
December 10, 1974 and was granted on March 24, 1975.

Statutory Provisions Involved

The pertinent sections of Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, pro­
vide :

Section 703(a), 42 TJ.S.C. §2000e-2(a):
It shall be an unlawful employment practice for an 

employer—
(1) to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
race, color, religion, sex, or national origin.

Section 703(c), 42 U.S.C. §2000e-2(c):
It shall be an unlawful employment practice for a 

labor organization—
(1) to exclude or to expel from its membership, or 

otherwise to discriminate against, any individual be­
cause of his race, color, religion, sex, or national origin;



3

(2) to limit, segregate, or classify its membership 
or applicants for membership, or to classify or fail 
or refuse to refer for employment any individual, in 
any way which would deprive or tend to deprive any 
individual of employment opportunities, or would limit 
such employment opportunities or otherwise adversely 
affect his status as an employee or as an applicant 
for employment, because of such individual’s race, 
color, religion, sex, or national origin.

Section 703(h), 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 compensa­
tion, or different terms, conditions, or privileges of 
employment pursuant to a bona fide seniority or merit 
system, or a system which measures earnings by quan­
tity or quality of production or to employees who 
work in different locations, provided that such dif­
ferences are not the result of an intention to discrim­
inate because of race, color, religion, sex, or national 
origin.

Section 706(g), 42 U.S.C. §2000e-5(g):
If the court finds that the respondent has inten­

tionally engaged in or is intentionally engaging in an 
unlawful employment practice charged in the com­
plaint, the court may enjoin the respondent from en­
gaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back 
pay (payable by the employer, employment agency, or 
labor organization, as the case may be, responsible 
for the unlawful employment practice), or any other



4

equitable relief as the court deems appropriate. . . . 
No order of the court shall require the admission or 
reinstatement of an individual as a member of a union, 
or the hiring, reinstatement, or promotion of an in­
dividual as an employee, or the payment to him of 
any back pay, if such individual was refused admission, 
suspended, or expelled, or was refused employment or 
advancement or was suspended or discharged for any 
reason other than discrimination on account of race, 
color, religion, sex, or national origin or in violation 
of section 704(a).

The Civil Rights Act of 1866, 42 U.S.C. § 1981, provides:
All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­
fit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penal­
ties, taxes, licenses, and exactions of every kind, and 
to no other.

Q uestion Presented

1. Whether in an action based on Title VII the district 
courts are prohibited as a matter of law from granting, 
as part of the remedy to black job applicants unlawfully 
refused employment, the full seniority they would have 
obtained but for the employer’s discrimination?

2. Whether in an action based on 42 U.8.C. §1981 the 
district courts are prohibited as a matter of law from 
granting, as part of the remedy to black job applicants 
unlawfully refused employment, the full seniority they 
would have obtained but for the employer’s discrimination?



5

Statem ent o f  the Case

This case brings before the Court a pair of related 
issues from a case that originally raised a broad spectrum 
of questions correctly answered by the lower courts.2 At 
stake is the vitality of the federal courts’ power to remedy 
unlawful employment discrimination.

Petitioners are two black workers formerly employed 
by Respondent Bowman Transportation Company (here­
inafter “Bowman” or “Company”) and formerly members 
of the predecessors of Respondent United Steelworkers of 
America, International Union of District 50 and its Local 
No. 13600 (hereinafter “Unions”). Petitioner Franks filed 
this suit under Title VII of the Civil Rights Act of 1964, 
42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981 as a class 
action pursuant to Rule 23(b)(1), (2), Fed. R. Civ. P., on 
May 5, 1971 (4a-12a).3 Petitioner Lee intervened and filed 
a similar class action complaint on July 21, 1971 (13a- 
18a). Franks is a discharged former employee of Bowman 
in the tire shop of its Atlanta, Georgia terminal (7a-8a); 
Lee is a truck driver initially refused employment by 
Bowman but later hired and then discharged (16a). Both 
complaints charged Bowman with across-the-board prac­
tices of racial discrimination in all aspects of employment 
and alleged that the Unions had collaborated in the dis­
crimination (6a-10a, 14a-16a).

Following trial, the United States District Court for the 
Northern District of Georgia sustained most of Petitioners’

2 The Fifth Circuit resolved a multiplicity of issues in its opin­
ion, generally favorably to Petitioners. Respondent Bowman 
Transportation Company unsuccessfully sought review of several 
of those questions. O.T. 1974, No. 74-424, cert, denied, 42 L.Ed.2d 
644 (December 9, 1974).

3 Citations in this form are to pages of the Single Appendix 
filed with this brief.



6

allegations of racial discrimination. It found that Franks, 
while employed by Bowman, had been discriminatorily 
excluded from better and higher paying terminal jobs re­
served for whites (Pet. A55-A56) ; and that Bowman had 
discriminatorily fired Franks for filing a charge of dis­
crimination with the Equal Employment Opportunity Com­
mission (EEOC) (Pet. A56). The district court also found 
that Bowman’s initial refusal to hire Lee as a truck driver 
in January, 1970 was motivated by his race (Pet. A60, 
A63); but that Lee’s subsequent discharge was for cause 
(Pet. A62-A63). The district court also found that the Com­
pany and Union had engaged in a comprehensive program 
of race discrimination (Pet. A47-A53). Until 1968, Bow­
man was “almost totally segregated by race,” and every 
department “adhered to strict racial lines” (Pet. A47). In 
March, 1968, blacks held only two inferior jobs in the shop 
department—tire man and clean-up—and comprised less 
than 1% of the total number of employees (Pet. A48-A49). 
As late as August, 1971, four months after suit was filed, 
blacks held less than 5% of Bowman’s positions and were 
still almost totally excluded from the higher-paying tra­
ditionally white jobs (Pet. A47-A49).4 The segregated job 
structure was maintained by a variety of complementary 
practices of discrimination, including a “lockout” seniority 
system, a no-transfer rule, and reliance on word-of-mouth

4 In August. 1971, Bowman’s office and clerical staff remained 
100% white. The OTR force included about 2% blacks. The City 
Driver/Dock Department was about 5% black. All 99 mechanics 
in the Shop Department were white, while blacks filled 21 of the 
remaining 28 lower-paying Shop jobs. Pet. A48. In terms of pay 
disparities, blacks made up 2.2% of all workers earning over 
$225 per week; 2.7% of workers in the Terminal jobs ranging 
in pay from $172 to $210 per week; and 76.9% of all workers 
at the lowest pay level, $175 per week. Pet. A48. In 1970 the 
Atlanta SMSA population was 22.6% black (Bureau of the Cen­
sus, 1970 Census of Population, General Population Character­
istics— Georgia 12-69 (1970)).



7

applicant referrals by incumbent employees (Pet. A47, 
Pet, A49-A52).

The findings and undisputed evidence proved that Bow­
man followed a conscious policy to exclude blacks from 
over-the-road (OTR) driver jobs. The district court found 
that management had, prior to 1970, followed a deliberate 
policy of not considering blacks for OTR positions (Pet, 
A50, see 28a-29a). This policy was in effect when Lee first 
applied and was rejected.5 Company officials gave as the 
reason for their policy the fact that the Company did not 
have any separate truck cabs, shower or bunk facilities 
available for black drivers and white drivers would not 
share these facilities with blacks (Pet. A50, 29a, 34a-35a).6

5 When Lee applied, he had nearly 20 years of driving experi­
ence, much of it with tractor/trailer rigs similar to Bowman’s 
and much of it over-the-road (R. 1293-R, 1297) (not reproduced 
in appendix). Lee’s application was filed in January, 1970; he 
was rejected by letter dated February 13, 1970 (R. 1304, Pet. 
A60-). During January-February, 1970, Bowman hired at least 
39 white OTRs (PI. Ex. P-2 [Table IV B], not reproduced in 
appendix). One exemplary white hiree, J. H. Jarnigan, who ap­
plied just as Lee was being rejected, had no truck driving experi­
ence, had two speeding tickets and was involved in an accident, 
in the eight months before Bowman hired him (R. 1370-71).

Sam Crisco, who hired OTRs from 1967 to 1971 (33a), testified 
as follows (34a) :

The Court: During this time [January, 1970] you
weren’t hiring any blacks out of the Atlanta Terminal, 
were you?

The W itness: No, sir.
6 Sam Crisco testified (34a-35a) :

The Court: Wasn’t everybody saying they were going to 
put it off as long as they could?

The W itness: We didn’t  have the facilities for hiring.
The Court: You mean in bunk beds and showers?
The W itness: Yes, sir.
The Court : All your drivers were telling you every day 

not to hire anybody [black] and you decided to tough it out 
as long as you could, isn’t that the fact?

(footnote continued)



8

In response to Lee’s EEOC charge and subsequently to 
this lawsuit Bowman reverted after 1970 to a policy of 
putting off “as long as could” the hiring of black OTB 
drivers at its various terminals (Pet. A50, see 35a). Blacks 
were first hired on 'September 11, 1970 at Birmingham ter­
minal; on September 12, 1971 at Richmond; on November 
21, 1971 at Atlanta; and on February 15, 1972 (the month 
before trial) at Charlotte (Pet. A50). As a result of the 
exclusionary policy, Bowman’s OTR workforce remained 
lily-white:

Date
White
OTRs

Black
OTRs % Blacks

July 1965 415 0 0
March 1968 464 0 0
August 1971 499 11 2.2
March 1972 (trial) 532 18 3.3

(Pet. A48; Pet. A18 n.ll, cf. Pet. A50; Defendant’s Ex. 76, 
not reproduced in Appendix.)

The W itness: Yes, sir, we were waiting until we were 
confronted with it . . .  .

Dwight Rice, who hired OTRs from 1959 to 1968 (26a), testi­
fied as follows (28a-29a) :

Q. What was the driver force when you came?
A. Well, the road drivers were all white.
Q. Did you discuss this matter with anyone else in the 

Bowman management?
A. I don’t  think so at that time.
Q. Did you discuss it with them later?
A. I’m sure I have later.
Q. Can you remember who you discussed it with?
A. I ’m sure I have discussed it with most of the officers 

at one time or another.
Q. And what was the nature of your discussion with these 

officers ?
A. Well, due to the fact that we had about 50% double 

operation in bunkrooms and shower facilities at many of the 
terminals, and due to the comments of our white drivers, 
we didn’t think it feasible to hire them [black drivers].



9

Throughout this period, Bowman rejected applications 
by experienced and apparently qualified black truck dri­
vers. The district court found that a “handful” of blacks 
had applied prior to 1970.7 Black applications had be­
come “substantial” in number by 1970 and thereafter con­
tinued to increase.8 Dozens of these applications showed 
driving records and experience more than sufficient to meet 
Bowman’s standards.9 Moreover, throughout this period 
Bowman continued to hire large numbers of inexperi­
enced white trainees on a “buddy system,” 10 as well as 
a number of white drivers with substandard driving rec­

7 The Court must have been referring only to identifiable black 
applicants whose applications were discovered and placed in the 
record. Bowman’s hiring officials indicated that a substantial num­
ber of blacks had applied. Dwight Bice estimated black appli­
cants at one per month until 1968 (29a) ; Sam Crisco had about 
one per week after 1967 (36a-37a).

8 Pet. A50. Bowman rejected more than 200 black OTR appli­
cants in 1970-71 alone, whose application forms were discovered 
and summarized in the record (52a [Table YA] • Bowman’s an­
swers to plaintiff’s third interrogatories # 1  [not reproduced in 
Appendix]).

9 Bowman required that applicants be 25 years old and physi­
cally fit, licensed to drive, and preferred a year or at least six 
months of tractor/trailer driving experience (38a-39a). But see 
n.10, infra. Of black applicants whose written applications are 
summarized in the record, at least 127 claimed that they met those 
standards—but ŵ ere not hired—33 in 1970 and 94 in 1971 (52a 
[Table VB]). Bowman admits that it verified the claimed experi­
ence of 40 of these rejected applicants—15 in 1970, 25 in 1971 
(id.).

10 White driver trainees were hired from 1968-1971 without any 
experience requirements (35a). Bowman trained about 75-150 
white drivers in this program (id.). In order to be hired as a 
trainee, the candidate had to have a sponsor already on Bowman’s 
all-white OTR contingent (36a). Bowman took referrals from 
its OTRs and ultimately delegated to them blanket authority to 
accept or reject candidates (id.).



10

ords.11 The record makes clear that, absent discrimina­
tion, many of the rejected black applicants would have been 
hired and would have begun to accumulate seniority with 
Bowman as OTR drivers.12

The trial court held the action maintainable as a Rule 
23(b)(2) class action, found class-wide discrimination, and 
granted limited injunctive relief to class members, but 
denied affirmative relief and back pay (Pet. A53, Pet. 
A47-A54, Pet. A65-A68). Of particular pertinence here, 
the court held that Lee could represent a class of black 
applicants for over-the-road (OTR) truck driver positions 
who were denied employment prior to January 1, 1972, 
which it denominated “Class 3” (Pet. A53, Pet, A66-A67), 
and ordered that individual notice be given to members 
of that class (Pet. A67, Pet. A70).

The district court ordered that members of “class 3” 
be granted the right to re-apply for OTR positions, and 
if found qualified to hiring with priority over all other 
applicants (Pet. A66-67).13 However, the court refused 
to grant blacks hired pursuant to these provisions senior­
ity as OTR drivers retroactive to the date they would

11 Bowman could not find enough qualified OTRs to keep pace 
with its high turnover (41a, 27a). To fill its complement of 
OTRs, Bowman hired some whites with very bad driving records. 
See, e.g., n.5 supra, and Intervenor’s Designation of Evidence 
Relating to Road Driver Hiring, filed during trial, which sum­
marized information in Plaintiff’s Exhibit P -l(s) (not reproduced 
in appendix).

12 The evidence summarized in notes 10 and 11 shows that there 
were always OTR vacancies during the period relevant to this suit.

13 Discovery on remand from the Court of Appeals’ decision has 
shown that a number of previously rejected black applicants were 
hired when they re-applied pursuant to the decree. In addition 
a number were shown as not hired for the same reasons frequently 
given for rejecting black OTR applicants in 1969-1971. Bowman’s 
Answers to Remand Interrogatories, filed May 1, 1975, Nos. 35-37 
(N.D, Ga. C.A. No. 15,086).



11

have been hired but for Bowman’s policy of discrimina­
tion (Pet. A54). The court grounded its denial of relief 
on its view that class remedies are beyond the jurisdic­
tion of Title VII courts, as it had previously held in
United States v. Georgia Power Co.,-----F.Supp. -------,
3 EPD |f8318 (N.D. Q-a. 1971); this reasoning was sub­
sequently reversed, United States v. Georgia Power Co., 
474 F.2d 906 (5th Gir. 1973). The district court did not 
consider the meaning of Section 703(h) of Title VII, 42 
U.S.C. § 2000e-2(h).

The Fifth Circuit affirmed all the trial court’s findings 
of discrimination and extended those findings to several 
other practices not held unlawful below (495 F.2d at 409- 
412, Pet. A15-A20); it also granted Petitioners the affirm­
ative injunctive relief denied them below, including class 
back pay (495 F.2d at 414-22, Pet. A24-A40).14 In affirm­
ing the district court’s finding of OTR hiring discrimina­
tion, the Court of Appeals held,

The record in this case shows that Bowman fol­
lowed a conscious policy of excluding blacks from its 
OTR Department until September 1970, a time over 
five years after the effective date of the Civil Rights 
Act of 1964.

(495 F.2d at 418, Pet. A31). Despite this clear finding of 
injury, the Fifth Circuit denied Petitioners’ request for 
full seniority relief to those black applicants who were 
first discriminatorily rejected and later hired. The ap­
pellate court, in affirming on this issue, advanced an en­
tirely different rationale from that of the district court. 
The Court of Appeals held that Section 703(h) of Title

14 Bowman filed a petition for a writ of certiorari on the class 
back pay issue, O.T. 1974, No. 74-424. It was denied December 9, 
1974, 42 L.Ed.2d 644. Petition for rehearing was likewise denied 
March 17, 1975, 43 U.S.L.W, 3501.



12

VII, 42 U.S.C. §2000e-2(h), prohibits such relief as a 
matter of law (495 F.2d at 417-8, Pet. A30-A31). The 
court reasoned that any seniority system based on hiring 
dates is “bona fide” and, therefore, protected by Section 
703(h) even though practices of racial exclusion may have 
precluded blacks from hiring. Although Petitioners also 
prayed for relief under 42 U.S.C. § 1981, the court gave 
no explanation of why any limitations in the Title VII 
provision should bar relief under a different statute.

Sum m ary o f  Argum ent

I .

A. At Bowman as elsewhere in American industry, 
seniority is a crucial determinant of employment oppor­
tunities. In denying black OTE applicants employment, 
Bowman also denied them the advantages of seniority. The 
remedy granted by the district court does not restore class 
members to their “rightful place” in terms of seniority; 
they will therefore continue to suffer the effects of past 
discrimination. The Court of Appeals held that discrim- 
inatees could never obtain complete seniority relief from 
past hiring discrimination. Its decision turns on a wooden 
interpretation of § 703(h) of Title VII, 42 U.S.C. § 2000e- 
2(h), and is heedless of the facts or equities of the case.

B. Nothing in the terms or context of § 703(h) com­
mands the interpretation given it by the Court of Appeals. 
The section is not a limitation on Title’s VII’s remedial 
provision, § 706(g), 42 U.S.C. §2000e-5(g). It is, rather, 
merely a clarification of other sections defining discrimina­
tory employment practices. Section 706(g) was intended 
as, and is, a sweeping remedial provision, Alexander v. 
Gardner-Denver Co., 415 U.S. 36, 44-5 (1974). There is no 
basis for reading <§, 703(h) as an implied limitation on 
§ 706(g).



13

C. The legislative history of § 703(h) does not support 
its interpretation to preclude retroactive seniority relief. 
The statements sometimes cited for that proposition are 
not the legislative history of § 703(h); in fact they were 
made several weeks before § 703(h) was conceived and 
were virtually ignored by Congress thereafter. These 
statements express no Congressional purpose as to the 
issue here. They are, like much of Title YII legislative 
history, inconclusive, and subject to construction in light 
of the larger statutory purposes.

D. Policy and precedent require a construction of 
§ 708(h) that assures an effective seniority remedy for 
rejected applicants. The courts are duty-bound to formu­
late affirmative equitable relief for victims of discrimina­
tion, Louisiana v. United States, 380 U.8. 145, 154 (1965). 
A similar policy assures that victims of discrimination in 
NLRA cases receive retroactive seniority upon reinstate­
ment, whether from unlawful denial of hiring or unlawful 
discharge, Phelps-Dodge Corp. v. NLRB, 313 U.S. 177, 188 
(1941). The courts have modified facially neutral seniority 
systems in a variety of oases under Title VII and other 
statutes, in order to effectuate public policy. In order to 
serve the policy favoring effective relief to Title VII dis- 
criminatees, this Court should hold that § 703(h) does not 
strip the district courts of power to grant retroactive 
seniority remedies. Meadows v. Ford Motor Co., 510 F.2d 
939 (6th Cir. 1975), cert, filed, April 25, 1975, O.T. 1974 
No. 74-1349; Jurinko v. Edwin L. Wiegand Co., Mil F.2d 
1038 (3rd Cir. 1973), vacated and remanded on other 
grounds, 414 U.S. 970 (1973).



14

II.
The court below failed to state any reasons for denying 

the retroactive seniority remedy under Petitioners’ 42 
U.S.C. § 1981 cause of action. On its face, the broad lan­
guage of § 1981 establishes a right to equal seniority rights, 
and the courts should enforce those rights with appropriate 
retroactive seniority remedies. Section 703(h) should not 
be construed as an implied limitation on the scope of § 1981 
remedies. The two statutes provide separate and indepen­
dent remedial schemes, Alexander v. Gardner-Denver Co., 
supra, 415 U.S. at 47-49. Even if, because of § 703(h), 
retroactive seniority were barred under Title VII, Congress 
did not express any intention to repeal the similar remedy 
under § 1981, and a finding of repeal by implication is 
unwarranted. Rather, as in Jones v. Mayer Co., 392 U.S. 
409 (1968), the Court should hold that enactment of the 
recent Civil Rights Acts did not diminish the force of 
earlier measures. The anomalies inherent either in incon­
sistent interpretations of Title VII and § 1981 or in a 
finding of partial repeal of § 1981 by implication provide 
further reason to reject the Fifth Circuit’s construction of 
§ 703(h).



15

ARGUMENT

I .

Section  7 0 3 ( h )  D oes Not Prohibit an Award o f  R e­
troactive Seniority to D iscrim inatorily  R ejected Job Ap­
plicants as Part o f  T heir T itle  VII Rem edy.

A. T h e  C ourt o f  A ppea ls F orm u la ted  a R u le  T h a t W o u ld  
B ar C om ple te  S en io r ity  R e lie f to  D iscrim inate.es W ith ­
o u t R egard  to  the C ircum stances or E qu ities o f  the  Case.

1. T h e  In ad eq u acy  o f  S en io rity  R elief G ran ted  Below.

Employment opportunities for Bowman’s truck drivers, 
as for other workers, depend on their seniority.15 16 Bowman 
employees’ seniority runs from their date of hire16 and is 
departmental in nature (46a, 48a). Seniority standing 
determines the order of layoff and recall of qualified em­

15 In many industries, a worker’s seniority is crucial. Seniority 
typically determines his opportunities for promotion or transfer 
to a better job, his choice of shifts or assignments, his right to over­
time, pension, vacation rights, and other benefits and privileges 
of employment. I t  may likewise determine his degree of job se­
curity—protection from demotion due to reduction-in-foree and 
from layoff, his level of support while out of work, and his pri­
ority for recall or reinstatement. Seniority in the American labor- 
management relations system is usually measured by or with 
relation to the worker’s date of employment in a company, plant, 
department, unit, or job. Thus, the amount or date of applicable 
seniority is often a critical determinant of an employee’s job 
status and future prospects. For most employees, the basic senior­
ity date is simply the date of hire. Aaron, Reflections on the Legal 
Nature and Enforceability of Seniority Rights, 75 H arv. L. Rev. 
1532, 1534-5 (1962); Cooper and Sobol, Seniority and Testing 
Under Fair Employment Laws: A  General Approach to Objec­
tive Criteria of Hiring and Promotion, 82 H arv. L. Rev. 1598, 
1601-02 (1969) ; Bureau of National Affairs, Labor Relations Year­
book 45-48 (1971) (“Basic Contract Patterns: Seniority—Layoff, 
Promotion, Transfer”).

16 A hiree establishes seniority only upon completion of a 45 
day probationary period. When he does, however, it runs retro­
actively from date of employment (47a, 49a).



16

ployees (id.). Regular job assignments or “runs” for over- 
the-road drivers are posted for bidding, and seniority 
decides competition between qualified bidders (id.). Since 
OTRs are paid on a per-mile basis, their earnings depend 
on which runs they can obtain by bidding.17 Company 
seniority, rather than departmental seniority, determines 
the extent of a Bowman employee’s vacation (48a, 51a) 
and pension benefits.18 The seniority date carried by a 
Bowman OTR driver is therefore crucial to! Ms securing 
the benefits of his job.

Black OTR applicants diseriminatorily rejected by Bow­
man were thereby deprived of more than a job. They 
also lost the opportunity and right to begin accumulating 
seniority that would provide them security from layoff or 
reduction in work, and ability to compete successfully for 
desirable or lucrative assignments. They were further 
prevented from accruing vacation and pension benefits 
dependent upon length of tenure in the job. Although the 
district court’s decree (affirmed in this respect by the 
Court of Appeals) purported to restore to Class 3 mem­
bers the job opportunities previously denied them, it made 
no effort to restore the seniority rights of which they had 
also been deprived.

For a worker whose employment date (and therefore 
his seniority status) is adversely affected by prior hiring 
discrimination, simple reinstatement to the job with se­
niority from date of actual hire cannot fully cure the 
injury done to him. Even after reinstatement as a “new” 
employee, he carries a badge of inferiority—his inferior

17 See Bowman’s answers to plaintiff’s first interrogatories, #10  
(d) ; Bowman’s answers to plaintiff’s second interrogatories, # 3  
and # 4  (not reproduced in Appendix).

18 Bowman’s answer to plaintiff’s first interrogatories, #30  (not 
reproduced in Appendix).



17

amount of seniority. Bowman’s belated hiring of Class 3 
members here pursuant to the district court’s decree or 
otherwise does not return them to their “rightful place.” 19 
Instead of seniority dates in 1969 or 1970 or 1971, which 
they would have obtained had Bowman accepted their 
initial applications, qualified Class 3 members who re­
applied now carry (or should carry, under the doctrine 
employed below) seniority dates of July, 1972 or later.20 
A black OTR who was a Class 3 discriminatee will al­
ways have less seniority than all other OTRs who applied 
after the class member’s discriminatory rejection but wrere 
hired before his reinstatement. Likewise, the rejected ap­
plicant will lag behind his (nearly all white) contempo­
raries in fringe benefits as well as competitive standing. 
The sole cause of this continuing subordination of the 
rights of Class 3 black OTRs to those of later-applying 
whites is of course Bowman’s pre-1972 discriminatory 
hiring policy.21 Cf. Griggs v. Duke Power Co., 420 F.2d 
1225, 1230-1, 1236 (4th Cir. 1970), rev’d on other grounds 
401 U.S. 424 (1971). Class 3 members will suffer ongoing

19 See, e.g., Local 189 United, Papermakers and Paperworkers v. 
United States, 416 F.2d 980, 988 (5th Cir. 1969), cert, denied, 
397 U.S. 919 (1970) ; Note, Title VII,  Seniority Discrimination, 
and the Incumbent Negro, 80 H abv. L. Rev. 1260, 1268 (1967).

20 See n.13, supra. Due to Bowman’s high turnover, a year or 
two of difference in seniority date can make a significant differ­
ence in ability to compete by seniority. For example, on defen­
dant’s exhibit 76, the OTR seniority roster as of March 1, 1972 
(not reproduced in appendix), 228 names separate the first driver 
hired in 1970 from the first driver hired in 1972.

21 All subsequently hired Class 3 OTRs are, of course, qualified 
under Bowman’s usual standards. This makes them presumptively 
more qualified than dozens of white OTRs hired as trainees under 
Bowman’s racist “buddy” system, see notes 9, 10, supra. Yet 
those whites who owe their jobs to Bowman’s commitment to 
maintaining a lily-white OTR force at all costs, see notes 10, 11, 
supra, will continue to have priority ahead of black OTRs who 
applied before them.



18

injury, and other employees will continue to enjoy advan­
tages gained at the expense of victims of discrimination, 
as long as any former rejected applicants remain in OTR 
jobs.

2. The Court of Appeals Holding.

In affirming the denial of seniority relief to rejected OTR 
applicants, the Court of Appeals did not discuss the impact 
of its ruling on affected employees in this case. Instead, 
the Fifth Circuit held that Section 703(h) of Title VII, 
42 U.S.C. § 2000e-.2(h), precludes the courts from awarding 
any seniority relief to previously rejected applicants like 
Class 3 members. Calling the relief sought by plaintiffs 
“constructive seniority” and characterizing it as “a giant 
step beyond permitting job competition on the basis of com­
pany seniority” (495 F.2d at 417, Pet. A29-A30), the Court 
found it barred by § 703(h) as construed in dictum in an 
earlier decision, Local 189, United Papermakers & Paper- 
workers v. United States, 416 F.2d 980, 995 (5th Cir. 1969), 
cert, denied 397 U.S. 919 (1970). The Court held that a 
seniority system based on date of actual employment is by 
definition a “bona fide seniority system” within the mean­
ing of § 703(h), and concluded that awards of retroactive 
seniority under such a system are beyond the remedial 
power of the courts (495 F.2d at 417-8, Pet. A30-A31).

The Fifth Circuit’s holding is a judge-made rule limiting 
Title VII remedies.22 The decision below articulates an 
across-the-board rule of law cutting across all factual situa­
tions and substituting for the usual play of the equities. 
Thus, under the rule announced below, rejected applicants

22 Nothing in the statute explicitly requires imposition of such 
a limitation see part B, infra. Nor does anything in its legislative 
history command the courts to construe the statute in the manner 
chosen by the Fifth Circuit, see part C, infra.



19

in every case would be barred from full seniority relief for 
any purpose.23 The circumstances of tbe discriminatory 
rejections would not affect application of the undifferen­
tiated rule.24 25 Nor would the result be affected by con­
sideration of whether the burden of the remedy fell on 
discriminatory employers or unions, on other employees 
who had benefited from the discrimination, or on mere 
bystanders. The holding below, if adopted here, would 
condemn all possible cases to a single result.

The Sixth Circuit faced a similar issue in Meadows v. 
Ford Motor Company, 510 F.2d 939 (6th Cir. 1975), cert, 
filed April 25, 1975, O.T. 1974 No. 74-1349, but reached a 
very different result. See discussion at p. 38, infra. In 
Meadows the court was particularly concerned with the 
consequences of granting retroactive seniority in an eco­
nomic situation requiring layoffs.26 The court’s opinion, 
which rejects the result in the instant case below, 510 F.2d 
at 949, acknowledges the complexity of factors bearing on 
the issue and abjures a flat rule. It remands the case to the 
district court for development and possible reconciliation 
of the conflicting factors and the equities, noting that “ [w]e

28 Discriminatees could not seek a remedy allowing competitive 
use of retroactive seniority to bid for promotions or job assign­
ments, or to resist demotion or layoff; nor could they obtain the 
full non-competitive fringe benefits of seniority, such as vacation 
or pension rights.

24 Among the varying circumstances deemed immaterial by the 
Fifth Circuit are whether the rejected applicants applied indi­
vidually or in w riting; whether they were rejected before or after 
Title VII became effective; whether their applications fell within 
the statute of limitations period applicable to the action; and 
whether vacancies existed when they applied.

25 Meadows, like the instant action, was not a layoff case but a
refusal-to-hire claim. The court’s concern in Meadows may have 
been prompted by the severe and well-publicized production cut­
backs and employee layoffs in the automobile industry during the 
winter of 1974-5.



20

do not assume, as our brethren in the Fifth Circuit appear 
to . . . that such reconciliation is impossible,” id. (citations 
omitted). The carefulness of the Sixth Circuit’s treatment 
of a similar issue serves to highlight the broad-brush 
approach taken in this case.

B. N eith er  th e  L anguage o f  § 7 0 3 ( h )  N or Its  P lace in  the  
S ta tu to ry  S ch e m e  Justifies  th e  C o n stru c tio n  A d o p te d  
B elow .

Section 703(h), 42 U.S.C. i  2000e-2(h), provides in per­
tinent part:

Notwithstanding any other provision of this title, it 
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 or merit 
system. . . .

This provision is one subsection of Section 703 of Title 
VII, which defines what are (§§ 703(a)-(d), 42 U.S.C. 
§§ 2000e-2(a)-(d), and are not (§§ 703(e)-(j), 42 U.S.C. 
§§ 2000e-2(e)~(j), employment practices made unlawful 
by the Act. Section 703(h) does not by its terms or stat­
utory context state anything about the nature or scope of 
judicial power to remedy such practices. On its face, the 
pertinent clause of § 703(h) simply states that an em­
ployer does not discriminate by using a “bona fide se­
niority or merit system.” Neither in that section nor in 
any other part of the Title VII did Congress define what 
it meant to include under the umbrella of a “bona fide” 
seniority system.26 Other clauses of § 703(h) exempt from 
Title VII’s prohibitions an employer’s use of “a system

26 Nor does the legislative history contain any specification of 
exact meaning, see pp. 24-29, infra.



21

which, measures earnings by quantity or quality of pro­
duction,” different compensation or employment conditions 
for “employees who work in different locations,” or the 
use of “any professionally developed ability test.” 27 All 
these authorizations are subject to the section’s caveat 
against otherwise lawful practices that are “the result of 
an intention to discriminate because of race, color, reli­
gion, sex, or national origin.”

Section 703(h) must be read, in light of the broad pro­
hibitions of §§ 703(a), (c), 42 IT.S.C. §§ 2000e-2(a), (c). 
Those provisions generally define unlawful employment 
practices by employers and unions respectively, and are 
cast in sweeping and inclusive terms. Their broad lan­
guage would appear to prohibit any  discriminatory 
employment practice by a subject entity, unless it is 
specifically authorized elsewhere.28 Section 703(h) is 
therefore a clarification or qualification of §§ 703(a), (c) 
—that is, a clarification of which employer and union 
practices Congress meant to prohibit and which to permit.

Section 703(h) is not part of the remedial scheme of 
Title VII. Judicial remedies under the Act are set out in 
§ 706(f)-(k), 42 UjS.C. §§ 2000e-5(f)-(k), and particularly 
in § 706(g), 42 IT.S.C. § 2000e-5(g).29 Section 706(g) is as 
broad in its grant of remedial power to the district courts

27 See Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albe­
marle Paper Co. v. Moody, O.T. 1974 Nos. 74-389, -428, argued 
April 14, 1975.

28 See, e.g., Local 189, United Papermakers and Paperworkers 
v. United States, supra, 416 F.2d at 982; Rowe v. General Motors 
Corp., 457 F.2d 348, 354 (5th Cir. 1972); Griggs v. Duke Power 
Co., supra, 401 U.S. at 429-31 (1971).

29 The Court is now weighing the proper construction of this 
subsection in another context, Albemarle Paper Co. v. Moody, 
supra.



22

as §§ 703(a) and (c) are in their definition of unlawful 
practices. It authorizes the award, upon a finding of li­
ability, of “such affirmative action as may be appropriate,” 
including but not limited to “reinstatement or hiring of 
employees, with or without back pay . . . or any other 
equitable relief as the court deems appropriate’’ (emphasis 
supplied).

Congress intended § 706(g) to give district courts ple­
nary power to fashion complete relief appropriate to the 
facts of each case. It clarified and reiterated that inten­
tion in passing the Equal Employment Opportunity Act 
of 1972, Pub. L. 92-261, 86 Stat. 103 (1972), which re­
enacted § 706(g) (with modifications not material here). 
The Section-by-Section analysis prepared by the Senate- 
House Conference Committee states of § 706(g) :

The provisions of this subsection are intended to give 
the court wide discretion exercising their equitable 
powers to fashion the most complete relief possible. 
In dealing with the present section 706(g) the courts 
have stressed that the scope of relief under that sec­
tion of the Act is intended to make the victims of 
unlawful discrimination whole, and that the attain­
ment of this objective rests not only upon the elim­
ination of the particular unlawful employment prac­
tice complained of, but also requires that persons 
aggrieved by the consequences and effects of the un­
lawful employment practice be, so far as possible, re­
stored to a position where they would have been were 
it not for the unlawful discrimination. 118 Cong. Eec. 
7168 (1972); see also 118 Cong. Rec. 4942 (1972) (em­
phasis supplied).

This Court has previously noted the broad sweep of 
§ 706(g) and the Congressional purpose underlying it, 
Alexander v. Gardner-Denver Go., supra, 415 U.S. at 44-5. 
Nowhere, in the language or structure of Title VII, did



23

Congress indicate that § 703(h) was to be construed as 
a limitation on the grant of authority contained in § 706(g).

The construction given § 703(h) by the Court of Ap­
peals in effect reads its definitional limitations into § 706 
(g')’s remedial authorization. Although it thereby treated 
the separate subsections as a unit, the court below made 
no effort to discuss the terms of § 706(g) or reconcile them 
with the meaning it found in § 703(h). This Court’s and 
Congress’s understanding of the clear meaning of § 706(g) 
cannot be reconciled with the Court of Appeals’ interpre­
tation of § 703(h).
C. T h e  Leg isla tive  H isto ry  o f  S ec tio n  7 0 3 ( h )  Does N o t S u p ­

p o r t  th e  C o n stru c tio n  o f  th e  C ourt B elow .
The Fifth Circuit’s decision strips the district courts of 

their traditional power to devise effective equitable reme­
dies appropriate to the circumstances of each case—a 
power that is particularly crucial in civil rights litigation 
—by its reading of §703(h). Such a statutory construction 
should not be adopted in the absence of clear indications 
that Congress intended to impose a limitation on relief 
which is nowhere expressed in the statute’s terms and is on 
its face inconsistent with Title VII’s broad remedial pur­
pose. The legsilative historv29a provides no basis for the 
limiting construction of § 703(h). In construing the section 
to bar retroactive seniority, the Court of Appeals did not 
rely on, or even refer to, its sparse legislative history. 
However, other courts have carefully examined the legisla­
tive history of Title VII in ruling on closely related issues 
—and have arrived at opposite conclusions.* 30 As these

28a j u€|jeja][ gearch for the meaning of statutory provisions 
leads first to the text of the statute and then to its purpose, it is pri­
marily as an aid to deciphering an unclear or disputed purpose that 
the courts look to legislative history. Frankfurter, Som e R eflec­
tions on the  R ead ing  o f S ta tu te s , 47 Colu m . L. R ev. 527, 535-44 
(1947).

30 Compare, e.g., W a ters  v. W isconsin  S tee l W orks o f In te rn a ­
tional H a rv e s te r  Co., 502 F.2d 1309, 1317-20 (7th Cir. 1974),



24

diverse results indicate, the legislative history of § 703(h) 
does not on its face clearly reveal any Congressional in­
tention with respect to the question presented.

The bill that eventually became Title VII31 32 did not, as 
initially introduced, contain § 703(h), its language, or in­
deed any limiting provision on seniority. On the contrary, 
a dissenting* minority of the House Judiciary Committee, 
which reported the bill out with favorable recommendation, 
argued that the bill would destroy all seniority systems.82 
The bill’s proponents made no effort to refute these state­

cert. filed February 21, 1975, O.T. 1974 No. 74-1064 (legislative 
history found “supportive” of Fifth Circuit’s construction, 502 
F.2d at 1318); and Jersey Central Power & Light Co. v. Local 
Union 327 et al., 508 F.2d 687, 706-10 (3rd Cir. 1975) (Congress 
“intended” the Fifth Circuit’s result, 508 F.2d at 706) ; with 
Watkins v. United Steel Workers of America, Local No. 2369, 
369 F. Supp. 1221, 1227-29 (E.D. La, 1974), appeal docketed 5th 
Cir. No. 74-2604 (June 17, 1974) (legislative materials found un­
persuasive in contravening plain statutory language prohibiting 
seniority discrimination). Meadows v. Ford Motor Co., supra, 
which rejects the holding in this case below, does not discuss the 
history of § 703(h), but relies on the related history of § 706(g) 
discussed at p. 22, supra, as “illuminating,” see 510 F.2d at 942-3, 
949.

31 H.B. 7152 (1963), see H.R. Rep. No. 914, 88th Cong., 1st 
Sess. (1963).

32 The minority protested that,
If the proposed legislation is enacted, the President of the 

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

The provisions of this act grant the power to destroy union 
seniority. . . . with the full statutory powers granted by 
this bill, the extent of actions which would be taken to de­
stroy the seniority system is unknown and unknowable. H. 
Rep. No. 914, 88th Cong., 1st Sess. 64-66, 71-72 (emphasis 
supplied).

See also, 110 Cong. Rec, 2726 (1964) (remarks of Rep. Dowdy).



25

ments. An amendment to exempt from Title VIPs proscrip­
tions all employment practices based on a seniority sys­
tem was defeated on the House floor.33 The bill passed 
the House without any seniority provision, 110 Cong. Bee. 
2804 (1964), and went directly to the Senate floor where 
it was extensively debated in the course of a prolonged 
filibuster. There the bill’s co-sponsor, Senator Clark, placed 
in the record on April 8, 1964, three documents comment­
ing on the bill’s effect upon seniority rights. At the time 
of these insertions, the bill still contained neither § 703(h) 
nor any specific seniority language. The three documents 
are an Interpretative Memorandum prepared by the De­
partment of Justice, 110 Cong’. Bee. 7206-07,34 the “Clark- 
Case Interpretative Memorandum,” 110 Cong. Bee. 7212- 
15,35 and a set of prepared answers by Senator Clark to

33 The proposed amendment provided “ [t]he provisions of this 
title shall not be applicable to any employer whose hiring- and 
employment practices are. pursuant to (1) a seniority system 
. . . 110 Cong. Rec. 2727 (1964). I t  was rejected, 110 Cong.
Rec. 2728 11964)'.

84 The Department of Justice Memorandum states in pertinent 
p a r t :

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

35 The “Clark-Case Memorandum,” states that:
Title VII would have no effect on established seniority rights. 
Its effect is prospective and not retrospective. Thus, for ex­
ample, if a business has been discriminating in the past and 
as a result, has an all-white working force, when the title



26

questions suggested by Senator Dirksen, 110 Cong. Rec. 
7215-17.36 There was no floor debate or commentary on 
any of these materials, or of their treatment of the seniority 
issue, either when they were introduced or thereafter.

The formulation of § 703(h) began some weeks later. The 
section’s language first appeared as part of a substitute 
“Dirksen-Mansfield” bill, authored by a bipartisan leader­
ship group in order to break the filibuster by vote of clo­
ture, see 110 Cong. Rec, 12706-07 (1964). The substitute 
was introduced by Senator Dirksen on May 26, 1964, 110 
Cong. Rec. 11,926, 11,930-34, and presented by Senator 
Humphrey on June 4,1964,110 Cong. Rec. 12,708-09,12,721-

eomes into effect the employer’s obligation would be simply 
to fill future vacancies on a nondiscriminatory basis. He 
would not be obliged—or indeed, permitted—to fire whites 
in order to hire Negroes, or to prefer Negroes for future 
vacancies, or, once Negroes are hired to give them special 
seniority rights at the expense of the white workers hired 
earler. (However, where waiting lists for employment or 
training are, prior to the effective date of the title, main­
tained on a discriminatory basis, the use of such lists after 
the title takes effect may be held an unlawful subterfuge to 
accomplish discrimination.) 110 Cong. Rec. 7213.

36 Two of the prepared responses are pertinent to the question 
here.

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

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

#  *  *

“Question. If an employer is directed to abolish his em­
ployment list because of seniority discrimination, what hap­
pens to seniority?

Answer. The bill is not retroactive, and it will not require 
an employer to change existing seniority lists.”



27

22. It replaced the Clark bill in its entirety and modified 
it substantially.37 Section 703(b) appeared in its final form 
in the substitute bill, see 110 Cong. Rec. 12,813 (1964). 
Senator Humphrey, in explaining the addition of § 703(h), 
merely reiterated its terms and commented, “[t]he change 
does not narrow application of the title, but merely clarifies 
its present intent and effect,” 110 Cong. Rec. 12,723 (1984). 
The other principal author of the substitute measure, Sen­
ator Dirksen, did not explain the new section except by 
briefly repeating its terms in conclusory fashion, 110 Cong. 
Rec. 12,818-19 (1974). No other Senator, including Sen­
ators Clark and Case, attempted to debate or amend (or 
even discussed) § 703(h) before final passage of Title VII. 
After the Senate passed the Mansfield-Dirksen substitute 
and just before House passage, the bill’s House Manager, 
Rep. Celler, explained the changes made in H.R. 7152 by 
the substitute Title VII measure, 110 Cong. Rec. 15,896 
(1964). Although he noted a number of trivial changes,38 
as well as significant modifications including the provision 
of § 703(h) permitting non-disc,ri.mina.tory ability tests, 
Rep. Celler did not mention its “bona fide seniority sys­
tem” language, id. After final passage of Title VII, Rep.

37 The Senatorial deadlock that produced the substitute was not 
to any significant extent over seniority. The proscriptions on 
employment discrimination contained in the Title VII bill were 
merely one part of an historic omnibus bill which also had con­
troversial titles prohibiting, inter alia, discrimination in public 
accommodations (Title II, see 42 IJ.S.C. §§ 2000a et seq.) and in 
federally-assisted programs including public and private schools 
(Title VI, see 42 U.S.C. §§ 2000d et seq.). Even limiting the 
analysis to Title VII provisions, the critical issue was not over 
seniority but whether EEOC should have any enforcement powers 
and if so of what nature (“cease-and-desist” or right to sue in 
federal court). See, e.g., 110 Cong. Rec. 12,721-22 (1964) (remarks 
of Senator Humphrey).

38 Among the minor revisions Rep. Celler called to the attention 
of House members were the deletion of a section exempting dis­
crimination against atheists, an exemption for Indian-owned cor­
porations, and the application of the Hatch Aet to EEOC em­
ployees. 110 Cong. Rec. 15,896 (1964).



McCullough, “who had much to do with the passage and 
also the preparation of the civil rights bill,” 110 Cong. Rec.
15.998 (1964) (remarks of Sen. Dirksen), prepared a com­
parative analysis of the original House-passed bill and the 
final Senate version. That analysis notes that the House 
version lacked any § 703(h) provision, but describes the 
Senate-added section solely as authorizing use of profes­
sionally developed ability tests, 110 Cong. Rec. 16,002 
(1964). Senator Dirksen, introducing this analysis to the 
Senate, described it as “highly informative,” 110 Cong. Rec.
15.998 (1964).

Reliance on the three undebated Clark memoranda as 
expressing the legislative purpose of § 703(h) is unwar­
ranted. The memoranda were inserted in the record weeks 
before § 703(h) was conceived. None of the substitute’s 
architects, nor indeed any other Congressman, drew any 
specific link between the memoranda and the section. The 
Senators principally responsible for Title VII as enacted, 
including § 703(h), stated that it was not designed to change 
or narrow the Act’s prohibitions. The Representatives most 
knowledgeable and concerned about the House bill, which 
had overruled the strong protests of some members in 
rejecting any (Seniority limitations, did not advise the House 
that any change had been made in its position by the Senate 
version. In order to sustain the Fifth Circuit’s reading of 
§ 703(h) as imposing a severe restriction on the application 
of Title VII to seniority systems, it would be necessary 
to assume that the Congressmen most intimately involved 
in Title VII’s final enactment either were unaware of the 
secret meaning of the section, or chose to conceal it from 
their colleagues.38a

38a To adopt that assumption “would be like sanctioning the 
practice of Caligula who ‘published the law, but it was written in 
a very small hand, and posted up in a corner, so that no one could 
make a copy of it’.” Screws v. United States, 325 U.S. 91, 96 (1945) 
(opinion of Mr. Justice Douglas concurring in judgment).



29

Moreover, the courts have already indicated in a closely 
related context89 that they do not take the Clark materials 
at face value to define the content of § 703(h). Read liter­
ally, the three insertions would seem to declare Title VII 
without any effect on established seniority rights.39 40 Yet 
the courts have unanimously rejected that notion as incon­
sistent with the true Congressional purpose.41 They reason 
quite simply that a “bona fide” -seniority system within the 
meaning of § 703(h) is one that does not have racially dis­
criminatory effects; those that have such effects are “the 
result of an intention to discriminate on the basis of race” 
and are specifically exempted from the qualification of 
§ 703(h).42 The Clark statements therefore do not express

39 The context is that of the “job seniority” cases, see p. 35, 
infra.

40 See, e.g., the following statements:
“Title YII would have no effect on seniority rights existing 

at the time it takes effect.” Department of Justice Interpre­
tative Memorandum, 110 Cong. Rec. 7207 (1964).

“Title YII would have no effect on established seniority 
rights. Its effect is prospective and not retrospective.” Clark- 
Case Interpretative Memorandum, 110 Cong. Rec. 7213 
(1964).

“Answer: The bill is not retroactive, and it will not re­
quire an employer to change existing seniority lists.” Clark- 
Dirksen responses, 110 Cong. Rec. 7217 (1964).

41 See, e.g., Quarles v. Philip Morris, Inc., 279 F. Supp. 505, 
515-8 (E.D. Va. 1968) (“I t is also apparent that Congress did 
not intend to freeze an entire generation of Negro employees into 
discriminatory patterns that existed before the Act”) ; Local 189, 
United Papermakers and Paperworkers v. United States, supra, 
416 F.2d at 988, 996; Robinson v. Lorillard Corp., 444 F.2d 791 
(4th Cir. 1971), cert, dismissed 404 U.S. 1006 (1971) ; United 
States v. Bethlehem Steel Corp., 446 F.2d 652 (2nd Cir. 1971) ; 
and see Watkins v. United Steel Workers of America, Local No. 
2369, supra, 369 F. Supp. at 1228-9.

42 Quarles v. Philip Morris, Inc., supra, 279 F. Supp. at 517; 
Local 189, United Papermakers and Paperworkers v. United 
States, supra, 416 F.2d at 995-6; United States v. Bethlehem 
Steel Corp., supra, 446 F.2d at 659.



30

the will of Congress as to seniority. Cooper and Sobol, 
Seniority and Testing Under Fair Employment Laivs: A 
General Approach to Objective Criteria of Hiring and Pro­
motion, 82 H abv. L. R ev . 1598, 1611-1614 (1969).

Even if the Clark memoranda could be treated as ex­
pressing Congressional intentions, their application to the 
present case (and a tvide range of other current Title VII 
seniority issues) is at best problematical. The materials 
purport to discuss only the issue of what changes would 
be wrought in seniority by the enactment of Title VII. 
They do not address the question of remedies available 
upon a finding of discrimination that has continued after 
the effective date of the Act. The continuation of Bow­
man’s racial policy of exclusion long after it had been 
legally condemned, an eventuality not contemplated in the 
Clark materials on seniority, creates a context in which 
the application of dubious legislative history to produce 
remedial restrictions would be particularly inappropriate, 
cf. Watson v. City of Memphis, 373 IT.S. 526, 529-30 (1963).

There is simply no clear legislative history to support 
the meaning affixed to § 703(h) by the Fifth Circuit. This 
conclusion is not surprising; as this and other courts have 
remarked, Title VII’s broad terms and tortured Congres­
sional history often provide faint guidance along the path 
to specific constructions. Alexander v. Gardner-Denver Co., 
supra, 415 IT.S. at 57.43 Mr. Justice Frankfurter, analyzing 
§8(3) of the National Labor Relations Act, 29 IT.S.O.
§ 158(a)(3), aptly wrote:

3 In Local 189, United Papermakers and Paperworkers v. 
United States, supra, 416 F.2d at 987—the decision that the court 
below purported to follow—the Fifth Circuit noted that “the 
legislative history of the Title [VII] is singularly uninstruetive 
on seniority rights.” See also, Johnson v. Sea,hoard A ir Line R

n?o ,F '2d 645’ 649’ 651 (4th Cir- 1968)> c e r t  den ied  394 U.b. 918 (1969); M iller  v. In te rn a tio n a l P a p er  Co., 408 F.2d 283, 
286 n. 13 (5th Cir. 1969); Y o u ts is  v. U nion Carbide Corp., 452 
F.2d 889, 891-2 (2nd Cir. 1971), cert, den ied  406 U.S. 918 (1972).



31

Unlike mathematical symbols, the phrasing of such 
social legislation as this seldom attains more than ap­
proximate precision of definition. That is why all 
relevant aids are summoned to determine meaning. Of 
compelling consideration is the fact that words ac­
quire scope and function from the history of the events 
which they summarize.

Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. 177, 185-186 
(1941). That remark is equally applicable to Title VII and 
its §703, which like §8(3) is the basic guarantee against 
discrimination given to individual workers by a major 
remedial labor law. And a review of the broad context 
of § 703(h) confirms that Congress did not intend the 
Fifth Circuit’s construction to prevail. See parts B and 
D, infra.

D. S ec tio n  7 0 3 ( h )  S h o u ld  B e  C o nstrued  in  K eep in g  W ith  
N ationa l L a b o r P o licy  to  P e rm it R em ed ia l G rants o f  
R etro a c tive  S en io r ity  by D istric t C ourts.

Here as in Griggs v. Duke Power Co., supra, the em­
ployer and union are engaged in seniority practices that 
perpetuate past hiring discrimination, and Petitioners seek 
a Title VII remedy for those practices. In construing 
§ 703(h) to bar retroactive seniority in all cases, the court 
below contravened the strong public policy favoring effec­
tive seniority remedies for victims of unlawful employ­
ment practices. To effectuate that policy, as enunciated 
and applied in decisions under both Title VII and other 
federal laws governing labor, this Court should reject the 
Fifth Circuit’s interpretation.

1. Affirmative remedies for civil rights violations.

In Title VII cases as in other civil rights areas, “the 
court has not merely the power hut the duty to render a 
decree which will so far as possible eliminate the discrim­



32

inatory effects of the past as well as bar like discrimina­
tion in the future.” Louisiana v. United States, 380 IJ.S. 
145, 154 (1965).44 In keeping with this remedial principle, 
this Court has recognized that practices racially neutral on 
their face may become unlawful when they act as impedi­
ments to the complete disestablishment of previously overt 
segregation. Green v. School Board of Neiv Kent County, 
391 U.S. 430, 439-41 (1968) (need to eliminate pattern of 
school segregation “root and branch” renders “freedom 
of choice” plan unlawful); Monroe v. Board of Commis­
sioners, 391 U.S. 450, 459 (1968) (“free transfer” plan un­
acceptable unless it furthers elimination of prior segrega­
tion) ; Griggs v. Duke Potver Co., 401 U.'S. 424, 430 (1971). 
The Court has therefore approved district courts’ broad 
use of their “historical equitable remedial powers,” Swann 
v. Charlotte-Mecklenburg Board of Education, 402 U.S. 
1, 17 (1971), to provide a complete remedy. Congress has 
adopted that principle and drafted, in § 706(g), 42 U.S.C. 
1 2000e-5(g), a remedial provision giving courts plenary 
power to fulfill their duty, see p. 22, supra. In particular 
Congress has directed that victims of discxfimination “be, 
so far as possible, restored to a position where they would 
have been were it not for the unlawful discrimination,” 
118 Cong. Rec. 7168 (1972). The circuit courts have con­
sistently recognized the directive “to make the victims of 
unlawful discrimination whole,” id.,45 as a means of assur­
ing effective relief to victims of discrimination.46

44 See also, Local 53, International Association of Heat and 
Frost Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047, 
1052-3 (5th Cir. 1969).

45 United States v. Georgia Power Co., 474 F.2d 906, 927 (5th 
Cir. 1973); Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719-20 
(7th Cir. 1969) ; Head v. Timken Poller Bearing Co., 486 F.2d 
870, 876 (6th Cir. 1973).

46 Vogler v. McCarty, Inc., 451 F.2d 1236, 1238 (5th Cir. 1971);
Patterson v. Newspaper & Mail Deliverers’ Union,------F .2 d -------,



33

In holding that § 703(h) automatically validates all em­
ployment-date seniority systems, the Court of Appeals ig­
nored the distinction between facially neutral practices 
which freeze prior patterns of discrimination, and truly 
fair practices in an environment untainted by past segre­
gation or practices which actually help to eliminate the 
effects of past discrimination. The prohibitory construc­
tion adopted below converts § 703(h) into an obstacle 
preventing the courts from fulfilling their duty and the 
legislative intent that affirmative relief be available to cure 
racism’s lingering effects. Such, a construction subverts 
Title VIPs whole purpose.

2. The remedial policy of the NLR V.

The Fifth Circuit’s holding would exclude from the 
courts’ arsenal of Title VII powers a remedy both avail­
able and routinely awarded in similar actions under the 
National Labor Relations Act, 29 U.S.O. §§ 151 et seq. 
Practice under the NLRA is particularly pertinent to the 
Title VII issue here because Congress intended § 706(g) 
to confer authority similar to that of the NLRA’s remedial 
provision, § 10(c), 29 IT.S.C. § 160(c). 110 Cong. Rec. 6549 
(1964) (remarks of Senator Humphrey), H.R. Rep. No. 
914, 88th Cong. 1st Sess. 112 (1963).47

In applying § 10(c), this Court has followed the principle 
that victims of unlawful labor practices are entitled to 
reinstatement to the same position they would have held

9 EPD 1(10,033 (2nd Cir. 1975) ; NAACP  v. Allen, 493 F.2d 614, 
619 (5th Cir. 1974); Bios v. Enterprise Ass’n Steamfitters Local 
638, 501 F.2d 622, 629 (2nd Cir. 1974).

47 See United States v. Georgia Power Co., supra, 474 F.2d at 
921 n. 19; Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 
252 (5th Cir. 1974) ; Developments in the Law-Employment Dis­
crimination and the Civil Bights Act of 1964, 84 H arv L R ev 
1109, 1259 n. 349 (1971).



34

but for the illegal acts. N.L.R.B. v. Rutter-Rex Mfg. Co., 
396 U.S. 258, 263 (1969). Any lesser remedy is inadequate 
because it leaves the employee worse off as a result of 
the unlawful practice. Id.; Golden State Bottling Co. v. 
N.L.R.B., 414 U.S. 168, 187-8 (1973), aff’g 467 F.2d 164, 
166 (9th Cir. 1972). In fashioning remedies pursuant to 
§ 10(c) for unlawful hiring practices, the NLRB and the 
courts have awarded the same relief ordinarily available 
to unlawfully discharged employees—reinstatement with 
full seniority to the date of the unlawful act.48 These 
decisions are mandated by this Court’s holding in Phelps- 
Dodge Corp. v. N.L.R.B., supra, 313 at 188:

Experience having demonstrated that discrimination 
in hiring is twin to discrimination in firing, it would 
indeed be surprising if Congress gave a remedy for 
the one which it denied for the other. . . .  To differen­
tiate between discrimination in denying employment 
and in terminating it, would be a differentiation not 
only without substance but in defiance of that against 
which the prohibition of discrimination is directed.

There is no doubt that an employee discriminatorily dis­
charged in violation of Title VII is entitled, as part of his 
§ 706(g) remedy, to reinstatement with retroactive senior­
ity to the date of his unlawful discharge.49 In its holding

48 Atlantic Maintenance Co. v. N.L.R.B., 305 F.2d 604 (3rd 
Cir. 1962), en fg  134 NLRB 1328 (1961); N.L.R.B. v. Lamar 
Creamery Co., 246 F.2d 8, 10 (5th Cir. 1957), en fg  115 NLRB 
1113 (1956); N.L.R.B. v. Cone Bros. Contracting Co., 317 F.2d 
3, 7 (5th Cir. 1963).

49 Newman v. Avco Corp., ------ F. S u p p .------, 8 EPD f|9769
(M.D. Tenn. 1974), granting relief on remand from  451 F.2d 743
(6th Cir. 1971) ; Pettway v. American Cast Iron Pipe Co., ------
F. S upp .------, 4 EPD ([7651 (N.D. Ala. 1970), granting relief on
remand from  411 F.2d 998 (5th Cir. 1969) ; Shaffield v. Northrop
Worldwide Aircraft Services, Inc., ------ F  Supp ------ 7 EPD
([9223 (M.D. Ala. 1974).



35

here, the Fifth Circuit therefore drove a wedge between 
relief available under § 706(g) for discriminatory dis­
charge and for discriminatory refusal to hire. That result 
is not only contrary to the recognition expressed in Phelps- 
Dodge that “discrimination in hiring is twin to discrimina­
tion in firing,” 313 U.S. at 188; it is also anomalous in that 
it denies Title YII relief to persons who would be clearly 
entitled to the same remedy under the NLRA had their 
rejection been for union activities, instead of race and 
color. In enacting Title VII, Congress cannot have meant 
to afford lesser protections for minority citizens than it 
had g’ranted union members.

3. Modification of seniority systems to implement public 
policy.

The restriction on seniority relief imposed by the Fifth 
Circuit is inconsistent with several related lines of deci­
sions which modify seniority systems for reasons of public 
policy. In cases involving “job seniority” or “department 
seniority” systems against a backdrop of historical dis­
crimination the courts have consistently ordered substitu­
tion of “company” (employment date) seniority as a re­
medial measure.60 These decisions measure seniority by 
employment date not because that standard is necessarily 
lawful, but because in the circumstances of those cases it 
gave meaningful relief from the effects of past discrim­
ination against a class of incumbent employees. The court 
below incorrectly read this line of decisions as requiring 50 * * * * * * * * *

50 Indeed, the instant ease presented this same issue, and the
Court of Appeals resolved it in plaintiffs’ favor, 495 F.2d at 414-7,
Pet. A24-A29. See also, Local 189, United Papermakers and
Paperworkers v. United States, supra; United States v. Jackson­
ville Terminal Co., 451 F.2d 418, 448-55 (5th Cir. 1971); Robin­
son v. Lorillard Corp., supra; United States v. Chesapeake & Ohio
R. Co., 471 F.2d 582, 587-94 (4th Cir. 1973), cert, denied 411
U.S. 939 (1973); United States v. N.L. Industries, Inc., 479
F.2d 354, 361-6 (8th Cir. 1973) ; Head v. Timken Roller Bearing
Co., 486 F.2d 870, 875-6 (6th. Cir. 1973).



36

adherence to “company” seniority in cases involving re­
jected job applicants, 495 F.2d at 417-8, Pet. A30. The 
same remedial principle on the facts of this case requires 
a different seniority remedy for Class 3 members, who 
were denied any opportunity to work for the Company 
and thereby to build “company” seniority.61

In a series of decisions involving discriminatory union 
hiring hall and referral practices, the courts have rejected 
use of employment date seniority as a measure of priority 
for work.62 Instead, the courts require referral of black 
workers even though they lack the seniority that union 
discrimination prevented them from obtaining. As a re­
sult newly-admitted blacks are thereby enabled to com­
pete successfully with whites of much greater actual tenure 
of membership or employment. The court below held 
orders permitting such competition impermissible in this 
case.

As both the departmental-seniority cases and the union- 
referral cases recognize, effective seniority remedies for 
persons injured by discrimination inevitably affect the se­
niority expectations of white workers who may have to 
compete with them using remedial seniority measures.

. . . Title VII guarantees that all employees are en­
titled to the same expectations regardless of ‘race,

61 See Rowe v. General Motors Corp., 457 F.2d 348, 358 (5th 
Cir. 1972) (employer could not use actual length of employment 
as factor governing promotions, where effect would be to make 
previously excluded blacks “once again . . .  go to the foot of the
line”).

62 United States v. Sheet Metal Workers, Local 36, 416 F.2d 
123, 131 (8th Cir. 1969); Bobbins v. Electrical Workers Local 
212, 292 F. Supp. 413 (S.D. Ohio 1968), aff’d as later modified 
sub nom. United States v. Local Union 212, 472 F.2d 634 (6th 
Cir. 1973) ; EEOC v. Plumbers Local Union No. 189, 311 F. Supp. 
468, 474-6 (S.D. Ohio 1970), rac’d on other grounds 438 F.2d 
408 (6th Cir. 1971), cert, denied 404 U.S. 832 (1971).



37

color, religion, sex, or national origin.’ Where some 
employees now have lower expectations than their co­
workers because of the influence of one of these for­
bidden factors, they are entitled to have their expec­
tations raised even if the expectations of others must 
be lowered in order to achieve the statutorily man­
dated equality of opportunity. Robinson v. Lorillard 
Corp., 444 F.2d 791, 800 (4th Cir. 1971), cert, dismissed 
404 U.S. 1006 (1971).63

Seniority expectations have been subjected to modifica­
tion not only for remedial purposes under Title VII, but 
also to implement other strong public policies. Under the 
Selective Training and Service Act of 1940, 50 U.S.C. App. 
§§ 301 et seq., and the Selective Service Act of 1948, 50 
U.S.C. App. §§ 451 et seq., a veteran returning to his for­
mer employer must receive seniority credit for time he 
did not work while in the armed forces, 50 U.S.C. App. 
§ 459(c) (1967).64 And a collective bargaining agreement 
that gave seniority credit to veterans for periods spent 
in military service prior to initial employment was upheld 
in Ford. Motor Co. v. Huffman, 345 U.S. 330, 334-335 nn. 
6, 7, 339-340 (1953). In Huffman this Court specifically 
stated that seniority need not be defined strictly by “rela­
tive length of employment of the respective employees,” 
345 U.S. at 342,65 and indicated that, different measures of

63 See also, United States v. Bethlehem Steel Corp., supra, 446 
F.2d at 663; Vogler v. McCarty, Inc., supra, 451 F.2d at 1238.

54 See also, 5 U.S.C. § 3502(a) (1966) (federal employee re­
ceives credit for time spent in military service for purpose of 
resisting layoff based on length-of-service).

56 Accord: Aeronautical Industrial District Lodge 727 v.
Campbell, 337 U.S. 521, 527 (1949). In  both Huffman and 
Campbell, the Court construed seniority provisions of a collec­
tive bargaining agreement in such a way as to avoid injury to 
persons whom Congress intended to place in a protected category.



38

seniority might be used in order to effectuate a variety 
of public purposes, id., at 338-9.

4. Retroactive seniority serves public policy.

Because of its rigid interpretation of § 703(h), the court 
below had no occasion to consider whether its holding 
would effectuate or obstruct the public interest. Two other 
circuits have sharply disagreed with the Fifth Circuit’s 
approach. In Meadows v. Ford Motor Company, supra, a 
class action involving discriminatory refusals to hire on 
the basis of sex, the court squarely held, “ [tjhere is, 
however, no prohibition to be found in the statute which 
prohibits retroactive seniority,” 510 F.2d at 949. While 
reserving judgment on the application of retroactive sen­
iority to layoff situations, the court specifically noted 
that its reservation would not apply to fringe benefits 
dependent on .seniority.66 And in Jurinko v. Edivin L. 
Wiegand Co., 477 F.2d 1038, 1047 (3rd Cir. 1973), vacated 
and remanded on other grounds 414 U.S. 970 (1973), the 
Third Circuit reversed a district court’s refusal to award 
retroactive seniority to twro female job applicants discrim- 
inatorily rejected on the basis of sex. The court correctly 
held,

YV e can perceive no basis for the trial court to have 
refused to award back seniority or for its conclusion 
that “the plaintiffs are to be offered employment in 
production with the company, of course, as new em­
ployees.” Seniority is, of course, of great importance 
to production workers for it determines both oppor­
tunities for job advancement and the order of layoff 56 * * * *

56 “We perceive no reason why that date in these cases should
be other than the date which the trial court fixes as the date
when the employee would have been hired, absent the illegal hiring
practice which the District Court has identified and enjoined ”
510 F.2d at 949. J ’



39

in the case of a reduction in a company’s operating 
forces. It is our view that the plaintiffs are entitled 
to seniority and hack pay dating from the time of the 
discriminatory employment practice up to the time 
they are actually reinstated. Only in this way will the 
present effects of the past discrimination be eliminated. 
477 F.2d at 1046.57

It is furthermore the apparent policy of the Department of 
Justice to seek retroactive seniority as part of the remedy 
for hiring discrimination in its “pattern-and-practice” cases 
brought pursuant to 42 U.S.C. § 2000e-6.s8

Jurinko and Meadoivs correctly perceive the issne as one 
of policy not predetermined by a clear statutory prohibi­
tion. The Fifth 'Circuit’s contrary reading of the statute 
on narrow grounds cannot he reconciled with this Court’s 
recognition that “national labor policy embodies the princi­
ples of non-discrimination as a matter of highest priority,” 
Emporium Capivell Co. v. Western Addition Community 
Organization, 43 L. Ed. 2d 12, 25 (1975), Alexander v. 67 68 * * 71

67 On remand from this Court, the Third Circuit reexamined
and reaffirmed its initial opinion, -----  F.2d ------ , 7 BPD ([9215
(1974). I t  then remanded the cause to the district court, 497 
F.2d 403 (1974). The district court issued the required opinion
granting retroactive seniority, ------ F. Supp. —— (WJD. Pa.
C.A. No. 69-225, November 22, 1974).

68 See, e.g., U nited  S ta te s  v. Georgia P ow er Co., ■-----  F. Supp.
-——, 7 EPD ([9167 (N.D. Ga. 1974), en tering  decree on rem and  
fro m  474 F.2d 906 (5th Cir. 1973) ; U nited  S ta te s  v. Roadivay  
E xp ress , In c ., C.A. No. C-68-321 (N.D. Ohio September 1, 1970)
(conshn); decree), a ff’d  457 F.2d 854 (6th Cir. 1972); U nited  
S ta te s  vA N avaho F re ig h t L ines, In c ., C.A. No. 72-116-MML (C.D. 
Cal. Januhry 15, 1973) (supplementary order to consent decree) ; 
U nited  S ta te s  v. P ilo t F re ig h t C arriers, In c ., C.A. No. C-143-WS-
71 (M.D.N.C. October 31, 1972) (consent decree). All of these 
decrees were obtained prior to the decision below; to our knowl­
edge neither the Department of Justice nor the EEOC has ob­
tained similar relief in a pattern-and-practice action since that 
decision.



40

Gardner-Denver Co., supra, 415 U.S. at 47. That policy 
requires that the district courts should have and exercise 
the power to grant retroactive seniority as a remedy for 
exclusionary hiring practices like Bowman’s.

II.
T he D istrict Courts Have A uthority to Grant R etro­

active Seniority  R e lie f  U nder 4 2  U.S.C. § 1 9 8 1 .

Although the Court of Appeals referred repeatedly in 
other parts of its opinion to Petitioners’ cause of action 
under 42 U.S.C. § 1981 (see Pet. A8-A9, A39), it made no 
mention of that section in rejecting the claim for retro­
active seniority. Apparently the court assumed that a se­
niority system held immune under Title VII must neces­
sarily evade the proscription of § 1981.69 But the terms 
of § 1981 and its relationship with Title VII, which the 
court did not analyze, require reversal of its conclusion.

Section 1981 assures black persons the same right “to 
make and enforce contracts” as white citizens. The Courts 
of Appeals have unanimously concluded that those pro­
tected contract rights include the employment contract 
with a private employer.* 60 Employment under a collective

69 Cf. W a ters  v. W isconsin  S te e l W o rks  o f In te rn a tio n a l H a r ­
vester  Co., supra , 502 F.2d at 1320 n.4, wherein the Seventh 
Circuit disposed of a related § 1981 claim in one sentence: “Hav­
ing passed scrutiny under the substantive requirements of Title 
VII, the employment seniority system utilized by Wisconsin 
Steel is not violative of 42 U.S.C. § 1981.”

60 E.g., G resham  v. C ham bers, 501 F.2d 687, 690-1 (2nd Cir. 
1974) ; Y o u n g  v. In te rn a tio n a l Telephone cf T elegraph  Co., 438 
F.2d 757, 759-60 (3rd Cir. 1971); B ro w n  v. G aston C oun ty  D y e ­
ing  M achine Co., 457 F.2d 1377, 1379 (4th Cir. 1972), cert, den ied  
409 U.S. 982 (1972); Sanders v. D obbs H ouses, In c ., 431 F.2d 
1097, 1101 (5th Cir. 1970) cert, den ied  401 U.S. 948 (1971); 
C aldw ell v. N ationa l B rew in g  Co., 443 F.2d 1044, 1045 (5th Cir. 
1971) cert, den ied  405 F.2d 916 (1972); L o n g  v. F o rd  M otor Co.,



41

bargaining agreement governing, inter alia, seniority is 
such a contract. Aaron, Reflections on the Legal Nature 
and Enforceability of Seniority Rights, supra, 75 H arv. L. 
R ev. at 1533-4. The contractual rights secured by the col­
lective bargaining agreement between defendants here in­
clude the right of employees to establish seniority on the 
date of hiring and to accumulate and use it thereafter (see 
pp. 15-16, infra). Enforcement of this contract right nec­
essarily encompasses enforcement of the full rights and 
benefits of such seniority. If a black person is denied the 
same right as white citizens to make a contract for senior­
ity, § 1981 requires at least that the courts possess the 
power to restore to such black person the right “to make 
and enforce” the contract previously denied him. If courts 
lacked this power, § 1981 would confer a right without a 
remedy, a construction that is both inequitable and irra­
tional. Cf. J. I. Case Co. v. Borah, 377 U.S. 426, 433-4 
(1964); Mitchell v. Robert de Mario Jewelry, Inc., 361 U.S. 
288, 291-2 (1960); Sullivan v. Little Hunting Park, Inc., 
396 U.S. 229, 239 (1969) (construing 42 U.S.C. § 1982 to 
provide a full remedy for racial discrimination).

Section 703(h) of Title VII should not be read to bar 
a full remedy, which necessarily includes retroactive se­
niority, under § 1981. Squarely to the contrary, this Court 
has held,

496 F.2d 500, 503 (6th Cir. 1974) • W a ters  v. W isconsin  S tee l 
W orks o f In te rn a tio n a l H a rves ter  Co., 427 F.2d 476, 481-8 (7th 
Cir. 1970), cert, den ied  400 U.S. 911 (1970) ; B ra d y  v. B risto l-  
M yers Co., 459 F.2d 621, 623-4 (8th Cir. 1972); M acklin  v. 
S p ec to r  F re ig h t S ys tem s, In c ., 478 F.2d 979, 993-4 (D.C. Cir. 
1973).

This Court has not yet had occasion to rule on the applicability 
of § 1981 to private employment. But see John so n  v. R ailw ay  
E x p re ss  A g en cy , In c ., O.T. 1973 No. 73-1543, argued December 
11, 1974.



42

. .. (L)egislative enactments in this area have long 
evinced a general intent to accord parallel or over­
lapping remedies against discrimination7 . . . [T]he 
legislative history of Title VII manifests a congres­
sional intent to allow an individual to pursue indepen­
dently his rights under both Title VII and other ap­
plicable state and federal statutes. The clear infer­
ence is that Title VII was designed to supplement, 
rather than supplant, existing laws and institutions 
relating to employment discrimination.

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

Alexander v. Gardner-Denver Co., supra, 415 U.S. at 47-49. 
The reasoning of Alexander endorses both clear legislative 
history and principles settled in the lower courts. In 1964 
and 1972 Congress rejected amendments that would have 
made Title VII the exclusive judicial remedy for employ­
ment discrimination. 110 Cong. Rec. 13650-52 (1964); H. 
R. Rep. No. 92-238 at p. 79 (1971); S. Rep. No. 92-415 at 
p. 24 (1971); Alexander v. Gardner-Denver Co., supra, 415 
U.S. at 48 n. 9. Congress thus intended that §1981 offer 
a separate and independent remedy from that of Title VII, 
id.

The Courts of Appeals have properly construed these 
legislative materials to establish § 1981 as a separate and, 
in significant respects, different grant of remedial au­
thority. In Guerra v. Manchester Terminal Co., 498 F.2d 
641 (5th Cir. 1974), the Fifth Circuit held that although 
Title VII does not prohibit discrimination based on alien­
age,61 § 1981 does.62 In Macklin v. Spector Freight Sys-

61 See Espinoza v. Farah Manufacturing Co., 414 U.S. 86 (1973).
62 The court in Guerra noted that § 1981 expresses “a humane 

and remedial policy,” and stated, “Congress intended Title VII



43

terns, Inc., 478 F.2d 979, 996 (D.C. Cir. 1973), the District 
of Columbia Circuit characterized Title YII and § 1981 
as having “radically different schemes of enforcement” and 
differing “widely in their substantive provisions.” The 
court in Alpha Portland Cement Co. v. Reese, 507 F.2d 
607 (5th Cir. 1975), ruled that § 1981 might authorize class 
relief where Title VII did not.68 See also, Contractors 
Association of Eastern Pennsylvania v. Secretary of Labor, 
442 F.2d 159, 172 (3rd Cir. 1971), cert, denied 404 U.S. 
854 (1971) (§ 703(j) of Title VII, 42 U.S.C. § 2000e-2(j), 
companion section to § 703(h), cannot limit remedies based 
on laws other than Title VII.

to be an important, but not the only, weapon in the arsenal against 
employment discrimination,” 498 F.2d at 650. I t justified hold­
ing that § 1981 prohibits some forms of employment discrimina­
tion that Title VII does not touch by reasoning that in reconcil­
ing the two statutes, the goal must be :

to mitigate the harshness to those accused of employment dis­
crimination resulting from what one source has characterized 
as “multiple jeopardy,” [footnote omitted] while preserving 
and protecting for those complaining of discriminatory em­
ployment practices the full panoply of remedies guaranteed 
them by the federal laws.* 46 * * * * * * * * * * * * * *

46 We emphasize that though Title VII §1981, and Sec­
tion 8 of the NLRA may overlap in the area of employ­
ment discrimination, their confluence must not be exagger­
ated. They are separate, independent statutes. The proce­
dures under them vary; the available remedies may differ
significantly, and, as the case at bar illustrates, conduct
creating liability under one may not create liability under
another.

498 F.2d at 658.
68 The court in Reese rejected a policy argument against exten­

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



44

To hold that the broad, unqualified language of $ 1981 
is limited by the narrow terms of § 703(h) (as construed 
below) would require finding that the later statute re­
pealed or superseded the earlier one as to the seniority 
issue here. Such repeals by implication are not favored. 
Morton v. Mancari, 417 U.S. 535, (1974) (enactment of 
Title VII did not repeal remedial provisions of existing 
law); Posadas v. National City Bank, 296 IT.S. 497, 503 
(1936) (“the intention of the legislature to repeal must 
be clear and manifest”) ; United States v. Borden Co., 308 
U.S. 188, 198-9 (1939); United States v. Price, 383 U.S. 
787 (1966).64 65 Six Courts of Appeals have rejected the 
proposition that the enactment of Title VII repealed pre­
existing remedies under §19816B; no circuit has ruled 
otherwise. The circuit courts’ decisions are mandated by 
three recent decisions of this Court which refuse to read 
the detailed civil rights legislation of the 1960’s to nar­
row relief available under the more general post-Civil War 
acts. Jones v. Mayer Co., 392 U.S. 409, 416 n. 20 (1968) 
(“The Civil Rights Act of 1968 [42 U.S.C. §§3601 et s-eq.~] 
does not mention 42 U.S.C. § 1982, and we cannot assume 
that Congress intended to effect any change, either sub­
stantive or procedural, in the prior statute”) ; Sullivan v.

64 In Price the Court dealt with another post-Civil War enact­
ment to rectify racial injustices (18 U.S.C. § 241) and held that 
its “plain and unlimited” language should not be restricted. I t 
wrote, in words applicable here,

We think that history [of events surrounding its enactment] 
leaves no doubt that, if we are to give [the statute] the scope 
that its origins dictate, we must accord it a sweep as broad 
as its language. 383 U.S. at 801.

65 Gresham v. Chambers, supra, 501 F.2d at 691, Young v. Inter­
national Telephone and Telegraph Co., supra, 438 F.2d at 760-3; 
Sanders v. Dobbs Bouses, Inc., supra, 431 F.2d at 1100-01; Waters 
v. Wisconsin Steel Works of International Harvester Co., supra, 
427 F.2d at 484-5; Brady v. Bristol Myers Co., supra, 459 F.2d 
at 623-4; Macklin v. Spector Freight Systems, Inc., supra, 478 
F.2d at 993-4.



45

Little Hunting Park, Inc., supra,, 396 U.S. at 237, 238 
(Title II of Civil Rights Act of 1964, 42 U.S.C. §§ 2000a 
et seq., does not supersede provisions of 42 TT.S.C. § 1982) ; 
cf. Tillman v. Wheaton-Haven Rec. Ass’n., 410 U.S. 431 
(1973) (rejecting on factual grounds argument that ex­
emption in Title II, 42 U.S.C. §2000a(e), suits under 
§§ 1981, 1982).

Title VIPs broadly remedial policy, see pp. 21-22, supra, 
makes it particularly inappropriate to read § 703(h) as 
limiting remedies otherwise available under § 1981. The 
thrust of Title VII was to eliminate employment discrim­
ination by “supplementing” other remedies, not to cut 
back on their utility or efficacy, cf. Morton v. Mancari, 
supra, 417 U.S. at 549-50 (1974).

Like Title VII, the post-Civil War acts were broadly 
remedial in purpose, Sullivan v. Little Hunting Park, su­
pra, 396 U.S. at 237, and it would violate the spirit of 
§ 1981’s enactment to limit its remedial effect, cf. Phelps- 
Dodge Corp. v. N.L.R.B., supra, 313 U.S. at 186. More­
over, the extension to § 1981 of any limitations contained 
in § 703(h) directly contradicts the Congressional under­
standing that earlier legislation would not be undermined. 
The construction of § 703(h) by the Fifth Circuit there­
fore offends the purpose of both statutes as well as the 
canon against repeals by implication. The manifold prob­
lems occasioned by this interpretation can be avoided by 
simply concluding that § 1981 means what it says, and 
§ 703(h) required no change in that meaning. This Court 
should hold that the trial court is empowered to grant 
plaintiffs their remedy of retroactive seniority under 42 
U.S.C. §1981.



46

CONCLUSION
The issue here, although narrow, lias broad implica­

tions. The Court must decide only whether by enacting 
§ 703(h) Congress deprived district courts of the statutory 
and equitable power to grant relief from employment dis­
crimination whenever the relief would entail an award of 
retroactive seniority to rejected job applicants. The Court 
need not here decide precisely what forms of relief may 
be appropriate. That task falls in the first instance to the 
district courts. Nor does the Court face the question of 
when such relief is appropriate in a case of any particular 
type, e.g., a layoff case, a recall case, a promotion case, 
a hiring case, or a benefits case. Yet if the doctrine an­
nounced below becomes law, no complete remedy may be 
granted in any case of hiring discrimination.

For the reasons stated herein, this Court should hold 
that § 703(h) does not stand as a barrier to appropriate 
retroactive seniority relief under Title YII and 42 II.S.C. 
§ 1981. The judgment of the Fifth Circuit should be 
reversed.

Respectfully submitted,
J ack  G reen berg

J am es  M. N abrit , III
M orris J .  B aller
B arry L. G o ldstein
E ric  S c h n a p p e r

10 Columbus Circle 
New York, New York 10019

J o h n  R . M yer

Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree 'Street, N. W.
Atlanta, Georgia 30303

E l iz a b e t h  R . R in d sk o pe  
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



MEILEN PRESS INC. —  N. Y. C. <sgig»» 219